Narayan vs Babasaheb & Ors

3. This Court, while issuing notice on 27th April, 2012, has passed the following order:

6. The brief facts which are necessary for proper appreciation of the dispute between the parties in nutshell are as follows:

8. It is the specific case of the plaintiffs that their father is the original owner of the Suit schedule property which is ancestral property. He died in the year 1972 leaving behind him his two sons, four daughters and the widow i.e. the 2nd defendant. After the death of their father, the 2nd defendant, who is alleged to be a person of loose character, left the matrimonial home and married one Begaji. The father of the plaintiffs, during his lifetime, performed the marriage of plaintiff Nos.3 and 4 and the marriage of the 5th plaintiff was performed by the1st plaintiff. The 2nd defendant, without there being any legal necessity, has alienated the property for a meager amount of Rs.6,000/- when the surrounding lands were fetching an amount of Rs.15,000/-. At the time of execution of the second sale deed, though the 1st plaintiff was major, he was shown as minor. It is stated that as the 2nd defendant was never taking care of them at any point of time and staying with some other person, she cannot be termed as a guardian. The 1st defendant, without paying any consideration, in active connivance with the 2nd defendant, has got the sale deed registered with an intention to defraud the interest of the minors. It is further pleaded that as on the date of execution of the second sale deed, the land fetches an amount of Rs.20,000/- per acre, apart from that as the 1st defendant is in possession of the property, they are entitled to mesne profits at the rate of Rs.2,000/- per annum from the date of taking over possession by the 1st defendant till the date of recovery of possession.

12. Assailing the said judgment and decree, the 1st defendant has filed RCA.No.120/1991 on the file of the District Judge, Parbhani. The issue of limitation was raised by the defendants before the 1st appellate court contending that the Suit is barred by limitation as per Article 60 of the Limitation Act, 1963 (for short ‘the Act’) and as on the date of filing of the Suit, except the 2nd plaintiff (Waman), all other plaintiffs are majors and hence the Suit ought to have been instituted within three years as envisaged by Article 60 of the Act. It is further urged that the legal disability of 2nd plaintiff (Waman) does not entitle other plaintiffs to institute the Suit after the prescribed period in the Act and relied upon Section 7 of the Act. As per the cause title in the plaint, as on the date of filing of the Suit, the 1st plaintiff was aged 20 years, the 2nd plaintiff was minor and plaintiffs 3, 4 and 5 were aged 29, 27 and 25 years respectively. Basing on the contentions, the appellate Court has come to the conclusion that Article 60 of the Act is not applicable to the facts of the case as the 2nd defendant is not the guardian appointed by the Court. Therefore, Article 109 of the Act, which prescribed 12 years is applicable where the alienation made by the father of the ancestral property by the Hindus who are governed by the Mitakshara law and hence the Suit filed in the year 1989 is well within limitation. But however, the appellate court has modified the decree to the extent that the 1st defendant is entitled to the share of the 2nd defendant.

13. The unsuccessful and unsatisfied 1st defendant has approached the High Court of Bombay, Bench at Aurangabad by way of Second Appeal No.223/2004. The High Court has dismissed the appeal holding that Article 109 of the Act applies to the alienation made by the mother and Article 60 of the Act does not apply to the facts of the case and its application altogether is in a different eventuality and Section 109 of the Act applies to the facts of the case and the Suit is well within limitation. Against the said order, the present appeal is filed before this Court.

27. There cannot be any doubt that a Suit by quondam minor to set aside the alienation of his property by his guardian is governed by Article 60. To impeach the transfer of immovable property by the Guardian, the minor must file the Suit within the prescribed period of three years after attaining majority.

33. Hence, in view of the above discussion, as the appeal is devoid of merits, we deem it appropriate to dismiss the appeal and accordingly the appeal is dismissed but in the circumstances without costs.