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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR.
SECOND APPEAL NO.375 OF 2011
APPELLANT: Ku. Arpana daughter of Prithviraj
Punwatkar, Aged about 27 years,
(Original
Occupation-Education, R/o Dewada,
Plaintiff No.3)
Tahsil Rajura, District Chandrapur
(On R.A.)
-VERSUS-
RESPONDENTS: 1. Shrirang s/o Shripat Punekar, Aged
(Orig. about 61 years, Occu. Service, Resident
Defendants
of Jatpura, Ward No.1, Chandrapur,
No.1,2,2A,2B &
3) Tahsil and District Chandrapur
(On R.A.)
2. Heirs of the deceased Prithviraj son of
Shripat Punwatkar
2A) Ku. Ashwini daughter of Prithviraj
Punwatkar, Aged about 29 years,
Occupation-Education, C/o Bhujangrao
Wankhede, Resident of Jambhulni,
Tahsil and District Yeotmal (On R.A.)
2B) Kumar Banty son of Prithviraj
Punwatkar, Aged about 20 years,
Occupation-Education, Resident of
Jambhulni, Tahsil and District Yeotmal
(On R.A.)
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3. Manohar son of Shripat Punwatkar,
Aged about 67 years, Resident of
Jatpura, Ward No.1, Chandrapur Tahsil
and District Chandrapur (On R.A.)
(Orig. Plaintiff 4. Smt. Aruna wd/o Prithviraj Punwatkar,
No.1)
Age 46 years, Occu-Service, Resident of
Dewada, Tahsil Rajura, District
Chandrapur (On R.A.)
5. Prafulla son of Prithviraj Punwatkar,
Aged about 27 years, Occupation-
Education, Resident of Dewada, Tahsil,
Rajura, District Chandrapur. (On R.A.)
Shri A. Shelat, Advocate for the appellant.
Ms. Kirti Satpute, Advocate for respondent Nos.1 and 2 (A,B)
Shri V. V. Bhangde, Advocate for respondent Nos.4 and 5.
AND
SECOND APPEAL NO.466 OF 2011
APPELLANT: 1. Smt. Aruna wd/o Prithviraj Punwatkar,
(Original Plaintiffs 1 & Age 46 years, Occu-Service, Resident of
2) Dewada, Tahasil Rajura, District
Chandrapur.
2.
Prafulla son of Prithviraj Punwatkar,
Aged about 27 years, Occupation-
Education, Resident of Dewada, Tahsil,
Rajura, District Chandrapur.
-VERSUS-
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RESPONDENTS: 1. Shrirang s/o Shripat Punekar, Aged
(Orig. about 61 years, Occu. Service, Resident
Defendants
of Jatpura, Ward No.1, Chandrapur,
No.1,2,2A,2B &
3) Tahsil and District Chandrapur.
2. Heirs of the deceased Prithviraj son of
Shripat Punwatkar
2A) Ku. Ashwini daughter of Prithviraj
Punwatkar, Aged about 29 years,
Occupation-Education, C/o Bhujangrao
Wankhede, Resident of Jambhulni,
Tahsil and District Yeotmal .
2B) Kumar Banty son of Prithviraj
Punwatkar, Aged about 20 years,
Occupation-Education, Resident of
Jambhulni, Tahsil and District Yeotmal.
3. Manohar son of Shripat Punwatkar,
Aged about 67 years, Resident of
Jatpura, Ward No.1, Chandrapur Tahsil
and District Chandrapur.
(Orig. Plaintiff 4. Ku. Arpana daughter of Prithviraj
No.3)
Punwatkar, Aged about 31 years,
Occupation-Education, R/o Dewada,
Tahsil Raura, District Chandrapur.
Shri V. V. Bhangde, Advocate for the appellant.
Ms. Kirti Satpute, Advocate for respondent Nos.1 and 2 (A & B).
Shri A. Shelat, Advocate for respondent No.4.
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CORAM: A.S. CHANDURKAR, J.
DATED: SEPTEMBER 26, 2017.
ORAL JUDGMENT :
1. Since both these appeals arise out of the judgment of the first appellate Court in Regular Civil Appeal No.110/2007 they are being decided by this common judgment.
2. The appellants in both the appeals are the original plaintiffs. It is their case that one Shripat Punawatkar had three sons namely Manohar, Srirang and Pruthviraj. The plaintiff no.1 claims to be the second wife of said Pruthviraj and plaintiff nos.2 and 3 are the issues from said marriage. According to the plaintiffs, said Pruthviraj had earlier married one Smt. Champa who expired on 12-4-1999. The defendant Nos.2(A) & 2(B) were the issues from that marriage. It is the case of the plaintiffs that Shripat was not in sound health prior to his death. The defendant no.1 - Srirang had got executed a will from Shripat on 16-7-1997. By the said will the suit property was bequeathed in favour of the defendants by excluding the plaintiffs. As the defendants sought to mutate their names in the mutation records, the plaintiffs on 20-7-2002 filed suit for declaration that the said will dated 16-7-1997 was null and void with a further declaration that the ::: Uploaded on - 06/10/2017 ::: Downloaded on - 07/10/2017 00:19:53 ::: sa375.11nsa466.11.odt 5/17 defendants were not owners of the suit property.
3. In the written statement filed by the defendant no.1 it was pleaded that the property in question was the self acquired property of Shripat and he had executed a will dated 16-7-1997 when he was in sound health. The defendant no.3 also filed his written statement and took the stand that the defendant no.1 had taken undue advantage of the ill health of Shripat for having the will executed.
4. The parties led evidence before the trial Court. The trial Court recorded a finding that the plaintiffs had proved that the will dated 16-7-1997 was null and void. It however held that the suit as filed was barred by limitation on the ground that the plaintiffs had knowledge about the existence of the will on 29-4-1999. The suit accordingly was dismissed. Being aggrieved, the plaintiffs filed an appeal. The first appellate Court by its judgment dated 20-4-2011 upheld the finding recorded by the trial Court that the suit was barred by limitation and dismissed the appeal. Being aggrieved, the original plaintiffs had filed these appeals.
5. During pendency of the appeals, on 16-4-2013 this Court directed that the issue with regard to the age of the appellant in Second Appeal No.375/2011 as on the date when the ::: Uploaded on - 06/10/2017 ::: Downloaded on - 07/10/2017 00:19:53 ::: sa375.11nsa466.11.odt 6/17 suit was filed be decided by the trial Court by permitting the parties to lead evidence. Accordingly, the trial Court recorded a finding that on the day when the suit was filed, the original plaintiff no.3 was aged about 17 years and 11 months. This finding was then certified by the first appellate Court and accordingly that finding has been placed on record.
6. Second Appeal No.375/2011 has have been heard on the following substantial questions of law:` (1) Whether the Courts are justified in dismissing the suit of the appellant as barred by limitation, when she was a minor at the time of institution of the suit and her age in the plaint shows that she was a minor?
(2) Whether non-compliance of Order XXXII Rule 12 of the Civil Procedure Code affects the entitlement of the minor as per Section 6 of the Limitation Act?
7. Shri A. Shelat, learned Counsel for the appellant submitted that in view of the finding recorded by the trial Court that the original plaintiff no.3 was aged about 17 years and 11 months when the suit was filed, it was clear that in view of provisions of Sections 6 and 7 of the Limitation Act, 1963 (for short, the said Act) the suit was filed within limitation. According to him, as per provisions of Section 6 of the said Act, the plaintiff no.3 was under disability to file the suit for challenging the will on account of being a minor. As per provisions of Section 7 of the ::: Uploaded on - 06/10/2017 ::: Downloaded on - 07/10/2017 00:19:53 ::: sa375.11nsa466.11.odt 7/17 said Act, the suit could be filed by her after the said disability was removed. The suit having been filed when the plaintiff no.3 was a minor, it was within limitation. He referred to the provisions of Section 3 of the Indian Majority Act, 1999 to urge that the plaintiff no.3 attained the age of majority at the age of 18. Therefore, the finding recorded that the suit was liable to be dismissed as being barred by limitation was liable to be set aside.
It was then submitted that the objection with regard to non-compliance with the provisions of Order XXXII Rule 12 of the Code of Civil Procedure, 1908 (for short, the Code) was not raised by the defendants before the Courts below. This objection was raised only when the present appeal was heard for admission. It was submitted that the objection as raised was technical in nature and merely because the plaintiff no.3 on attaining majority did not exercise option as prescribed therein, same would not be fatal to the prosecution of the suit. Said provision being for the benefit of the minor, such minor cannot be penalized for having not exercised the option to continue with the proceedings after attaining majority. In that regard the learned Counsel placed reliance on the following judgments.
(1) Dharmashi Polabhai v. Champaklal Vashram and others AIR 1983 Gujarat 217.
(2) Smt. Vidya Wati Vs. Hans Raj AIR 1993 Delhi 187. ::: Uploaded on - 06/10/2017 ::: Downloaded on - 07/10/2017 00:19:53 :::
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(3) Hazari and another v. Suresh and others AIR 1979
Allahabad 242.
(4) Vilas v. Hasimapeer and others AIR 1998 Karnataka
11.
8. In reply to the aforesaid, Ms. Satpute, learned Counsel for the respondent submitted that the plaintiff no.1 had due knowledge about the execution of the will on 29-4-1999 during the course of mutation proceedings. It was submitted that the suit was filed beyond the period of three years and hence, it was rightly held to be barred by limitation. The provisions of Section 6 of the said Act would apply only so far as the plaintiff no.3 is concerned and therefore if it is held that the plaintiff no.3 was under a disability said provisions would assist only the plaintiff no.3. The other plaintiffs being major when the suit was filed, they were required to file the suit within the prescribed period of limitation which started to run from 29-4-1999. The suit having been filed three years thereafter was barred by limitation.
It was then submitted that failure to exercise option under provisions of Order XXXII Rule 12 of the Code was fatal to the case of the minor. The findings recorded by the Courts were not binding on the minor and it was the duty of the plaintiff no.1 who was the next friend to have taken appropriate steps in that regard. Though this point was not raised earlier, as the same went ::: Uploaded on - 06/10/2017 ::: Downloaded on - 07/10/2017 00:19:53 ::: sa375.11nsa466.11.odt 9/17 to the root of the matter it was being raised in the appeal. The learned Counsel placed reliance on the following decisions in support of her aforesaid submissions:
(1) Ashrfi Lal v. Smt. Koili AIR 1995 SC 1440.
(2) Yeshwant Shivram Patil v. Pandurang Dnyandeo Patil
and others 2009(2) All. M. R.276.
(3) Damu Ganu Mali Paithan vs. Ambadas Lahanu Mali
2009 (2) Mh. L. J.616.
9. Second Appeal No.466/2011 has been heard on the following substantial question of law:
Whether the first appellate Court was correct in holding that the limitation for the suit was governed by Article 58 of the Limitation Act, 1963 or whether the limitation would be governed by Article 59 of the said Act?
10. Shri V. V. Bhangde, learned Counsel for the appellant submitted that both the Courts committed an error in holding that the suit was barred by limitation by applying provisions of Article 58 of the said Act. According to him, there was no evidence with regard to the plaintiff no.1 getting knowledge of the mutation proceedings on 29-4-1999. He urged that a mere adverse mutation entry would not affect the title of a party. It was only when the public notice dated 18-12-2001 was issued that the plaintiffs got the necessary knowledge and therefore filed the suit within limitation as prescribed by Article 59 of the said Act. Relying upon ::: Uploaded on - 06/10/2017 ::: Downloaded on - 07/10/2017 00:19:53 ::: sa375.11nsa466.11.odt 10/17 the judgment of the Hon'ble Supreme in Daya Singh and another vs. Gurdev Singh (2010) 2 SCC 194, it was submitted that even if provisions of Article 58 of the said Act were to apply, unless there was a threat to the plaintiff's title there was no cause of action for filing the suit. It was, therefore, submitted that the suit was filed within limitation even as prescribed by Article 58 of the said Act.
11. In reply, it was submitted by Ms. Satpute that the limitation to file the suit would be governed by Article 58 of the said Act and the right to file the suit first accrued on 29-4-1999 when an oral objection was taken by the plaintiffs in the mutation proceedings. It was submitted that in the cross examination of the plaintiff no.1 it had been admitted that she had knowledge of the mutation proceedings on 29-4-1999. As there was no prayer for seeking cancellation of the will dated 16-7-1997 Article 59 of the said Act would not apply and the limitation would be governed by Article 58 of the said Act. It was then submitted that the finding as to the date of knowledge of the execution of the will by the plaintiffs was a finding of fact recorded by both the Courts which did not call for any interference. In support of her submissions, reliance was placed on the following judgments.
(1) M/s Holdings Limited New Delhi vs. Bombay Oxygen Corporation Limited, Mumbai and others 2017 (3) ABR 627.
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(2) Sanjay Manya Ludrik Vs. Hon'ble Additional
Commissioner, Konkan Division 2017(3) All MR 649. (3) Ranganayakamma vs. K. S. Prakash 2008 (6) ALL MR 904. In rejoinder it was submitted by the learned Counsel for the appellant that both the Courts presumed that the plaintiffs had knowledge about the execution of the will but there was no evidence on record in that regard. The relief as sought was in fact for cancellation of the will and therefore Article 59 of the said Act would be applicable.
12. I have heard the learned Counsel for the parties at length and I have gone through the records of the case. As noted above, the question as to the age of the plaintiff no.3 on the date of filing of the suit was referred to the trial Court for recording a finding. Before the trial Court the plaintiff no.3 examined herself and placed on record her birth certificate at Exhibit-111. She also placed on record her School Leaving Certificate at Exhibit-112, her date of birth was shown as 17-8-1984 and on tht basis, it was held that when the suit was filed on 20-7-2002, the said plaintiff no.3 was aged about 17 years 11 months and 3 days. This finding was then certified by the appellate Court on 4-12-2013. From the aforesaid, it is clear that on the date when the suit was filed, the plaintiff no.3 was a minor. This finding recorded against aforesaid ::: Uploaded on - 06/10/2017 ::: Downloaded on - 07/10/2017 00:19:53 ::: sa375.11nsa466.11.odt 12/17 issue has not been put to challenge.
13. As per provisions of Section 6 of the said Act, if a person is entitled to institute a suit but is under legal disability, such person can institute the suit within the same period after the disability has ceased. In other words, after the disability in question has ceased, the suit is required to be instituted within the same period that has been specified in the third column of the Schedule to the said Act. The plaintiff no.3 having been found to be a minor on 28-7-2002 when the suit was filed, she under provisions of Section 6 of the said Act was entitled to institute the suit within a period of limitation which would commence when she attained majority. In other words, she was entitled for the entire period of limitation as prescribed after the disability as regards her minority ceased to exist.
14. Under Section 7 of the said Act, if one of the several persons who are jointly entitled to institute a suit is under such disability but no discharge can be given by such other persons then the time would not run against all of them until one of them becomes capable of giving such discharge or until the disability has ceased. In other words, when one of the several plaintiffs who are entitled to jointly institute the suit are under any disability and if none of the other parties can give discharge, then after the ::: Uploaded on - 06/10/2017 ::: Downloaded on - 07/10/2017 00:19:53 ::: sa375.11nsa466.11.odt 13/17 disability has ceased the proceedings can be initiated by all of them. Under Section 8 of the said Act, the time that can be extended for initiating the proceedings from the cessation of the disability cannot extend beyond a period of more than three years.
15. Thus in the light of the fact that the plaintiff no.3 was a minor on the date when suit was filed coupled with the fact that the other plaintiffs were not in a position to give her valid discharge, it will have to be held that the limitation for filing the suit for challenging the will dated 16-7-1997 would commence when the plaintiff no.3 became major. The suit, therefore, having been filed prior to expiry of the period of limitation, it was within limitation. Substantial question of law No.1 in Second Appeal No.375/2011 stands answered accordingly.
16. In so far as the submission urged on the basis of provisions of Order XXXII Rule 12 of the Code is concerned, a minor plaintiff on whose behalf the suit has been filed can elect whether to proceed with the suit or not. After making such choice, the said plaintiff has to apply for an order discharging the next friend with further leave to proceed with the suit in his/her own name.
The aforesaid provisions have been enacted keeping in mind the interests of a minor who has approached the Court ::: Uploaded on - 06/10/2017 ::: Downloaded on - 07/10/2017 00:19:53 ::: sa375.11nsa466.11.odt 14/17 through his/her next friend. The same state the modality to be followed when such minor attains the age of majority. These provisions are purely procedural in nature and they cannot be interpreted in a manner that would result in dismissal of the proceedings on account of its non-compliance. This has been so held in Hazari and another, Dharamshi Polabhai and Bajranglal (supra). I do not find any justifiable reason to take a different view. As held in Gopal Dass v Tej Singh AIR 1996 Raj 214 on the minor attaining the age of majority, his next friend becomes functus officio. Hence, I find that failure to comply with the provisions of Order XXXII Rule 12 of the Code in the present case would not affect the entitlement of the appellant to continue the proceedings thereafter. The decisions on which the learned Counsel for the respondent has placed reliance do not support her case. Substantial question of law no.2 in Second Appeal No.375/2011 stands answered accordingly.
17. Article 58 of the said Act prescribes the period of limitation of three years for obtaining any declaration other than one that has to be obtained under Articles 56 and 57. The time from which the period begins to run is when the right to sue first accrues. Under Article 59, the period of limitation for cancelling or setting aside the instrument is three years when the facts ::: Uploaded on - 06/10/2017 ::: Downloaded on - 07/10/2017 00:19:53 ::: sa375.11nsa466.11.odt 15/17 entitling the plaintiff to have the instrument cancelled or set aside first become known to the plaintiff. In the present case, it has been held by the first appellate Court that the limitation for filing the suit was governed by Article 58 of the said Act and the right to sue accrued to the appellant on 29-4-1999 when the plaintiff no.1 had knowledge about the mutation entered in favour of the defendant no.1. According to the appellant, the cause of action arose on 18-12-2001 when a public notice was issued pursuant to the proceedings initiated by the defendant no.1 for having the mutation entry in his name.
The relief sought by the plaintiffs in the suit is a declaration that the will dated 16-7-1997 was null and void and that the defendant nos.1 and 2 had not become owners of the suit property on the basis of the said will. The cause of action was stated to have arisen on 18-12-2001 with the issuance of the public notice. In the written statement, it was pleaded that the plaintiff no.1 had knowledge about the execution of the will dated 16-7- 1997 on 29-4-1999.
18. In Dayasingh and another (supra), the question as regards applicability of the provisions of Article 58 of the said Act was under consideration. The facts therein indicate that on 26-10-1972, a compromise was entered into between the parties ::: Uploaded on - 06/10/2017 ::: Downloaded on - 07/10/2017 00:19:53 ::: sa375.11nsa466.11.odt 16/17 on the basis of which the shares in the property were agreed to be enjoyed. The suit was filed on 21-8-1990 seeking declaration that the plaintiffs were the joint owners of the suit property with a further prayer that the revenue records be corrected as per the compromise. In those facts it was observed that mere existence of an adverse entry in the revenue records cannot give rise to a cause of action and that same would accrue only when the right asserted in the suit was infringed or there was a clear and unequivocal threat to infringe that right. In view of aforesaid, the decision in Sanjay Manya Ludrik (supra) does not support the case of the respondent. In the present case also even if it is assumed that the plaintiff no.1 had knowledge about the existence of the will in the mutation proceedings on 29-4-1999, the actual threat to the legal rights of the plaintiffs surfaced on 18-12-2001 when a public notice was issued by the Municipal Council inviting objections in the mutation proceedings. Thus, the provisions of Article 58 of the said Act would be applicable. The relief of cancellation of the will having not being sought as required by Article 59 of the said Act, the observations in Ranganayakamma and M/s Holdings Ltd. (supra) apply to the case in hand. The suit having been filed by treating the cause of action to have accrued on 18-12-2001 when there was a real threat to the legal rights of the plaintiffs, it was ::: Uploaded on - 06/10/2017 ::: Downloaded on - 07/10/2017 00:19:53 ::: sa375.11nsa466.11.odt 17/17 filed within limitation. Hence, the substantial question of law as framed in Second Appeal No.466/2011 is answered by holding that though the first appellate Court was correct in holding that the limitation for the suit was governed by Article 58 of the said Act, the time began to run on 18-12-2001 when the right to sue first accrued.
19. Hence, for aforesaid reasons, it is held that the suit was filed within limitation. Accordingly, the judgment of the appellate Court in Regular Civil Appeal No.110/2007 is set aside. The proceedings are remanded to the appellate Court for deciding the appeal on merits and in accordance with law.
20. The second appeals are allowed in aforesaid terms. No costs.
JUDGE /MULEY/ ::: Uploaded on - 06/10/2017 ::: Downloaded on - 07/10/2017 00:19:53 :::