Baljit Kaur (Deceased) Thr. Lrs & ... vs Baldev Singh & Ors.
2017 Latest Caselaw 1851 Del

*             IN THE HIGH COURT OF DELHI AT NEW DELHI

+                            RSA No. 59/2017
%                                                            17th April, 2017

BALJIT KAUR (DECEASED) THR. LRS & ORS.      ..... Appellants
                  Through:   Mr. Om Prakash, Advocate.
                             versus

BALDEV SINGH & ORS.                                             ..... Respondents

Through:

CORAM:

HON'BLE MR. JUSTICE VALMIKI J.MEHTA

To be referred to the Reporter or not?

VALMIKI J. MEHTA, J (ORAL)

1. This Regular Second Appeal filed under Section 100 of

the Code of Civil Procedure, 1908 (CPC) impugns the concurrent

judgments of the courts below; of the Trial Court dated 30.11.2015 and

the First Appellate Court dated 17.8.2016; by which the suit filed by

the appellants/plaintiffs for declaration, partition and permanent

injunction has been dismissed.

2. The relief clauses of the plaint read as under:-

"PRAYER It is, therefore, prayed that in the interest of justice the following judgment/order, decree be passed in favour of the plaintiffs and against the defendants in respect of the property no.118, Ram Nagar, Near Krishna Nagar, Delhi-110051, which is more specifically shown in red colour in the site plan:-

a. A decree for partition among the legal heirs of Late Sh. Nazar Singh i.e. the plaintiff and the defendants in respect of the property bearing no.118,

Ram Nagar, Near Krishna Nagar, Delhi-110051 be passed for the partition of the share of the plaintiffs.

b. A decree be also passed to declare the alleged relinquishment deed dated 13-08-1999 & the relinquishment deed executed by the defendant no.2 in favour of the defendant no.1 dated 16.05.2002 as alleged be declared as null and void.

c. A decree for permanent injunction be passed in favour of the plaintiffs and against the defendants thereby restraining the defendants, their agents, successors, assignees, etc. from making any alternation, addition, from sale or reconstruct, from creating any third party interest over the suit property bearing no.118, Ram Nagar, Near Krishna Nagar, Delhi-110051. d. Any other relief which this Hon'ble Court deems fit and proper may kindly be passed in favour of the plaintiffs and against the defendants."

3. The courts below have found as a finding of fact that all

the appellants/plaintiffs/sisters had executed the registered

relinquishment deed dated 13.8.1999, Ex. PW1/D1, relinquishing their

share in the suit property no.118, Ram Nagar, near Krishna Nagar,

Delhi-51, measuring 98 sq. yds in favour of the brother/defendant

no.1/Sh. Baldev Singh. Accordingly, the courts below have held that

the appellants/plaintiffs therefore cannot seek partition of the suit

property on the ground that the property belonged to the father of the

parties namely Sh. Nazar Singh.

4. The relinquishment deed Ex. PW1/D1 in this case is of

13.8.1999. Since appellants/plaintiffs are admittedly signatories to this

relinquishment deed, any challenge to such a relinquishment deed as

per Article 59 of the Limitation Act, 1963 had to be within 3 years

when the facts entitling the plaintiffs to have the instrument cancelled

or set aside first became known to the plaintiffs. Being very much the

executants of the relinquishment deed, appellants/plaintiffs are from

the date of execution deemed to have known the contents of the

relinquishment deed, and therefore, the subject suit had to be filed

within 3 years from 13.8.1999. It was not open to an executant of a

document to contend that the executant did not know the contents of

the document. The suit was originally filed in the year 2010 i.e after

around 11 years and was therefore rightly held by the courts below to

be barred by limitation. In fact, the courts below have held that the

case of the appellants/plaintiffs was that on 15.12.2004 they came to

know about the execution of the relinquishment deed dated 13.8.1999,

and therefore, even taking this date 15.12.2004 as the date for

commencement of limitation, the subject suit for declaration as

illegal/void/bad of the relinquishment deed had to be filed by

15.12.2007 but was filed in the year 2010, and clearly therefore the suit

was rightly held to be barred by limitation.

5. I may note that the first appellate court by the impugned

judgment has held that PW-1 Smt. Ravindra Kaur, plaintiff no. 6, who

deposed on behalf of the appellants/plaintiffs left her parental home

after marriage on 13.4.1993, and therefore, there was no reason to

believe the story concocted by the appellants/plaintiffs that the

respondent no.1/defendant no.1/brother in the year 1999, and 8 years

after awarding of the MACT claim, allegedly got the

appellants/plaintiffs who signed the relinquishment deed as if the

document was required for pursuing of an MACT claim. I completely

agree with the conclusions of the first appellate court because there

was no reason why 8 years after awarding of claim of MACT that

defendant no.1 in the year 1999 would ask PW-1/plaintiff no.6 and

other plaintiffs to put their signatures on stamp papers, the so called

papers being actually the relinquishment deed Ex.PW1/D1.

6. Reliance placed by the counsel for the appellants/plaintiffs

upon a judgment of a learned Single Judge of the Madras High Court

in the case of Dr. T.Vijayendradas & Anr. Vs. M.Subramanian &

Ors. AIR 2006 MADRAS 288 to argue that the period of limitation for

a partition suit is 12 years, cannot help the appellants/plaintiffs because

normally a suit for partition will be governed by Article 65 of the

Limitation Act and therefore can be filed 12 years from the

commencement of limitation when the defendant in the suit for

partition claims adverse possession, however, in the present case, the

issue is not of an adverse possession but of declaration claimed by the

appellants/plaintiffs of illegality of the relinquishment deed dated

13.8.1999, and therefore, unless the relinquishment deed was set aside,

there does not arise a further question of grant of partition. In the

judgment in the case of Dr. T.Vijayendradas (supra) the declaration

was found not to be necessary and hence the limitation period was

taken as 12 years. In the present case, declaration with respect to

invalidity of the relinquishment deed Ex.PW1/D1 is a sine qua non and

mandatory before the appellants/plaintiffs succeed in the suit for

partition, and therefore, no benefit can be taken by the

appellants/plaintiffs of the judgment in Dr. T.Vijayendradas's case

(supra).

7. Learned counsel for the appellants/plaintiffs then sought

to place reliance upon the judgment in the case of Kuppuswami

Chettiar Vs. S.P.A. Arumugam Chettiar and Another AIR 1967 SC

1395 to argue that the relinquishment deed in this case was a transfer

deed, and therefore, ought to have been signed by the two attesting

witnesses, however, admittedly this defence/stand was never taken up

by the appellants/plaintiffs before the courts below, and therefore, for

the first time in the second appeal, such an argument cannot be held to

be addressed by the appellants/plaintiffs. In fact, the Supreme Court in

para 5 of Kuppuswami Chettiar's case (supra) refused to allow a plea

which was not raised in the courts below with respect to attestation of a

document for being decided because this plea was not raised in the

courts below, and therefore, the judgment of Kuppuswami Chettiar's

case (supra) in fact goes against the appellants/plaintiffs.

8. Even on merits, there is no requirement that a

relinquishment deed has to be attested by two witnesses because there

is no section of any Statute which has been shown to this Court which

requires the relinquishment deed to be attested by two attesting

witnesses. It is only where a document is required by law to be

attested, only then it cannot be used as evidence unless one attesting

witness has been called as per Section 68 of the Indian Evidence Act,

1872. In fact the proviso to this Section states that there is no need to

call an attesting witness if the document is registered and the person

who has signed the document has not specifically denied the signatures

as regards the execution of the document, and in the facts of this case

the appellants/plaintiffs do not dispute their signatures on the

relinquishment deed.

9. In view of the above discussion, no substantial question of

law arises for this Regular Second Appeal to be entertained under

Section 100 CPC. Dismissed.

APRIL 17, 2017/ib                              VALMIKI J. MEHTA, J