IMPORTANT POINT
The main legal point established in the judgment is that a property transfer made by misrepresentation and fraud is void ab initio and not subject to the limitation period.

JUDGMENT :

Ajoy Kumar Mukherjee, J.

1. This Second Appeal has been preferred against the judgment and decree dated March 16, 2009 passed by learned Civil Judge (Senior Division) 2nd Court Contai, Purba Medinipur in Title Appeal No. 6 of 2007. By the impugned judgment the court below has set aside the decree dated 11th December, 2003 passed by the learned Additional Civil Judge (Junior Division) 1st Court Contai, Purba Medinipur in T.S. No. 46 of 2002.

2. Appellant herein Sri Tapan Kumar Maity filed aforesaid T.S. No. 46 of 2002 contending interalia that the “ka” schedule property to the plaint previously belonged to one Shiba Prasad Maity and he transferred the said property in favour of the plaintiff by deed of gift which was executed on 31.03.1968 and registered on 01.04.1968. The “A” schedule and the “B” schedule property to the plaint are part of aforesaid gifted “ka” schedule property. In the said suit plaintiff impleaded his own brother as defendant no.1 and his father as defendant no.2. Plaintiff contended that the defendant no.2 used to possess the said land which plaintiff owned by the aforesaid gift deed dated 31.03.1968, during the minority of the plaintiff but the plaintiff has been possessing the said land since attaining majority.

3. Plaintiff’s further case is that on and from 25.05.1998, the defendants started threatening the plaintiff for dispossession from the suit property. On query, the defendants disclosed to the plaintiff about execution of the sale deed by defendant no.2(father) on 03.04.1975 in favour of defendant no.3 in respect of plaintiff’s aforesaid property mentioned in schedule “A” to the plaint which is within “ka” schedule, in favour of defendant no. 3 and thereafter another deed was executed by defendant no.3 on 11.07.1983 in favour of defendant no.2 in respect of the self-same property and thereafter another deed of gift was executed and registered by defendant no.2 on 22.12.1992 in favour of plaintiff and defendant no.1 in respect of self-same “A” schedule property.

4. Further plaint case is thereafter defendant disclosed about execution of another deed of sale allegedly executed and registered by the plaintiff in favour of defendant no.1 on 20.01.1986 in respect of ‘B’ schedule out of ‘ka’ schedule gifted property. After getting certified copy of the aforesaid deed, the plaintiff got astonished as the date on which the “B” schedule property to the plaint out of “ka” schedule was sold to defendant No.1, plaintiff was a minor and he had no knowledge about the property affairs and he was fully dependent upon his father. On that day i.e. on 20.01.1986 defendant no.2/father took the plaintiff in the registry officer and got the sale deed executed and registered in the guise of execution of power of attorney. Plaintiffs further case is defendant no., 2 has no right title interest or possession over the “ka” schedule property which is the exclusive property of the plaintiff and which he got by way of deed of gift from his grandfather, Shiba Prasad Maity. Accordingly plaintiff prayed in that suit that the transfer in respect of “A” schedule property to the plaint out of “ka” schedule by way of sale deed dated 03.04.1975 in favour of defendant no.3 and subsequent deeds dated 11.07.1987 by defendant no.3 in favour of defendant no.2 and the deed executed by defendant no.2 in favour of plaintiff and defendant no.1 dated 22.12.1992 as void, because neither the defendant no. 2 nor the defendant no. 3 had any right to make aforesaid transfers in respect of the property which is exclusively owned by the plaintiff. In connection with B schedule property to the plaint under “ka” schedule, allegedly executed by the plaintiff in favour of defendant no.2 was also executed under mis-representation of fact and as such said deed dated 20.01.1986 in connection with “B” Schedule Property has also been sought to be declared as void in terms of prayer made in the plaint.

5. The defendant no.1 contested the suit by filing wr