Bombay High Court
Ku. Arpana D/O Prithviraj ... vs Shrirang S/O Shripat Punwatkar ... on 26 September, 2017
Bench: A.S. Chandurkar
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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
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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
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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
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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.
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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
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
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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
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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.
sa375.11nsa466.11.odt 11/17
(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
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
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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
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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
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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
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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
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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
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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/
