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. However, it is required to be noted that 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. It was the Appellant herein-original Defendant who filed the suit in the year 2001 for partition and the said suit was filed against his brothers to which the Plaintiff was joined as Defendant No. 10. It appears that 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. Therefore, considering the averments in the plaint and the bundle of facts stated in the plaint, we are of the opinion that by clever drafting the Plaintiff has tried to bring the suit within the period of limitation which, otherwise, is barred by law of limitation.
Therefore, considering the decisions of this Court in the case of T. Arivandandam (supra) and others as stated above, and as the suit is clearly barred by law of limitation, the plaint is required to be rejected in exercise of powers Under Order 7 Rule 11 of the Code of Civil Procedure.
7.1 At this stage, it is required to be noted that, as such, the Plaintiff has never prayed for any declaration to set aside the gift deed. We are of the opinion that 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.
IN THE SUPREME COURT OF INDIA
Civil Appeal No. 2960 of 2019
Decided On: 13.03.2019
Raghwendra Sharan Singh Vs. Ram Prasanna Singh (Dead) by L.Rs.
Hon'ble Judges/Coram:
L. Nageswara Rao and M.R. Shah, JJ.
