IRANGAUDA FAKIRGAUDA PATIL Vs. NINGAPPA BIN GOPAPPA GOPAGAUDA

JUDGEMENT

(1.) In 1907 plaintiff's mother Balava transferred certain of the properties belonging to her minor son to one Tippava. The transfer was actually made to the sister's son of Tippava. On the same day Tippava purported to execute in favour of Balava a sale-deed in respect of certain property. The plaintiff came on age in 1914. But in 1918 Tippava having died the reversioners to her husband took proceedings to recover back the properties which she had transferred in 1907 to Balava and they succeeded. The plaintiff, therefore, having lost the la nd which the mother had got for him really in exchange on account of Balava's and Tippava's relationship, brought this suit against the defendants to recover possession alleging that the defendant purchased the land from his mother by misrepresenting facts to her and without consideration, and that he wished to set aside the sale on the ground that there was no necessity for it.

(2.) The suit as ramed was clearly under Art. 44 of the Limitation Act, and was, therefore, on. the face of it, time-barred. The Trial Court thought that Art. 44 could not have been intended to apply to alienations of unofficial guardians. But that has been decided in the opposite way by a decision of the Court. The decree in favour or the plaintiff was set aside by the order of the Assistant Judge on the ground that it was time-barred under Art. 44, but the Judge thought that there would be a remedy open by suit with a view to restitution.

(3.) We think that it is the correct view to take. The plaintiff was not really suing to set aside the alienation of his mother as de facto guardian on the ground that it was a wrong transaction ab initio. He was perfectly satisfied with the land which his mother had taken in exchange until 1918. It was only when he lost this land that he objected to his mother's transaction. His remedy, therefore, seems to lie under Section 119 of the Transfer of Property Act, and the cause of action arose when he was deprived of the land which his mother had obtained in exchange. We do not think It is advisable that leave should be given to the plaintiff to amend his plaint. Because the plaintiff's suit under that section would be an entirely different suit, and it would be much better, as we have often pointed out, it the plaintiff has a right of action stall in existence, that a fresh start should be made instead of an attempt being made to amend pleadings which have been founded on a different cause of action altogether. So that the appeal must be dismissed with costs.