Sushil Jain vs Ritu Jain & Ors.
2014 Latest Caselaw 2537 Del

*                 HIGH COURT OF DELHI AT NEW DELHI

+                   C.S. (OS) No.1977/2010 & I.A. No.4145/2011


                                               Decided on : 19th May, 2014

SUSHIL JAIN                                              ...... Plaintiff

                         Through:   Mr. Ashish Mohan, Mr. Rohit Gandhi
                                    & Mr. Varun Garg, Advocates.

                         Versus

RITU JAIN & ORS.                                         ...... Defendants

                         Through:   Mr. T.P.S. Kang, Advocate for D-1.

CORAM:
HON'BLE MR. JUSTICE V.K. SHALI

V.K. SHALI, J.

1. This is suit filed by the plaintiff for declaration, cancellation, permanent and mandatory injunction.

2. Briefly stated, the facts of the case, are that the plaintiff got married to defendant No.1 on 12th December, 1990, according to Hindu rites and ceremonies after which they were blessed with a child, namely, Siddharth S.Jain on 15th April, 1992. The plaintiff has averred that he, from his hard earned money, purchased a flat bearing No.P-72, South City, Gurgaon in August, 1994 in the name of defendant No.1 for a sum of Rs.2,25,000/-, although the defendant was not having any independent source of income. This flat was purchased to secure the future of the plaintiff and to develop an asset. In the year 1996-1997, the plaintiff again decided to purchase a property in

Greater Kailash, Part-IV, New Delhi and accordingly, negotiated with the defendant Nos.2 to 5 with the help of a property dealer for purchase of second floor on House No.27, Mandakini NRI Complex, Greater Kailash-IV, New Delhi, viz., the suit property. Pursuant to the negotiations, an Agreement to Sell, dated 16th January, 1996, was entered between the defendant Nos.2 to 4, on the one hand, as sellers, in favour of defendant No.1, his wife Mrs.Ritu Jain, for a total consideration of Rs.22 Lacs, out of which a sum of Rs.5,50,000/- was paid by way of earnest money as part consideration and the balance amount of Rs.16,50,000/- was paid later on from the funds generated by the plaintiff. The details of these generations are given by the plaintiff in the plaint as under:

i) Rs.7,28,755/- as sale proceeds of the flat No.P-72, South City, Gurgaon;

ii) Rs.2,00,000/- borrowed from Sh.P.N.Jain, father of the plaintiff;

iii) Rs.3,35,208 taken from Sh.Siddharth S.Jain;

         iv)    Rs.37,500/- from M/s.Victory Contracts and Rs.6,57,857/- from
                M/s.Sushil Builders, and
         v)     Rs.2,65,680/- paid by the plaintiff in cash.

3. The purpose of making these averments was essentially for the plaintiff to show that it was the plaintiff's own funds, which were utilized for the purchase of the suit property. At the time of execution of the Agreement to Sell on 16th January, 1995, the defendant Nos.2 to 4 had also allegedly executed irrevocable Power of Attorney in favour of the plaintiff. It has been alleged, in the plaint, that some time in the year 1999, the relationship between the plaintiff and the defendant No.1 started souring and ultimately they started living separately with effect from 07th October, 1999.

4. It has been alleged by the plaintiff that after separating from the defendant No.1, the plaintiff learnt on or about 11th September, 2010, through one of his acquaintances, Sh.Varun Madhok, who is a property broker that someone had come to his shop along with a registered sale deed of Flat No.27, Second Floor, NRI Complex, Mandakini, Greater Kailash-IV, New Delhi, who wanted to sell the property. Since Sh.Varun Madhok was allegedly aware that this was a property belonging to the plaintiff, he intimated him about the same. This led to the inquiries by the plaintiff, where it has been learnt by him that defendant Nos.2 to 4 had executed a sale deed dated 30th March, 2010 in favour of defendant No.1. Accordingly, he has filed the present suit for a decree for declaration that the sale deed dated 30th March, 2010, purported to have been executed by defendant Nos.2 to 4 in favour of defendant No.1 be declared null and void being the benami property and also declaring the plaintiff to be the lawful owner of the said flat No.27, Second Floor, Mandakini, NRI Complex, Greater Kailash Part-IV, New Delhi. A decree for permanent and mandatory injunction has also been prayed for. This suit has been filed by the plaintiff on 20th September, 2010.

5. On the pleadings of the parties, the Court had raised an issue with regard to the limitation as to how the suit was within limitation as it was a suit for declaration of ownership of the suit property, which is to be filed within a period of three years and the plaintiff in Clause 6 of the plaint has averred as under:

"6. That, the cause of action firstly (emphasis added) arose on 1996-97 when the suit property was purchased by the plaintiff benami in the name of his wife, i.e., defendant No.1 and the payment in respect of the same paid by the plaintiff form his various accounts. It again

arose when in lieu of the sale consideration, registered General Power of Attorney, Special Power of Attorney and Will was executed in favour of the plaintiff in respect of the suit property. It again arose on various occasions when the complaints were made against the defendant No.1. It again arose on 03.08.2010 when the plaintiff came to know that the defendant No.1 had got executed and registered a Sale Deed dated 30.03.2010 in favour from defendants No.2 to 4 in respect of said property. It again arose on 12.09.2010 when the plaintiff came to know that the defendant No.1 is in the process of illegally and unlawfully disposing of the suit property of which otherwise the plaintiff is the owner. The cause of action is still subsisting and continuing as the above threats are still continuing and subsisting."

6. A perusal of the para 6, reproduced above, clearly shows that the plaintiff of his own saying had averred that cause of action firstly arose in his favour in 1996-1997 and even if it is taken to have arisen on 31st December, 1997, the suit for declaration had to be filed within a period of three years, i.e., latest by 31st December, 2000, while as the suit has been filed on 20th September, 2010 and thus prima facie seems to be hopelessly barred by time.

7. I had heard the learned counsel for the plaintiff, on the question of limitation, as well as the learned counsel for the defendant.

8. It was contended by the learned counsel for the plaintiff that according to Article 59 of the Schedule of the Limitation Act, 1963, a suit for cancellation or to set aside an instrument or a decree or for the rescission of a contract, the period of limitation is three years but this period of three years is to be reckoned with effect from the date, when the facts entitling the plaintiff to have the instrument or decree cancelled or set aside or the contract rescinded first become known to him.

9. It is contended that the sale deed having been executed in favour of defendant No.1 by defendant Nos.2 to 4 on 30th March, 2010 it became known to him for the first time only, when he met Sh.Varun Madhok on 11th September, 2010. The suit itself has been filed in less than 10 days from the knowledge as it was filed on 20th September, 2010 and thus it is within limitation as it is admittedly filed within three years from the date of knowledge. The learned counsel has also placed reliance in support of his submission on case title Abdul Rahim & Ors. Vs. Abdul Zabar, (2009) 6 SCC 160; Church of Christ Charitable Trust & Education Charitable Society Vs. Ponniamman Educational Trust, (2012) 8 SCC 706;

10. I have considered the submissions made by the learned counsel for the plaintiff and gone through the judgments relied upon by the plaintiff. However, I do not agree with the contention of the learned counsel for the plaintiff that the suit of the plaintiff is within limitation or that the period of limitation of three years is to be reckoned in terms of Article 59 of the Schedule of the Limitation Act, 1963. In my considered opinion, the period of limitation is to be reckoned from the first day as is averred by the plaintiff in the cause of action clause itself in terms of Article 58 of the Schedule to the Limitation Act, 1963. This is because of the fact that the suit of the plaintiff is for declaration to the effect that the plaintiff is the owner of the suit property and for cancellation of the sale deed dated 16.01.1996 purported to have been executed by the defendant Nos.2 to 4 in favour of defendant No.1.

11. It may be pertinent here to refer to the language used in Articles 58 and 59 of the Schedule of the Limitation Act, 1963 which reads as under:

PART III - SUITS RELATING TO DECLARATIONS

SL. DESCRIPTION OF PERIOD OF TIME FROM NO. SUIT LIMITATION WHICH PERIOD BEGINS TO RUN

58. To obtain any other Three years When the right to sue declaration. first accrues.

                PART IV - SUITS RELATING TO DECLARATIONS

          59.    To cancel or set aside      Three    When the facts entitling the
                 an instrument or decree     years    plaintiff to have the
                 or for the rescission of             instrument     or     decree
                 a contract.                          cancelled or set aside or
                                                      the contract rescinded first
                                                      becomes known to him.

12. A perusal of the Article 58 would clearly show that the period of limitation for seeking a declaration is three years from the date when the right 'first' accrued. (emphasis supplied)

13. In the instant case, the plaintiff is essentially claiming him to be declared as the owner of the suit property. It is not disputed by the plaintiff that the agreement to sell was executed by the defendant Nos.2 to 4 in favour of defendant No.1 way back on 16th January, 1996. It is on the same date that the possession of the suit property was handed over to defendant No.1 and an irrevocable power of attorney was also executed in favour of the plaintiff. The possession of the suit property was also handed over on the same date. Therefore, the transaction of sale was complete on 16th January, 1996 as the possession itself was transferred coupled with agreement to sell. The plaintiff was aware of the transaction and had executed various documents. Even if it is

assumed that the defendant Nos.2 to 4 executed on 03.10.2010 a sale deed in favour of the defendant No.1, this was only perfecting the title of the defendant No.1. It is not this document which creates a right, title or interest of the defendant No.1 in the property in question. The plaintiff has rightly observed in cause of action clause that the cause of action to seek the declaration for the first time accrued in his favour in the year 1996 or even 1997 and even if the latest date is taken as the 31st December, 1997, the period of limitation comes to an end on 31st December, 2000.

14. It is not the case of the plaintiff that the cause of action accrued to him for the first time on 11th September, 2010, when he allegedly learnt through Sh.Varun Madhok, his friend a property broker, that the suit property was being transacted, whereupon he discovered that the defendants No.2 to 4 had executed a sale deed in favour of defendant No.1. Therefore, the plaintiff's own case is that the right to sue accrued for the first time in 1997 and the period of limitation is to be reckoned from any day from 1996 or 1997 and even if it is taken the last date, i.e., 31st December, 1997, the suit is hopelessly barred by time as he is seeking declaration that he be declared as owner. The suit property was purchased by the defendant No.1 from defendant Nos.2 to 4 although it may not be from her independent source of income.

15. Reference, in this regard, can be being made to Section 9 of the Limitation Act, 1963, which clearly lays down that once the period of limitation begins to run, no subsequent disability or inability can stop it to institute a suit or make an application. The plaintiff's own averment is to the effect that the right to sue accrued to him in 1997, the said period comes to an end on 31st December, 2000 and it is not open to the plaintiff now to contend that the suit is within limitation by placing reliance on Article 59 of the

Schedule of the Limitation Act, 1963, which deals with the cancellation of a document, when the said document has come to the knowledge of a party. The knowledge of the sale deed having been acquired by the plaintiff on 10th September, 2010 is totally inconsequential because there was already an agreement to sell having been executed by the defendant Nos.2 to 4 in favour of the defendant No.1 which was in the knowledge of the plaintiff and it was backed up with the possession. Therefore, in my considered opinion, the plaintiff cannot save the present suit by referring to Article 59 of the Schedule.

16. The plaintiff had purchased the suit property in the name of his wife and it seems that with the passage of time since he has developed strained relationship with defendant No.1, his wife, therefore, he wants to put the defendant on the defensive by challenging her title by filing the present suit, which, in my considered opinion, is not sustainable in the eyes of law as is being barred by time. Two judgments of the apex court may be referred to here. The first is, T. Arivandandam Vs. T.V. Satyapal and Anr.; AIR1977SC2421, wherein it has been observed as under:

"If on a meaningful -- not formal -- reading of the plaint it is manifestly vexatious, and meritless, in the sense of not disclosing a clear right to sue, he should exercise his power under Order VII Rule 11, C.P.C. taking care to see that the ground mentioned therein is fulfilled."

17. The Supreme Court also impressed on the courts that it should not be beguiled by the fraudulent and frivolous litigation and must reject such plaints. I feel that the present case falls in this very category and therefore deserves to be rejected.

18. The second judgment is Vinod Seth Vs. Respondent: Devinder Bajaj and Anr.; (2010) 8 SCC 1 wherein the apex court has held that the tendency to drag the opposite side in a prolonged and vexatious litigation must be discouraged.

19. Keeping in view the aforesaid observations of the Apex Court in these two cases, this court feels that this is essentially a suit filed by the plaintiff against his wife with whom he has developed strained relations only to harass her by keeping her title in limbo.

20. The judgment in Abdul Rahim's case (supra) referred to by the plaintiff does not apply to the facts of the present case. That was a case, which was covered by Article 59 of the Limitation Act, 1963, while as, in the instant case, the plaintiff himself is claiming a declaration and as mentioned in the cause of action clause, that the cause of action accrued to him for the first time in 1996- 1997, that being the averment, the case of the plaintiff is covered by Article 58 as he is seeking declaration of ownership of the suit property. Therefore, the judgment of Abdul Rahim's case is distinguishable.

21. So far as the Church of Christ Charitable Trust & Education Charitable Society Vs. Ponniamman Educational Trust, (2012) 8 SCC 706 is concerned, that only deals with the cause of action and not with the calculation of period of limitation. It only states that cause of action is a bundle of facts, which gives rise occasion to a party to go to Court. In the instant case, there is no dispute regarding the cause of action. The plaintiff himself is very clear that the cause of action is accrued to him in 1996-1997 that being so the subsequent arising of the cause of action is of no consequence because the period of limitation has to be taken from Article 58, when it arise for the first time and that obviously

arose in 1996-1997 and even if it is taken the last date, i.e., 31st December, 1997, the suit becomes barred by time.

22. For the reasons, mentioned above, I feel that the present suit as framed is barred by time and there is no point in putting the suit for trial, which is barred by time. Accordingly, the suit is liable to be rejected under Order VII Rule 11

(d) CPC.

23. Ordered accordingly.

V.K. SHALI, J.

MAY 19, 2014 ss