The court reaffirmed that claims regarding a release deed are barred by limitation if the parties were consenting witnesses and did not promptly raise allegations of misrepresentation or fraud.

JUDGMENT :

ANU SIVARAMAN, J.

This Regular First Appeal is filed aggrieved by the Order on I.A.No.II passed by the X Additional City Civil and Sessions Judge, Bengaluru (CCH-26) ('trial Court' for short) dated 02.01.2024 in O.S.No.316/2023.

2. We have heard Shri. Srinivasa Murthy S.R, learned counsel appearing for the appellants, Shri. Ravi Prakash V, learned counsel appearing for respondent No.1 and Shri. T.P Vivekananda, learned counsel appearing for respondent No.2.

3. The father of plaintiffs/appellants and defendant No.1/respondent No.1-Late Shri. B.B Savanur, was allotted constructed house/suit schedule property by the Mysore Housing Board (now the Karnataka Housing Board) for a consideration of Rs.19,143/- and was given possession vide Possession Certificate dated 08.05.1969. Upon his demise, the property's Khata was transferred to his wife and following her death on 12.03.1995, the plaintiffs and defendant No.1 became the sole surviving legal heirs of the property.

4. A Release Deed was executed on 07.12.1995 by Srikanth B Savanur (brother of defendant No.1) in favour of defendant No.1, transferring his rights over the suit schedule property. The document was duly registered with the plaintiffs signing as consenting witnesses. Defendant No.1 transferred the Khata of the property to his name and began enjoying it as the absolute owner. Although defendant No.1 claimed ownership under the Release Deed, there was an understanding that he would compensate the plaintiffs for their share in the property. Despite repeated requests, defendant No.1 failed to pay their share and continued to evade the issue. Defendant No.1, without the knowledge of the plaintiffs, sold the suit schedule property to defendant No.2 on 10.11.2022 for a sum of Rs.1,10,00,000/- though the actual market value exceeded Rs.2,60,00,000/-. The plaintiffs demanded their 1/3^rd share of the sale consideration and defendant No.1 refused to comply. Aggrieved by the same, the plaintiffs approached the trial Court by filing a suit for partition, separate possession and for declaration with regard to release deed dated 07.12.1995 and sale deed dated 10.01.2022.

5. Defendant No.1 filed I.A.No.II under Order VII Rule 11(a) and (d) for rejection of the plaint. It was the contention of the defendant No.1 that the suit was filed after an inordinate delay of 27 years from the execution of the release deed and is hopelessly barred by limitation. The release deed is a 'Deed of Conveyance' under Section 6 (1) of the Hindu Succession Act, 1956 and that any alienation made prior to 20.12.2004 cannot be challenged in a partition suit. It was further contended that as the plaintiffs themselves were witnesses to the release deed and had full knowledge of its execution, their challenge after 27 years is untenable, barred by limitation and the suit requires to be rejected.

6. The plaintiffs contended that the Release Deed was obtained by false promise and coercion, making the plaintiffs to sign the deed under misrepresentation. It was alleged that defendant No.1 misused their signatures given as consenting witnesses to wrongfully deprive them of their share in the property. It was further contended that the legality or validity of the transaction cannot be determined at the preliminary stage without adducing evidence. It was emphasized that while considering an interlocutory application of this nature; only the plaint averments should be examined and not the defendant's defence.

7. The trial Court allowed I.A.No.II and held that since the plaintiffs were parties to the release deed had full knowledge of its execution and had signed it with their consent, the suit after a lapse of 27 years was clearly barred by limitation and barred under t