A deed executed by the last member of an absolute partition without contest is valid; recovery actions based on delayed claims are subject to statutory limitations.

JUDGMENT

A suit for setting aside two documents and recovery of possession in O.S.No.10/1987 re-numbered as 5/1997 was decreed by the District Court, Kavarathy, Lakshadweep, against which the defendants 1 to 13 came up in A.S. No.281/1998. The defendants No. 36 to 52 came up in appeal in A.S.No.488/1998. Another suit – O.S.No.6/2000 for partition was dismissed by the trial court, against which the plaintiffs in that suit came up in R.F.A.No.394/2005.

2. The dispute is pertaining to two documents, Exts.A5 dated 26/11/1970 executed by Koyamma Koya and Ext.A13 exchange deed executed between some of the defendants, which according to the plaintiffs are not binding on the property left out by Chodath Tarwad of Androth island, the plaint schedule, on the ground that it is a 'Vellyazhcha' property belonged to the Tarwad, wherein the executant Koyamma Koya was having only a right of enjoyment without the right of alienation. It is submitted that Chodoth Tarwad was having four thavazhi by name Shaik Koya thavazhi, Abdulkader Koya thavazhi, Ayshomma thavazhi and Cheriyabi thavazhi. Koyamma Koya admittedly was the last member of Shaik Koya thavazhi and was holding the property covered by Ext.A5 registered deed. By virtue of Ext.A5, Koyamma Koya had given his entire exclusive right, title and interest over the property to defendants 1 to 13. The abovesaid document was sought to be set aside on the ground that Koyamma Koya was not having any alienable right over the property, but only a right of enjoyment being a 'Vellyazhcha' property belonged to the Tarwad. No delivery of possession was given at the time of execution of Ext.A5 registered assignment deed, but the recital contained in the document would show delivery of possession of property, though the same would not constitute a term of contract and as such there may not be any application of Section 91 of the Evidence Act and parol evidence is permissible to show the contrary. But, there is no satisfactory evidence to show that no delivery of possession was effected either at the time of Ext.A5 or in furtherance of the said document. Necessarily, the recital included in Ext.A5 document, which amounts to a declaration by the executant that delivery of possession was given, has to be accepted especially when the plaintiffs admit that they were not in possession of the property and included a relief of recovery of possession in the suit, from the defendants.

3. The present suit was filed only on

18/12/1987 after the expiry of more or less 17 years from the date of execution of Ext.A5 document. The case advanced by the plaintiffs that they came to know about the alienation only subsequently cannot be sustained in view of the deemed and constructive notice as incorporated under Section 3 of the Transfer of Property Act , especially when there is delivery of possession of property in furtherance of Ext.A5, which would sufficiently give constructive notice of execution of deed of transfer. Any wilful abstention from making an enquiry which ought to have been done would also constitute constructive notice of the fact that somebody has inducted into the property and given possession thereof. The suit was admittedly instituted after the lapse of more or less 17 years. In order to counter the bar of limitation, it was contended that Ext.A5 document would stand ab initio void from its very inception. Even if it is admitted that the document would stand ab initio void from its very inception, a suit for recovery of possession must be maintained within a period of 12 years, when possession was given based on a registered deed and acted upon by the beneficiary by entertaining a belief that it is a valid deed of ownership and exercised the right of ownership over the property based on possession. The suit filed after the expiry of more or less 17 years for recovery of possession hence cannot be sustained. Needless to say, it is upon the plaintiffs to show and establish that the suit was instituted withi