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Damojipurapu Achanna Pantulu and anr. Vs. Damojipurapu Seethamma - Court Judgment

LegalCrystal Citation
SubjectLimitation
CourtChennai
Decided On
Reported inAIR1921Mad545; (1921)40MLJ348
AppellantDamojipurapu Achanna Pantulu and anr.
RespondentDamojipurapu Seethamma
Cases ReferredHurri Bhusan Mukerji v. Upendra Lal Mukerji I.I.R.
Excerpt:
- - in the events that happened we are clearly of opinion that it did not amount to such an attempt......the suit for further hearing on the 14th september 1915. after that remand the defendant in that suit, the widow applied to the court on the 7th november 1915 for an issue to be framed regarding the validity and genuineness of the will already mentioned, and also produced the document. then the issue as asked for was framed on the 7th december 1915 and the court of trial held that the compromise was a valid one and also that the will was genuine and dismissed the suit. this was on the 31st july 1917. the plaintiffs appealed against that decree and the appellatecourt held on the 30th january 1918 that the compromise with the tenants was a fair and proper one, and on that ground dismissed the reversioners appeal. at the same time it held that it was not necessary to decide any question.....
Judgment:

1. The appellants filed this suit seeking to establish their right as reversioners to the properties in the hands of the last male owner and for a declaration that the will-purporting to have been executed by the latter on the 30th November 1892 is not genuine. The Subordinate Judge dismissed the suit on the ground that it was barred by limitation. He holds that Article 93 of the Limitation Act applies to the case and that time began to run from 6th October 1912. That was the date on which a written statement was filed by the widow in defence to a suit instituted by the present plaintiffs seeking to have a declaration that a certain compromise entered into with the tenants on the lands by the widow was not binding on them. In that statement she mentions among other facts in support of her defence that her husband had executed a will which is the one in question giving her absolute right to the property. But she never produced that will, nor did she ask for an issue to be framed for trial of the question whether she was entitled absolutely to the property under the will alleged to have been executed by her husband. The suit of the present plaintiffs wasdismissed on 18th August 1913 on some preliminary point. The High Court set aside the judgment of the Subordinate Judge and remanded the suit for further hearing on the 14th September 1915. After that remand the defendant in that suit, the widow applied to the Court on the 7th November 1915 for an issue to be framed regarding the validity and genuineness of the will already mentioned, and also produced the document. Then the issue as asked for was framed on the 7th December 1915 and the Court of trial held that the compromise was a valid one and also that the will was genuine and dismissed the suit. This was on the 31st July 1917. The plaintiffs appealed against that decree and the appellateCourt held on the 30th January 1918 that the compromise with the tenants was a fair and proper one, and on that ground dismissed the reversioners appeal. At the same time it held that it was not necessary to decide any question about the alleged will. Thereafter the present appellants, reversioners, filed the present suit on the 17th October 1918.

2. The question for decision is whether the mention in the written statement of the widow in the previous suit of this alleged will is the starting point of time as constituting an attempt to enforce that will against the plaintiffs. In the events that happened we are clearly of opinion that it did not amount to such an attempt. She did not produce the will at all, nor was this one of the questions to be tried. The mere mention of the existence of such a will in her written statement without anything being done to obtain a decision on its genuineness or binding character cannot be said to be an attempt to enforce the will. It may not be very easy to give the definition of the word 'attempt'' which would apply to all cases. What does or does not constitute an attempt within the meaning of Article 93 of the Limitation Act must depend upon the facts alleged in each case. It has been held by the Bombay High Court that registration of an instrument would not ipso facto be an attempt to enforce that instrument and in a case in this High Court in Vadathu Kamalanabhan v. Vadathu Sathiraju (1915) 32 I.C. 99 the facts of which were somewhat similar the learned Judges held that 'a person can be said to attempt to enforce a forged instrument against the plaintiff' with in the meaning of Article 93 of Schedule of the Limitation Act only when he institutes proceedings in which the genuineness of the document is directly put in issue and to which the person against whom it is sought to be enforced is a direct and necessary party.' We may add that we do not think it necessary for the application of this article that the attempt to enforce the instrument should have been made by the person relying upon it as plaintiffs in a suit and we do not understand that the learned Judges meant to confine the application of this Article only to such cases. But there can be no doubt if we may say so, as to the correctness of the general proposition laid down by them. This view of the Article also finds considerable support from the rulings of their Lordships of the Privy Council in Hurri Bhusan Mukerji v. Upendra Lal Mukerji I.I.R.(1896) Cal 1.

3. We therefore reverse the judgment of the Subordinate Judge and remand the suit for disposal on the merits. Costs will abide the result. Stamp fee will be refunded to the appellant.


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