Skip to content


Lokenath Ruth and anr. Vs. Chintamoni Tripathi and ors. - Court Judgment

LegalCrystal Citation
CourtKolkata
Decided On
Judge
Reported in16Ind.Cas.547
AppellantLokenath Ruth and anr.
RespondentChintamoni Tripathi and ors.
Cases ReferredSwami Naik v. Thayammal
Excerpt:
limitation act (xv of 1877), section 18 - fraud, what constitutes--ignorance of plaintiff of right to sue, not sufficient--ignorance must be brought about by fraud of opponent. - .....first two defendants in a suit commenced by the plaintiffs-respondents for a declaration that a deed of release executed by their maternal aunt, the third defendant, is, null and void and doss not affect their interest in the disputed property. the case for the plaintiffs is that the property belonged to their maternal uncle, baidyanath ruth, that after his death, the third defendant was made to execute a deed of release in favour of the first two defendants, that the deed was executed under circumstances which do not make it binding upon, the executant; and that, in any event, it does not affect the plaintiffs as the reversionary heirs to the estate of her deceased husband. the document was executed on the 17th april 1889 and the suit was not commenced till the 19th february 1908. to.....
Judgment:

1. This is an appeal on behalf of the first two defendants in a suit commenced by the plaintiffs-respondents for a declaration that a deed of release executed by their maternal aunt, the third defendant, is, null and void and doss not affect their interest in the disputed property. The case for the plaintiffs is that the property belonged to their maternal uncle, Baidyanath Ruth, that after his death, the third defendant was made to execute a deed of release in favour of the first two defendants, that the deed was executed under circumstances which do not make it binding upon, the executant; and that, in any event, it does not affect the plaintiffs as the reversionary heirs to the estate of her deceased husband. The document was executed on the 17th April 1889 and the suit was not commenced till the 19th February 1908. To take the case out of the bar of limitation, the plaintiffs stated, first, that the second plaintiff had attained majority in April or May 1905, that is, within three years before the commencement of the suit; and, secondly, that they had been apprised of the deed only so recently as the 6th April 1906. The first two defendants repudiated the allegations of the plaintiffs and specifically stated that the second plaintiff was at least 28 years old. They further contended that the suit was barred by limitation, and that the plaintiffs had no cause of action, because they were nearer reversionary heirs to the husband of the third defendant than the plaintiffs. The Courts below have concurrently decreed the suit. Upon the question of priority of title of the parties, the Courts have unanimously come to the conclusion that the plaintiffs are the preferential reversionary heirs, and that the allegations of the defendants that they were nearer agnates of the deceased husband of the third defendant, have not been established. These findings must be deemed conclusive in second appeal. The only question, therefore, open for consideration is that of limitation. The District Judge has found that as there was nothing to show that the plaintiffs had knowledge of the deed of release before the date specified in the plaint, that is, the 6th April 1906, the suit was not barred by limitation. On behalf of the appellants, this view has been controverted as erroneous, and it has been argued that under Article 125 of the second Schedule of the Limitation Act, a suit, during the life of a Hindu female, by a Hindu, who, if the female died at the date of instituting the suit, would be entitled to the possession of the land, to have an alienation of such land made by the female declared void, except for her life or, until her re-marriage, must be commenced within twelve years from the date of alienation. This has not been and cannot be disputed. On behalf of the respondents, it has been argued, however, that the case falls within Section 18 of the Limitation Act. Section 18 provides that when any person having a right to institute a suit has, by means of fraud, been kept from the knowledge of such right or of the title on which it is founded or where any document necessary to establish such right has been fraudulently concealed from him, the time limited for instituting a suit against the person guilty of the fraud or accessory thereto shall be computed from the time when the fraud first became known to the person injuriously affected thereby or, in the case of the concealed document, when he first had the means of producing it or Compelling its production. But it is clear, on the face of the plaint, that allegations, sufficient to bring the case within Section 18 of the Limitation Act were not specifically made, and it appears to have been erroneously assumed that if the plaintiffs proved that they had become aware of the deed of release so late as the 6th April 1903, their claim was saved from the bar of limitation. This view obviously cannot be supported. There are Articles of the Limitation Act, for instance, Articles 91, 92 and. 164 which show that the Legislature, in some instances, has directed that time shall run from the date when the plaintiff acquires knowledge of certain material facts. In the case of Article 125, however, the Legislature has followed a different course. Consequently, it is necessary for the plaintiffs to establish the facts material for the application of Section 18. It is further clear that, as a general rule, the mere ignorance of the, plaintiff of his right to sue does not prevent time from running against him; it is only where such ignorance has been brought about by the fraud of his opponent that the section can be applied in his favour. This was laid down specifically in the cases of Azroal Singh v. Lalla Gopeenath 8 W.R. 23 and Reaz Ali Khan v. The Government of India 19 W.R. 269. In order to constitute fraud within the meaning of Section 18, it is not enough that the right to sue should be merely un known to the plaintiff; but, as Sir John Romilly points out in the case of Dean v. Thwaite 21 Beav. 621 there must have been some intentional imposition or some deliberate concealment of fact by which the ignorance of the plaintiff was brought about. The District Judge, however, has not found the elements necessary to bring the case within Section 18; nor has he determined the truth or otherwise of the allegation of the second plaintiff that he attained majority within three years prior to the institution of the suit. The view that the suit is not barred under Article 125 because the plaintiffs were not apprised of the deed of release till the 6th April 1906 cannot, consequently, be supported.

2. It has finally been argued in the alternative by the respondents that Article 125 cannot apply if it is found that the deed of release was obtained by fraud or imposition or was a forged instrument. In any of these contingencies, the proper Article would be 91 or 92, and in each of these instances, time would run against the plaintiffs only from the date when they acquired know ledge of the circumstances which entitled them to call for the cancellation of the document. But the District Judge has not determined the circumstances under which the deed of release was executed; so that this will be a matter for investigation on remand. We may add that reliance was placed upon the case of llama Swami Naik v. Thayammal 26 M. 488 : 111 R.R. 228 to show that the suit was not barred by limitation. That case is clearly distinguishable. There it was laid down that if a reversionary heir was assumed to be entitled to sue for a declaratory decree that he is entitled to succeed, on the death of a widow, to property alleged to form part of her husband's estate, which property was in the possession of a person who claimed it as his own adversely to the widow, the proper period of limitation applicable to such a suit was that provided in Article 120 and not in Article 125 of the second Schedule of the Limitation Act. The suit before us is of an entirely different description. Here the first two defendants do not claim to hold adversely to the widow; they claim to be transferees under the deed of release. If the deed of release stands in the way of the plaintiffs, they are. entitled to sue within the period prescribed by Article 125, or, if the deed is assailed on certain specific grounds, within the period mentioned in Article 91 or 92.

3. The result is that this appeal is allowed, the decree of the District Judge set aside and the case remanded to him in order that the question of limitation may be decided. The District Judge will be free to take evidence upon any question material for the purpose of the inquiry, such evidence may be taken either by himself or under his direction by the Subordinate Judge. The boosts of this appeal will abide the result.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //