Shri Nicolau Pereira and his wife (expired, since deceased through LR''s) 1(a) Smt. Edociana Pereira and Others vs Smt. Sergina Pereira and Others

N.A. Britto, J.—Heard Shri S.S. Kakodkar, the learned Counsel on behalf of the appellants. The appellants are the plaintiffs in RCS No. 7/2003/II. The property along with house surveyed under no. 256/3 belonged to the mother/mother-in- law of plaintiff no.1 and respondent no.1, respectively. The said mother-in-law by Gift Deed dated 17/01/1973 gifted Northern half of the said property in favour of defendant no.1. The plaintiffs filed the suit for a declaration that the said Gift Deed dated 17/01/1973 be declared as null and void and for a further declaration that they be declared as co-owners of the said property. The suit was filed on 16/01/2003 and came to be dismissed by the learned trial Court, inter alia, on the ground that the suit was time barred. In coming to the said conclusion, the learned trial Court had observed that the plaintiffs had knowledge of the Gift Deed at least in the year 1992. In fact it appears that the plaintiffs ought to have had notice of the same at least on 3/09/1991 when according to the learned Counsel on behalf of the plaintiffs, written statement was filed by defendants in the first suit filed by the plaintiffs bearing no. 253/90/A.

Both the Courts below have also come to the conclusion that the plaintiffs have suppressed the filing of the said Civil Suit No. 253/90. The learned trial Court observed that the plaintiffs ought to have challenged the said Gift Deed in proper forum within 3 years from the date of knowledge of the said sale deed in terms of Article 58 of the Indian Limitation Act and not having done the same, declaratory relief was not available to the plaintiffs on a purported cause of action of 2001. The learned trial Court also held that the plaintiffs could not be heard to say that the cause of action arose in 2001 only when the copy of the Gift Deed became available to them.

The learned first appellate Court has also considered the aspect of limitation though in different perspective but both from the angle, Article 58 as well as Article 110 of the Limitation Act. As regards non applicability of Article 110, the learned First Appellate Court observed as follows;

Ld. Advocate for the plaintiffs inviting my attention to Article 110 of the Limitation Act contended that the case of the plaintiffs even otherwise is covered by this Article vide which the plaintiffs who are excluded from joint family property to enforce a right to share therein can file the suit within 12 years from the time when the exclusion becomes known to the plaintiffs. To my mind, since it is not the case of the plaintiffs herein that they have been excluded from the joint family property to enforce a right to share therein and on the contrary, as the plaintiffs have been allotted the shares in the Inventory Proceedings, the question of exclusion of the plaintiffs from the joint family property does not arise and consequently, Section 110 of the Limitation Act has no applicability to the case at hand and Ld. Trial Judge has therefore rightly rejected this contention of the plaintiffs. Hence, my findings.

The learned first appellate Court had rejected the plaintiffs'' contention that the Gift Deed came to their knowledge for the first time in the course of arguments before the Comarca Court.

It appears that the plaintiffs had also initiated inventory proceedings and in the said inventory proceedings had also sought for a declaration that the said Gift Deed was invalid but the said plea of the plaintiffs was rejected by the Inventory Court by order dated 8/03/2001 holding the said Gift Deed was a valid document. An appeal carried therefrom was rejected by the first appellate Court by order dated 30/11/2002 and it is only thereafter that the present suit came to be filed by the plaintiffs. Counsel on behalf of the plaintiffs has also submitted that the remaining portion of the property came to be divided in the said inventory proceedings between the plaintiffs and the defendants and the said order has attained finality.

Counsel on behalf of the plaintiffs submits that the suit of the plaintiffs ought to have been considered under Article 110 of the Limitation Act. Alternately, learned Counsel submits that in case Article 58 of the Limitation Act was applicable to the facts of the case than the fact that the plaintiffs was pursuing another remedy before Civil Court by way of the said first civil suit ought to have been excluded.

As regards the first submission, the same has been dealt by the learned first appellate Court in para 14 of the judgment. I may only add that it was not the case of the plaintiffs that suit property was a joint family property. The suit property belonged to the mother/mother-in-law of plaintiff no.1 and respondent no.1 and she was entitled to dispose off her half share in the suit property. Therefore, Article 110 of the Limitation Act was not applicable. As regards the second submission, the contention was that the Gift Deed was null and void because it was in respect of a specific portion of undivided property. Any such suit therefore ought to have been filed under Article 58 of the Limitation Act and within 3 years. As far as the exclusion of time is concerned, the plaintiffs had not pleaded for any such exclusion nor proved the same and on the contrary both the Courts below have found that certain facts were suppressed by the plaintiffs to fabricate a cause of action in March, 2001, which has been held against the plaintiffs. The plaintiffs were aware of the Gift Deed at least from 3/09/1991 when the plaintiffs came to know about the said Gift Deed from the written statement filed, and the suit not having been filed within 3 years therefrom, both the Courts below have rightly concluded that it was time barred. On facts, both the Courts below have given concurrent findings that the suit was time barred, applying Article 58 of the Limitation Act. There is no substantial question of law involved in this Second Appeal, either as framed, on behalf of the appellant, or otherwise. The Second Appeal, therefore, is hereby dismissed.