Karnataka High Court
Shri. Khirasa S/O. Krishna ... vs Smt. Shanta Alias Geeta on 21 July, 2022
Bench: R.Devdas
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R
CRP No. 100095 of 2021
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 21ST DAY OF JULY, 2022
BEFORE
THE HON'BLE MR JUSTICE R.DEVDAS
CIVIL REVISION PETITION NO. 100095/2021
BETWEEN:
1. SHRI. KHIRASA S/O. KRISHNA KATHARE,
AGE 80 YEARS, OCC BUSINESS,
R/O. SALONI VICTORIA ROAD
DAJIBANPETH, HUBBALLI-580 028.
2. SHRI.KRISHNASA S/O. MURALIDHARASA KATHARE,
AGE MAJOR, OCC BUSINESS,
R/O. SALONI VICTORIA ROAD,
DAJIBANAPETH, HUBBALLI-580 028.
3. SHRI NARAYAN S/O. MURALIDHARSA KATHARE,
AGE MAJOR, OCC BUSINESS,
R/O. SALONI VICTORIA ROAD,
HUBBALLI-580 028.
- PETITIONERS
(BY SRI. AMRUTH VASANTH JOIS AND
SRI SANTOSH BIRANGI, ADVOCATES)
Digitally AND:
signed by
VINAYAKA
BV
VINAYAKA Location:
BV Dharwad
1. SMT. SHANTA ALIAS GEETA,
Date:
2022.07.25
13:20:34
W/O JANARDHANSA SAHALAGAR,
+0530 (BEFORE MARRIAGE SHANTA @ GEETA,
D/O. MURALIDHARSA KATHARE)
AGE 74 YEARS, OCC HOUSEHOLD,
R/O.SANMAN COLONY, SHIVAYOGI LAYOUT,
MUKUND NAGAR, NEAR MURUDESHWAR FACTORY,
R N SHEETY ROAD, HUBBALLI-580 031.
2. SMT. JAYA W/O. RAMESH DALABHAJAN,
(BEFORE MARRIAGE JAYA D/O.
MURALIDHARSA KATHARE),
AGE 65 YEARS, OCC HOUSEHOLD,
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R/O. YALLAPUR TOLL NAKA,
DANDELI ROAD, HALIYAL -581 329,
UTTARA KANNADA.
3. SMT. LALITA W/O.TUKARAM KABADE,
(BEFORE MARRIAGE LALITA,
D/O. MURALIDHARSA KATHARE)
AGE49 YEARS, OCC HOUSEHOLD,
R/O. AKKIPET, AKKASALIGAR ONI,
OLD HUBLI, HUBBALLI-580 024.
4. SMT.SHOBHA W/O. ARJUNSA BURABURE,
AGE 45 YEARS, OCC HOUSEHOLD,
R/O. # 23 ARIHANT NAGAR, 4TH CROSS,
HUSUGAL ROAD, KESHAPUR,
HUBBALLI-580 023.
5. SMT. RENUKA W/O.RAMASA BHANDAGE,
(BEFORE MARRIAGE RENUKA
D/O. MURALIDHARSA KATHARE)
AGE ABOUT 55 YEARS, OCC.: BUSINESS,
R/O. NO.29, RAGHV NAGAR,
CHANDRANATH NAGAR,
BEHIND RAGHAVENDRA MATH,
HUBBALLI-580 032.
6. SHRI.YALLANSA S/O. NARAYANSA IRKAL,
AGE 75 YEARS, OCC MEDICAL PRACTITIONER,
R/O. OPP TO KALABHAVAN,
BELGAUM ROAD, DHARWAD-580 001.
7. PRAKASH SINCE DEAD BY LR'S
7a. SMT.SUMANGALA W/O. PARKASH IRKAL,
AGE 68 YEARS, OCC HOUSEHOLD WORK,
R/O. NARAYANSOPA, OLD HUBLI,
HUBBALLI-580 024.
7b. SRI.VENKATESH S/O.PRAKASH IRKAL,
AGE 41 YEARS, OCC BUSINESS,
R/O.NARAYANASOPA, OLD HUBBALLI,
HUBBALLI-580 024.
7c. SMT. SNEHA BHARATI W/O. RAJU MEHARWADE,
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CRP No. 100095 of 2021
AGE 39 YEARS, OCC HOUSEHOLD WORK,
R/O. A-H 203, KANCHAN PUSHPA SOCIETY,
OPP SURAJ WATER PARK,
G BANDAR ROAD, THANE,
WEST MUMBAI - 400615, MAHARASTRA.
8. SHRI. SURESH S/O. NARAYANASA IRKAL,
AGE 68 YEARS, OCC BUSINESS,
R/O. T 1 AND 3RD FLOOR,
ELFIN OAKWOOK APARTMENT,
NEAR MODERN SCHOOL, SARASWATPUR,
DHARWAD-580 002.
9. SHRI.ASHOK S/O. NARAYANA IRKAL,
AGE 64 YEARS, OCC BUSINESS,
R/O. PARASAWDI, KESHWAPUR,
HUBBALLI-580 023.
10. SHRI.JAWAHAR S/O.NARAYANASA IRKAL,
AGE 60 YEARS, OCC MEDICAL PRACTITIONER,
R/O. C/O. Y.N. IRKAL, OPP TO KALABHAVAN,
BELGAUM ROAD, DHARWAD-580 001.
- RESPONDENTS
(BY SRI. ARAVIND D. KULKARNI, ADVOCATE FOR R1 TO R5,
NOTICE TOR6 TO R10 IS DISPENSED WITH)
THIS CIVIL REVISION PETITION IS FILED UNDER SEC.115 OF
CPC, PRAYING TO SET ASIDE THE ORDER DATED 09.11.2021
PASSED ON IA NO. 3 AND REJECT THE PLAINT OF RESPONDENTS
1 TO 5 IN THE INTEREST OF JUSTICE AND EQUITY & ETC.
THIS CIVIL REVISION PETITION HAVING BEEN HEARD AND
'RESERVED FOR ORDERS' ON 29.06.2022 COMING ON FOR
'PRONOUNCEMENT OF ORDER' THIS DAY. THE COURT MADE THE
FOLLOWING.
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CRP No. 100095 of 2021
ORDER
R.DEVDAS J., (ORAL):
The petitioners are defendants No.1 to 3 in O.S. No. 17/2020
on the file of the learned II Addl. Sr. Civil Judge & JMFC, Hubballi
(for short 'the trial Court') and they are aggrieved by the impugned
order dated 09.11.2021 passed in I.A. No. III. The petitioners shall
be referred to as defendants and the respondents shall be referred
to as plaintiffs for the sake of convenience.
2. I.A. No. III was filed by the defendants under Order VII Rule
11(a) and (d) read with Sec. 151 of CPC praying the trial Court to
reject the plaint on the ground that the suit is barred by limitation by
reason of Sec. 27 of the Limitation Act, 1963. The said application
having been rejected, the defendants are before this Court.
3. Learned Senior Counsel Sri Shreevatsa, appearing for the
defendants would submit that the plaintiffs are the full sisters of
defendants No.2 and 3 and they filed the instant suit seeking
partition and separate possession of the share of each of the
plaintiffs in the suit property. The plaintiffs have also sought for a
declaration that the registered relinquishment deed dated
CRP No. 100095 of 2021
29.12.2004 executed by the plaintiffs in favour of defendants No.1
to 3 is not binding on the share of the plaintiffs.
4. Learned Senior Counsel submits that earlier the linear
descendents of Sri Narayansa had filed O.S. No. 178/2005 wherein
all the parties herein were arrayed as defendants, including the
plaintiffs. Although the present suit schedule property bearing CTS
No. 470/1 situated at Ward No.3 ad-measuring 3 acres 15 guntas,
5 sq.yards situated at Marian Timmasagar village, Karwar Road,
Hubballi, was also part of the suit schedule properties in O.S. No.
178/2005, nevertheless the claim in respect of that property was
given up. The plaintiffs herein were placed exparte and they did
not contest the suit. However, after the judgment dated 16.02.2016
was rendered in O.S. No. 178/2005, original plaintiffs in O.S. No.
178/2005 filed R.F.A. No. 100186/2016 before this Court. In the
said appeal the plaintiffs sought to file cross-objections. It was
sought to be contended at the hands of the plaintiffs that they came
to know about the fraud that was played upon them by defendants
No. 5, 10 and 11, i.e., their full brothers and uncle in getting a
relinquishment deed executed in their favour on misrepresenting
that they were called to the Sub-Registrar's office stating that they
CRP No. 100095 of 2021
had to execute a power of attorney. However, objections were filed
to the cross objections, mainly contending that Court fee was
required to be paid as was paid on the plaint. The plaintiffs were
directed to pay Court fee. Aggrieved, the plaintiffs approached the
Hon'ble Supreme Court in SLP No. 33257/2017. Observations
were made by the Hon'ble Apex Court and liberty was granted to
the plaintiffs to file a fresh suit and get their rights adjudicated.
Taking note of the said orders passed by the apex Court, this Court
also permitted the plaintiffs to file a fresh suit. Consequently, O.S.
No. 17/2020 was filed at the hands of the plaintiffs.
5. Learned Senior Counsel would therefore contend that the
plaintiffs cannot deny the fact that they knew about execution of the
relinquishment deed dated 29.12.2004, apparently as far back as
2016 when it was openly contended by the plaintiffs that they came
to know about the fraudulent execution of the relinquishment deed
and therefore they sought to file cross objection in R.F.A. Cr. Ob.
No. 100005/2016. It is therefore the contention of the defendants
that when admittedly the plaintiffs expressed that they came to
know about the relinquishment deed in the year 2016, after the
judgment and decree was rendered in O.S. No. 178/2005, the
CRP No. 100095 of 2021
cause of action for seeking a declaration that the registered
relinquishment deed dated 29.12.2004 is not binding on the share
of the plaintiffs commenced at least in the year 2016. Therefore,
having regard to Sec.27 of the Limitation Act read with Article 59
where the period of limitation prescribed is three years, even from
the date of knowledge, the suit is barred by limitation.
6. Per contra learned counsel for the plaintiffs seeks to support
the impugned order passed by the trial Court.
7. Having heard the learned counsels and on perusing the
petition papers, this Court finds that the question that arises for
consideration in this writ petition is, whether in a suit for partition
between the family members, the suit could be rejected on the
ground that it is time barred, more so, when a declaration is
sought by the plaintiffs against a registered instrument?
8. It would be relevant to notice that it is a settled position of law
that when a document is valid, no question arises of its
cancellation. However, when a document is void ab initio, a decree
for setting aside the same would not be necessary as the same is
non est in the eye of law, as it would be a nullity. This position has
CRP No. 100095 of 2021
been reiterated in Prem Singh & Ors. Vs. Birbal & Ors. (2006) 5
SCC 353 and it was further held that Sec. 31 of the Specific Relief
Act, 1963 refers to both void and voidable documents. It provides
for a discretionary relief. It was further held that Article 59 of the
Limitation Act applies specially when a relief is claimed on the
ground or fraud or mistake. It only encompasses within its fold
fraudulent transactions which are voidable transaction. Article 59
would be attracted when coercion, undue influence,
misappropriation or fraud which the plaintiff asserts is required to
be proved. Article 59 would apply to the case of such instruments.
It would, therefore, apply where a document is prima facie valid. It
would not apply only to instruments which are presumptively
invalid.
9. What is very apparent from the plaint and the prayer made
therein is that the plaintiffs, being the female members of the joint
family have sought for declaration of their rightful share in the joint
family properties. The other prayer is to declare that the
relinquishment deed dated 29.12.2004 executed by the plaintiffs in
favour of their brothers, defendants No.2 and 3 is not binding on
the share of the plaintiffs. Adverting to such a situation where there
CRP No. 100095 of 2021
is more than one prayer made in a plaint, the question as to
whether under such circumstances by invoking the provisions
contained under Order VII Rule 11 of the Code, whether the Court
could reject the plaint as a whole or whether a portion of the
pleading or prayer could be stuck down under the Rule fell for
consideration at the hands of the Hon'ble Supreme Court in the
case of Roop Lal Sathi Vs. Nachhattar Singh Gill reported in
(1982) 3 SCC 487; D.Ramachandran Vs. R.V. Janakiraman
(1999) 3 SCC 267; Sopan Sukhdeo Sable Vs. Assistant Charity
Commissioner (2004) 3 SCC 137; Saleem Bhai Vs. State of
Maharashtra (2003) 1 SCC 557; I.T.C. Ltd. Vs. Debts Recovery
Appellate Tribunal (1998) 2 SCC 70; T. Arivandanam Vs.
T.V.Satypal (1977) 4 SCC 467 and Balasaria Construction (P)
Ltd. Vs. Hanuman Seva Trust (2006) 5 SCC 658. These
judgments of the Hon'ble Supreme Court were noticed by a
Division Bench of the Bombay High Court in the case of Merit
Magnum Construction Vs. Nand Kumar Anant Baity & Ors.
reported in 2013 SCC Online Bombay 1361 and it was held that
there can be no rejection of only a part of the plaint. It was noticed
that in Balasaria Construction (supra), the Hon'ble Supreme
Court noticed the conflict of opinion on the issue whether the plaint
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CRP No. 100095 of 2021
can be rejected under Order VII Rule 11(d) CPC on the ground that
it is hit by 'Law of Limitation' and in view of the importance of the
issue, made a reference to a bench of three Hon'ble Judges. The
Larger Bench, in the case of Balasaria Construction which was
decided on 19.10.2005 recorded the submission of the learned
counsels that it is not the case of either side that as an absolute
proposition an application under Order VII Rule 11(d) CPC can
never be based on the law of limitation. However, such an action
will depend upon the facts and circumstances of each case.
Where the issue of limitation is a mixed question of law and fact or
where a conclusion is not disearnable from the statement that the
suit is barred by limitation, the plaint cannot be rejected by
resorting to Order VII Rule 11 (d) CPC. In the case before the
Bombay high Court, it was noticed that on the basis of the
averments of the plaintiff it was found that the plaintiff pleaded that
the conveyance dated 18.08.1989 is void and barred or
void ab initio and that on the basis of such conveyance the
plaintiffs were never divested of their title to the property, which
continue to vest in them. Having regard to such averments in the
plaint, it was held that it shall have to be accepted as correct only
for the purposes of deciding the application under Order VII Rule
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CRP No. 100095 of 2021
11 CPC and therefore it was held that it is not a fit case to reject
the plaint as being barred by law of limitation by resorting to Order
VII Rule 11(d) CPC. It was held that the merits and demerits of the
defences pleas could not have been gone into at the stage of
deciding an application under Order VII Rule 11. The issue of
limitation at the highest was an arguable one. The issue, however,
raises mixed question of law and fact.
10. In Ranganayakamma and another Vs. K.S.Prakash and
others reported in (2008) 15 SCC 673 it was held that illegality of a
contract need not be pleaded, but, when a contract is stated to be
voidable by reason of any coercion, misrepresentation or fraud, the
particulars thereto are required to be pleaded. It is a well settled
principle of law that a void document is not required to be avoided
whereas a voidable document must be. It was held that a deed of
release for a consideration is a transaction. When, thus, a release
is made for consideration, the particulars of consideration and other
particulars which are required to be awarded in the deed are
essential elements thereto. Relinquishment of a property by a sister
in favour of her brother for a consideration or absence of it, stands
on a different footing. Section 25 of the Contract Act must be read
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and construed having regard to the fact situation obtaining in the
cases. It was held that even in proceeding on the basis that the
consideration of Re.1/- is shown in the deed of partition is no
consideration in the eye of law, the question remains is as to
whether a partition deed would be violative of Section 25 of the
Contract Act for want of consideration. It was held that in a suit for
partition, one of the question is as to whether a document had been
executed out of love and affection or not. It was held that
consideration even in the Indian context would mean reasonably
equivalent or other valuable benefit passed on by the promisor to
the promise or by the transferor to the transferee. Applicability of
Article 65 or 110 of the Limitation Act, on the one hand and Article
59 thereto, on the other, was held to be depending upon the factual
situation involved in a case. A decree for setting aside the
document may be sought for in terms of Section 31 of the Specific
Relief Act. Applicability of Article 59 would depend upon the
question as to whether deed was required to be set aside or not.
11. As noticed in the beginning, the petitioners/ defendants have
sought to contend that in view of the fact that the plaintiffs knew
about the deed of relinquishment as far back as 2016, in the
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proceedings before this Court in R.F.A. No. 100186/2016 and the
suit is filed after lapse of more than three years, the prayer seeking
a declaration regarding the deed of relinquishment is time barred.
However, it is noticeable that Order VII Rule 11 CPC provides for
rejection of the plaint and not rejection of one of the prayers made
in the plaint or rejection of the plaint partly. This is the reason why
the petitioners / defendants have sought for two prayers in their
application, that is, the rejection of the plaint under Rule 11(a) -
that there is no cause of action and under Rule 11(d) - that the suit
is barred by law of limitation.
12. It is interesting to notice the observations of a minority view
in Vidya Devi alias Vidya Vati Vs. Prem Prakash and others
reported in AIR 1995 SC 1789. It was held that the legislature has
not prescribed any period of limitation for filing a suit for partition
because partition an incident attached to the property and there is
always a running cause of action for seeking partition by one of the
co-sharers if and when he decides not to keep his share joint with
other co-sharers. Since filing of the suit is wholly dependent upon
the will of the co-sharer, the period of limitation, specially the date
or time from where such period would commence, could not have
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CRP No. 100095 of 2021
been possibly provided for by the legislature and, therefore, no
such prescription is made in the law of limitation, as far as suits for
partition are concerned.
13. However, one of the defences that a defendant could raise in
a suit for partition is that there has already been a prior partition or
that the plaintiff has already relinquished his/ her rights in the suit
schedule properties. Since, technically, rejection of the plaint in a
suit for partition could not be sought by the defendants by targeting
a prayer seeking declaration against the deed of relinquishment,
the defendants have resorted to making two prayers in the instant
application. Thereto, the trial Court could have rejected the
application by considering the objections raised at the hands of the
plaintiffs that since two different reliefs are sought, the application
was required to be rejected in view of Section 23 of the Karnataka
Civil Rules of Practice.
14. The trial Court is however, right in holding that having regard
to the averments made in the plaint that the deed of relinquishment
was obtained fraudulently, on the premise that a power of attorney
was required for the brothers and since no consideration is passed
on under the deed of relinquishment, many questions would arise
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in the present suit. Questions as to whether the deed of
relinquishment is a void document or a voidable document;
whether there was a need to seek a declaration in respect of the
deed of relinquishment, if document is a void document; etc. would
arise for decision making. Therefore, the trial Court has rightly held
that the question regarding the law of limitation raised at the hands
of the defendants would be a mixed question of law and facts,
having regard to the averments made in the plaint.
15. In that view of the matter, this Court is in agreement with the
trial Court in coming to a conclusion that the issue of limitation
raised at the hands of the defendants is a mixed question of law
and facts and therefore the same is required to be considered after
looking into the evidence that could be adduced by the parties in a
full dressed trial. At any rate, suit for a primary relief of partition
and separate possession cannot be rejected at the threshold on the
ground that law of limitation would apply insofar as the deed of
relinquishment is concerned. The two prayers made by the
plaintiffs are inter connected. There cannot be rejection of the
plaint partly. The plaint also cannot be rejected on the ground that
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there is no cause of action, since the plaint does disclose cause of
action for seeking partition of the suit schedule property.
Consequently, the writ petition stands dismissed.
SD
JUDGE
BVV
