P L D 1952 Dacca 347 (PLP)

CHOWDHURY, J.

This appeal by the plaintiff arises out of a suit brought by him for declaration of his title and recovery of khas possession alleging that the transfer made by the plaintiff s mother during his minority is not valid and binding against him. Only point raised in this appeal is whether the suit is barred by limitation. To understand the point certain facts are necessary to be stated in this case. Plaintiff s father share of Arju Molla and defendant No. 4, his mother inherited the remaining 1 anna share. During the minority of the plaintiff the defendant No. 4 sold the entire 8 annas share to defendants Nos. 1 and 2 by a registered Kabala, dated the 27th December, 1928. Plaintiff's case is that he is not bound by the transfer and his share remained unaffected and he is entitled to get khas possession of his share on declaration of his title. The aforesaid transfer as stated above was effected on the 27th December, 1928. The findings of the Courts below are that the defendants Nos. 1 and 2 are in possession of the entire 8 annas share of Arju Molla on the basis of that deed of transfer since the date of transfer. It is also found by both the Courts below that the plaintiff attained majority on the 28th May, 1936. The present suit was instituted on the 28th May, 1943. Trial Court decreed the suit holding that the aforesaid transfer by the mother of plaintiff was void so far as the shad of the plaintiff was concerned it did not affect the interest the plaintiff and he is entitled to get a decree for possession As to limitation, trial Court held that the suit was not barred by limitation, because the plaintiff was entitled to‑get 12 years, from the date of attainment of his majority, under section 6 of the Limitation Act. On appeal by the defendants, lower appellate Court held that the plaintiff was entitled to get only 3 years from the date of the cessation of his disability, that is, from the 28th May, 1936, and the suit ought to have been brought within three years from that date or within 21 years age of the plaintiff and in that view of the matter dismissed the suit on ground of limitation. Hence this appeal by the plaintiff against the judgment of the lower appellate Court. Mr. Moti Lal Acharyya, learned Advocate for the appel lant, contends that even if section 6 of the Limitation Act is controlled by section 8, plaintiff is entitled to get 3 years' extension to the normal period of 12 years' limitation either under Article 142 or 144 of the Limitation Act. Mr. Sayem, learned Advocate for the respondents, con tends that 3 years' extension contemplated by section 6 read with section 8 of the Limitation Act is only applicable to those cases where normal period of limitation expires during the minority or within the extended period of 3 years under section 6 read with section 8 of the Act. The contention of the learned Advocate for respondent is of substance. If the normal period of limitation expires after 3 years of the attainment of the majority of the plaintiff, then there would be no necessity of extension of the period of limitation and the plaintiff can take advantage of the normal period of limitation which is greater than the extended period. In such cases section 8 prohibits extension of the period under section

6. This, however, does not mean that in cases com ing under sections 6 or 7, the period of limitation itself should be three years from the cessation of disability or the death of the person affected by it. In this view of the matter, the plaintiff's suit for possession ought to have been brought at least on or before the 7th December, .1940, up to which would be the normal period of limitation from the 7th December, 1928, the date of the sale, as the three years extension under section 6 read with section 8 of the Limitation Act from the cessation of the disability of the plaintiff on the 28th May, 1936, would come up to the 28th May, 1939. The period up to the date 7th December, 1940, under the normal period of limitation is greater than the period up to the date 28th May, 1939, the extended period of limitation, under section 6 read with section 8 of the Act. In support of this view reference may be made to the case of hasudeva Padhi Khadanga Garu v. Maguni Devan Bakshi Mahapatulu Garu 28 I A 81 (87), and also to the case of Laloo Karikar and others v. Jagat Chandra Saha and others 233 C L J 256 (258). In view of these decisions and in view of the construction put upon section 6 read with section 8, I am of opinion that the contention of the learned Advocate for the respondent is sound and I entirely agree with him and hold that the three years extension con templated by section 6 read with section 8 of the Limitation Act is only applicable to those cases where normal period of limitation expire during the disability or within the extended period of three years under those sections and the suit by the plaintiff is barred by limitation. In other words plaintiff whose property has been alienated by his mother during his minority need not set aside the transfer which is void but he can institute a suit for possession within twelve years from the date of sale or within three years from the date of his attainment of majority whichever may be the later date. If the suit is not so instituted his title in the property would be extinguished under section 28 of the Act and the subsequent suit would be barred by limitation. The lower appellate Court's opinion that the suit is to be brought within three years from the date of attainment of majority of the plaintiff is certainly not correct, though his conclusion that the suit is barred by limitation is correct. The result, therefore, is that this appeal is dismissed and the judgment and decree of the lower appellate Court are affirmed. In view of the facts and circumstances. I leave the parties to bear their own costs throughout. A. H. Appeal dismissed.