FAKIRAPPA LIMANNA PATIL Vs. LUMANNA MAHADU DHAMNEKAR

JUDGEMENT

(1.) This appeal has now been fully argued, and an opportunity has arisen for deciding a question which has given rise to a considerable conflict of judicial opinion, namely, whether a Hindu minor on his attaining majority can sue to recover possession of property transferred by his mother acting as his natural guardian during his minority without suing to set aside the transfer and therefore coming within the provisions of Article 44 of the Limitation Act. That question was answered in the negative by Beaman and Heaton JJ. in Luxmava v. Rachappa where the plaintiff had bought certain property from which had been sold by Mudkappa s mother during his minority to the defendant, and reference may be made to Mahableshvar Krishnappa v. Ramchandra Mangesh (1913) I. L. R. 38 Bom. 94 where K as manager of the family appointed a Muktyar who sold Mulgeni rights. K s eldest son after attaining majority sued to recover possession alleging that the sale was void. It was held that it could not be treated as a nullity and the right of the plaintiff j to challenge it was barred by Article 44 of Act IX of 1908. But there are contrary decisions of this Court.

(2.) In Bhagvant Govind v. Kondi Mahadu (1889) I. L. R. 14 Bom. 279 the plaintiff sued to redeem land alleged to have been mortgaged by his father in 1858 to the grandfather of the 1st defendant. The defendant alleged that the mortgage had been executed in favour of the father of the 2nd defendant and that in 1863 the equity of redemption had been sold to the mortgagee by the widows of the mortgagor during the plaintiff s minority. The defendant contended that the suit was really one to set aside the sale of 1863 and was barred by Article 44 of the Limitation Act, XV of 1877. It was held that Article 44 did not apply as the necessity for impugning the sale of 1863 to the 2nd defendant arose from the 2nd defendant s resisting the plaintiff s claim to redeem the mortgage, and was therefore subservient to the suit for possession. It was also held that the 2nd defendant having entered into possession as mortgagee could not afterwards set up an adverse possession as owner so as to defeat plaintiff s right to redeem: Ali Muhammad v. Lalta Bakhsh (1878) I. L. R. 1 All. 655 and Tanji v. Nagamma (1866) 3 M. H. C. R. 137.

(3.) In Anandappa v. Totappa (1911) 17 Bom. L. R. 1137 n. the plaintiff sued for a declaration that a deed of exchange dated the 15th June 1900 was not binding on him and for recovery of possession of certain lands. The deed of exchange purported to be between the plaintiff a minor interested in his own right as the adopted son of a Vatandar acting through his natural father and the natural grand-father of the plaintiff. The District Judge reversing the decision of the Subordinate Judge held that it was not necessary for the plaintiff to sue to set aside the deed on the authority of the decision of the Privy Council in Bijoy Gopal Mukerji v. Krishna Mahishi Debi (1907) I. L. R. 34 Cal. 329, P.O. But that was a suit by a reversioner to recover possession of property leased by a Hindu widow. The decision of the District Judge was upheld in appeal by Scott C. J. and Rao J. They said: "Whether a plaintiff must sue for cancellation of a document under which the defendant in possession claims, depends, we think, upon whether the onus of proving circumstances establishing its invalidity lies upon him or whether it lies upon the defendant to prove circumstances establishing its validity." They then referred to the decision of Woodroffe J. in Harihar Ojha v. Dasarathi Misra (1905) I.L.R. 33 Gal. 257. That again was a suit by a reversioner to recover property alienated by a Hindu widow. Woodroffe J. relied on a passage in the judgment of the Madras High Court in Unni v. Kunchi Amma (1890) I. L. R. 14 Mad. 26.