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2017 SCC OnLine Mad 37731 : (2017) 175 AIC 554 : (2017) 3 Mad LJ 713
*
In the High Court of Madras
(BEFORE V.M. VELUMANI, J.)
K.M. Nusrudin
and
S.M. Nakkiba and Others
C.R.P. (MD) No. 2595 of 2016 and C.M.P. (MD) No. 12248 of 2016
Decided on January 3, 2017
The Judgment of the Court was delivered by
V.M. VELUMANI, J.:— This Civil Revision Petition is filed to set aside the order of
rejection of the plaint dated 7.11.2016 made in unregistered suit in O.S. No. Nil of
2016 on the file of the Principal District Court, Ramanathapuram.
2. The petitioner presented a plaint on 24.10.2016, for cancellation of gift deed
dated 18.5.2012, registered as Document No. 2106 of 2012 executed by him in favour
of the first respondent and to declare the settlement deed dated 1.3.2016 bearing
Doc. Nos. 475 and 476 of 2016, both deed dated 1.3.2016, executed by the first
respondent in favour of the second and third respondents respectively as null and
void. The said plaint was returned on 25.10.2016 with an endorsement as to how the
suit is filed within time, stating that plaintiff is also party to the document and
document executed by him sham and nominal and how the suit is within the period of
limitation. The learned Counsel for the petitioner represented the same with an
endorsement that the petitioner was under undue influence of the first respondent till
3.10.2016 and did not know about the legal consequences of the gift deed executed
by him. On 3’. 10.2016 only, the petitioner came out of undue influence of the first
respondent and understood the legal consequences of the gift deed executed by him.
The petitioner has filed suit for cancellation within three years from the date of
knowledge and therefore, suit is in time as per the Article 59 of the Limitation Act.
3. The learned Judge considering the averments in the plaint and rejected the
plaint stating that there is no averments in the plaint that by playing fraud and undue
influence, the first respondent got the gift deed executed dated 18.5.2012. There is no
prima facie case made out that he came to know about the legal consequences of the
gift deed executed by him only on 3.10.2016.
4. Against the said rejection, the present Civil Revision Petition has been filed.
Page: 555
5. The learned Counsel appearing for the petitioner submitted that the learned
Judge did not properly appreciate the difference between a suit for declaration of deed
as null and void and suit for cancellation of deed. In respect of suit for cancellation,
the limitation starts from the date of knowledge and as per Article 59 of the Limitation
Act suit has to be filed within three years from the date of knowledge. The learned
Judge failed to properly appreciate the facts that the petitioner has specifically stated
that he came out of undue influence of first respondent and came to know about the
legal consequences of gift deed executed by him. The learned Judge erred in rejecting
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the plaint on the ground that the petitioner did not make out any prima facie case of
undue influence and fraud. The petitioner can establish undue influence and fraud only
by letting in by evidence.
6. The learned Counsel appearing for the petitioner relied on the following
Judgments to substantiate his claim:
(i) In the Judgment in Virendra Singh v. Kashiram,1 wherein, paragraph No. 17 it is
held as follows:
17. …. Apart from the above facts, there are various important circumstances
to show that the plaintiff did not execute the gift deed with free mind and the
said gift deed on the face of it as well as on the evidence adduced appears to be
unconscionable and thus the burden of proving that this gift deed was not
executed under the undue influence or by fraud is upon the defendants who have
misreably failed to prove as such. The various circumstances are that the plaintiff
is an illiterate person and he was about 60 years of age at that time, that the
plaintiff had got three daughters and his wife and one daughter was unmarried
at that time; that the plaintiff was not related to the defendants and no reason
has been pleaded and proved by the defendants as to why the plaintiff executed
the Will as well as the gift deed transferring his entire agricultural land in favour
of the defendant No. 1.”
2
(ii) In the Judgment in Chhedi v. Smt. Indrapatt, wherein, paragraph No. 4, it is
held as follows:
“4. …. Under Article 59 of the Limitation Act, 1963 a suit for cancellation or
setting aside an instrument or decree is to be filed within three years of the date
when the facts entitling the plaintiff to have the instrument or decree cancelled
or set aside first become known to him. In the instant case the plaintiff came to
know of the institution of the suit and the passing of the compromise decree in
the month of October, 1964 when the defendant wanted to interfere with her
possession over the land in suit and she got the file of the case inspected.
Thereafter in the month of November, 1964 she filed the suit which was
obviously within time.”
3
(iii) In the Judgment in K. Chandralekha v. S. Ravikumar, wherein, paragraph Nos.
16 and 19, it is held as follows:
“16. It is true that the plaintiff has come to the Court in the year 2012
challenging the sale made as early as in the year 1998 in the case of the
appellant herein. Though it may appear from the above events, namely, the date
of the sale and the date of filing of the suit, that the suit is barred by limitation,
it cannot be as such decided only by taking note of these dates of events. On the
other hand, the entire- sequence of events as stated in the plaint
Page: 556
commencing from the transfer of title to the suit property till the date of filing of the
suit have to be considered as a whole to find out as to whether the plaint, as
presented, is barred by limitation.
19. It is well settled that the plea of fraud, forgery, impersonation in respect
of certain transactions which are put in question, will go to the root of the matter
and if such plea is proved, any transaction made however long ago, becomes
void ab initio and the person claiming under such fraudulent transaction cannot
be permitted to hold such fraudulent title continuously merely because a
technical plea of limitation would come to his rescue. Needless to say that the
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technical objections if any raised should be encouraged, considered and decided
by the Courts only when such objection, if allowed, would result in rendering the
substantial justice between the parties and not subverting the justice.”
1
(iv) In the Judgment in Ningawwa v. Byrappa Shiddappa, wherein, paragraph No.
6, it is held as follows:
“(6) It was contended on behalf of the respondents that the terminus a quo
for the limitation was the date of the execution of the gift deed and the claim of
the appellant was therefore barred as the suit was filed more than three years
after that date. We are unable to accept this argument as correct. Article 95
prescribes a period of limitation of three years from the time when the fraud
becomes known to the party wronged. In the present case, the appellant stated
that she did not come to know of the fraud committed by her husband in respect
of plots 91 and 92 of Lingadahalli village till his death. The Trial Court has
discussed the evidence on this point and reached the conclusion that the case of
the appellant is true. The appellant lived with her husband on affectionate terms
till the time of his death. Till then she had no reason to suspect that any fraud
had been committed on her in respect of the two plots in Lingadahalli village. It
is only after his death when his brothers and respondent No. 4's brothers
removed grain from the house against her wishes that the appellant came to
know that the lands at Lingadahalli village were included in the gift deed by
fraud. The suit was instituted by the appellant within a few days after she came
to know of the fraud. We are therefore of the opinion that the suit was brought
within time prescribed under Art. 95 of the Indian Limitation Act so far as plots
91 and 92 of Lingadahalli village are concerned.”
7. To decide the issue in this Civil Revision Petition, Order VII, Rule 6 of C.P.C. and
Article 59 of the Limitation Act, 1963 are to be considered. The Order VII, Rule 6 of
C.P.C. reads as follows:
Order VII, Rule 6 of C.P.C.
“6. Grounds of exemption from limitation law.—Where the suit is instituted
after the expiration of the period prescribed by the law of limitation, the plaint
shall show the ground upon which exemption from such law is confirmed.”
8. As per the Order VII, Rule 6 of C.P.C., when the suit is instituted after the
expiration of the period prescribed in Limitation Act, the plaint should show the
ground, upon which, exemption is claimed. The provisio of said rule gives a discretion
to the Court to permit the plaintiff to claim exemption with regard to Limitation on any
ground not set out in the plaint. If such ground is not inconsistent with the grounds
set out in
Page: 557
the plaint. In the present case, the first respondent is sister of the petitioner. The
petitioner has alleged that there is a matrimonial dispute between the petitioner and
his wife.
9. According to the petitioner, the first respondent is taking advantage of the said
dispute by undue influence made by the petitioner to execute the gift deed in her
favour. So that, the petitioner's wife cannot claim any right over the said property. The
first respondent agreed to re- convey the property to him. The first respondent without
knowledge of the petitioner has taken possession of all the original documents and
executed the settlement deed in favour of her daughters, who are respondents 2 and
3, by the settlement deed, dated 3.10.2016.
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10. When the petitioner demanded for the cancellation of settlement deeds, both
dated 1.3.2016 and for return of original documents of title, the first respondent
refused to hand over the said documents. According to the petitioner, only on
3.10.2016, he came to know the knowledge of the undue influence and intention of
the first respondent to grab the property. Immediately, he filed suit as per Article 59
of the Limitation Act. Suit to cancel the instruments has to be filed within three years,
when the plaintiff came to know the facts entitled him to file the suit.
11. In the present case, according to the petitioner, he came to know about the
undue influence of the first respondent only on 3.10.2016. In the judgment referred to
above, it has been held that the events commencing from the date of execution of the
document till filing of the suit has to be considered by the Court. While deciding the
question of Limitation, it was held that the suit is in time as per Article 59 of the
Limitation Act, as claimed by the petitioner. The learned Judge without considering
these aspects, erred in rejecting the plaint and held that the petitioner has not made
out any prima facie case. The said order is liable to be set aside for the reasons stated
above. In the result, the Civil Revision Petition is allowed and the order of learned
Principal District Judge, Ramanathapuram, passed on 7.11.2016, made in un
registered suit in O.S.No. Nil of 2016, is set aside. The learned Judge is directed to
number the plaint and decide the suit on merits. No costs. Consequently, connected
Miscellaneous Petition is closed.
12. Revision Allowed.
———
*
Madurai Bench
1.
AIR 2004 Raj 196.
2.
AIR 1972 All 446.
3.
(2016) 3 MWN (Civil) 531.
1.
AIR 1968 SC 956.
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