RAJA RAM Vs. NAVEEN CHAND

JUDGEMENT

(1.) S. P. Srivastava, J. This second appeal filed by the defendant is directed against the judgment and decree passed by the first appellate court wherein the decree passed by the trial court canceling the sale-deed dated 1-4-1971 executed by the mother of the plaintiff during his minority transfer ring agricultural holding bearing Khasara No. 300 having an area of 0. 27 acres had been cancelled.

(2.) THE facts in brief, shorn - of details and necessary for disposal of this appeal lie in a narrow compass. THE plaintiff Navin Chandra had filed the suit giving rise to this appeal through a next friend on 17th July, 1974 alleging himself to be a minor and seeking cancellation of the sale-deed dated 1-4-1971 in respect of plot No. 300 which had been executed by his mother in favour of the defendant. In the plaint the plaintiff's age was disclosed to be 12 years. In the written statement, the plaintiff's age was disclosed to be only 10 years. THE fact that on the date of the execution of the sale-deed in question, the plaintiff was a minor was not disputed. THE plaintiff had challenged the validity of the sale-deed in question on the ground that the sale-deed had been executed without obtaining the requisite permission from the District Judge as contemplated under Section 8 of the Hindu Minority and Guardianship Act. THE aforesaid suit was contested by the present appellant asserting that Jagannath who was shown to be the next friend of the minor plaintiff had no right to file the suit. It was also asserted that the suit was barred by Section 331 of the U. P. Zamindari and Land Reforms Act and in any case, the plain tiff should return the sale money and without such payment the sale-deed could not be cancelled. THE defendant also asserted that since Jagannath, the alleged next friend through whom the plaintiff had filed the suit could be treated as a next friend of the plaintiff on account of his interest being adverse to the plaintiff no decree in favour of the plaintiff could have been passed, it was also asserted that in any event since the plaintiff had attained majority on 24-5-1980 on his own showing the suit could if at all be deemed to have been filed on the said date and since the sale-deed in dispute had been executed on 1-4-1971 and the suit to have been filed on 24-5-1980 it was liable to be dis missed as having become barred by time on that date.

(3.) THE learned counsel for the appellant has strenuously contended that Jagannath, the alleged next friend through whom the suit had been filed by the minor plaintiff was not entitled to file the suit as a next friend as his interest was adverse to the minor plaintiff. THE contention is that the provisions contained in Order XXXII, Rule 1 of the Civil Procedure Code specifically provide that every suit by a minor shall be instituted in his name by a person who in such suit shall be called the next friend of the minor and since in the present case Jagannath could not be treated to be the next friend of the plain tiff on account of his adverse interest the suit was liable to be thrown out on this ground alone and in any case could be deemed to have been filed when the minor attained majority on 24-5-80 and was permitted to conti nue the suit by the court without the next friend in which event the entire period elapsing between 14-7-1977 to 24-5-1980 was liable to be ignored with the result that by the date when the suit was to be deemed to have been filed the bar of limitation having already set in no decree could have been granted in favour of the plaintiff.