Anim-adverting upon the order 12..2.2008 passed in I.A.No.740 of 2007 in O.S.No.37 of 2005 by the Additional District Munsif, Villupuram. this civil revision petition is filed.
2. A summation and summarisation of the facts, which are absolutely necessary and germane for the disposal of the civil revision petition, would run thus:
(1) jhth brhj;jpy; thjpfs; chpikia tsk;g[if bra;at[k;
(2) jhth brhj;jpy; gpujpthjpfnshmtuJ Ml;fnsh V$z;Lfnsh ve;j tifapYk; jila[k; ,d;dYk; ,lw;ghLk; bra;ahky; ,Uf;Fk; bghUl;L epue;ju cWj;Jf;fl;lis gpwg;gpf;ft[k;
(3) jhth bryt[j;bjhif gpujpthjpfshy; thjpfSf;F fpilf;Fk; gof;Fk;
(4) nkYk; ePjp kd;wj;jpw;F epahakhf njhd;Wk; ,ju ghpfhu';fs; fpilf;Fk;gof;Fk; cj;jput[ bra;J jPh;g;gspf;fg;gl ntz;Lkha; thjpfs; jhH;iknahL gpuhh;j;jpf;fpd;nwd;@ During the pendency of the suit the I.A.No.740 of 2007 was filed seeking amendment of the plaint as under:
"4/ gpuhjpy; brhj;J tptuj;jpy; g[y vz; jtWjyhf 104-2 vd;gjw;F gjpyhf 104-20 vd;W bfhLf;fg;gl;Ls;sJ/ mJ fzpdpapy; ilg; bra;jth;fs; jtW/ c& jtW jw;nghJ jhth buo yp!;oy; te;J Kjy; tprhuizf;fhd gpukhd gj;jphpf;if jahh; bra;a[k; nghJjhd; vd;Dila jw;nghija tHf;Fii"uhy; fz;lwpag;gl;lJ/ c& jtWjiy rhp bra;ah tpl;lhy; tHf;F Kotile;j epiyapy; jPh;ghiz.; jPh;g;g[iufspYk;. ,nj jtuha g[y vz; bfhLf;fg;gl;L. ,U jug;gpdUf;Fnk rpf;fy; Vw;gLk;/ mJ multiplicity of proceedings f;F tHp tFj;JtpLk;/@ The trial Court allowed the said I.A. Being dissatisfied with and aggrieved by the order of the lower Court, the petitioner/first defendant filed this revision on various grounds.
3. The learned counsel for the revision petitioner/first defendant would develop her argument to the effect that as per the Honourable Apex Court's judgement, any amendment would take effect from the date of filing of the I.A.for amendment and accordingly if viewed it is clear that the I.A.itself was filed long after the period of limitation, relating to the prayers sought for in the said I.A.
4. Whereas the learned counsel for the respondents/plaintiffs would develop his argument to the effect that as on the date of filing of the suit in the year 2005, second plaintiff was only 19 years old and the I.A. for amendment was filed in the year 2007 and as such, so far the second plaintiff is concerned, he did not complete the age of 21 years as on the date of filing of the I.A.; these points are based on factual evidence to be adduced before the Court and the trial Court can rightly decide it while deciding the suit itself and it is not open for the revision petitioner/first defendant to challenge the order of the lower Court, which itself clearly indicated that the limitation point could be decided along with the suit.
5. The learned counsel for the revision petitioner/first defendant would cite the decision of the Honourable Apex Court, reported in (2001) 6 SUPREME COURT CASES 163 VISHWAMBHAR AND OTHERS V. LAXMINARAYAN (DEAD) THROUGH LRS AND ANOTHER, paragraph 9 of it reads thus:
"9.On a fair reading of the plaint, it is clear that the main fulcrum on which the case of the plaintiffs was balanced was that the alienations made by their mother-guardian Laxmibai were void and therefore, liable to be ignored since they were not supported by legal necessity and without permission of the competent court. On that basis, the claim was made that the alienations did not affect the interest of the plaintiffs in the suit property. The prayers in the plaint were inter alia to set aside the sale deeds dated 14.11.1967 and 24.10.1974, recover possession of the properties sold from the respective purchasers, partition of the properties carving out separate possession of the share from the suit properties of the plaintiffs and deliver the same to them. As noted earlier, the trial court as well as the first appellate Court accepted the case of the plaintiffs that the alienations in dispute were not supported by legal necessity. They also held that no prior permission of the court was taken for the said alienations. The question is, in such circumstances, are the alienations void or voidable? In
Section 8(2) of the Hindu Minority and Guardianship Act, 1956, it is laid down, inter alia, that the natural guardian shall not, without previous permission of the court, transfer by sale any part of the immovable property of the minor. In sub-section (3) of the said section, it is specifically provided that any disposal of immovable property by a natural guardian, in contravention of sub-section (2) is voidable at the instance of the minor or any person claiming under him. There is, therefore, little scope for doubt that the alienations made by Laxmibai which are under challenge in the suit were voidable at the instance of the plaintiffs and the plaintiffs were required to get the alienations set aside if they wanted to avoid the transfers and regain the properties from the purchasers. As noted earlier in the plaint as it stood before the amendment the prayer for setting aside the sale deeds was not there, such a prayer appears to have been introduced by amendment during hearing of the suit and the trial Court considered the amended prayer and decided the suit on that basis. If in law the plaintiffs were required to have the sale deeds set aside before making any claim in respect of the properties sold, then a suit without such a prayer was of no avail to the plaintiffs. In all probability, realising this difficulty the plaintiffs filed the application for amendment of the plaint seeking to introduce the prayer for setting aside the sale deeds. Unfortunately, the realisation came too late. Concededly, plaintiff 2 Digamber attained majority on 5.8.1975 and Vishwambhar, Plaintiff 1 attained majority on 20.7.1978. Though the suit was filed on 30.11.1980 the prayer seeking setting aside of the sale deeds was made in December 1985.
Article 60 of the Limitation Act prescribes a period of three years for setting aside a transfer of property made by the guardian of a ward, by the ward who has attained majority and the period is to be computed from the date when the ward attains majority. Since the limitation started running from the dates when the plaintiffs attained majority the prescribed period had elapsed by the date of presentation of the plaint so far as Digamber is concerned. Therefore, the trial court rightly dismissed the suit filed by Digamber. The judgment of the trial court dismissing the suit was not challenged by him. Even assuming that as the suit filed by one of the plaintiffs was within time the entire suit could not be dismissed on the ground of limitation, in the absence of challenge against the dismissal of the suit filed by Digamber, the first appellate court could not have interfered with the part of the decision of the trial Court. Regarding the suit filed by Vishwambhar, it was filed within the prescribed period of limitation but without the prayer for setting aside the sale deeds. Since the claim for recovery of possession of the properties alienated could not have been made without setting aside the sale deeds the suit as initially filed was not maintainable. By the date the defect was rectified (December 1985) by introducing such a prayer by amendment of the plaint the prescribed period of limitation for seeking such a relief had elapsed. In the circumstances, the amendment of the plaint could not come to the rescue of the plaintiff."
6. In the cited case, the factual circumstances were such that both the plaintiffs attained majority and thereafter filed the suit and seven years after the filing of the suit, amendment was sought to declare the sale deeds as null and void. Whereupon the Honourable Apex Court held that such prayer was barred by limitation. However, in this case, the learned counsel for the respondents/plaintiffs would submit that the second plaintiff did not attain the age of 21 years as on the date of filing of the I.A. This is a factual issue, which should be decided only by the lower Court and I am of the considered opinion that this Court, at this stage, should not decide finally on that.
7. The learned counsel for the respondents/plaintiffs also would place reliance on the decision of this Court reported in 1997(1) MLJ 560 Muthammal v. Thamburati and others, which would demonstrate and indicate that the limitation point could be decided not at the time of adjudging the I.A. itself, but at a later stage.
8. Hence, in this factual matrix, I am of the considered opinion that the Court could decide the limitation issue at a latter stage rather than deciding it along with the I.A. Wherefore, I could see no merit in the revision and accordingly, the revision petition is dismissed. No costs. Consequently, connected miscellaneous petition is dismissed.
9. The learned counsel for the revision petitioner/first defendant would make an extempore submission that this Court could reiterate the law to the effect that the amendment would take effect from the date of filing of the I.A. for amendment. I would clarify that it is a well settled proposition of law that amendment of the plaint would take effect only from the date of the I.A. filed for amendment on being allowed.