JADAV PRABHATBHAI JETHABHAI Vs. PARMAR KARSANBHAI DHULABHAI

JUDGEMENT

(1.) Certain ticklish questions arise in this appeal. Is it necessary for a minor on attaining his majority to sue for setting aside a transaction with respect to an immovable property by his de facto guardian affesting the formers interest therein? If it is not necessary is it necessary for the minor on attaining his majority to file a suit for declaration that the transaction in question is void and is not binding to him? The Division Bench ruling of the Bombay High Court in the case of Tattya Mohyaji Dhomse vs. Rabha Dadaji Dhomse reported in AIR 1953 Bombay at page 273 has answered both these questions in favour of the present appellants. One may then feel that these questions no longer retain any ticklish nature therein. However the ruling of the Supreme Court in the case of State of Punjab vs. Gurdev Singh reported in AIR 1992 Supreme Court at page 111 has created some difficulty in answering these questions in the light of the aforesaid Division Bench ruling of the Bombay High Court in the case of T.M. Dhomse (supra).

(2.) The factual backdrop of the case should be taken into consideration at this stage. The dispute centres round a piece of land bearing survey No.167/2 admeasuring I cre 9 gunthas situated at Petapura Lakhadi Kui of village Jaspur Taluka Padra (the suit land for convenience). It belonged to the father of the appellants. He breathed his last during their minority. The affairs of the suit land came to be managed by the uncle of the present appellants. He was certainly not a natural guardian and he was not appointed as a guardian of the appellants during their minority by any competent Court. He acted as a de facto guardian only at the instance of the deceased father of the appellants. It appears that in his capacity as a de facto guardian of the appellants during their minority he transferred the suit land on 7th May 1953 in favour of the father of the respondents and one Virabhai Nathabhai of Village Fatehpura for Rs.700. It appears that later on said Virabhai Nathabhai relinquished his rights therein in favour of the father of the present respondents. He breathed his last leaving behind him the respondents herein as his heirs and legal representatives. The appellants alleged the transaction to be that of mortgage whereas the respondents claimed it to be an outright sale with the right of repurchase within the specified time limit. The appellants approached the respondents for redemption of the alleged mortgage of the suit land. The respondents did not accede to that request. The appellants thereupon filed one suit in the Court of the Civil Judge (S.D.) at Vadodara for redemption of the suit land and its possession. In the alternative they claimed the relief of possession simplicitor on the ground that the transaction entered into by their uncle as a de facto guardian would not be binding to them. Their suit came to be registered as Special Suit No.23 of 1973. The respondents as the defendants filed their written statement at Exh.8 on the record of the case and resisted the suit on various grounds. They also filed their further written statement at Exh.35 on the record of the case to the amended plaint and resisted the amended plaint on various grounds. On the pleadings of the parties the necessary issues were framed at Exh.9 on the record of the case. After recording evidence and hearing the parties by his decision rendered on 17th March 1977 in Special Civil Suit No.23 of 1973 the learned Civil Judge (S.D.) at Vadodara dismissed the suit. The aggrieved plaintiffs have thereupon invoked the appellate jurisdiction of this Court under Section 96 of the Code of Civil Procedure 1908 for questioning the correctness of the aforesaid decision rendered by the trial Court against them.

(3.) Shri Sanjanwala for the appellants has relied on the aforesaid Division Bench ruling of the Bombay High Court in the case of T.M. Dhomse (supra) in support of his submission that the transaction entered into by the de facto guardian without legal necessity would be void and is of no consequence whatsoever and Article 44 of the Limitation Act 1908 (the old Limitation Act) would not govern the suit in as much as it would not be necessary for the plaintiffs to seek the relief for setting aside such void transaction. The aforesaid Division Bench ruling of the Bombay High Court in the case of T. M. Dhomse is on all fours applicable in the present case.