G. Ramanujam, J.
1. This second appeal involves, a question of limitation. The appellant filed a suit O.S. No. 2441 of 1964 on, the file of the City Civil Court, Madras for a declaration that the family arrangement entered into on 14th February, 1958. between her and the defendants is null,, void and not binding on her, That suit came to be dismissed on the ground that it is barred by limitation. The question therefore is whether the appellant's suit is within time as urged by her.
2. The plaintiff is the sister of the defendants in the suit and they are the children of one Nadhamuni Naidu. They purported to enter into a family arrangement under a registered document dated 14th February, 1958 along with their father who was then alive. Under the terms of the document the defendants are to take the various items of properties for themselves on condition that they have to purchase a property for a sum of Rs. 15,000 as a provision for the plaintiff on or before 1st January, i960. The plaintiff complains that neither the said sum of Rs. 15,000 had been paid in cash nor a property had been purchased in her name as provided in the document. Hence she has filed the present suit for a declaration that the said family arrangement is null and void as the document is vitiated by fraud, coercion and undue influence. It was the plaintiff's case that even if the document is not null and void, as the defendants have not performed their obligations under the arrangement, the document is inoperative. At this stage we are not concerned with the other defences put forward by the defendants as the only question that has to be considered now is the question of limitation.
3. The suit was filed on 20th July, 1964. The trial Court held that Article 120 of the Limitation Act, 1908 applied to the facts of this case, and as the cause of action had arisen on 14th February, 1958, the suit should have been filed within 6 years from that date. It rejected the contention of the plaintiff that the right to sue accrued only on 1st January, i960 and the present suit, having been filed within 6 years from that date, was well within time, on the ground that as the plaintiff had claimed the document to be void ab initio on the ground of fraud, 'coercion and undue influence, the right to sue had accrued even on the date of the document.
4. The lower appellate Court also agreed with the view of the trial Court and held hat the suit not having been filed within 6 years from the date of the family arrangement, under Article 120 of the Limitation Set of 1908, the suit was out of time.
5. In this second appeal the learned Counsel for the plaintiff-appellant con-ends that the suit having been filed after he Limitation Act of 1963 came into force, the provisions of that Act have to applied, that under the provisions of that Act as amended by the Central Act X. of 1969 the plaintiff can file the suit within 7 years from the date of the family arrangement, and that the suit filed on 20th July, 1964 should be held to be in time. According to the learned Counsel the period of limitation of 6 years under Article 120 of the old Limitation Act has been reduced to 3 years under Article 113 of the Limitation Act, 1963 and in such cases Section 30, before its amendment by Central Act X of 1969, provided that the suit can be filed within a period of 5 years next after the commencement of the Act or within the period prescribed for such suit by the Limitation Act of 1908, whichever period expires earlier, and after the amendment of that Section in 1969 the period of five years mentioned has been increased to 7 years and, therefore, the plaintiff is entitled to file the suit within 7 years from 14th February, 1958. The learned Counsel also reiterates the contention raised before the Courts below that the plaintiff is entitled to file the suit within 6 years from 1st October, i960 in view of the alternative cause of action referred to in the plaint accruing on 1st October i960 on the defendants' failing to perform their part of the obligations under the family arrangement.
6. The first contention that Section 30 of the Limitation Act of 1963 enables the plaintiff to file the suit within 7 years from the date of the family arrangement which is sought to be set aside relates, to the scope of Section 30. Section 30 before its amendment in 1969 so fas as it is relevant is as follows:
Notwithstanding anything contained in this Act:
(a) any suit for which the period of limitation is shorter than the period of limitation prescribed by the Indian Limitation Act, 1908, may be instituted within a period of five years next after the commencement of this Act or within the period prescribed for such suit by the Indian Limitation Act, 1908, whichever period expires earlier;
After its amendment in 1969 by Central Act X of 1969 the five-year period in Clause (a) has been substituted by 7 years from the date when the original Act came into force. The learned Counsel strongly relies on the extended period of 7 years in Clause (a) of Section 30 in support of his contention that the suit is well within time. But I am of the view that the contention of the learned Counsel overlooks the last limb of Clause (a) which states that if the period prescribed for the suit by the Limitation Act, 1908, expires earlier to the filing of that suit the five year period will not apply.
In this case the six-year period mentioned under the Limitation Act of 1908 expired earlier to the filing of the suit and, therefore, the plaintiff cannot invoke Section 30 of the Act and say that the suit has been filed within 5 years after the commencement of the Limitation Act of 1963. The learned Counsel, however, refers to the decision in Joti Majumdar v. Girija Bkusan A.I.R. 1965 Bom. 11, as supporting his stand. In that case an application for leave to appeal as a pauper to the High Court was not barred under the old Limitation Act when the new Limitation Act came into operation but it was barred on the date of its presentation under the old Limitation Act but not under the new Limitation Act. It was held that the petitioner was entitled to have the benefit of the new Limitation Act and as such he may present the application within the time prescribed under Article 130 of the new Limitation Act. But that decision will not help the appellant, for that was a case where Section 30 of the new Limitation Act had no application because the period of limitation under the new Act for an application F6F~Teave to appeal as a pauper is not shorter but longer than the period prescribed by the Limitation Act of 1908, In the present case we are concerned with a situation where the period of limitation under the new Act is shorter than the period prescribed under the old Act and, therefore, Section 30 of that Act has to be applied. As a matter of fact, the learned Counsel for the appellant also proceeds on the basis that Section 30 of the new Act has to be applied. As already stated, as the period prescribed under the old Limitation Act had expired before the filing of the suit, the appellant J cannot seek to file the suit within 5 years from the commencement of the new Limitation Act. Hence the first contention that the appellant is entitled to file the suit within 7 years from the date of the commencement of the new Act has to be rejected.
7. The alternative contention is that the family arrangement has become void in view of the default committed by the defendants in fulfilling the obligations undertaken by them. It is seen that the plaintiff has not chosen to enforce the terms in the suit. She cannot have the document declared void on the ground that the defendants had not performed their obligations under the contract. If the grievance of the plaintiff is that the obligations that have been undertaken by the defendants under the arrangement had not been carried out, she must ask for the specific performance of those obligations within 3 years from 1st October, i960 the date fixed for its performance and not to have the arrangement to which she was a party declared void. The learned Counsel states that the plaintiff can show that the defendants had no intention to perform their obligations even at the time when the family arrangement was entered into, that the arrangement has been brought about with a fraudulent intention on their part, and that such a fraud will vitiate the document. According to the learned Counsel Section 17 of the new Limitation Act provides that where a suit is based upon fraud of the defendant the period of limitation shall not begin to run until the plaintiff had discovered the fraud or could, with reasonable diligence, have discovered it, and the plaintiff having discovered the fraud committed by the defendants only when they failed to perform their obligations to purchase a property of the value of Rs. 15,000 for her benefit, she is entitled to file the suit within six years after the discovery of the fraud. But the subsequent conduct of the defendants in not fulfilling the obligations undertaken by them under the family arrangement cannot amount to a fraud even on the date of the family arrangement, though it may amount to a misrepresentation and even if it is treated as a fraud, the fraud should be deemed to have been committed even on the date of the agreement and the plaintiff being a party to the transaction should be deemed to have had knowledge of of the fraud. In any view of the matter, the decisions of the Courts below that the suit is barred by limitation appears to be correct. The second appeal therefore fails and is dismissed but without costs. No leave.