GULABCHAND DAULATRAM Vs. SURYAJIRAO GANPATRAO

JUDGEMENT

(1.) This is an appeal against a decree of the District Court at Jalgaon in App. No. 316 of 1940 reversing the decree of the Civil Judge, Junior Division, at Bhusawal in Suit No. 218 of 1939. The facts of the case must be stated in detail in order to appreciate the contentions raised.

(2.) The Court of Wards assumed the management of the estate of one Ganpatrao Sagajirao Nimbalkar sometime in June 1907. The estate remained in the management of the Court of Wards till June 1917. The management was then withdrawn, and the estate was re-entrusted to Ganpatrao. By reason of the provisions of Section 40, proviso 3, Bombay Court of Wards Act, I [1] of 1905, no land-holder, who has been made a Government ward in pursuance of Section 9 (1) of the Act, is competent on the withdrawal of the superintendence of the Court of Wards to transfer or create any charge on or interest in his property or any part thereof beyond the term of his natural life, except with the previous sanction of the Collector. Ganpatrao owned among other properties two houses, Municipal Census Nos. 822 and 230, at Bhusawal, which will hereafter be referred to as the suit houses. By a sale-deed dated 18-5-1918, Ganpatrao sold the suit houses to the plaintiff's brother, Onkardas Daulatram, and his cousin, Kanayalal Vithaldas, for Rs. 1,000, and delivered possession to them. Under the sale deed Ganpatrao purported to convey an absolute interest in the property to the vendees. It does not appear that either the vendor or the vendees were aware of the statutory disability imposed on Ganpatrao by reason of Proviso 3 to Section 40, Bombay Court of Wards Act. The transaction appears to have been open and honest, and the invalidity of it beyond the lifetime of Ganpatrao was not present to the mind either of Ganpatrao or of the vendees. At a partition which took place between the plaintiff, Onkardas and Kanayalal, the suit houses fell to the share of the plaintiff. Ganpatrao died on 8-12-1919, and his property devolved upon his son Suryajirao, who will hereafter be referred to as the defendant. The defendant filed Suit No. 1140 of 1930 in the Court of the Subordinate Judge at Bhusawal against the plaintiff for possession of the suit houses on the ground that the sale of the said houses was void beyond the lifetime of Ganpatrao, and Ganpatrao having died, he the defendant was entitled to obtain possession of the suit houses. The trial Court dismissed the suit. In appeal the District Court at Jalgaon reversed the decree and passed a decree for possession of the suit houses and for mesne profits. In second Appeal No. 874/33 this Court confirmed the decree of the District Court on 9-31936. The defendant executed the decree and obtained possession of the suit houses sometime in August 1936. The plaintiff there after filed the suit from which this appeal arises, being Suit No. 218 of 1939, against the defendant claiming Rs. 3,600 as damages for breach of the covenant for title and quiet enjoyment, He claimed that the suit houses were worth Rs. 2,000, and that he had spent Rs. 1,000 for the litigation and Rs. 600 were paid by him by way of mesne profits to the defendant.

(3.) The defendant by his written statement contended that Ganpatrao did not sell anything more than his life interest in the property, and that he was incompetent to dispose of the suit houses beyond his natural lifetime. He further contended that the claim was barred by the law of limitation and was also barred as res judicata, and in any case the plaintiff was not entitled to any damages.