9911796707
TMI Blog1955 (8) TMI 53X X X X Extracts X X X X X X X X Extracts X X X X ..... laintiff. The common Tarwad of those parties had effected a partition in 1098 and the branch of the 1st plaintiff and the 1st defendant was again sub-divided in 1103 whereby the plaint properties items 1 to 9 were set apart to the 1st plaintiff. The 1st plaintiff had executed a hypothecation of other property belonging to the sub-Tarwad and covered by the partition deed of 1103 but this transaction was being questioned by the 1st defendant and other junior members. According to the 1st plaintiff apprehension was entertained that these hypothecatees might file suit on the hypothecation bond and also levy attachment before judgment over the plaint items and therefore the 1st plaintiff was persuaded by the 1st defendant and others to execute a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... plaintiff went to her hushand's house. There was no reason to impeach the sale-deed Ext. D and besides the suit was barred by limitation, having been filed more than 3 years after Ext. D date. The 2nd defendant supported the 1st defendant. 4. The main question for decision is whether the sale-deed. Ext. D was a real sale and was intended to take effect. Ext. D purports to be a conveyance for a consideration of Rs. 198 which had been advanced previously, as gift to the 1st defendant by her father, PW. 2, to her mother the 1st plaintiff and recital is made therein that this amount had been expended by the first plaintiff on behalf of the Tarwad. But it is not stated in. Ext. D when the amounts were obtained by the first plaintiff or how ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rty on her behalf until she died. P.Ws. 3 and 4 who are the lessees speak to the rents having been paid to the 1st plaintiff till her death and to the additional plaintiffs thereafter. It should be remembered that the 1st defendant was 23 years at the date of Ext. D and even according to her she was married soon after Ext. D in 1112. There is no reason why if Ext. D was intended to take effect she should not have been given actual possession so as to take the profits for herself. All that the Munsiff is able to say on the question is that the evidence regarding possession was not against the first defendant. It is clear, however, that Ext. D was not followed by possession because it was not intended to take effect. The retention by the 1st ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al Article applicable was Article 78 of the Limitation Act of Travahcore corresponding to Article 91 of the Indian Limitation Act. According to the trial court the first plain tiff knew of the contents of Ext. D and therefore of the facts entitling her to have the instrument cancelled or set aside on the very date of its registration viz., 2-11-1111 and the suit having been filed more than three years thereafter, was clearly barred by limitation. The court below was also willing to apply Article 91 but held that the 1st plaintiff's knowledge could be dated only to 1107 and the suit could not therefore be held to be barred. It seems to me that both the courts have misled themselves on the law as to the limitation applicable to the case. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ndi Servai, I.L.R. 33 Calcutta 551, where the question for determination was whether a suit to recover properties which had been transferred by a person benami in the name of another was governed by Article 91 of the Limitation Act and in holding that the Article had no application, the Privy. Council observed: As to the point raised on the Indian Limitation Act, 1877, their Lord-ships are of opinion that the conveyance of the 11th June 1895, being an inoperative instrument, as, in effect it has been found to be does not bar the plaintiff's light to recover possession of his land and that it is unnecessary for him for to have it set aside as a preliminary to his obtaining the relief he claims. The 144th, and not the 91st article in the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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