Karnataka High Court
Mr Blany D'Souza vs Mr Rudolf Valerian D Souza on 19 December, 2023
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CRP No. 449 of 2022
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 19TH DAY OF DECEMBER, 2023
BEFORE
THE HON'BLE MR JUSTICE R. NATARAJ
CIVIL REVISION PETITION NO.449 OF 2022
BETWEEN:
MR. BLANY D'SOUZA
AGED 51 YEARS,
S/O. LATE JOHN BAPTIST D'SOUZA,
R/AT. EZABELLA HOUSE,
MADYANTHYAR,
PARENKY VILLAGE,
BELTHANGADY,
D.K DISTRICT-574 224
...PETITIONER
(BY SRI. P.P.HEGDE, SENIOR ADVOCATE FOR
SRI. VENKATESH SOMAREDDI, ADVOCATE)
AND:
MR. RUDOLF VALERIAN D'SOUZA
AGED 62 YEARS,
S/O. LATE JOHN BAPTIST D'SOUZA,
R/AT. EZABELLA HOUSE,
MADYANTHYAR,
Digitally PARENKY VILLAGE,
signed by
SUMA BELTHANGADY, D.K. DISTRICT
Location:
HIGH REP. BY HIS GPA HOLDER,
COURT OF
KARNATAKA MR. VICTOR MICHAEL D'SOUZA,
AGED 64 YEARS,
S/O. LATE JOHN BAPTIST D'SOUZA,
R/AT. AVILA HOUSE,
MIRANDA COMPOUND,
BENDOORWELL, KANKANADY,
MANGALORE, D.K.
...RESPONDENT
(BY SRI. SANDEEP LAHIRI, ADVOCATE FOR GPA HOLDER FOR
RESPONDENT)
THIS CRP IS FILED UNDER SECTION 115 OF CPC AGAINST
THE ORDER DATED 05.07.2022 PASSED ON IA NO.3 IN OS
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CRP No. 449 of 2022
NO.13/2022 ON THE FILE OF THE PRINCIPAL SENIOR CIVIL JUDGE
AND JMFC, BELTHANGADY D.K, DISMISSING THE IA NO.III FILED
UNDER ORDER VII RULE 11 OF CPC FOR REJECTION OF PLAINT.
THIS PETITION, COMING ON FOR ADMISSION, THIS DAY, THE
COURT MADE THE FOLLOWING:
ORDER
The petitioner has challenged the correctness of the order
dated 05.07.2022 passed by the Principal Senior Civil Judge
and JMFC, Belthangady, Dakshina Kannada in O.S.No.13/2022
by which, an application filed by him under Order VII Rule
11(d) of Civil Procedure Code, 1908 was rejected.
2. The suit in O.S.No.13/2022 was filed for
cancellation of the gift deed dated 27.12.2021 executed by the
defendant in his own favour based on a power of attorney
dated 06.01.2010 allegedly executed by the plaintiff in favour
of the defendant.
3. The plaintiff and the defendant are brothers. The
plaintiff claimed that he is a resident of Canada and that he and
his two brothers were interested in a property and that one of
his brothers Mr.Victor Michael D'souza was looking after the
properties belonging to the plaintiff. The plaintiff claimed that
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in the year 2010, his brother Mr.Victor Michael D'souza
proposed to settle the suit 'A' properties in favour of the
plaintiff and that he agreed for the same. However, the
defendant who is the other brother of the plaintiff, approached
Mr.Victor Michael D'souza and represented that a power of
attorney dated 06.01.2010 was executed by the plaintiff to
facilitate registration of a settlement deed in favour of the
plaintiff. Thus Mr.Victor Michael D'souza executed a deed of
settlement dated 07.01.2010 in favour of the plaintiff - then
represented by the defendant. The plaintiff claimed that this
power of attorney was not executed by him as he never visited
India, but was in Canada on 06.01.2010. The plaintiff claimed
that this fact came to the knowledge of Mr.Victor Michael
D'souza who informed the plaintiff. However the plaintiff did
not desire to take any action in view of the delicate family
relationship and also as the properties were settled in his
favour in terms of the settlement deed dated 07.01.2010. The
plaintiff claimed that after lapse of nearly 12 years, the
defendant again misusing the power of attorney dated
06.01.2010, got a gift deed dated 27.12.2021 executed in his
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own favour. Therefore, the plaintiff filed a present suit for a
cancellation of the gift deed dated 27.12.2021.
4. This suit was contested by the defendant on various
grounds. The defendant also filed an application under Order
VII Rule 11(d) of Civil Procedure Code contending that the suit
was hopelessly barred by the law of limitation, as the plaintiff
even after coming to know of the power of attorney dated
06.01.2010, did not take any steps for cancellation of the said
power of attorney and therefore could not have sought for
cancellation of the gift deed dated 27.12.2021, on the ground
that the power of attorney was forged and fabricated. The
defendant also raised a contention regarding the proper court
fee payable for the relief sought for.
5. The application was contested by the plaintiff who
contended that the issue of limitation was a mixed question of
fact and law and therefore, the Court cannot reject the plaint at
the threshold.
6. Based on this contentions, the Trial Court held that
the issue of limitation was purely a mixed question of fact and
law, having regard to the fact that the plaintiff and defendant
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were brothers. It also held that an issue would be framed
whether the suit was barred by the law of limitation and
consequently rejected the application. Being aggrieved by the
said order, this petition is filed.
7. The learned Senior Counsel representing the
defendant submitted that the law of limitation bars a stale
claim and bars the remedy, if not the right. He submits that
the execution of the power of attorney by the plaintiff in favour
of the defendant on 06.01.2010, though came to the
knowledge of the plaintiff, soon after the settlement deed dated
07.01.2010 was registered, he did not take any steps for
cancellation of the power of attorney and the consequent
settlement deed. However, after nearly 12 years from the date
of execution of the settlement deed, the present suit is filed for
cancellation of a gift deed dated 27.12.2021, brought about
based on the general power of attorney executed by the
plaintiff. He submits that in the facts and circumstances of this
case, the plaint ought to have been filed within three years
from the date when the right to first sue accrued that is three
years from 06.01.2010. Since the suit is not filed within three
years, the suit is hopelessly barred by the law of limitation. He
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contends that the plaintiff has cleverly drafted the plaint
without disclosing the date on which he came to know that the
power of attorney dated 06.01.2010 was forged. He therefore,
submits that the plaint is clearly barred by the law of limitation
and hence, the Trial Court committed an error in not noticing
this fundamental aspect and in not rejecting the plaint. In
support of his contention, he relied upon the following
judgments:
1. T.Arivandandam Vs. T.V.Satyapal and
Another - (1977) 4 SCC 467:
2. Dahiben Vs. Arvindbhai Kalyanji
Bhanusali (Gajra) dead through Legal
Represesntatives and others - (2020) 7 SCC
366:
3. Ramisetty Venkatanna & Anr. Vs.
Nasyam Jamal Saheb & Ors. - 2023 LiveLaw
(SC) 372:
4. M/s. Durga Projects and
Infrastructure Pvt. Ltd. Vs. Sri. S.Rajagopala
Reddy and others - Civil Revision Petition
No.168/2019 c/w Civil Revision Petition
No.157/2019 dated 05.07.2019:
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5. N.V.Srinivasa Murthy and others Vs.
Mariyamma (dead) by proposed Lrs. and others
- (2005) 5 SCC 548:
6. Kanjibhai Bhagwanjibhai Patel Vs.
Nanduben Shamjibhai Sorathiya through Poa
Dharmesh P. Trivedi and others - 2012 SCC
Online Guj 6313;
7. N.Govindarajan Vs. S.Srinivasan -
CRP No.1756/2017 dated 28.04.2018
8. Per contra, the learned counsel for the plaintiff
submitted that it was the intention of the plaintiff and his
brother - Mr.Victor Michael D'souza that the property should be
settled in favour of the plaintiff. Though the general power of
attorney dated 06.01.2010 was forged, yet since the property
was settled in favour of the plaintiff based on power of
attorney, the plaintiff did not chose to take further action
against the defendant. He submits that the need to file a suit
for cancellation of the gift deed arose, in view of the misuse of
the power of attorney dated 06.01.2010 by the defendant. He
contends that the question when the plaintiff came to know
that the power of the attorney dated 06.01.2010, was forged or
not was a pure question of fact which had to be established
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before the Trial Court at the time of trial and therefore, the
plaint cannot be rejected on the ground that the plaint is
cleverly drafted to create an illusory cause of action. He
submitted that the plaintiff did not chose to challenge the
power of attorney, as the property ultimately vested in him
based on the settlement deed dated 07.01.2010 brought about
by the defendant in favour of the plaintiff. It is the misuse of
power of attorney by the defendant by executing a gift deed
dated 27.12.2021 in his own favour and that a cause of action
arose for the plaintiff to sue for cancellation of the gift deed. He
therefore, contends that the contention raised by the defendant
involves a mixed question of fact and law and cannot be
considered at an interlocutory stage.
9. I have considered submissions made by the learned
senior counsel for the defendant and learned counsel for the
plaintiff.
10. As rightly contended by the learned Senior Counsel
for the defendant, the suit filed by the plaintiff for cancellation
of the gift deed is primarily based on the assertions that the
plaintiff did not execute the power of attorney dated
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06.01.2010. As also rightly contended by the learned senior
counsel for the defendant, the plaintiff was aware of the alleged
fraudulent nature of the power of attorney dated 06.01.2010,
but the date on which, the plaintiff came to know about the
same was deliberately not mentioned. Therefore, ordinarily, if
the defendant had brought out any document based on the said
power of attorney, the time prescribed for seeking appropriate
relief was three years from the date on which the plaintiff came
to know that the power of attorney dated 06.01.2010 was
forged and fabricated. However, the plaintiff has claimed that
after the power of attorney dated 06.01.2010 was used by the
defendant to obtain a settlement deed dated 07.01.2010
favouring the plaintiff, the plaintiff executed a power of
attorney dated 06.01.2015, in favour of his brother Mr.Victor
Michael D'souza. Therefore, the question whether the power of
attorney dated 06.01.2010 stood terminated upon the plaintiff
executing power of attorney dated 06.01.2015, arose for
consideration before the Trial Court.
11. Further more, the plaintiff has pleaded that the gift
deed brought about by the defendant in his own name, was not
lawful. Therefore, the question that may arise for consideration
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before the Trial Court is whether the power of attorney dated
06.01.2010 was in force, in view of the power of attorney dated
06.01.2015 executed by the plaintiff in favour of his other
brother and whether the gift deed was lawful, notwithstanding
the fact that the plaintiff did not chose to cancel the power of
attorney dated 06.01.2010, even after finding it to be forged
and fraudulent. Having regard to the nature of the relationship
between the plaintiff and defendant, it cannot be discounted
that the plaintiff even after coming to know that the power of
attorney dated 06.01.2010 was forged, did not take any action
to maintain the relationship in the family. However, since other
questions arose for consideration before the Trial Court, the
plaint cannot be rejected on the assertions made by the
defendant that the suit was not brought within three years from
the date, the right to sue first arose. Therefore, the application
filed by the defendant deserves to be rejected on grounds
mentioned above, rather than the one mentioned by the Trial
Court in the impugned order. However, the Trial Court is bound
to frame an issue whether the suit is brought within limitation
or not.
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12. In view of the above, there is no need to interfere
with the impugned order passed by the Trial Court. Hence, the
petition is dismissed, however, subject to the observations
made above.
13. All contentions are left open. The Trial Court shall
decide the suit uninfluenced by any observations contained
hereinabove, which are for the purpose of deciding this petition
only.
Sd/-
JUDGE
HJ
