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Suit For Partition & Separate Possession Can't Be Rejected At Threshold On Ground Of Limitation: Karnataka High Court

Mustafa Plumber
10 Aug 2022 7:30 AM GMT
Section 50 Indian Evidence Act: Non-Production Of School Leaving Certificate Does Not Take Away Value Of Evidence Of Witnesses Examined For Establishing Relationship In A Property Suit.
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The Karnataka High Court has said that a suit for a primary relief of partition and separate possession cannot be rejected at the threshold citing Section 27 of the Limitation Act 1963.

A single judge bench of Justice R. Devdas dismissed the revision petition filed by defendants in a property suit, challenging trial court's order dismissing their application filed under Order VII Rule 11(a) and (d) read with Sec. 151 of CPC for rejection of plaint filed by their sisters on the ground that the suit is barred by limitation.

The original plaintiffs had also sought for a declaration that the registered relinquishment deed executed by them in 2004 in favour of defendants is not binding as it was obtained by misrepresentation.

The petitioners herein contended that plaintiffs cannot deny the fact that they knew about execution of the relinquishment deed dated since 2016 and yet, the suit is filed after lapse of more than three years

The High Court relied on Supreme Court's judgment in Vidya Devi alias Vidya Vati Vs. Prem Prakash and others where it was held that legislature has not prescribed any period of limitation for filing a suit for partition because partition an incident attached to the property and there is always a running cause of action for seeking partition by one of the co-sharers if and when he decides not to keep his share joint with other co-sharers.

"Since filing of the suit is wholly dependent upon the will of the co-sharer, the period of limitation, specially the date or time from where such period would commence, could not have been possibly provided for by the legislature and, therefore, no such prescription is made in the law of limitation, as far as suits for partition are concerned."

The bench noted Article 59 (of Limitation Act) would be attracted when coercion, undue influence, misappropriation or fraud which the plaintiff asserts is required to be proved. Article 59 would apply to the case of such instruments. It would, therefore, apply where a document is prima facie valid. It would not apply only to instruments which are presumptively invalid.

Then the bench observed,

"Order VII Rule 11 CPC provides for rejection of the plaint and not rejection of one of the prayers made in the plaint or rejection of the plaint partly. This is the reason why the petitioners/defendants have sought for two prayers in their application, that is, the rejection of the plaint under Rule 11(a) –that there is no cause of action and under Rule 11(d) – that the suit is barred by law of limitation."

Then it opined ,

"Since filing of the suit is wholly dependent upon the will of the co-sharer, the period of limitation, specially the date or time from where such period would commence, could not have been possibly provided for by the legislature and, therefore, no such prescription is made in the law of limitation, as far as suits for partition are concerned."

However,

"Technically, rejection of the plaint in a suit for partition could not be sought by the defendants by targeting a prayer seeking declaration against the deed of relinquishment, the defendants have resorted to making two prayers in the instant application. Thereto, the trial Court could have rejected the application by considering the objections raised at the hands of the plaintiffs that since two different reliefs are sought, the application was required to be rejected in view of Section 23 of the Karnataka Civil Rules of Practice."

It added,

"Questions as to whether the deed of relinquishment is a void document or a voidable document, whether there was a need to seek a declaration in respect of the deed of relinquishment, if the document is a void document; etc. would arise for decision making. Therefore, the trial Court has rightly held that the question regarding the law of limitation raised at the hands of the defendants would be a mixed question of law and facts, having regard to the averments made in the plaint."

Accordingly it held that the issue of limitation raised at the hands of the defendants is a mixed question of law and facts and therefore the same is required to be considered after looking into the evidence that could be adduced by the parties in a full dressed trial.

Further,

"At any rate, suit for a primary relief of partition and separate possession cannot be rejected at the threshold on the ground that law of limitation would apply insofar as the deed of relinquishment is concerned. The two prayers made by the plaintiffs are inter connected. There cannot be rejection of the plaint partly. The plaint also cannot be rejected on the ground that there is no cause of action, since the plaint does disclose cause of action for seeking partition of the suit schedule property."

Case Title: KHIRASA S/O. KRISHNA KATHARE & Others V. SHANTA ALIAS GEETA & Others

Case No: CIVIL REVISION PETITION NO. 100095/2021

Citation: 2022 LiveLaw (Kar) 307

Date of Order: 21ST DAY OF JULY, 2022

Appearance: Advocate AMRUTH VASANTH JOIS AND Advocate SANTOSH BIRANGI for petitioners; Senior Advocate Shreevatsa for Advocate ARAVIND D. KULKARNI, For R1 TO R5,

Click Here To Read/Download Order

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