Daji Himat Deceased, By His Son And … vs Dhirajram Sadaram on 20 April, 1887

Bombay High Court
Daji Himat Deceased, By His Son And … vs Dhirajram Sadaram on 20 April, 1887
Equivalent citations: (1888) ILR 12 Bom 18
Author: N Haridas
Bench: N Haridas, Jardine


Nanabhai Haridas, J.

1. The facts of this case are briefly these The property in dispute was, on the 22nd May, 1862, mortgaged by Rajkaran and his son Amra to one Bezanji. Rajkaran thereafter died, leaving a widow, Bai Shivba, and two sons, the said Amra and the first plaintiff, Parbhu, then a minor. On the 23rd June, 1866, Amra and Bai Shivba acting for herself and also as guardian of her minor son Parbhu created a further charge (exhibit 15) on the same property. On the 3rd September, 1867, they settled their account with the mortgagee, and obtaining a fresh advance passed a fresh mortgage-bond (exhibit C) giving additional security. Bezanji assigned his right as such mortgagee to one Muleshwar, who in Suit No. 2114 of 1869 obtained a decree (exhibit 17) against Parbhu as the deceased Amra’s heir,–Amra having died in the meantime,–and against Bai Shivba as the guardian of Parbhu, and also against her in her own individual capacity. The decree directed the mortgage-debt Rs. 1,149 and costs’ of the suit to be realized by the sale of the mortgaged property and also from defendant’s other property. In execution of this decree the property in dispute was sold and purchased by the defendant Daji Himat for Ks. 1,550 on the 17th February, 1870. In June, 1881, or more than eleven years after, but within twelve years of such sale, Parbhu brought this suit to recover possession of such property, ignoring altogether the mortgage transactions and the decree, and alleging that the defendant had taken wrongful possession of it in 1870 whilst he was a minor. He also alleged that he had attained his majority only a year before. It is, however, found that he was “at least twenty-five years old when he instituted his suit.”

2. The Subordinate Judge rejected his claim with costs, and this is an appeal to us against the Assistant Judge’s decision reversing that decree. In the course of the argument we intimated our opinion that neither the mortgage nor the sale in execution was contrary to the provisions of the Bhagdari Act (V of 1862, Bombay), the whole of the bhag having formed the subject of both, as found by the lower Courts.

3. The only questions, therefore, which we have now to determine, are,. first, whether the suit is barred by limitation, and, secondly, if not,whether the plaintiff is entitled to the relief he seeks, of any other?

4. Upon the first point it was urged that under Act XV of 1877, Section 7 and Schedule II, Article 12, the plaintiff ought to hare sued within one year of his attaining majority. Whether he ought to have done so must, we think, depend’ upon whether he was properly represented In the suit of Muleshwar. We are of opinion he was not so represented. His mother, Bai Shivba, was not authorized to represent him, not having obtained a certificate under the Minors” Act (XX of 1864)–Jatha Naik v. Venktapa I.L.R., 5 Bom., 14 Mrinamoyi Dahia v. Jogodishuri Dahia I.L.R., 5 Calc. 450; Doorga Persad v. Kesho Persad Singh L.R., 91. A. 27. His suit, therefore, was not barred under that article–Vishnu Keshav v. Udmchandra Bhaskar I.L.R., 11 Bom., 130.

5. Now, as to the merits. As he was not properly represented in, the above suit, the decree in it does not bind him, and it is open, to him now to show, if he can, that the debt, for which that decree was passed, and to realize which the property in disputes was sold in execution, was such as did not bind him–Mussamut Nanomi Babuasin v. Modun Mohun L.R., 13 I.A., 1; Jairam Bajabashet v. Joma fruited judgments for 1886, p. 282. But he does not even allege any such thing in this suit,. The Subordinate Judge has distinctly found that the debt due to Bezanji was an ancestral and a family debt, and, therefore, one binding upon the whole family, the plaintiff included. Neither in the appeal to the Assistant Judge nor here has this finding been questioned. There is no ground to impute any fraud to his mother, who is still living with him, and who would have been called to prove, if such was the fact, that the debt was not such as to justify the sale. And his silence for nine years after he had attained his majority shows what view he himself took of the nature of that debt. The family has benefited to the full extent of the purchase-money paid by the defendant. Such being the case, we think he has entirely failed in establishing his title to disturb the execution-purchaser.

6. The respondent (second plaintiff) being only his assignee pending the suit stands in no better position. We must, accordingly,

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