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2017 Supreme(All) 1823
ALLAHABAD HIGH COURT
(Lucknow Bench)
BEFORE : RITU RAJ AWASTHI, J.
GANGA PRASAD ....Appellant
Versus
MUNNA LAL AND OTHERS ....Respondents
(Second Appeal No. 451 of 2000, decided on 21st December, 2017)
Counsel :
Mohammad Aslam Khan and Mukesh Kumar Sharma for the Appellant; N.N. Jaiswal, Daya Shanker Tripathi and Umajeet Gupta for the Respondents.
Headnote:Code of Civil Procedure, 1908—Section 100, Order XLI, Rule 31—Limitation Act, 1963—Articles 59, 113—Civil suit—Cancellation of Will deed—Legality of—Whether a `Will’ can be termed as instrument as mentioned in Article 59 of Limitation Act?—Will Deed cannot be termed to be an “non-instrument” otherwise a person would be deprived of any legal remedy and cannot file a suit for cancellation of Will Deed—Since ‘Will’ Deed gives a right to a party, as such it shall be treated to be covered under the term “instrument” for the purpose of applicability of Article 59—In case the suit for cancellation of Will Deed was filed on the plea that alleged Will Deed was obtained by fraud and misrepresentation by putting an imposter then it can be at most a voidable document and not a void document—Will is an instrument within meaning of Article 59 of Limitation Act—Under Article 59, three years period was to be counted from date of knowledge of the said Will Deed—Courts below rightly concluded that suit filed by plaintiff-appellant was barred by time. [Paras 52 to 94]
Result; Appeal Dismissed.
Key Points: - A Will is an instrument within the meaning of Article 59 of the Limitation Act (!) (!) (!) . - A Will obtained by fraud is at most voidable, not void, and the limitation period is attracted from the date of knowledge of the fraud (!) (!) . - The period of limitation for filing a suit to cancel a Will is three years from the date of knowledge of the Will, as provided under Article 59 (!) (!) (!) . - The suit for cancellation of a Will must be filed within the prescribed period; otherwise it is barred by limitation, and the court is duty-bound to dismiss it (!) (!) (!) . - The question of whether a Will is genuine or obtained by fraud does not affect the applicability of the limitation period (!) (!) .
What is the nature of a Will for the purposes of limitation under Article 59 of the Limitation Act?
What is the effect of fraud on a Will in relation to limitation to file a suit for its cancellation?
What is the period of limitation and from when does it run for filing a suit to cancel a Will?
Hon’ble Ritu Raj Awasthi, J.—Heard Mohd.Arif Khan, learned Senior Advocate assisted by Mohd. Aslam Khan, learned counsel for the appellant and Mr. Daya Shanker Tripathi, learned counsel for the respondents.
2. The second appeal has been filed under Section 100 C.P.C. against the judgment and decree dated 23.9.2000 passed in Civil Appeal No. 110 of 1995; Ganga Prasad v. Munna Lal and others arising out of the judgment and decree dated 7.10.1995 passed in Civil Suit No. 259 of 1990; Smt. Sahodara v. Munna Lal and others, whereby the suit for cancellation of a Will Deed dated 7.1.1987 filed by the appellant/plaintiff was dismissed and the appeal preferred by the appellant/plaintiff was also dismissed.
3. As per the facts of the case as borne out from the records, Smt. Sahodara (predecessor in interest) of present appellant Ganga Prasad had filed the suit for cancellation of Will Deed dated 7.1.1987 basically on the ground that the said Will Deed is based on fraud, forgery and deceit. There was no reason for execution of the alleged Will Deed in favour of respondent No. 1 by Smt. Nand Rani, the mother of the appellant/plaintiff.
4. As per the pedigree given in the plaint, Thakur Prasad was the original owner of the property in question. The wife of Thakur Prasad was Smt. Nand Rani. After the death of Thakur Prasad his movable and immovable property was inherited by his widow Smt.Nand Rani. Thakur Prasad had two daughters only and no son. The names of the daughters were Smt.Sahodara (Plaintiff) and Smt.Sundara. Munna Lal, defendant/respondent No. 1 was the son of Smt.Sundara. In fact, Smt.Sundara had three children; namely, Maiku Lal, Munna Lal and Brij Mohan. As per the plaintiff, Munna Lal was a very cunning person and in order to deprive the plaintiff from her property he by setting up an imposter got a Will Deed executed in his favour by Smt. Nand Rani. On the basis of the said Will Deed no right will accrue in his favour as both the daughters; namely Smt.Sahodara and Smt.Sundara are in possession over the property in question. The descriptions of the property as given in the plaint, it consisted of the land at Plot No. 1381 measuring 01 bigha 09 biswa, Plot No. 1392 measuring 14 biswa 08 biswansi, Plot No. 1393 measuring 01 bhigha 10 biswa, Plot No. 1394 measuring 01 bhigha 04 biswa, Plot No. 1541 measuring 01 bhigha 02 biswa, Plot No. 1233 measuring 01 biswa 10 biswansi, Plot No. 1355 measuring 06 biswa 10 biswansi, Plot No. 1312 measuring 08 biswa and Plot No. 1354 measuring 11 biswa, situated in village Khawajamipur Pargana Sikandarpur Tehsil and District Unnao.
5. It is alleged that after the death of Thakur Prasad, plaintiff and defendant No. 4, Smt. Sundara had executed a sale-deed in favour of Shiv Mandir about which defendant No. 1 Munna Lal had full knowledge but he did not raise any objection. It is also alleged that after the death of Smt. Nand Rani the names of plaintiff and defendant No. 4 were mutated which was also in the knowledge of the defendants, but since the defendant No. 1 was claiming his right on the basis of the alleged Will Deed, as such necessity arose to file the suit for cancellation of the Will Deed.
6. The suit was contested by the defendants/respondent Nos. 1 to 4. It was pleaded by the defendants/respondents that the plaintiff had got complete knowledge of the Will Deed dated 7.1.1987 on 15.10.1987 on which date the plaintiff had filed objection in the mutation case denying the alleged Will Deed. The suit is barred by limitation. The defendant No. 1 since his birth was living with Smt.Nand Rani till her death and she being his grand mother was pleased with the services rendered by him, executed the said Will Deed in his favour and he is in possession over the entire property bequeathed. It was also pleaded that the suit is barred by Section 49 of U.P. Consolidation of Holdings Act.
7. On the basis of the pleadings of the parties, the trial Court framed certain issues, the english transl
