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Hanmant Gurunath Kulkarni Vs. Ramappa Lagamappa Ilager - Court Judgment

LegalCrystal Citation
SubjectLimitation;Family
CourtMumbai
Decided On
Case Number Second Appeal No. 429 of 1923
Judge
Reported inAIR1925Bom292; (1925)27BOMLR211
AppellantHanmant Gurunath Kulkarni
RespondentRamappa Lagamappa Ilager
Excerpt:
indian limitation act (ix of 1908), article 44 - alienation by guardian-ward attaining majority--alienation by ward-suit by ward and alienee to net aside alienation by guardian.;the cause of action for setting aside an improper alienation by the guardian of a minor arises from the date of the alienation. but the remedy contemplated by article 44 of the indian limitation act is open to a ward for three years from the date of his attaining majority, and that remedy is not lost by the mere fact that, be purports to transfer his interest in the property, such as it at the date of thy transfer, to a third party. the suit must, however, be instituted in the name of and by the ward. - - 2 had clearly a right under article 44 within three years from the date of attaining majority to have the..........by way of consideration for the transfer of the property. if the right of plaintiff no. 2 at the date of transfer to plaintiff no. 1 he held to be a mere right to sue, it cannot be transferred under section 6(0) of the transfer of property act: and his right to sue would continue in spite of the transfer.10. section 6 of the indian 'limitation act has nothing to do with this case, and we do not think tint the cases relating to section 6 can help us in deciding the point that arises here. the analogy of a g, relied upon by the learned pleader for the appellant, cannot be applied against the plain meaning of the article and it hardly applies to the facts of the present case.11. no doubt it may be said in this case that the suit is substantially by the transferee, and that plaintiff no. 2.....
Judgment:

Lallubhai Shah, Kt., Acting C.J.

1. The facts which have given rise to this second appeal are these. The properly in anil belonged to plaintiff No.2 while he was a minor. His mother, us his natural guardian, sold it to defendant No.1 for Rs. 700 on May 15, 1905. The defendant No. I obtained possession. On April 2,; 909 he sold the property to defendant No 2, and defendant No 2 has been in possession since then. Plaintiff No. 2 attained majority on April 11 1916, and he conveyed his interest in these lands, with another land to plaintiff No.1 for Rs. 1J500 on September 13, 1916. The present suit was filed on December 20, 1918, by plaintiff No. 1, who purchased the interest of plaintiff No 2, to set aside the alienation made by the mother of plaintiff No. 2 during his minority, an < for possession;and mesne profits.

2. The defendant No. 1 pleaded that the sale by the guardian of plaintiff No. 2 was for necessity, and that the plaintiff's claim was time-barred. Defendant No. 2 raised the same pleas.

3. The trial Court, found that the alienation by plaintiff No.2's mother to defendant No. 1 was nut for necessity. In dealing with the question relating to the alienation by the guardian during the minority of plaintiff No. 2, the Court observed that the .alienation was not binding on plaintiff No. 2, and must be set aside.

4. As regards limitation, apparently the point was first given; up, but ultimately it was taken at the close of the case, and the the Court allowed that point to be taken. On that question the trial Court found that the cause of action arose on the minor's attaining majority, and that any suit to set aside the transfer could be brought within three years from that date, The Court wag of opinion that Section 6 of the Indian Limitation Act did not apply to such a case, and held the suit to be within time. Instead, however, of setting aside the sale formally, the Court parsed a decree In favour of plaintiff No 1 for possession and mesne profits. He dismissed the suit as regards plaintiff - No. 2.

5. Defendant No. 2 appealed against plaintiff No. 1 only. Plaintiff No 2 was not joined as a party-respondent to the appeal. The same two questions were raised before the Court of appeal as to limitation, and as to necessity for the alienation by the mother of plaintiff No. 2. The learned Assistant Judge, who heard the appeal, found that the sale by the mother was not for legal necessity, and that it was not binding on plaintiff No. 2. The learned Judge was further of opinion that the claim was not barred as the cause of action accrued to the minor only on his attaining majority, and that as the case was governed by Article 44 of the Indian Limitation Act, the suit was not barred. The decree of the trial Court was confirmed.

6. Defendant No. 2 has appealed to this Court against plaintiff No. 1 only. In the appeal the finding that there was no necessity for the sale by the guardian and that it was not binding upon plaintiff No. 2, is not challenged.

7. The only point urged in support of the appeal is that the claim of plaintiff No. 1 is time barred. It is urged that the suit is dismissed as regards plaintiff No. 2, and as regards plaintiff No. 1 the cause of action really accrued on the date of the alienation; that Art, 44 of the Indian Limitation Act cannot apply to an assignee from the minor who has attained majority, and the claim not having been filed within twelve years from the date of the alienation,, so far as plaintiff No. 1 is concerned, the claim is time-barred. In apport of this contention reliance EM place 1 upon the ratio decidandi in Doraisami Serumadan v. Nondisami Suluvan I. L. R (1912) . Mad. 118 . On the analogy of the view taken in Rudra Kant Surma, Sircar v. Ndho Kishore Surma Biswas I. L. R. R (1883) Cal. 663 Mahadev v. Babi I. L. R. (1902) 26 Bom. 730 : 4 Bom. L. R. 513 and Rangaswami Chetti v. Thangavelu Chetti I. L. R.(1909) Mad. 637 that an assignee of a minor's interest cannot get the benefit of Section 6 of the Indian , Limitation Act, it is urged that the assignee of plaintiff No. 2's interest cannot get the benefit of Art, 41 of the Indian Limitation Act.

8. On the other hand, it is urged that whatever may be the difficulty in the way of plaintiff No. 1 claiming possession after setting aside the sale, as plaintiff No. 2 joined him in the suit, and as plaintiff No. 2 had clearly a right under Article 44 within three years from the date of attaining majority to have the sale set aside, there is no reason why the claim should be treated as time-barred. It is also pointed out that the relief as to setting aside the sale should have been granted to both the plaintiffs by the trial Court and that possession might have been allowed to plaintiff 'No. 1 in virtue of the sale-deed in his favour. It is urged that if the decree had been in that form, it could not have been suggested that the claim was time barred. But as the decree passed in substance is to that effect, there is really no scope for the plea of limitation It is further urged that B. 6 of the Indian Limitation Act has nothing to do with the present case, that Article 44 is a special article which gives to a ward on his attaining majority the right to sue to set aside the sale within three years from the date of his attaining majority, and that though the cause of action for setting aside the sale may arise from the date of the alienation, the particular remedy open to the ward, who has attained majority, contemplated by Article 44, is open to him for three years from the date of Iris attaining majority. It is not disputed before us by the learned pleader for respondent that if the suit had been filed by plaintiff No. 1 alone, Article 44 would not apply to that suit, and he would have to show that his right to set aside the alienation was within time according to the law of limitation apart from that article, i. e., within twelve years from the date of the alienation.

9. On a consideration of the arguments, it seems to me that on the facts of the case the claim made by the plaintiff is not time-barred. It is clear under Article 44 that a ward, who has attained majority, can sue to set aside a transfer of property by his guardian within three years from the date of his attaining majority. In fact it haw been held by a Full Bench in Fakirappa v. Lumanna I. L. R.(1919) 44 Bom. 742 22 Bom. L. R. 680 that 'a Hindu minor on his attaining majority cannot sue to recover possession of property transferred by his mother acting as his natural guardian during his .minority without suing to set aside the transfer within the period of limitation provided by Article 44 of the Indian Limitation Act.' Therefore, if the alienation by the mother was to be set aside, the ward had to sue under Article 44 within three years to set aside the sale. He has in fact done BO, and it is difficult to see how the claim made for setting aside the sale can be said to be time-barred, so far as he is concerned. The fact that ho 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. It would be difficult to apply this Article 44 to the case of a transferee from the ward. We are not by any means clear that Article 44 would apply to a suit filed by a transferee from the ward. It is, however, not necessary on the facts of this case to decide the question. It is enough to point out the difficulty of applying Article 44 to a simple suit by a transferee of the ward. The article refers to a suit by a ward who has attained majority. Assuming, without deciding, that Article 44 would not apply to a suit by a transferee; it does not follow that where the ward joins with the transferee in suing to set aside the sale, the ward cannot do so. if the suit is brought within three years from the date of his attaining majority. We do not say that the cause of action in the case of a suit under Article 44 by a ward arises on his attaining majority. The cause of action for setting aside an improper alienation by the guardian of a minor arises from the date of the alienation. But the remedy contemplated by Article 44 is open to a ward for three years from the date of his attaining majority, and that remedy is not lost, in our opinion, by the mere fact that he purports to transfer his interest in the property, such as it is at the date of the transfer, to a third party. At the date of the transfer by plaintiff No. 2, he had a right to sue to set aside the sale. Until it was set aside, the ^ale was good, HO far as he was concerned, and his interest in the property was subject to the result of a suit. In order to make his transfer to a third party effective where the transfer is effected, as in this case, at a time when the claim of the transferee as such for possession was time-barred, he had to sue to sot aside the Hale, and to establish his title to the property by showing that the sale was not binding upon him. We see no objection on principle to the ward joining in a suit to set ankle the sale, though as a result of setting aside the sale, the property would go to his transferee. .Though in one sense the benefit, goes to the transferee, the transferor gets the full benefit by way of consideration for the transfer of the property. If the right of plaintiff No. 2 at the date of transfer to plaintiff No. 1 he held to be a mere right to sue, it cannot be transferred under Section 6(0) of the Transfer of Property Act: and his right to sue would continue in spite of the transfer.

10. Section 6 of the Indian 'Limitation Act has nothing to do with this case, and we do not think tint the cases relating to Section 6 can help us in deciding the point that arises here. The analogy of a G, relied upon by the learned pleader for the appellant, cannot be applied against the plain meaning of the Article and it hardly applies to the facts of the present case.

11. No doubt it may be said in this case that the suit is substantially by the transferee, and that plaintiff No. 2 is joined only to save limitation, even though he had no interest in the suit. We agree that plaintiff No. 2 is joined to save limitation, but we are of opinion that it is open to the parties to save limitation by adopting that course in view of the provisions of Article 44 We are satisfied that the plaintiff No. 2 wan entitled to sue to set aside the sale in spite of the transfer in favour of plaintiff No. 1. Though the point is not wholly free from difficulty, after giving the best consideration to the arguments on either side, we have come to the conclusion that, on the facts of this case, the claim is m t barred,

12. It may be that it was not strictly correct for the trial Court to dismiss the suit as to plaintiff No. 2. But in substance the Hale is set aside and the possession ordered to be given to pontiff No 1, who is undoubtedly entitled to possession, if the sale can be set aside.

13. The decree appealed from is substantially right. We confirm it and dismiss the appeal with costs.


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