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Mahadu Ukarda Dhangar Vs. Tulsabai Namdeo - Court Judgment

LegalCrystal Citation
SubjectProperty;Family
CourtMumbai High Court
Decided On
Case NumberFirst Appeal No. 130 of 1951
Judge
Reported in(1957)59BOMLR1117
AppellantMahadu Ukarda Dhangar
RespondentTulsabai Namdeo
Excerpt:
.....by a hindu father constitutes one cause of action and no fresh right accrues to a son subsequently born. limitation runs from the date of the alienation and not from the date on which the son who could challenge the alienation is born.; shivaji ganpati v. murlidhar (1953) 56 bom. l.r. 426, f.b. followed.; while a subsequently born son is entitled to take advantage of an existing cause of action so long as it exists, he cannot obtain a fresh period of limitation from the date of his birth. in such a case the subsequently born son must bring his suit through his next friend within the ordinary period of limitation.; by a sale-deed dated january 27, 1930, the father of plaintiffs nos. 1 and 2 sold some ancestral properties. by another sale-deed dated january 21, 1936, the father sold some..........dismiss it with regard to the transaction evidenced by exh. 7-d-2. as the defendants' appeal has succeeded substantially, we direct that the costs of the appeal shall be borne by plaintiffs-respondents nos. 1 and 2.
Judgment:

Mudholkar, J.

1. This is an appeal by defendants Nos. 3 to 7 to a suit instituted by the plaintiffs for a declaration that certain alienations made by their father Baliram, defendant No. 1, in favour of defendants Nos. 2 to 19 were not binding on their shares and for partition and possession of their (plaintiffs') shares in the property in suit. Plaintiff No. 1 died during the pendency of the appeal and is now represented by his legal representatives, respondents Nos.1(a) to 1(c).

2. The facts relevant, for the purpose of this appeal and which are not disputed before us are as follows: At the partition between defendant No. 1 and his brother, which was effected in the year 1926, about 100 acres of land, some houses and some movable property fell to the share of defendant No. 1. Between the years 1930-1940 he alienated the bulk of the property. According to the plaintiffs, defendant No. 1 was given to vices and the alienations, which were challenged by them in the suit out of which this appeal arises, were made by defendant No. 1 for illegal and immoral purposes and were consequently not binding upon them. It may be mentioned that at the date of the suit defendant No. 1 had three sons though only two of them had joined in the suit. The third son was eventually joined as defendant No. 20 in the suit. Along with him was also joined as defendant No. 2.1, Laxmibai, the wife of defendant No. 1. The suit was contested by all the alienees. 'We are, however, concerned only with the case of defendants Nos. 3 to 7.

3. Defendants Nos. 3 to 6 claim under a sale-deed, exh. 3-D-1, executed by defendant No. 1 on January 27, 1930, in favour of two persons, Ukarda and Vithoba, whereunder he sold S. No. 38 of Kalambeshwar for a consideration of Rs. 2,350. Both had died before the institution of the suit. Ukarda's interest devolved on his sons, defendant No. 3 Mahadu and defendant No. 4 Shankar, who are appellants Nos. 1 and 2 in the appeal. The interest of Vithoba devolved on his daughters, defendants Nos. 5 and 6 who are appellants Nos. 3 and 4 in the appeal. The defendants denied that defendant No. 1 was given to vices or that the consideration for the sale in favour of Ukarda and Vithoba was for a purpose not binding on the plaintiffs. According to them, the transaction in question was for legal necessity and is binding on the interests of the plaintiffs. Further, according to them, the plaintiffs' suit is barred by time against them, having been brought more than three years after plaintiff No. 1 attained majority.

4. Defendant No. 7 claims under two sale-deeds, one is exh. 7-D-1 dated January 21, 1936, whereunder a portion of S. No. 75 of Kalambeshwar was sold to him for a consideration of Rs. 633-8-0 and the other is exh. 7-D-2, dated January 3, 1939, whereunder the remaining of S. No. 75 was sold to him for a consideration of Rs. 500. This defendant is appellant No. 5 in the appeal.

5. According to the plaintiffs, the consideration for these transactions was tainted with illegality and immorality and that, therefore, the sale-deeds were not binding on their shares. Defendant No. 7 disputed this and contended that the transactions were for legal necessity and for a purpose binding on the plaintiffs. He also contended that the plaintiffs' suit is barred by time.

6. The trial Court held that the suit was within time. While holding that defendant No. 1 was given to vices, it came to the conclusion that in so far as the transaction evidenced byexh. 3-D-1, dated January 27, 1930, was concerned, legal necessity to the extent of Rs. 1,370 was established. It further held that the plaintiffs were entitled to partition and separate possession of 2/5th share in S. No. 38 provided they paid to defendants Nos. 3 to 6 2/5th of Rs. 1,370, i.e. Rs. 548, on or before January 15, 1952. In regard to the transaction evidenced byexh. 7-D-1, the trial Court held that consideration to the extent of Rs. 339-8-0 was for a purpose binding on the plaintiffs and that they wereentitled to partition and separate possession of their 2/5th share in field No. 75 on payment of 2/5th of this amount i.e. Rs. 155-10-0 As regards the transaction evidenced by exh. 7-D-2, the trial Court held that no part of the consideration was binding on the plaintiffs and that they were entitled to immediate partition and separate possession of the 2/5th share therein.

7. The first point to be decided in this appeal is whether the plaintiffs' suit is within time. In the plaint, the age of plaintiff No. 1 Namdeo alias Motiram is stated to be 20 years, while that of plaintiff No. 2, Sadashiv, is stated to be 14 years. In the body of the plaint, it is stated that plaintiff No. 1 was born on April 16, 1927. The suit itself was instituted on April 16, 1948. It may be mentioned at the outset that the question of limitation will have to be viewed differently in regard to each plaintiff as each of them claims independently of the other in the sense that each of them seeks to enforce the right which has accrued to him by birth. Similarly, no question of limitation can arise in respect of the transaction evidenced by exh. 7-D-2, dated January 3, 1939, as the suit was instituted within 12 years of the date of alienation.

8. Dealing first with the case of plaintiff No. 1 it was contended that even assuming that plaintiff No. 1 was born on April 16, 1927, the last date on which the suit should have been instituted was April 15, 1948, and that it, having been brought a day later, was barred by time. It is, however, not necessary for us to go into the question in the view we take as to the exact date of the birth of plaintiff No. 1.

9. [His Lordship after dealing with evidence relating to the date of birth of plaintiff No. 1, proceeded.-] In the circumstances, disagreeing with the Court below, we hold that plaintiff No. 1 was born not on April 16, 1927, but on October 5, 1926. Since plaintiff No. 1 has sought to challenge the sale-deeds exh. 3-D-1 and 7-D-1 more than three years after he attained majority, the suit in so far as it relates to these sale-deeds is barred by time.

10. On the authority of the decision in Kashinath v. Bapurao [1940] Nag. 573., which was followed in Gujrath Oil Mills and . v. Patel Shakarabhai [1943] Bom. 423., it is conceded by Shri Kherdekar for the plaintiffs that plaintiff No. 2, not having been in existence at the date of the alienations dated January 27, 1930, and January 21, 1936, could not challenge them, if the right of plaintiff No. 1 who was then in existence is held to have been barred by time.

11. He, however, withdrew the concession when the decision of the Full Bench in Shivaji Ganpati v. Murlidhar (1953) 56 Bom. L.R. 426,F.B., was brought to his notice. In that case it was held that where a cause of action to challenge an alienation by the father has accrued to a son then existing, a subsequently born son is also entitled to challenge that alienation as much as the earlier born son provided that the right of the earlier born son bad not become barred prior to the birth of the subsequently born son by reason of the death or adoption of the earlier born son or by reason of the fact that the right of the earlier born son had before the birth of the subsequently born son become barred by limitation. It may, however, be pointed out that even according to the Full Bench the right to challenge an alienation constitutes one cause of action and that no fresh right accrues to the son subsequently born. It is also accepted by the Full Bench that limitation runs from the date of alienation and not from the date on which the son who could challenge the alienation is born. It would accordingly follow that even so far as the claim made by plaintiff No. 2 is concerned, time started running from the dates of the two respective sale-deeds. Accordingly, the suit had to be filed in respect of the claim under exh. 3-D-1 on or before January 27, 1942, and in respect of the claim under exh. 7-D-1 on January 21, 1948.

12. It is, however, said that as plaintiff No. 2 was a minor on the date of the suit, no question of limitation can arise with respect to him and his next friend could institute a suit even after the expiry of 12 years from the date of the alienations. Now, Section 3 of the Limitation Act is imperative and provides that every suit instituted after the period of limitation prescribed therefor by the first schedule shall be dismissed by the Court unless it is saved in any way by the provisions of Sections 4 to 25 of the Limitation Act. It is to be noted that no doctrine of common law or any equitable consideration is to be imported by the Court for determining the applicability of the provisions of Section 3. In this connection we may refer to the decision of the Privy Council in General Accident Fire and Life Assurance Corporation v. Janmahomed Abdul Rahim (1940) 67 I.A. 416 : 43 Bom. L.R. 346. in which their Lordships quoted with approval the following passage from Mitra's Tagore Law Lectures, 6th edn., Vol. 1, page 256 :.A law of limitation and prescription may appear to operate harshly or unjustly in particular cases, but where such law has been adopted by the State...it must, if unambiguous, be applied with stringency. The rule must be enforced even at the risk of hardship to a particular party. The judge cannot on equitable grounds enlarge the time allowed by the law, postpone its operation, or introduce exceptions not recognised by it.

13. The only provisions of the Limitation Act which deal with the question of disability created by the minority of the plaintiff are Sections 6 to 8. The language of Section 6 makes it clear that the benefit thereof can be availed of only by the person who was in existence at the date of the accrual of the cause of action. Plaintiff No. 2 admittedly was not in existence at the date of the accrual of the cause of action. This section is, therefore, of no avail to him. Section 7 is equally out of the way because plaintiff No. 2 is not claiming anything jointly with plaintiff No. 1. Section 8 is an Exception to Sections 6 and 7 and naturally would not apply where Sections 6 and 7 do not apply. In the circumstances, therefore, all these three sections are out of the way and are not applicable. Since that is so, the claim of plaintiff No. 2 with regard to the transactions under exh. 3-D-1 and 7-D-1 is barred by time.

14. In support of our view we may refer to the decision in Banodip Singh v. Parmeshwar Pershad (1924) 52. I.A.69 : 27 Bom. L.R. 175. In that case, four persons belonging to a joint Hindu family instituted a suit in the year 1920 for setting aside an alienation made by their father on June 3, 1893. Plaintiff No. 1 was born in 1886, plaintiff No. 2 in 1891, plaintiff No. 3 in 1897 and plaintiff No. 4 in 1900. The suit itself was instituted in the year 1920. It was contended in that case that the suit was within time as it was brought within three years of plaintiff No. 4 attaining majority. Pointing out that the date of birth of plaintiff No. 4 could not create a fresh cause of action or a new starting point from which limitation should be reckoned, their Lordships observed (p. 72) :

To the contention that by the cited sections the period of limitation is extended for three years from the cessation of the fourth plaintiff's minority the answer is that by their express terms this extended period can only be claimed by a person entitled to institute the suit at the time from which the period of limitation is to be reckoned. The fourth plaintiff does not come within this description, for at that time he was not in existence. He, therefore, is not entitled to the three years' extension, and his suit is consequently barred.

This decision is, however, sought to be distinguished on the ground that plaintiff No. 4 was no longer a minor when the suit was instituted. That fact, however, does not distinguish the decision at all from the present case. As already pointed out, the period of limitation for bringing a suit must in every case be as provided in the first schedule to the Limitation Act and that this is irrespective of the question whether the plaintiff is a minor or a major. The exception based on the ground of the plaintiff's minority would only arise where the fact would attract the operation of Sections 6 to 8 of the Limitation Act, but not otherwise.

15. It is true that it has been held in several cases cited in Note 82 of Mitra's Limitation Act that a minor can even after the expiry of the ordinary period of limitation prescribed for a suit institute a suit during Ms minority and claim the benefit of Section 6. On an examination of those cases, it will be found that in those cases the minor was in existence at the date of the accrual of the cause of action. We may also refer to the numerous cases cited in Note 78 of B. B. Mitra's Limitation Act, where also it has been held that while a subsequently born son is entitled to take advantage of an existing cause of action so long as it exists, he cannot obtain a fresh period of 21 years (18 years and 3 years under Section 8) from the date of his birth. In particular, we would refer to the decisions in Lachhman Das v. SundarDas ILR(1920) Lah. 558, Shahamad v. Salabat ILR (1926) 8 Lah. 19, Sitaram Singh v. CheddiSingh ILR (1924) 46 All. 882 and Ram Kishen v. Baldeo Koeri : AIR1925All247 that in such a case the son must bring his suit through his next friend within the ordinary period of limitation. Though the decision inRanodip Singh's case does not expressly deal with this situation, the view taken therein by their Lordships supports the conclusion arrived at in these cases. We, therefore, hold that the suit regarding the transactions under exh. 3-D-1 and 7-D-1 is barred even in respect of plaintiff No. 2.

17. That leaves only the transaction represented by exh. 7-D-2. In so far as that transaction is concerned, the appeal is not pressed.

18. In the result, therefore, we allow the appeal partially, i.e. in so far as the claim of the plaintiffs against defendants Nos. 3 to 7 in respect of the transactions evidenced by exhs. 3-D-1 and 7-D-1 are concerned, and dismiss it with regard to the transaction evidenced by exh. 7-D-2. As the defendants' appeal has succeeded substantially, we direct that the costs of the appeal shall be borne by plaintiffs-respondents Nos. 1 and 2.


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