Back
HIGH COURT OF CALCUTTA
Hrishikesh Banerji, J.
Sibajit Das Chowdhury & Anr.
Versus
Sushilabala Dhar @ Sutradhar
S.A. No.581 of 1993
Decided On : January 24, 2003
LIMITATION ACT, 1963 - SECTION 65 - DEED OF GIFT - VALIDITY - BURDEN OF PROOF - PARDANASHIN LADY:
Fact of the Case:
Plaintiffs sued for declaration that deed of gift by their mother in favor of defendant was void and inoperative and for recovery of possession of the suit property. The lower courts dismissed the suit on the ground of limitation. The plaintiffs appealed.
Finding of the Court:
The High Court held that the suit was not barred by limitation and that the defendant had failed to discharge the onus of proving due execution of the impugned deed of gift by the plaintiffs' mother, a pardanashin and illiterate lady.
Issues: 1. Whether the suit was barred by limitation? 2. Whether the defendant had discharged the onus of proving due execution of the impugned deed of gift?
Ratio Decidendi: 1. The limitation for the suit was governed by Article 65 of the Limitation Act, 1963, which provides a period of twelve years for possession of immovable property based on title. The suit was filed within twelve years of the plaintiffs' mother learning about the deed of gift, and was therefore not barred by limitation. 2. The defendant had failed to prove that the deed of gift was executed by the plaintiffs' mother after she had been informed of its contents and had understood them. The scribe of the deed had not been examined, and there was no other evidence to suggest that the plaintiffs' mother had understood the nature of the transaction.
Final Decision: The appeal was allowed and the plaintiffs were granted a declaration that the deed of gift was void and inoperative, and a decree for recovery of possession of the suit property.
Hrishikesh Banerji, J.
This appeal is directed against the dismissal of the plaintiff/appellants' suit for declaration that the deed of gift by the plaintiffs in favour of the defendant/respondent, is void and inoperative and for recovery of possession of the suit property from the defendant.
2. The plaintiffs filed the suit in the year 1986 and on transfer of the said suit in the Court of First Additional Munsif at Alipore, the suit was numbered as Title Suit No. 32 of 1989 in which the prayers were for declaration of title of the plaintiff No.1 in respect of RS. Plots Nos. 377 and 378 as described in Schedule A to the plaint and for recovery of possession of R.S. Plot No. 378 as described in Schedule B to the plaint, on eviction of the defendant/respondent therefrom. The further prayer was for a declaration that the deed of gift dated 6.9.1977 executed by the widowed mother of the plaintiff No. 1 in favour of the defendant is void, inoperative and that the same is not binding upon the plaintiffs.
3. The plaintiffs' case is as follows:-
Kiranbala Das Chowdhury (since deceased), the mother of the plaintiff No.1 was the owner of .04 decimal of land appertaining to C.S. Plot Nos. 350 and 351 of C.S. Khatian No. 126 corresponding to R.S. Plot Nos. 377 and 378 of R.S. Khatian No. 17 of Mouja-Santoshpur, P.S.-Kasba as described in Schedule A to the plaint. Taking advantage of good relation with the said Kiranbala Das Chowdhury, the defendant succeeded in getting the said two plots and plot No. 379 transferred in his name falsely representing Kiranbala that the deed executed was one of a power of attorney by Kiranbala in favour of the defendant. Subsequently, Kiranbala learnt that the deed which was actually executed in favour of the defendant was a deed gift obtained fraudulently on the pretext of getting power of attorney. Obtaining a certified copy of the said deed it was found by her that the same was not a power of attorney. Consequently Kiranbala executed a deed of cancellation on 8.12.1978 and sold the Plot No. 377 to the proforma plaintiff, Nityananda Dhar on 29.1.1981 and the latter got possession thereof. The defendant, however, has been possessing the other plot viz. Plot No. 378 illegally and consequently the plaintiffs in their suit prayed for a declaration that the deed of gift dated 6.9.1977 was void, inoperative and not binding upon the plaintiffs with further prayers that the plaintiffs were the absolute owners in respect of the property as described in Schedule A to the plaint and also prayed for recovery of khas possession in respect of the B Schedule property viz., RS. Plot No. 378 as described in Schedule to the plaint.
4. It is the case of the defendant that the deed of gift has been duly executed and acted upon and that Kiranbala had no authority to sell Plot No. 377 to the proforma plaintiff, Nityananda Dhar and prayed for dismissal of the suit. The learned Munsif after recording the evidence decided only issue No.1 which relates to the maintainability of the suit on the ground of limitation and did not record any findings on the other issues framed in the trial Court. The learned Munsif held that the suit was barred by limitation as the same was instituted more than three years after Kiranbala learnt about the deed of gift on 24.1.1978. The suit was filed on 1.8.1986 i.e. about eight years after she learnt about the deed of gift on 24.1.1978.
5. The learned Munsif did not decide the other issues. The First Appellate Court decided all the issues including the issue on limitation and confirmed the finding of the learned Munsif on issue No. 1.
6. The present suit is for declaration of title and recovery of possession and not a suit for declaration simpliciter of the plaintiffs title. The limitation of the present suit so far as it relates to plot No. 378 is governed by Article 65 of the Limitation Act, 1963 as the period of limitation for possession of immovable property based on title is twelve years. Ther
AI
An indispensable Tool for Legal Professionals, Endorsed by Various High Court and Judicial Officers
Please visit our Training & Support
Center or Contact Us for assistance
Scan Me!
India’s Legal research and Law Firm App, Download now!
For Daily Legal Updates, Join us on :
Back to top
