sa95.04.J.odt 1/4
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
SECOND APPEAL NO.95 OF 2004
Namdeo Ganpat Nalkande,
Aged about 39 years,
Occupation: Agriculturist,
R/o Sategaon, District Amravati. ....... APPELLANT
...V E R S U S...
Ruprao Rambhau Ghorad,
Aged about 24 years,
(Minor when the suit was filed)
through guardian Rameshrao
Tulshiramji Mahale, Aged 54 years,
Occupation: Agriculturist,
R/o Sawra, Tahsil Akot,
District Akola. ....... RESPONDENT
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Shri V.S. Bapat, Advocate for Appellant.
None for Respondent.
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CORAM: R.K. DESHPANDE, J.
th MARCH, 2017.
DATE: 16
ORAL JUDGMENT
1] The Trial Court dismissed Regular Civil Suit No.38 of
1995 on 21.07.1999 for declaration and possession. The declaration sought was that the sale-deed dated 27.03.1992 by the father of the plaintiff in favour of the defendant be declared as null and void. The plaintiff claimed to be the owner of the suit property on the basis of the registered gift-deed dated 20.06.1983 ::: Uploaded on - 17/03/2017 ::: Downloaded on - 19/03/2017 00:55:36 ::: sa95.04.J.odt 2/4 and consequently claimed a decree for possession. The lower Appellate Court has allowed Regular Civil Appeal No.93 of 1999 on 30.12.2003 and the suit has been decreed in favour of the plaintiff. The sale-deed dated 27.03.1992 executed by Rambhau Laxmanrao Ghorad in favour of the defendant Namdeo Ganpat Nalkande on 27.03.1992 is set aside and the defendant is directed to handover the possession of the suit house to the plaintiff. The defendant is therefore, before this Court in this second appeal.
2] This Court passed an order on 02.03.2005 admitting the matter and framing substantial questions of law as under:
Admit on the following substantial questions of law:
1) Whether the suit was within limitation when it was filed through next friend after the expiry of three years under Article 59 of the Limitation Act ?
2) Whether the benefit of Section 6 of the Limitation Act is available to the respondent when the suit was filed through next friend without waiting for attaining the age of majority ?
3] The factual position not in dispute is that the father of the plaintiff Rambhau Ghorad executed registered sale-deed dated ::: Uploaded on - 17/03/2017 ::: Downloaded on - 19/03/2017 00:55:36 ::: sa95.04.J.odt 3/4 27.03.1992 in favour of the defendant. The sale-deed was challenged in the suit filed by the plaintiff on 30.03.1995 who is next friend, the cousin brother namely Ramesh Tulshiram Mahale, on the ground that the father of the plaintiff was addicted to voices and in ignorance of the gift-deed executed in favour of the plaintiff the property was sold. The defendant did not file a written statement nor participated in the proceedings before the Trial Court. Though, the Trial Court dismissed the suit on the ground that it was barred by the law of limitation under Article 59, the lower Appellate Court has reversed the finding and a decree is passed in favour of the plaintiff. 4] Exhibit 30 is registered gift-deed dated 20.06.1983 executed by the owner Rambhau in favour of his son the plaintiff. Consequently, Rambhau ceased to be the owner of the suit property and had no authority to execute the sale-deed on 27.03.1992. The suit in question was not filed by the father of the plaintiff, but it was filed through his cousin brother as a next friend on 30.03.1995. In fact, the cause of action to file such a suit would be the date when the facts entitling the plaintiff to have the instrument set aside first become known to him. Article 59 governs the limitation of three years from such date. Section 6 of ::: Uploaded on - 17/03/2017 ::: Downloaded on - 19/03/2017 00:55:36 ::: sa95.04.J.odt 4/4 the Limitation Act permits reckoning of the period of three years from the date when the plaintiff attains the age of majority or ceases to suffer from legal disability. The plaintiff was minor when suit was filed. In such event at the most the suit filed on 30.03.1995 would be considered as a premature suit and could not have been thrown out on the ground of bar of limitation. The plaintiff attained the majority in the year 1998 and the suit was decided on 21.07.1999 when there was no legal disability. The substantial questions of law framed by this Court are answered accordingly.
5] In the result, the second appeal is dismissed. No order as to costs.
JUDGE NSN ::: Uploaded on - 17/03/2017 ::: Downloaded on - 19/03/2017 00:55:36 :::