NANDLAL RAMPRATAP MARWADI Vs. DEORAO MARUTRAO DESHMUKH

JUDGEMENT

(1.) IN execution of a decree obtained by defendant 2 against defendant 1, Abarao, a field, survey No. 25/2 in mauza Derdi, and a house in mauza Kupta were attached. The present plaintiff filed an objection to the attachment alleging that he had a third share in the house and the field but that objection failed. The plaintiff then instituted the present suit to establish his title to the above property. The above property admittedly formed at one time part of the joint family estate of Abarao and his three brothers, Rustamrao, Sahebrao and the plaintiff's father, Marutrao. Marutrao became insane in 1906-07 and remained insane until his death in 1916-17. His son; the plaintiff, was born on 10th November 1914. On 16th December 1909 the other three brothers Abarao, Rustamrao and Sahebrao, sold the above house and field and another field to one Bahirji Wagji. On 11th December 1916 Abarao and Sahebrao re-purchased the house in suit, and on 14th February 1919 Abarao re-purchased the field in suit. These facts are not disputed.

(2.) THE plaintiff's case was that there was a partition between the four brothers in 1903 at which a third share in the attached house and field was allotted to his father Marutrao, that the sale in 1909 was a bogus sale which did not affect the rights of the plaintiff's father, and that the plaintiff contributed his share of the money spent on re-purchasing the property. There are findings, which are not now disputed, that the sale of 1909 was a genuine sale for consideration, that the brothers separated after 1909 and before 1916, and that the plaintiff did not contribute towards the repurchases. On the pleadings then the plaintiff's case clearly failed, but after the case had been concluded and was awaiting judgment the learned Subordinate Judge thought that the plaintiff could succeed if he pleaded that, though there was no partition before 1909, yet his father's share was not affected by the sale of 1909 because it was not for legal necessity or for the benefit of the family. The learned Subordinate Judge therefore took further statements from counsel on both sides and framed an issue on the question whether there was legal necessity for the sale of 1909. In the absence of any evidence on that point he decided that there was no legal necessity for the sale and therefore the sale was not binding on the share of the plaintiff's father. The plaintiff was therefore given a decree for a quarter share in the attached house and field. That decision was upheld in appeal.

(3.) THE suit must, in my opinion, also fail on the ground of limitation. At the time of the alienation the plaintiff was not born. It has been held in effect in Jinwarsa v. Gunwantrao (1936) 23 AIR Nag 34 that where an alienation is made by the manager without any legal necessity and without the consent of the other coparceners then living it will be invalid not only against those coparceners but also other coparceners born after the alienation, provided that the alienation has not been ratified by the other coparceners before his birth. If therefore the sale of 1909 was without legal necessity, it would be open to the plaintiff to avoid it on that ground, but he would be entitled to avoid it not as the representative of his father but in his own right. Section 6, Limitation Act, provides: Where a person entitled to institute a suit is, at the time from which the period of limitation is to be reckoned, a minor, he may institute a suit within the same period after the disability has ceased, as would otherwise have been allowed from the time prescribed therefor.