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Bandu Annaji Naik Vs. Yeshwant Ramrao Desai - Court Judgment

LegalCrystal Citation
SubjectProperty;Limitation
CourtMumbai
Decided On
Case NumberSecond Appeal No. 444 of 1934
Judge
Reported inAIR1938Bom358; (1938)40BOMLR548
AppellantBandu Annaji Naik
RespondentYeshwant Ramrao Desai
DispositionAppeal dismissed
Excerpt:
.....no, 2 became a major she sold the property to plaintiff no. 1. both the plaintiffs then filed a suit to recover possession of the property from alienees of the mother :-; that the suit having been within time by virtue of section 6 of the indian limitation act, 1908, had plaintiff no. 2 sued alone, the suit was within time though brought by plaintiff no, 2 jointly with plaintiff no. 1. - section 3: [s.b. mhase, d.s. bhosale & a.s. oka, jj] offences of atrocities - complaint under held, merely because the caste of the accused is not mentioned in the fir stating whether he belongs to scheduled caste or scheduled tribe, it cannot be a ground for quashing the complaint. after ascertaining the facts during he course of investigation it is always open to the investigating officer to..........this appeal has been preferred by defendants nos. 1 and 2 against a decree for possession of the suit property in favour of the plaintiffs. the facts shortly are :-the property belonged originally to one gangaram, whose daughter is plaintiff no. 2. after his death in september, 1909, the property came into the possession of his widow irawa. the second plaintiff was bom in the same month on september 14, 1909. irawa re-married in 1912, and after her remarriage she sold the suit property to defendant no. 7 in 1913. in 1918, defendant no. 7 sold it to defendant no. 1, who, along with his brother defendant no. 2, is in possession thereof. in may, 1930, plaintiff no. 2 sold her right to recover the property as areversioner to the first plaintiff, and both the plaintiffs, i.e. the daughter.....
Judgment:

Divatia, J.

1. This appeal has been preferred by defendants Nos. 1 and 2 against a decree for possession of the suit property in favour of the plaintiffs. The facts shortly are :-The property belonged originally to one Gangaram, whose daughter is plaintiff No. 2. After his death in September, 1909, the property came into the possession of his widow Irawa. The second plaintiff was bom in the same month on September 14, 1909. Irawa re-married in 1912, and after her remarriage she sold the suit property to defendant No. 7 in 1913. In 1918, defendant No. 7 sold it to defendant No. 1, who, along with his brother defendant No. 2, is in possession thereof. In May, 1930, plaintiff No. 2 sold her right to recover the property as areversioner to the first plaintiff, and both the plaintiffs, i.e. the daughter as well as her vendee, have brought the present suit in 1930.

2. Plaintiffs' case was that the sale by Irawa to defendant No. 7 and the subsequent sale,to defendant No. 1 were both unauthorised and without necessity and therefore void, and that, therefore, the second plaintiff had a right to recover the property as a reversioner.

3. Defendants claim that the sale-deed by Irawa to their vendor was justified by legal necessity and that they were bona fide purchasers for value without notice. There were other contentions which are not material for the purpose of this appeal.

4. The material issues were, whether the sales were proved, whether the sale-deeds executed in favour of the defendants were for legal necessity, and whether the suit was in time. It has been found by both the Courts that the sale-deed passed by the widow Irawa was without legal necessity and that it took place after Irawa's remarriage when she had no right to do so and that, therefore, the reversioner was entitled to possession of the property from the defendants.

5. The principal issue was the one relating to limitation. Now, on that point it was rightly conceded in both the Courts that so far as the second plaintiff was concerned, the present suit was in time, because she was born in 1909, and she having the benefit of Section 6 of the Indian Limitation Act, the suit in so far as it was by her in 1930 was within time. But it was contended that she had parted with all her rights in the property in favour of the first plaintiff, and that although the second plaintiff can claim the benefit of Section 6 of the Indian Limitation Act by virtue of her minority, that benefit cannot be claimed by her assignee, the first plaintiff, and that, therefore, neither of the plaintiffs can maintain the present suit; the first plaintiff cannot do so because he cannot claim the benefit of Section 6, and the second plaintiff cannot, because she had no interest in the property after she sold itto the first plaintiff. The trial Court, however, held, relying on the case of Hanmant v. Ramappa (1924) 27 Bom. L.R. 211 that if the second plaintiff had a subsisting right to sue at the date when the suit was brought, the benefit of that right can be claimed by the first plaintiff in a suit where both of them, joined as plaintiffs, although it may not be done if the first plaintiff had alone brought the suit.

6. On appeal, the learned appellate Judge has also come to the same conclusion though for different reasons. According to him, the second plaintiff having sold the property to the first plaintiff and she having contracted to give possession of the property, she was bound to join in the suit to recover its possession; that she was, therefore, not merely a formal plaintiff but a necessary plaintiff; and that a decree for possession can be passed in her favour even though she had sold her right to recover the property to the first plaintiff.

7. In this appeal the defendants have challenged the decisions of the lower Courts on the ground that both the lower Courts were in error in holding that the suit was not time-barred. It is conceded here also that if the suit had been brought by the second plaintiff alone without selling her right to recover the property to the first plaintiff, it would have been in time ; but, it is contended that having parted with all her rights in the property in favour of the first plaintiff, she had no right to bring a suit to recover that property, and the first plaintiff cannot file the suit because he cannot get the benefit of Section 6 of the Indian Limitation Act. It is further contended that it is recited in the sale-deed between the plaintiffs that the property was wrongfully in possession of others, that the first plaintiff should recover possession of the same after taking the necessary legal steps, and that therefore, there was no contract by her to recover possession of the property and hand it over to her vendee.

8. Now, it is quite clear on the authorities, viz. Rudra Kant Surma Sircar v. Nobo Kishore Surma Biswas I.L.R. (1883) Cal. 663, Mahadev v. Babi I.L.R. (1902) Bom. 730 : 4 Bom. L.R. 513 and Mariyayya v. Chan-virangouda : AIR1935Bom420 that an assignee from a person, who was a minor, cannot claim the benefit of Section 6 of the Indian Limitation Act, and therefore, if the present suit had been brought by the first plaintiff alone, it would have been barred by time. But the question is, what would be the effect if both the persons joined in bringing the suit. On behalf of the appellants the case of Hanmant v. Ramappa (1924) 27 Bom. L.R. 211 where both the vendor and the vendee had brought a suit and had got a decree in their favour, has been sought to be distinguished on the ground that it was a case under Article 44 of the Indian Limitation Act where the minor had a right to have a certain alienation avoided and it was held that as at the date of the transfer, he had a right to sue for setting aside the sale, the suit brought by both of them was maintainable. But it is urged that it is expressly observed in that case that Section 6 of the Indian Limitation Act had nothing to do with that case and that the analogy of that section cannot be applied to it. It is, therefore, contended that that case was no authority for the present case which is not the case of a person transferring her right to have a sale avoided, but one where a person had transferred her right to sue for setting aside a sale which was void in its inception as having been made by the widow after her remarriage.

9. It is conceded on behalf of the appellants that the second plaintiff had a right to assign her right to recover the property to the first plaintiff and that such assignment is not void under Section 6 of the Transfer of Property Act. That being so, the question would be, whether, when the second plaintiff assigned her right to the first plaintiff, she parted with all her interest in the property in such a manner that she had lost the right even to be joined as a co-plaintiff in a suit by her vendee to recover possession of the property sold by her. I think that that right is not lost in any case, and that the observations in Hanmant v. Ramappa (1924) 27 Bom. L.R. 211 would equally apply to the facts of the present case. It is observed there (p. 225) :-' The fact that he conveyed his interest in the property to plaintiff No. 1, before he filed the suit, does not mean, in our opinion, that he has no interest in maintaining the suit to set aside the alienation.' That principle would apply to the present case, and it does not matter that the case of Hanmant v. Ramappa was under Article 44, while the present case is not governed by that article. It is true that in the sale deed she has stated that the vendee was to ' recover possession of the same after taking the necessary legal steps,' but that does not necessarily mean that the vendee had no right to ask her to join as a co-plaintiff in suing to recover possession of the property. In fact, after having sold the property and recovered consideration for the same from the first plaintiff, she was bound to join the first plaintiff in this suit in order to fulfil her obligations Under the sale-deed. I do not see why the present suit, in so far as plaintiff No. 2 is concerned, is not maintainable in spite of the sale-deed. Section 55 of the Transfer of Property Act requires that the vendor must put the vendee in possession of the property, and the recitals in the sale-deed, to my mind, do not amount to a contract to the contrary in so far as the right of the first plaintiff to require the second plaintiff to join in the suit for possession is concerned.

10. I think, therefore, the decree of the lower appellate Court is correct and the appeal is dismissed with costs.


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