Judgement

Appeal (No. 54 of 1941) from a decree of the High Court (March 17, 1937) which reversed a decree of the Court of the First Class Subordinate Judge of Belgaum (April 23, 1932).

The following facts are taken from the judgment of the Judicial Committee. The question for determination in this appeal was whether the plaintiffs (appellants) suit for recovery of possession of

09 Law. Rep. 72 Ind. App. 21 ( 1944- 1945) Ramchandra Jivaji Kanago V. Laxman Shrinivas Naik

110

the suit properties was barred by art.91 of the Indian Limitation Act, 1908 (Act IX. of 1908). That article prescribes a period of "three years" for a suit to cancel or "set aside an instrument not otherwise provided for,” and time begins to run "when the facts entitling the plaintiff to have the instrument cancelled or set aside become known to him." The table given below shows the relationship of the parties to the suit who were members of a Hindu family descended from one Balaji Kanago—

Balaji surnamed Kanago of Pachhapur. | ||

Annaji I Ramchandra I = Gangabai | alias Sitaram (predeceased | (died in 1889). her husband). |

Kashibai=Tammaji=Tungabai

(died in (died on

1900). 5-5-26).

|

| | | |

Jiwaji Guru Appaji = Savitribai Shakuntalabai=Laxman shrinivas

Tamntajis (prede-ce (born in (died on alisa Akkubai Naik

son by ased 1894, 13-7-17) (died on (Defendant No 1)

Kashibai his died on 3-2-23). 19-11-20).

(died on father) | |

4-7-18) | |

| | |

| | |

| | |

| |

| | | |

Sitaram Annaji II | Raghavendra

alias (Plaintiff | alias Annaji

Ramchandra II. No. 2) | (Defendant

(born on | No. 2).

12-3- 1902) |

(Plaintiff No. 1) |

|

| |

Tammana Vatsala

(born in January (born on

1915 and died in 19-6-17

February or March died on

of the same year). 17-10-17)

Balaji had two sons, Annaji I and Ramchandra T. As found by the High Court, they separated in 1865. The elder, Annaji, died leaving a son Tammaji. The suit giving rise to this appeal was instituted by plaintiffs 1 and 2, Ramchandra II and Annaji II, the two sons of Jiwaji, who was the son of Tammaji,

09 Law. Rep. 72 Ind. App. 21 ( 1944- 1945) Ramchandra Jivaji Kanago V. Laxman Shrinivas Naik

111

against respondent No.1, Laxman, who was defendant No. 1, and his minor son Raghavendra, respondent No. 2, who was defendant No. 2. It was alleged in the plaint that the suit properties belonged to Appaji, son of Tammaji by Tungabai, that Appaji died without leaving surviving him either a widow or any issue, that on his death his mother Tungabi succeeded to his properties, and that on her death the plaintiffs as the nearest reversioners to Appaji were entitled to the properties in the suit. Tungabai died in 1926, and the suit was instituted in 1927. Defendant No. 1 was the husband of a sister of Appaji named Shakuntalabai, alias Akkubai, deceased, and defendant No. 2 was their son. In the joint written statement which they filed, they stated that the father of the plaintiffs was adopted by Ramchandra I in the genealogical table, that defendant No, 2 was adopted by Tungabai after the death of Appaji, and that he was therefore a nearer heir to Appaji as he became his brother by Tungabais adoption. The defendants contended further that Appaji had made a gift of the suit properties to his sister, Shakuntalabai, by a deed of gift dated May 24, 1915, that she left the same to her son, defendant No. 2, by her will dated November 16, 1920, which she had made before she died on November 19, 1920, and that defendant No. 1 as the guardian of his son came into possession of those properties. The plaintiffs met that plea with the case that Appaji was induced to execute the deed by the undue influence of defen dant No. 1 and his wife Shakuntalabai, and that therefore the gift was invalid. Lastly, the defendants pleaded that the plaintiffs suit was barred by limitation.

Issues 5, 6, and 9 which were as follows, related to the validity of the gift set up by the defendants and their plea of limitation "(5) Is the gift by Appaji to Shakuntalabai prove