TATTYA MOHYAJI DHOMSE Vs. RABHA DADAJI DHOMSE

JUDGEMENT

(1.) The plaintiff in the suit from which this second appeal arises was one Rabha Dadaji. Dadaji had four sons, Balm, Ganga, Taba and Rabha. The four brothers formed a Joint family of which the eldest brother Babu was the manager. As such manager, he conveyed the suit property by a conditional sale-deed in favour of the defendant on 24-10-1325. After the execution Of this conditional sale-deed, there was, according to the finding of the lower Court, a partition between the four brothers. Although there was severance in interest between the four brothers, Babu and Taba's son (Taba was dead by that time) chose to live together and Ganga and Rabha who was then a minor lived together. During the minority of Rabha, Ganga sold the suit property to the defendant in the year 1930 for a sum of Rs. 1,000. More than seven years after attaining his majority, Rabha filed the present suit for recovery of possession of his l/4th share in the suit property on the allegation that the transaction dated 24-10-1952, was really in the nature Of a mortgage. He alleged that Ganga had no right to pass any sale-deed in respect of his share and that the sale-deed so far as it relates to his share was not binding upon him. He contended that his right to claim redemption was in no way affected by reason, of the sale-deed of the year 1930. He stated that as the defendant had purchased the share of Ganga in the mortgaged property, he was entitled to claim redemption of his own 1/4th share in the mortgaged land.

(2.) The defendant resisted the suit on the ground that when he purchased the land from Ganga in the year 1930, Ganga was the de facto and the de Jure guardian of Rabha, and as the property was sold for payment of the family debts and for meeting the expenses of Rabha's marriage, the sale was binding upon Rabha Another defence to the suit was that as the suit was not filed within three years after Rabha attained majority or Within 12 years from the sale-deed, it was barred by limitation.

(3.) The learned trial Judge held that Ganga was the de facto guardian of Rabha at the time of the sale. He found that the sale was for legal necessity and was therefore binding upon the plaintiff. He raised an issue as to whether the suit was tenable without the sale-deed being declared void, and although he came to the conclusion that the suit was tenable, there is no discussion of that issue in the judgment of the trial Court. In accordance with these findings the trial Judge dismissed the plaintiff's suit with costs. Against that decision an appeal was preferred to the District Court of Poona and was heard by the learned Assistant Judge. He also found that Ganga was the de facto guardian of the plaintiff Rabha. But on the point of legal necessity for the sale-deed, he took a view different from that of the learned trial Judge. He was of opinion that the legal necessity for the sale-deed had not been proved and that therefore the sale-deed was not binding on Rabha. Relying upon the decisions of this Court in - 'Hanmantappa v. Dundappa', AIR 1934 Bom 234 (A) and - 'Malkarjun Annarao v. Sarubai Shivyogi', AIR 1943 Bom 187 (B) he held that as there was no legal necessity for the sale, it was void ab initio and that therefore it was not necessary for the plaintiff to file a suit for setting it aside before asking for redemption of the suit property. His conclusion is expressed in the following words: "It follows from this ruling that a sale of minor's property by a de facto guardian would be void ab initio if it is not supported by legal necessity. It is for this reason that we have to consider whether there was legal necessity justifying the sale-deed that Ganga passed. If legal necessity is proved, then the sale would be binding on the minor's share or Interest but if no legal necessity is proved the sale would be void and in that case Article 44 of the Indian Limitation Act would not apply." As the learned Assistant Judge's finding was that there was no legal necessity for the alienation, he held that the plaintiff was entitled to sue for redemption and that Art. 44, Limitation Act, created no bar in his way. Accordingly, the learned Assistant Judge set aside the order of the trial Court and decreed the plaintiff's suit for redemption of his l/4th share in the suit mortgage on payment of Rs. 150 which was the amount found due on the mortgage. Against that order the defendant has come in second appeal.