NARAYAN RAMCHANDRA KATKAR Vs. ARJUN BHIMRAO GORE

JUDGEMENT

(1.) This second appeal arises out of a suit for partition filed by the sons of the 1st defendant and their mother, challenging the alienation made by the 1st defendant. These alienations are challenged on the ground that there was no legal necessity and that they were for immoral purposes. The alienation was effected in favour of 5 defendant on 24-6-1953, in favour of 4th defendant on 11-5-1955, in favour of 7th defendant on 4-6-1958 and in favour of 3rd defendant on 12-9-1960. The suit was filed on 6-2-1972 and by that date, both the 1st and 4th plaintiffs had attained majority more than 3 years prior to the institution of the suit. The 2nd plaintiff was still a minor . The defendants pleaded that the alienations were for legal necessity and were not for immoral purposes and that they were for the benefit of the family.

(2.) The trial Court held that the alienations were not proved to be for immoral purposes and dismissed the suit. On appeal, the Appellate Court held that so far as the alienation dated 12-9-1960 in favour of 3rd defendants is concerned, was for legal necessity, but in respect of the other alienations in favour of defendants Nos. 4, 5, and 7 they were held to be not supported by the legal necessity. The suit was decreed and plaintiffs Nos. 1,2, and 4 were declared entitled to a 4/15th share in the suit lands. The Court was, however, of the view that the decree for partition could not be granted inasmuch as the father of the plaintiffs continued to be joint with his brothers and was not willing for a partition. In the result, the Court declared that plaintiffs Nos. 1,2, and 4 were entitled to joint possession of the suit lands with defendants Nos. 3, 5, 6 and 7 in respect of their 4/15 th share.

(3.) Mandlik, learned Counsel for the appellants sought to contend that the alienations in favour of defendants Nos. 5, 6 and 7 are also supported by legal necessity, that being a question of fact and the finding of the Appellate Court being supported by the evidence, the correctness of that finding cannot be allowed to be canvassed in second appeal; those findings are binding on the Court. He next contended that the suit was filed for more than three years after the alienation and at least in the case of 1st and 4th plaintiffs, who were both minors on the date of the alienations, the suit was barred by time at least so far as their shares are concerned. This contention must be upheld. The Appellate Court, in my opinion, misdirected itself in applying section 7 of the Limitation Act. No doubt, one of the sons of the alienor was a minor on the date of the suit, but his minority cannot in any way benefit the plaintiffs who were major even on the date of the alienation. Section 7 of the Limitation Act would apply only to a case where one of the several persons jointly entitled to institute a suit is under any such disability and a discharge cannot be given without the concurrence of such person. Each of the sons who is co-parcener of a joint family is entitled to question alienations made by the father, has an independent right of his own; it is not a joint right of all the sons which cannot be enforced unless all of them join so that the minority of one son could enlarge the period of limitation. The major sons being entitled to question alienations not having filed the suit within 3 years of the alienations, their claim barred by limitation. It is not in dispute that plaintiffs Nos. 1 and 4 were both major and hence their suit claim in respect of their share is barred by time. Only the claim of plaintiffs Nos. 2 and 3 survived for consideration. So far as plaintiff No. 3 is concerned, admittedly, he was minor and plaintiff No. 2 had attained majority within 3 years of the institution of the suit. Their suit is, therefore, maintainable on the ground that the alienations were tainted by immorality and were also not for legal necessity. Each of them have 1/15 th share in the suit property. According to the lower Court, they are only entitled to joint possession. The Court refused to grant a decree for partition and separate possession having regard to the full Bench judgment of this Court in (Apaji Narhar Kulkarni v. R. Ravji Kulkarni) I.L.R. 16 Bombay 29. But subsequently, the Supreme Court in (Puttrangamma v. Rangamma) A.I.R. 1968 S.C. 1018 has laid down:-