Code of Civil Procedure, 1908 – Or.7, r.11 – Father of the appellant (original plaintiff) and his brother jointly purchased the land in question and executed registered gift deed dtd. 06.03.1981 in favour of the appellant – Appellant instituted partition suit in 2001 against his brothers and others for partition of the joint Hindu family properties – Original plaintiff was joined as defendant no.10 in the 2001 suit – Original plaintiff filed Title Suit in 2003 against the appellant inter alia for declaration that the gift deed executed in favour of the appellant is sham – Appellant filed application u/Or.7 r.11 for rejection of the plaint inter alia on the ground that the suit is barred by limitation – Rejected – Appellant filed revision application before the High Court – Dismissed – On appeal, held: It is not disputed that the gift deed, a registered gift deed was executed by the original plaintiff himself along with his brother – Till 2003, for approximately 22 years, neither the plaintiff nor his brother (who died on 15.12.2002) during his lifetime claimed at any point of time that the gift deed was showy deed of gift – It is the appellant who instituted the partition suit in the year 2001 against his brothers to which even the plaintiff was a party as defendant no.10 – Summon and the copy of the plaint in the said suit was served upon the plaintiff in 2001 itself – Despite the same, he instituted the present suit in the year 2003 – By clever drafting, the plaintiff tried to bring the suit within the period of limitation which, otherwise, was barred by limitation – Plaintiff never prayed to set aside the gift deed – Such a prayer was not asked cleverly – If such prayer would have been asked, in that case, the suit can be said to be clearly barred by limitation considering Art.59, Limitation Act and, therefore, only a declaration was sought to get out of the provisions of the Limitation Act – Judgment passed by the High Court and the trial Court set aside – Application by the appellant u/Or.7 r.11 of the CPC to reject the plaint, allowed – Limitation Act, 1963 – Art.59. Allowing the appeal, the Court
HELD: 1.1 The plaintiff has specifically admitted that the plaintiff and his brother executed the gift deed on 06.03.1981. It is admitted that the gift deed is a registered gift deed. It also emerges from the plaint that till 2003, neither the plaintiff nor his brother (during his lifetime) challenged the gift deed dated 06.03.1981 nor, at any point of time, claimed that the gift deed dated 06.03.1981 was a showy deed of gift. In fact, it is the defendant-appellant herein who instituted the suit in the year 2001 against his brothers to which even the plaintiff was a party as defendant No. 10 and that was a partition suit filed by the appellant herein-original defendant. It appears that the summon and the copy of the plaint – T.S. (Partition) Suit No. 203 of 2001 – was served upon the plaintiff in the year 2001 itself. Still, the plaintiff averred in the plaint that it came to the knowledge of the plaintiff with respect to the gift deed on 10.04.2003. Thus, it is born out from the averments in the plaint that, till 2003, the plaintiff never disputed the gift deed and/or never claimed that the gift deed dated 06.03.1981 was a showy deed of gift. [Para 6.1] [1077-G-H; 1078-A-C]
1.2 Both the Courts below have materially erred in not rejecting the plaint in exercise of powers under Order 7 Rule 11 of the CPC. It is required to be noted that it is not in dispute that the gift deed was executed by the original plaintiff himself along with his brother. The deed of gift was a registered gift deed. The execution of the gift deed is not disputed by the plaintiff. It is the case of the plaintiff that the gift deed was a showy deed of gift and therefore the same is not binding on him. For approximately 22 years, neither the plaintiff nor his brother (who died on 15.12.2002) claimed at any point of time that the gift deed was showy deed of gift. One of the executants of the gift deed – brother of the plaintiff during his lifetime never claimed that the gift deed was a showy deed of gift. The summon of the suit filed by the defendant being T.S. (Partition) Suit No. 203 of 2001 was served upon the defendant No.10-plaintiff herein in the year 2001 itself. Despite the same, he instituted the present suit in the year 2003. Even from the averments in the plaint, it appears that during these 22 years i.e. the period from 1981 till 2001/2003, the suit property was mortgaged by the appellant herein-original defendant and the mortgage deed was executed by the defendant. By clever drafting the plaintiff has tried to bring the suit within the period of limitation which, otherwise, is barred by law of limitation. [Para 7] [1081-D-H; 1082-A]
1.3 The plaintiff never prayed for any declaration to set aside the gift deed. Such a prayer is not asked cleverly. If such a prayer would have been asked, in that case, the suit can be said to be clearly barred by limitation considering Article 59 of the Limitation Act and, therefore, only a declaration is sought to get out of the provisions of the Limitation Act, more particularly, Article 59 of the Limitation Act. The aforesaid aspect has also not been considered by the High Court as well as the learned trial Court. Both the High Court as well as the learned trial Court erred in not exercising the powers under Order 7 Rule 11 of the CPC and in not rejecting the plaint in exercise of powers under Order 7 Rule 11 of the CPC. The impugned judgment and order passed by the High Court as well as the trial Court are quashed and set aside. Consequently, the application submitted by the appellant herein-original defendant to reject the plaint under Order 7 Rule 11 of the CPC is hereby allowed and the plaint, being Title Suit No. 19 of 2003 is hereby rejected. [Paras 7.1, 9] [1082-B-D, G-H; 1083-A]
T. Arivandandam v. T.V. Satyapal (1977) 4 SCC
467 : [1978] 1 SCR 742 ; Ram Singh v. Gram Panchayat Mehal Kalan (1986) 4 SCC 364 ; Madanuri Sri Rama Chandra Murthy v. Syed Jalal (2017) 13 SCC 174 : [2017] 5 SCR 294; Church of Christ Charitable Trust & Educational Charitable Society v. Ponniamman
Educational Trust (2012) 8 SCC 706 : [2012] 6 SCR 404; A.B.C. Laminart Pvt. Ltd. v. A.P. Agencies (1989) 2 SCC 163 : [1989] 2 SCR 1; Sopan Sukhdeo Sable v. Assistant Charity Commissioner (2004) 3 SCC
137 : [2004] 1SCR 1004 ; Sham Lal alias Kuldip v. Sanjeev Kumar (2009) 12 SCC 454: [2009] 5 SCR
1049; N. V. Srinivas Murthy v Mariyamma (dead) by proposed LRs AIR 2005 SC 2897 : [2005] 1 Suppl. SCR 411; Ram Prakash Gupta v. Rajiv Kumar Gupta (2007) 10 SCC 59 : [2007] 10 SCR 520 – relied on. Bloom Dekor Limited v. Subhash Himatlal Desai (1994)
6 SCC 322 :[1994] 3 Suppl. SCR 322 – referred to.
As published in the Supreme Court Reports, Supreme Court of India. Text from the Indian Supreme Court Judgments open data set (Dattam Labs), CC BY 4.0.
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