26 May 2020


Judgments

High Court of Orissa

Surendra Panigrahi Vs. Abhiram Sahu and Ors.

MANU/OR/0519/2017

30.08.2017

Property

A minor can bring a suit within a specified time after the termination of his minority and/or during the subsistence of his minority, through his next friend

Defendant is the Appellant against a confirming judgment. Case of the Defendant is that, the suit land is his ancestral homestead. He is in possession of the same for more than twelve years and as such perfected title by way of adverse possession. Trial Court came to hold that, Defendant and his predecessor-in-interest were dispossessed from their ancestral homestead land. The Plaintiffs' vendor took possession over the suit land. The suit is not barred by limitation. Held so, the learned trial Court decreed the suit. Unsuccessful Defendant challenged the judgment and decree of the learned trial Court before Additional District Judge, which was eventually dismissed. Issue involved in present case is whether in the instant case benefit under Section 6 of the Limitation Act, 1963/Act can at all be availed of by the Plaintiffs.

In Sardar Vijaysingh Rao Ghorpade v. Jeewan Lal Ram Das Jaiswal, the Madhya Pradesh High Court held that, a minor has two rights: (1) he can bring a suit within a specified time after the termination of his minority (Section 6 Limitation Act, 1963), (2) that even during the subsistence of his minority, he can institute a suit through his next friend. In Lalji Sah and others v. Sat Narain Bhagat and others, the Patna High Court held that the privilege given to a minor under the section is not one that could be availed of by him only but while the minor's disability lasts his guardian or next friend also can being a suit or make an application through the ordinary period of limitation for such a suit or application has run out.

Section 8 of Orissa Survey And Settlement Act, 1958 is a proviso to Section 6 or 7 of Act. A combined effect of Section 6 and 8 read with third column of the appropriate article would be that, a person under disability may sue after cessation of disability within the same period as would otherwise be allowed from the time specified therefore in the third column of the schedule. But such extended period would not be beyond three years from the date of the cessation of the disability. A minor is entitled to institute a suit or make an application for the execution of a decree within the statutory period of three years after attaining his majority and it was never intended by the Legislature to restrict the protection given to a minor by the acts of his guardian in the matter of making an application for execution. The privilege given to a minor under the section is not one that could be availed of by him only, but while the minor's disability lasts his guardian or next friend also can being a suit or make an application through the ordinary period of limitation for such a suit or application has run out.

A minor can bring a suit within a specified time after the termination of his minority and/or during the subsistence of his minority, through his next friend. Moreover a minors’ right cannot be curtailed by any other process of strained construction of the afore-mentioned provisions of Act. Admittedly, the Plaintiffs were minors, when the Record of Rights (ROR) was published in the year 1968. They instituted the suit through their next friend in the year 1978. They could have instituted the suit in the year 1981, i.e., within three years of attaining majority. Thus, the suit was filed within the prescribed period of limitation. The appeal is dismissed.

Relevant

Sardar Vijaysingh Rao Ghorpade v. Jeewan Lal Ram Das Jaiswal, MANU/MP/0033/1963
: AIR 1963 MP 100, Lalji Sah and others v. Sat Narain Bhagat and others, MANU/BH/0043/1962
: AIR 1962 Patna 182

Tags : Suit Minor Maintainability

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