The validity of alienation during minority and the proof of date of birth are crucial factors in determining the legal necessity and limitation period for filing a suit.

By this appeal, the appellant has challenged the judgment and decree dated 23rd October, 1991 passed by the 4th Additional District Judge, Akola in Regular Civil Appeal No.306 of 1988 whereby the 1st appellate Court allowed the appeal setting aside judgment and decree dated 30-6-1988 passed in Regular Civil Suit No.90 of 1986 by the Civil Judge, Junior Division, Murtizapur.

2. The facts which appear from record may be briefly stated as under:

Present appellant-original plaintiff filed suit on 9th July, 1986 with a prayer to set aside alienation made by plaintiff's father Gopal (original defendant No.2) in favour of present respondent No.1 Motilal Kuber Kanoje (original defendant No.1). According to plaintiff, he was born on 15th August, 1965. There was partition of ancestral property on 22-6-1967 and he was allotted 22 acres of land. Income from the share in property allotted to him was sufficient and his guardian-father purchased suit land for a sum of Rs.6,000/- under a registered sale deed dated 21-5-1969. His father, defendant No.2 sold suit land to defendant No.1 on 10-7-1974 out of no legal necessity and without any benefit to the estate of plaintiff (minor). Plaintiff came to know about the sale of property by defendant No.2 to defendant No.1 and, therefore, he issued notice through advocate on 9-1-1984 to defendant No.1. Defendant No.1 replied the same and denied plaintiff’s title. It is in this backdrop that suit came to be filed claiming that it was filed within the period of limitation.

3. Defendant No.1 in his Written Statement that the alleged partition was nominal, just to avoid the clutches of Ceiling Act and was never acted upon. It was contended that the sale was effected for education purpose and for cultivation of lands and there did exist legal necessity. He denied date of birth of plaintiff and prayed for dismissal of suit.

4. Learned Trial Court framed the issues and after recording evidence and hearing the parties, concluded that there was partition which was acted upon; alienation in favour of defendant No.1 was for legal necessity; suit was not barred by limitation and consequently granted declaratory relief, as prayed for by the plaintiff.

5. Being aggrieved by the judgment and decree rendered by the Trial Court, original defendant No.1 filed appeal. The 1st appellate Court held that the suit was barred by limitation and that the sale was for legal necessity. The 1st appellate' Court accordingly allowed the appeal. It is against this judgment and decree that the present appeal has been filed by appellant-original plaintiff.

6. This appeal has been admitted on 30-11-1993 and grounds No.1, 3 and 5 set out in the memo of appeal have been treated as substantial questions of law which read as under:

"1. That having correctly held that the property in suit was owned by the plaintiff, the transfer of the same during his minority by the defendant No.2 without obtaining requisite permission as provided under Section 8 of the Hindu Minority and Guardianship Act was voidable in so far as the plaintiff was concerned and the suit for possession as filed by him admittedly within 12 years from the date on which the property was alienated was clearly within time and on any view of the matter, the suit could not be said to be barred by limitation.

3. That the provisions of Article 60 of the Limitation Act were not at all applicable to the present claim and the learned Additional District Judge was in error in taking the view that the suit as filed was barred.

5. That the plaintiff's entitlement to the property belonging to him had duly been established and there was no question of any legal necessity as such having been relevant and in any event in the present case for the matter of that no legal necessity whatsoever has been made out particularly when it was the consistent stand of the defendant No.1 that the property belonged to the defendant No.2 and not the plaintiff and therefore, there was no question of any