Whether plaint can be rejected considering defence plea that suit is barred by limitation?

 What is relevant for answering the matter in issue in the context of the application Under Order VII Rule 11(d), is to examine the averments in the plaint. The plaint is required to be read as a whole. The defence available to the Defendants or the plea taken by them in the written statement or any application filed by them, cannot be the basis to decide the application Under Order VII Rule 11(d). Only the averments in the plaint are germane. The limitation to challenge the registered sale deed ordinarily would start running from the date on which the sale deed was registered. However, the specific case of the Appellants (Plaintiffs) is that until 2013 they had no knowledge whatsoever regarding execution of such sale deed by their brothers-original Defendant Nos. 1 & 2, in favour of Jaikrishnabhai Prabhudas Thakkar or Defendant Nos. 3 to 6. They acquired that knowledge on 26.12.2012 and immediately took steps to obtain a certified copy of the registered sale deed and on receipt thereof they realised the fraud played on them by their brothers concerning the ancestral property and two days prior to the filing of the suit, had approached their brothers (original Defendant Nos. 1 & 2) calling upon them to stop interfering with their possession and to partition the property and provide exclusive possession of half (1/2) portion of the land so designated towards their share. However, when they realized that the original Defendant Nos. 1 & 2 would not pay any heed to their request, they had no other option but to approach the court of law and filed the subject suit within two days therefrom. According to the Appellants, the suit has been filed within time after acquiring the knowledge about the execution of the registered sale deed. In this context, the Trial Court opined that it was a triable issue and declined to accept the application filed by Respondent No. 1 (Defendant No. 5) for rejection of the plaint Under Order VII Rule 11(d). That view commends to us.
 In the present case, we find that the Appellants (Plaintiffs) have asserted that the suit was filed immediately after getting knowledge about the fraudulent sale deed executed by original Defendant Nos. 1 & 2 by keeping them in the dark about such execution and within two days from the refusal by the original Defendant Nos. 1 & 2 to refrain from obstructing the peaceful enjoyment of use and possession of the ancestral property of the Appellants. We affirm the view taken by the Trial Court that the issue regarding the suit being barred by limitation in the facts of the present case, is a triable issue and for which reason the plaint cannot be rejected at the threshold in exercise of the power Under Order VII Rule 11(d).

IN THE SUPREME COURT OF INDIA

Civil Appeal No. 3500 of 2018 (Arising out of SLP (Civil) No. 26401 of 2017)

Decided On: 10.04.2018

 Chhotanben  Vs.  Kiritbhai Jalkrushnabhai Thakkar and Ors.

Hon'ble Judges/Coram:

Dipak Misra, C.J.I., A.M. Khanwilkar and Dr. D.Y. Chandrachud, JJ.

Citation: 2019(2) MHLJ 17

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When subsequent deed of conveyance will prevail over earlier deed of conveyance?

In view of the discussions made above, on the one hand
possession of appellants/ defendants over the suit property stood
confirmed whereas Gajanand Agarwalla and subsequent
purchasers i.e. Gurmukh Singh and plaintiffs have never come in
possession over the suit property and that is also apparent from
the evidence of P.W.-4. Under such circumstances, the appellants
are entitled for the protection contained under Section 53A of the
Transfer of Property Act and they cannot be evicted therefrom. 
The appellants have also taken a plea of constructive notice
as given under Explanation – II of Section 3 of the Transfer of
Property Act. There should not be straight jacket formula that the
Deed of Conveyance which were earlier in time, shall prevail over
the Deed of Conveyance executed later. The Court has to look into
the facts and evidence available on record to decide as to who had
acquired a better title if two Title Deeds are available. The Courts
below have decided that the Sale Deed dated 11.10.1984 is later
in time and hence that will not prevail against the Sale Deed
executed in favour of the predecessor-in-interest of the plaintiffs
i.e. 12.07.1984. The documents and evidence available on record
indicates that Sitaram Agarwalla and his brothers, Gajanand
Agarwalla Gurmukh Singh and even the plaintiffs are resident of
same vicinity and they all are having their residence nearby to the
disputed property. They have not inquired from the defendants at
any point of time before the transaction made in their favour from
the defendants as to under what capacity or authority they are
occupying the suit premises.
17. Learned counsel for the plaintiffs in this regard has relied
upon the Judgment reported in AIR 1987 Patna, Page-5 but the
facts in the case at hand are different. The appellants were not
occupying smaller portion of the property rather they were in
occupation and possession of Plot No. 151. Sitaram Agarwalla and
his three brothers had executed single Sale Deed pertaining to
Plot Nos. 151, 152 and 153 in favour of Gajanand Agarwalla. All
the three plots were having their different identity which also
reveal from the fact that Plot No. 153 was recorded in the name of
Purni Devi and, therefore, Gajanand Agarwalla got the Sale Deed
executed by Purni Devi in his favour pertaining to Plot No. 153.
Since the plaintiffs did not make enquiry about the authority
under which the appellants were occupying their possession over
the suit property, they cannot be considered bonafide purchaser.
For reference, Explanation-II of Section 3 of the Transfer of
Property Act is being given hereunder:-30 S.A. No. 61 of 2004
“Explanation – III. – A person shall be deemed to have
had notice of any fact if his agent acquires notice
thereof whilst acting on his behalf in the course of
business to which that fact is material:
Provided that, if the agent fraudulently conceals the
fact, the principal shall not be charged with notice
thereof as against any person who was a party to or
otherwise cognizant of the fraud.”
JHARKHAND HIGH COURT
SECOND APPEAL NO. 61 of 2004

Smt. Gita Devi
V 
Mrs. Sobha Agarwalla,

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When suit for declaration will be barred by limitation?

 As far as prayer (f) is concerned, plaintiff seeks declaration that all the
acts of defendant No.1 or the documents executed by him in favour of defendant
Nos.2 and 3 are void, illegal and unlawful.   Prayer   (g) is for an order and
direction against the defendants to deliver the deed of assignment dated 28th
January 2005 and deed of conveyance dated 27th  January 1992 between Mrs
Noel Pereira and Mr Yusuf Ahmed and Conveyance Deed dated 27th  January
2007 executed between Yusuf Ahmed and defendant No.3 to this Court.  Prayer

(h) is for cancellation of those documents under the direction and supervision of
this Court.   For seeking declaration in terms of prayer (f) Article 58 would be
applicable.  All the three documents referred to aforesaid were executed prior to
three years before the date of filing suit.  Prayer (f) for declaration is thus on the
face of  it barred by law of limitation. For delivery of documents sought in prayer
(g), in my view Article 113 would be applicable.  On perusal of oral evidence and
the documentary evidence, it is clear that right to sue accrued to the plaintiff
much prior to three years before filing of this suit.    Plaintiff was fully aware of
these documents.  Both the deeds of conveyance are registered documents which
amounts to constructive notice.  Prayer (g) is thus, barred by law of limitation.
For the reasons recorded in respect of prayer (g),  prayer (h) which is also for

cancellation of documents is also barred by law of limitation.   IN THE HIGH COURT OF JUDICATURE AT BOMBAY
 ORDINARY ORIGINAL CIVIL JURISDICTION 
SUIT NO. 808 OF 2011
Naresh Lachmandas Aswani  

VERSUS
 Haridas alias Hardas Lachmandas
 
     CORAM : R.D. DHANUKA, J.
 
 JUDGMENT PRONOUNCED ON : 18th OCTOBER, 2013
Citation: 2016 (4) ALLMR 286

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Whether question of constructive notice is a question of fact?

In Lala Nawal Kishore v. Municipal Board Agra, AIR 1943 All 115, a Full Bench of the Allahabad High Court observed:

"The question of constructive notice is a question of fact which falls to be determined on the evidence and circumstances of each case and is so far as this matter can rest upon any principle, the principle is this that intending purchasers of the property in municipal areas where the property is subject to a municipal tax which has been made a first charge on the property by statute have a constructive knowledge of the tax and of the possibility of some arrear being due and it, therefore, becomes their duty before acquiring the property to make enquiries as to the amount of tax which is due or which may be due and if they fail to make this enquiry, this failure amounts to a wilful abstention or gross negligence within the meaning of Section 3, T. P. Act, and notice must be imputed to them."

Patna High Court

Radha Rai And Anr. vs Ram Rekha Rai And Anr. on 7 February, 1963

Equivalent citations: AIR 1964 Pat 144

Coram: Ramratna Singh, J.

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Supreme Court: Basic concept of constructive notice

According to s. 3, Transfer of Property Act, a person is said to have notice of a fact when he actually knows the fact or when but for wilful abstention from enquiry or search which he ought to have made, or gross negligence, he would have known it. In the latter case he is presumed to have constructive notice. For drawing the presumption in the present case, therefore, the question is not whether the purchaser had the means of obtaining, and might with prudent caution have obtained, knowledge of the charge but whether in not doing so, he acted with wilful abstention or gross negligence. There is no principle of law imputing, to all Intending purchasers of property in municipal areas where municipal taxes are a charge on the property, constructive knowledge of the existence of such municipal taxes and of the reasonable possibility of those taxes being in arrears. It is a question of fact or a mixed question of fact and law depending on the facts and circumstances of the case.

The question one has to answer in circumstances like the present is not whether the purchaser had the means of obtaining and might with prudent caution have obtained knowledge of the charge but whether in not doing so he acted with wilful abstention or gross negligence. Being a question depending on the behaviour of a reasonably prudent man, the Courts have to consider it in the background of Indian conditions. Courts in India should, therefore, be careful and cautious in seeking assistance from English precedents which should not be blindly or too readily followed

Supreme Court of India

Ahmedabad Municipal Corporation ... vs Haji Abdulgafur Haji Hussenbhai on 18 March, 1971

Equivalent citations: 1971 AIR 1201, 1971 SCR 63

Bench: Dua, I.D.

CITATION:

1971 AIR 1201 1971 SCR 63

ACT:

Transfer of Property Act (4 of 1882), s. 100--Applicability to auction sales--Whether s. 141(1) of the Bombay Provincial Municipal Corporation Act, 1949, falls within the saving provision of s. 100, T.P. Act--Constructive notice of existence of arrears of municipal taxes--If and when can be imputed to auction purchaser.

HEADNOTE:

In 1950, a building vested in the receivers on its owner being adjudicated an insolvent. In 1951, the receivers secured necessary orders from court for paying off municipal taxes then due, but the receivers did not pay and the municipal corporation did not also pursue the matter. In 1954, the property was brought to sale in execution of a mortgage decree obtained by a mortgagee of the property and the respondent purchased it at the court sale. Before the purchase he made enquiries from the receiver if there were any dues against the property, but he was not informed about the arrears of municipalpal taxes. In 1955, the municipal corporation attached the property for arrears of municipal taxes due from 1949, and the purchaser filed a suit for a declaration that the arrears were not recoverable by sale of the property.

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