CHINTAMAN BALWANT DHARMADHIKARI Vs. BHAGVAN GANAPATI MANKESHWAR

JUDGEMENT

(1.) The plaintiff brought this suit in 1924 to recover possession of a half share of certain property, which had been sold by his father to defendant No. 1 on November 21, 1918. His plaint farther asked that a prior mortgage deed to defendant No. 1, and an award which was based upon that mortgage deed, should be set aside, as well as the sale-deed of 1918. The Subordinate Judge held that the suit was time-barred on the following grounds: The validity or otherwise of the sale deed of 1918 depends upon the validity of the prior mortgage, etc. It is therefore necessary for the plaintiff to show that the first mortgage passed in 1905 is not binding against him. The cause of action for setting aside this mortgage accrued to the plaintiff in 1905 under Art. 126 of the Limitation Act, but he could not then sue for setting it aside as he was a minor. He attained majority on February 2, 1921, or February 25, 1021, He should have therefore died the suit on February 25, 1924, at least, i.e, within three years from the date he became a major; but the suit has been filed on November 12, 1924. The suit is therefore quite barred by time.

(2.) On appeal to the District Judge, he held that the suit was not time-barred, and in his judgment he says : The learned Subordinate Judge thinks that limitation began to run from the date of the mortgage in 1905, and therefore holds the suit barred. I cannot accept this view. The record does not appear to show whether defendant No. 1 took possession under his mortgage, but in any case the mortgage, in my opinion, wag not an alienation which in was necessary for the plaintiff to, set aside. The mortgage might be paid off, and as a matter of fact it is no longer subsisting. I do not see how the previous mortgage transactions can effect plaintiff's right to challenge the out and out alienation by sale.

(3.) He, therefore, set aside the lower Court's finding and the dismissal of the suit, and remanded the case for trial on the merits.