Namdeo Ganpat Nalkande vs Ruprao Rambhau Ghorad
2017 Latest Caselaw 783 Bom

  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
 -------------------------------------------------------------------------------------------
          Shri V.S. Bapat, Advocate for Appellant.
          None for Respondent.
 -------------------------------------------------------------------------------------------

                       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

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

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

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