LexYESHWANTRAO LAXMANRAO GHATGE & ANR. versus BABURAO BALA Y ADAV AND ORS.
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YESHWANTRAO LAXMANRAO GHATGE & ANR.
v.
BABURAO BALA Y ADAV AND ORS.
February 9, 1978
(N. L. UNTWALIA AND P. S. KAILASAM, JJ.J
Limitation Act (Act IX), 1908-Section 28, and Articles 134, 134A, 1348,
142 and 144-EUect of Section 28.
Bombay Public Trusts Act, 1950, S. 52A (as introduced by Bombay Act 23
of 1955) whether S. 52A, under which there is no lin1itation for recovery of the
properties of a Public Trust in accordance with the Act would revive the ex-
tinguished right to the property-Scope of S.52A.
Properties IA to 1 H \Vere either purcha.sed or endowed in the name o1 the
deity Shri Vithal Rakhumai Dev by one Ambabai. One Pandurang Babaji Pawar
was ~ppointed as the manager (Vahivatdar) and one Bala Appa Yadav was
appointed as a servant of the deity.
On 1-6-1905, Ambabai executed a sa1e
deed in respect of al! the suit properties except property 1 E in favour of Pan.
durang and Bala.
On 23-6-1907, Ambabai executed a second will reiterating
that Pandurang and Bala as the Yahivatdar and the servant respectively.
After
the death of Ambabai on 12-3-1910, the properties were partitioned.
Pandurang
got property at IC and Bala the rest.
Pandurang died on 13-2-1911 and there-
after there were several transfers of the properties.
The property at 1 E came
in possession of plaintiff/appellant No. 1 who claimed to be the Vahivatdar and
hereditary trustee of the deity.
Plaintiff No. 1 treated the property at 1 E as
his own and sold it on 17-9-1947 to original defendant Nos. 2 and 3.
The plain-
tiffs instituted a suit in 1961 under section 50 and 51 of the Bomhay Public
Trusts Act, 1950, attacking the sales made in the years 1905 and 1947 as being
void and not binding on the deity. The trial Court treating the suit as one filed
by the deity held that the properties were endowed to the deity; the sale deeds
were obtained by undue influence, without legal necessity and were not for the
benefit of the Devasthan and hence not binding on the devasthan; the purchasers'
possession over the Jand sold was therefore void and adverse." The suit was
however dismissed on the ground that it was barred by. limitation. In appeal,
the finding of the trial Court in respect of property at 1 E alone was assailed
without success.
Dismissing the appeal by special leave, the Court
HELD : ( 1) The law of limitation fixing a period of limitation for the
initiation of any suit or proceeding is a procedural law and not a substantive
one. If the claim was not barred and the right to the property was not extin-
guished when Section 52A came into force, then a snit h1stituted, thereafter
could not be defeated under any of the Articles of the Limitation Act, 1908 or
even of the new Limitation Act of 1963.
In express terms, Section 52A over-
rides the provisions of the Limitation Act including the provisions in Section 28
()f the Limitation Act, 1908.
The overriding effect of Sec. 52A will have its play
and operation, on\y if, by the time it ca?1e into fi;>rce Section 28 had not extin-
guished the right 10 the property in question.
Sectti;:in 52A cannot have the effect
of reviving an extinguished and lost claim and giving life to a dead horse.
[917 D··FJ
·Mahant Biseshwar Dass v. Sashinath Jhan and Ors. A.l.R. 1943 Pat. 289 and
Bairam Chunnilal and Ors. v. Durga Lal Shivnarain. A.LR. 196?. Madhya Pra-
desh, 81; appro_yed.
Mst. Allah Rakhi and Ors. v. Shah Mohammad Abdur
Rahim and Ors.,
A.LR. 1934 PC 77, referred to
Dev Chavate and Anr. v. Ganesli Mahadeo Deshpande and Anr .• A. I. R.
1970 Bombay, 412, distinguished.
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YESHWANTRAO v. BABURAO ( Untwalia, !.)
815
(2) The effect of Section 28 of the Limitation Act, 1908 is not only to bar
the remedy but also to extinguish the right.
[817 Bl
(3) In the instant case, the effect o~ Se~tion 28 of. the. Limitation Act was
that the right to the property was exttngu.1shed res~lhng 1n conferment of a
·title by adverse possession on the persons 1n possession ~f the co~cerned pro·
perties.
Uy such ad.verse po~session .those. who had coqie in. poss~ss1.on _of these
properties had acquired an 1ndefeas1ble title under the Indian L1m1tatlon Act,
1908 and the claim had become barred long before the year 1955, The lost
right to this property long before 1947 could not be s~ved and revived 1n the
year !955 or 1961 by Section 52A of the Bombay Publ:c Trust Act. [817 A, BJ
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