2010 Supreme(Pat) 2589

PATNA HIGH COURT
S.N.Hussain, J.
Jagdish Tiwary
Versus
Lalita Kuer
Appeal from Appellate Decree No. 255 of 1991
Decided On : DECEMBER 3, 2010

Headnote:Limitation Act, 1963-Article 113 and Article 59-Article 113 provides that period of limitation for filing a suit for which no period of limitation is provided elsewhere in the schedule of the Act would be three years from the date on which the right to sue had accrued-The suit out of which this appeal has arisen has been filed for the sole purpose of declaration that deed of gift dated 1.12.1976 executed by one Dhurendhar Tiwari in favour of defendant/ Appellant was illegal and for cancelling/ setting it aside-Plaintiff was claiming the said deed to be voidable document which was sought to be declared void and the plaintiff never claimed that the said deed was an ab initio void document fit to be ignored for declaration of his title-Held, Article 113 of the Act was not at all applicable to the facts and circumstances of the case, as for such a suit period of limitation has been specifically provided under Article 59 of the Act, according to which, the period of limitation for filing a suit to cancel or set aside an instrument was three years from the date when the facts entitling the plaintiff/respondent to have the instrument cancelled or set aside first became known to him-Hence, the period of limitation or set aside first became known to him-Hence, the period of limitation would be three years from the date of plaintiffs knowledge about the deed-The plaintiff/ respondent had specifically pleaded and proved that he learnt about the impugned deed of gift only are month before the filing of the suit-As against the said claim of the plaintiff/respondent, the defendant/appellants miserably failed to produce any evidence-Hence both the learned courts below were quite justified in concurrently holding that the suit was not barred by the law of limitation. (Para 17)

       (1897)1 Calcutta Weekly Notes 574, (1921)LX LC 529 (Patna), AIR 1950 SC 247-Distinguished.

       Specific Relief Act, 1963-Section 34-question of law raised by the appellants with regard to the suit being barred under the provision of section 34 of the Act-The said issue had neither been raised by the defendant/appellants in his written statement nor he got any issue framed nor he raised the said issue at the time of argument either in the trial court or in the lower appellate court-no foundational fact regarding such as issue was present either in the pleadings or in the evidence or even in the argument of defendant at any stage of the suit-The plaintiff was quite justified in filing the suit only for declaration that the impugned deed of gift was illegal and for cancelling/setting it aside, as he was already in possession on the basis of his own right-In the said circumstances, the suit was clearly not barred under the provisions of the Specific Relief Act-Question raised by the appellants fails. (Para 18)

       (1996)1 SCC 90-Distinguished.

       Hindu law-Article 220 and 228-Article 220 the Mullas Hindu law is with respect to incidents of separate or self acquired property which provides that a Hindu, even if he be joint, may possess separate property and such property would belong exclusively to him, whereas Article 228 of the Hindu law is with respect to separate property providing that an acquisition in any of the ways provided therein would be separate property of the acquirer, which includes obstructed heritage, gift, government grant, property lost to family, income of separate property, share or partition, property held by sole surviving coparcener, separate earnings and gains of learning-Settled principles of law that partition by metes and bounds is not necessary in a Mitakshra coparcenary under the Hindu law-for any division there has to be an intention and a communication by the person who wants separation-In the instant case, there is neither any pleading nor any evidence to show that anyone of the coparcenary even sought any division of the joint status either expressly or impliedly. (Paras 21, 22, 23)

       1979 (4) SCC 60, AIR 1980 (SC) 1173=Distinguished.

       Hindu Law-Article 256 and 258-Defendant miserably failed to prove any separation or partition by meets and bounds or definement of share or even any such intention of the donor or the donee-The impugned deed of gift as claimed by the defendant was executed by Dhurendhar Tiwari, although being a member of the coparcenery he was not entitled to transfer any individual interest in the coparcenary and-any such transaction without the consent of other members of the coparcenary was absolutely illegal in view of the provisions of Article 256 and 258 of the Hindu law-The plaintiff being one of the coparcenars was fully entitled to and was quite justified is seeking the relief of declaration that the deed of transfer executed by the other coparcenar was illegal and for setting it aside which was rightly upheld by the learned courts below-Second appeal dismissed. (Para 24 and 25)