The limitation period for challenging a deed starts from the date of knowledge, not from its execution, allowing the suit for partition to proceed.

JUDGMENT :

Sabyasachi Bhattacharyya, J.

1. The present appeal has been preferred by the plaintiff in a suit seeking a decree for partition upon declaration that the plaintiffs are jointly entitled to 50 per cent share of the suit properties, a decree declaring that the defendant never acquired right, title and interest in the entire suit properties on the basis of the Deed of Family Settlement dated December 24, 1997 and for other ancillary reliefs. By the impugned deemed decree, the plaint was rejected under Order VII Rule 11(d) of the Code of Civil Procedure only on the ground of limitation.

2. Learned counsel appearing for the appellant contends that in Paragraph No.23 of the plaint, the cause of action has been pleaded to be the refusal, in the month of March, 2010, of the plaintiffs’ claim of 50 per cent of the rent of the first floor of “Gayaram Building”, tenanted to the Life Insurance Corporation of India, and rent of ground floor room of “Ramapada Bhawan”, tenanted to Silver Arts, which were being collected by the defendants from the said tenants. The suit was filed in October, 2010, that is, within the limitation period of three years as contemplated under Article 59 of Part III of the Schedule to the Limitation Act, 1963.

3. It is further argued that the plaint does not specifically plead the plaintiffs’ date of knowledge of the Deed of Family Settlement dated December 24, 1997 and, as such, the learned Trial Judge could not have rejected the plaint at the outset. The question of limitation, at best, is a mixed question of fact and law and there being nothing on the face of the plaint to show that the suit was barred by limitation, the impugned judgment and decree ought to be set aside.

4. Learned counsel for the appellant further argues that the plaintiff does not challenge the said Deed of Family Settlement as such but merely seeks a declaration that the defendant never acquired right, title and interest in the suit properties on the basis of the same. As such, it cannot be said that the suit is palpably barred by limitation.

5. Learned counsel for the appellant cites an unreported judgment of the Supreme Court in the matter of Daliben Valjibhai & Ors. v. Prajapati Kodarbhai Kachrabhai & Anr., where it was held that the question therein was whether the plaintiffs had knowledge of execution of the sale deed. It was reiterated that under Article 59 of the Limitation Act, the suit can be instituted within three years of the date of knowledge.

6. Learned senior counsel appearing for the defendant/respondent argues that the limitation for filing a suit for cancellation of a deed starts to run from the date of execution of the deed, particularly if the same is registered. Under Section 3 of the Transfer of Property Act, registration of a deed of transfer operates as notice of such transfer. As such, the date of knowledge of such a deed is to be imputed on the plaintiffs from the date of such registration. In support of such contention, learned senior counsel cites Raghwendra Sharan Singh v. Ram Prasanna Singh (Dead) by Legal Representatives, reported at (2020) 16 SCC 601, where the Supreme Court held that the plaintiff therein had never prayed for any declaration to set aside the gift deed. The Supreme Court observed that the same was done cleverly since if such a prayer would have been asked, the suit could be said to be clearly barred by limitation considering Article 59 of the Limitation Act.

7. Similarly, in the present case, it is argued that cancellation of the Deed of Family Settlement dated December 24, 1997 has not been specifically sought, since if so done, the same would render the suit palpably barred by limitation.

8. Learned senior counsel next cites Dahiben v. Arvindbhai Kalyanji Bhanusali (Gajra) dead through Legal Representatives and Others, reported at (2020) 7 SCC 366, where the Supreme Court observed that in Raghwendra Sharan Singh (supra), the court had held that the suit would be barred by limitation under