9911796707
TMI Blog1921 (5) TMI 1X X X X Extracts X X X X X X X X Extracts X X X X ..... ame to the conclusion that the suit was barred under the Art. 95 of the Indian Limitation Act, holding that the suit was a suit for relief on the ground of fraud. It is, therefore, necessary to refer to the plaint to ascertain the facts which were therein relied upon. It was alleged that one Nanda Kissore Ganguly died on the 2nd day of June 1892, that by his Will he devised to his widow Ranganmoni Debi certain premises Nos. 27/1 and 27/2, Soorti Bagan Lane and a life interest in certain other premises No. 3, Soorti Bagan Lane, and that by the Will he left the latter property No. 3, Soorti Bagan Lane, to his nephew Kanai Lal Chuckerbutty after the termination of the widow's life interest. The original Plaintiffs in this case were Ranganm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nk of Bengal to the credit of the Calcutta Improvement Tribunal, that thereupon claims were made in respect of the said premises before the Improvement Tribunal by Ranganmoni and also by Kanai Lal Chuckerbutty and others. It was then alleged that an award was made by the President who directed that the compensation money should be invested in Government securities and the interest should be paid to Ranganmoni during her life, and that after her death the amount would be dealt with according to law. It was then alleged that during these proceedings Ranganmoni ascertained for the first time that the document, which she has signed in 1906 under the belief that she was signing a power-of-attorney was as a matter of fact a deed of gift and excha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tly the cause of action arose on the 23rd of January 1915. Those are all the facts to which I need refer. The first prayer of the plaint was for a declaration that the said deed of exchange of 1906 was void and inoperative; secondly for a declaration that the Plaintiff Sarat Chandra Gupta was absolutely entitled to the said sum of Rs. 10,000 in Government Promissory Notes now lying in deposit at the Bank of Bengal and for other receipts to which I need not refer. First of all it is necessary to say that of course the Plaintiff the assignee Sarat Chandra Gupta is in no better position than his assignor Ranganmoni Debi. The question is whether the learned Judge was right in holding that Art. 95 applies to this case on the ground that this is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d gift thereby alienating the property from herself to the Defendant subject to a life interest. I of course express no opinion as to what are the real facts in this case. I am giving this judgment upon the assumption that the facts alleged in the plaint are correct. Upon that assumption the deed was no deed, because Ranganmoni thought that she was signing one thing whereas as a matter of fact she was signing another and the principle which is applicable to this case if that assumption is made is the one which is laid down by Mr. Justice Byles in Foster v. Mackinnon . The allegation here is that the deed of July 1906 was void on the ground that the mind of Ranganmoni did not accompany her signature or mark, in other words that she never int ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... January 1915, sec. 18 of the Limitation Act would have effect and the period of limitation would not begin to run until the 23rd of January 1915. The period of limitation prescribed by Art. 120 is six years. This period would not expire until January 1921 and inasmuch as the suit was brought on the 22nd of December 1919, in my judgment the suit would be brought in time. Consequently this appeal is allowed with costs, the order of the learned Judge dismissing the suit is set aside and in view of this judgment the case is remitted to the Court of first instance to be tried on the merits. The costs of the first hearing in the Court below will abide the result of the further hearing and in the event of the suit not being further tried such cos ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as non est factum. If she should succeed in establishing that plea, then the instrument in question would be altogether void. It would not require setting aside and the prayer to set it aside would be therefore superfluous, so that Art. 91 would be inapplicable. Now the Court below has come to no conclusion upon this plea. I do not know whether the point was taken before the learned Judge but it does seem to arise on the pleadings and it was taken before us without objection by the other side. I express no opinion of course on the merits of the Plaintiff's plea. The question is in the first instance a question of fact depending on evidence and it is impossible to anticipate the conclusion at which the Court of trial may arrive af ..... X X X X Extracts X X X X X X X X Extracts X X X X
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