1 S.A. 223/2004 IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD SECOND APPEAL NO. 223/2004 Narayan s/o Haribhau Late, Age : Major, Occu. Service, R/o Purna, Tq. And Dist. Parbhani. ...Appellant. Versus 1 Babasaheb s/o Maroti Patale, Age : 20 years, Occu. Labourer, R/o Kanadkhed, Tq. And Dist. Parbhani. 2 Waman s/o Maroti Patale, Age : Minor, u/g of real brother Babasaheb s/o Maroti Patgale, R/o As above. 3 Shantabai w/o Deorao Talpati, Age : 29 years, Occu. Houseold, R/o As above. 4 Guyabai w/o Govindrao Ghambir, Age : 27 years, Occu. Household, R/o Hatta, Tq. Basmat. 5 Sheshbai w/o Narayan Borse, Age : 25 years, Occu. Household, R/o Sonna, Tq. & Dist. Parbhani. 6 Prayagbai w/o Maroti Patale, Age : 50 yeas, Occu. Household, R/o Kanadkhed, Tq. And Dist. Parbhani. ...Respondents. 7 Panchafullabai Panditrao Mate, Age : 20 years, Occu. Household, R/o Sawarpur, Tq and Dist. Parbhani. ..Deleted. Mr. S.S. Shete, Advocate for the appellant. Mr. A.S. Deshmukh, Advocate for respondents Nos. 1 to 5. Respondent No.6 absent though served. CORAM : A.V. NIRGUDE, J. DATED : 5th October, 2011. 2 S.A. 223/2004 ORAL JUDGMENT : 1. This Second appeal challenges the concurrent finding of the Courts below that original defendant No.2 had no right to alienate the ancestral property belonging to the plaintiffs who are her children. The Courts below held that the alienation was not for legal necessity and held further that the same was not binding the plaintiffs. The present appellant was defendant No.1 in the trial Court and is the purchaser of the suit property. 2. The first suit alienation took place in 1982, and the other took place in 1988. When the first alienation of 1982 took place, probably all the plaintiffs were minors. In 1988, probably some of the plaintiffs were major and in 1989, the suit was filed for challenging the legality of the alienation. For the first time, when the appeal was admitted, learned counsel appearing for the appellant insisted that this suit was time barred because it was governed by Article 60 and was not filed within three years from the date of plaintiff’s attaining majority etc.. On the other hand, it was contended by the respondents’ counsel that Article 109 of the Limitation Act would govern this kind of suit. In view of this controversy, my learned brother framed following substantial question of law. “Whether in the facts and circumstances of the present case the Courts below committed patent error while holding that Article 109 would be applicable to the alienation in question and, therefore, the suit was within limitation or that Article 60 or 113 of the Limitation Act will govern the suit of such a kind ?” In order to appreciate this controversy, one must read carefully the articles referred to above. 60. To set aside a transfer of property made by the guardian of 3 S.A. 223/2004 award – (a) by the ward who has attained majority; Three years. When the ward attains majority. (b)by the ward's representative – (i) when the ward dies within three years from the date of attaining majority; (ii) when the ward dies before attaining majority. Three years. Three years. When the ward attains majority. When the ward dies. 109. By a Hindu governed by Mitakshara law to set aside his father's alienation of ancestral property. Twelve years. When the alienee takes possession of the property. 113. Any suit for which no period of limitation is provided elsewhere in this Schedule. Three years. When the right to sue accrues. On the face of it, this suit is governed by Article 109 because the plaintiffs have filed this suit for challenging the alienation made by their mother (Not their father because the alienation were made by their mother after their father’s death) in respect of their ancestral property. Article 109 on all fours applied to the facts of the case. Article 60 is drafted for some other eventuality. It is in respect of a suit filed by a ward after attaining majority for setting aside transfer of 4 S.A. 223/2004 property made by his guardian when he was minor. It is clear that these two provisions took care of two different eventualities. They are not at all comparable. They are not similar in any respect. Article 109 does not necessarily contemplate filing of a suit by a ward for setting aside transfer of property made by his guardian. This article contemplates that if a Karta of the family transfers ancestral property belonging to the joint family without the consent of all the members of the family and if such transfer is not made for legal necessity, a member of such family irrespective of his age is given liberty to file a suit for setting aside such transfer within 12 years from the date of the purchaser’s taking possession of the property. Apparently, the legislature has given a longer rope to the plaintiffs who filed suit as contemplated by Article 109 than a suit filed by the plaintiffs under Article 60. I am not inclined to go into the reasons why there is vast difference in a period of limitation provided in these two different types of suits. In this suit, Article 60 will not apply. Article 113 will also not apply to this case because the case of the plaintiffs’ fell squarely within parameters of Article 109 and so there is no question of using the residuary provision provided in Article 113. The appeal should therefore, fail. ORDER (I) The appeal stands dismissed. (II) In view of this, amount of Rs.42,000/- which is deposited by appellant at the directions of this Court, at the time of granting stay to the execution of the decree, shall be handed over to the respondents / plaintiffs. 5 S.A. 223/2004 (III) The receipt of this amount shall be subject to the outcome of mesne profit inquiry which is at present is going on at the trial Court. (IV) The request of advocate for appellant keeping the effect of this judgment/order in abeyance for four weeks, though is strongly opposed by advocate for respondents, is allowed. [A.V. NIRGUDE,J.] ts k/Oct.2011/5th/sa223.04/ok