Karnataka High Court
Sri Ashok B Hottin vs Mr E John Peter on 13 June, 2019
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 13TH DAY OF JUNE 2019
BEFORE
THE HON'BLE MR. JUSTICE SREENIVAS HARISH KUMAR
CIVIL REVISION PETITION No.180 OF 2016
BETWEEN
Sri. Ashok B Hottin,
S/o. Late B.V.Hottin,
Aged about 39 years,
R/at No.64/2,
7th Cross, 1st Main,
Shakambaringar,
J.P.Nagar, 1st Phase,
Bengaluru-560078.
Present Address:
#394, 33rd B Main,
17th Cross, J.P.Nagar,
6th Phase, Bengaluru-560078.
...Petitioner
(By Sri. Ashok B Patil, Advocate)
AND
1. Mr. E.John Peter,
S/o. Elias,
Aged about 47 years,
R/at Tateguppe Village and Post,
Uttarahalli Hobli, Bengaluru South,
Pin No.560082.
2. Mrs. E.Lucas,
D/o. Elias,
2
Aged about 57 years,
R/at 139/3, 6th Cross,
6th Main, Kasturbanagar,
Pipeline West,
Bengaluru-26.
3. Mrs. E.Alphinso,
Aged about 53 years,
W/o. Late Jayadeva,
R/at No.1071, 11th Main,
4th Cross, Raghavendra Block,
Srinagar, Bengaluru-560050.
4. Mrs. Jasimtha,
D/o. Elias,
Aged about 50 years,
R/at No. E/180/58/1,
3rd Main, 2nd Cross,
Kasturbanagar,
Bengaluru-26.
5. Mrs. E.Pascal,
W/o. David,
Aged about 42 years,
R/at Railway Station Road,
Opp:Mahila Hostel,
Government Ladies Hostel,
St. Anthony Church
Tumkur-2.
6. Mr. E.Patrik,
S/o. Elias,
Aged about 43 years,
7. Mr. Lourd Kumar,
S/o. Elias,
Aged about 41 years,
Defendants No.5 & 6,
R/at No.104, 7th Cross,
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Kasturbanagar,
Pipeline West,
Bengaluru-560026.
...Respondents
(By Sri. R.Ramesh, Advocate for R1;
Vide order dated 01.07.2016,
Notice to R2-R7 is dispensed with)
This CRP is filed under Section 115 of CPC against
the order dated 05.04.2016 passed on I.A.No.3 in
O.S.No.2748/2014 on the file of the 29th Additional City
Civil and Sessions Judge (CCH-30), dismissing the I.A.
filed under Order 7 Rule 11(d) of CPC.
This Petition coming on for final hearing this day,
the court made the following:
ORDER
Defendant No.7 in O.S. 2748/2014 has filed this civil revision petition assailing the order of the trial court dismissing his application, I.A.No.3, filed under Order VII Rule 11 (a) and (d) of the Code of Civil Procedure (for short 'CPC'). The plaintiff's suit is for partition and separate possession of his 1/7th share in the property bearing No. 394 measuring East to West 30.6' and North to South 19' situated at Sarakki VI Phase, Bengaluru. He has also sought judgment and decree to hold that sale 4 deeds dated 24.10.1983, 20.3.1984, 17.2.1987, 20.2.1995, 27.8.1998 and 28.1.2005 are not binding on his legitimate share. Defendants 1 to 6 are the sisters and brothers of the plaintiff. Defendant No. 7 is the end purchaser of the schedule property.
2. The plaintiff's case is that the City Improvement Trust Board made allotment of the plaint schedule property to his father. Before the sale deed was executed he died and therefore his wife, i.e., the plaintiff's mother Marry Helen gave a letter to the Chairman, BDA, on 10.11.1981 seeking execution of sale deed to her name, and her request was considered. A lease-cum-sale deed was executed in her favour on 3.6.1983. On 24.10.1983, the plaintiff's mother sold the plaint schedule property to one Venkatakrishnappa. This Venkatakrishnappa sold the property to one Balakrishna and V.P.Nalini on 20.3.1984. On 17.2.1987 Balakrishna and his wife sold the property in favour of K.S.Shashikala. After these sale transactions having taken place, on 9.1.1985 the BDA executed the 5 absolute sale deed in respect of plaintiff's mother. Sashikala sold the plaint schedule property to Shivaraj on 20.2.1995. This Shivaraj sold the property to R.Shanthi on 27.8.1998. On 28.1.2006, the seventh defendant purchased the plaint schedule property from Shanthi. The plaintiff stated that he was not aware of these sale transactions and he came to know about them in the year 2012. He stated that he and defendants 1 to 6 are in joint constructive possession of the plaint schedule property being the legal heirs of their father. They all are equally entitled to a share.
3. Seventh defendant filed written statement denying the averments made in the plaint and took up a contention mainly that the suit was barred by time. Seventh defendant also made an application under Order VII Rule 11 (a) and (d) of CPC for rejection of plaint.
4. The trial court's finding is that in the light of the plaintiff's pleadings, limitation is a mixed question of fact and law. The plaintiff was a minor when the sale was 6 made for the first time. Whether he had the knowledge of sale transaction or not requires evidence to be recorded. He has clearly stated that he came to know about the sale transactions in the year 2012 and therefore the plaint cannot be rejected under Order VII Rule 11 of CPC.
5. Learned counsel for the petitioner assails these findings by arguing that a plain reading of the plaint shows that the suit filed in the year 2014 is hopelessly barred by time. In the cause title of the plaint his age is shown as 45 years. He should have taken birth in the year 1969. In the year 1983, his age might be 14 years. He attained the age of majority in the year 1987. Therefore, the suit should have been filed within three years after attaining majority. He argues further date of knowledge is not important. If minor's interest is involved in the property and alienation is made ignoring the interest of the minor, Article 60 of the Limitation Act is applicable. It clearly states that suits should be filed within three years from the date of attaining majority. It does not speak about 7 knowledge and hence going by the plaint averments if it could be made out that suit is apparently time barred, recording of evidence by framing an issue on limitation does not arise and this is a fit case for rejection of plaint under Order VII Rule 11 CPC. In support of his arguments he relies on the judgment of this court in H.M.Rudraradhya vs Uma and Others [ILR 2014 KAR 1293] and of the Supreme Court in the case of Utha Moidu Haji vs Kuningarath Kunhabdulla and Others [(2007) 14 SCC 792]. He argues that the trial court has committed an error in not rejecting the plaint and therefore appeal should be allowed.
6. Counsel for the first respondent argues that Article 60 of the Limitation Act is not applicable. The facts and circumstances pleaded by the plaintiff bring the whole suit within the ambit of Article 113 of the Limitation Act. The plaintiff has clearly stated that he came to know about several sale transactions only in the year 2012 and therefore from the date of knowledge, suit is within time. 8 He argues further even as has been rightly held by the trial court, the limitation is a question of fact. Issue must be raised and answered by the trial court and there is no scope for rejection of plaint under Order VII Rule 11 CPC. He has placed reliance on the judgment of the Supreme Court in the case of Raghunath Das vs Gokal Chand and Another [AIR 1958 SC 827] and a Division Bench judgment of this court in the case of Mr.Jagadish Poonja vs The South Canara Hotel Complex Private Limited, Bangalore and Others [2015 (3) KCCR 2754].
7. I have considered the points of arguments and perused the plaint. If the prayer portion of the plaint is read, it becomes evident that the plaintiff has sought for a declaration that the sale deeds dated 24.10.1983, 20.3.1984, 17.2.1987, 20.2.1995, 27.8.1998 and 28.1.2005 do not bind his legitimate share. In para 7 of the plaint, he has stated that all the alienations in respect of the plaint schedule property came to his knowledge only in the year 2012. The parties are Christians and they are 9 governed by Indian Succession Act. The question here is whether Article 60 or Article 113 of the Limitation Act is applicable? From a plain reading of the plaint, it becomes evident that the absolute sale deed was executed in favour of the plaintiff's mother by the BDA, but the initial consideration for allotment was paid by the plaintiff's father. Therefore, it was the property of the father. On his death, the property has to be shared according to section 33 of the Indian Succession Act. But, in the year 1983 itself, the mother, claiming herself to be the absolute owner, sold the property. Thereafter, several sale transactions took place in respect of the same property and the seventh defendant is the end purchaser. The facts clearly show that the interest of the plaintiff was involved in the schedule property as he was a minor in the year 1983. Though the mother claimed herself to be the absolute owner of the property, it is to be noticed here that she was the natural guardian of the plaintiff besides having 1/3rd share in the property. The sale involved not only her share, but of her minor son also. If a sale made 10 by mother is sought to be avoided by the son after a lapse of many years, a question as regards limitation would obviously arise. In that event which Article of the Limitation Act is applicable? Is it Article 60 or Article 113? Is it possible to say that limitation has to be reckoned from date of knowledge?
8. Article 60 of the Limitation Act states that suit is to be filed within three years from the date of minor attaining majority. Article 113 states that suit has to be filed within three years from the date of accrual of right to sue. Both Articles do not speak of knowledge. Since the learned counsel for the respondent emphasized that Article 113 is applicable, reference to section 6 of the Limitation Act is necessary. According to this section, a person entitled to institute a suit or make an application for execution of a decree is a minor or insane or idiot, he can institute a suit or make an application within the same period after the disability ceases. 'Within the period' means period prescribed by other Articles of the Limitation 11 Act for institution of suits or making applications. It cannot be understood that right to sue accrues from the date of knowledge. Only a few Articles of the Limitation Act provide for initiation of legal action within a certain time from date of knowledge, barring these Articles there is no scope for having the legal action from date of knowledge.
9. In the present case, the plaintiff might have attained majority in the year 1987. Sale was made by his mother. That sale was voidable, not void. She had every right to sell the property including the plaintiff's interest being a natural guardian. Therefore, the suit should have been filed within three years from the date of plaintiff's attaining majority. Even if Article 113 of the Limitation Act is applied, the suit should be filed within three years from the date of accrual of right; it is impossible to hold date of knowledge comes to one's aid. In this context, it may be useful to refer to a few decided cases.
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9.1. The Supreme Court in the case of Utha Moidu Haji (supra) has held that to a suit filed 17 years after execution of the sale deed and 6 years after plaintiff attained majority, Article 60 is applicable and suit was time barred.
9.2. A co-ordinate Bench of this court in the case of H.M.Rudraradhya (supra) has taken the following view:-
"13. ..... Admittedly, the sale of the suit property in favour of the 1st defendant was on 04.06.1987. The suit instituted by the plaintiff is not within 3 years of her attaining the age of majority. Therefore, in view of the provisions of Article 60 of the Limitation Act, the suit was barred by time. Though a contention is taken up by learned counsel for the respondents that the plaintiff has not prayed for the relief of setting aside the sale transaction and he contends that on this ground that Article 60 of the Limitation Act provides for 3 years to set aside the sale, he would submit that in the absence of the relief for setting aside the sale, this Article itself is not applicable. When the 13 sale transaction is voidable transaction and it is for the plaintiff, to sue for possession of the property and it is incumbent upon him to pray for such a relief. Even otherwise, the plaintiff has prayed for a declaration that the Sale Deed is not binding on her interest in the suit property and this relief is similar to setting aside the sale, which is contemplated under Article 60 of the Limitation Act and in the absence of the said relief, the suit itself cannot be maintained. So, from whatsoever angle, if the facts and circumstances are looked into, it is Article 60 of the Limitation Act, which is applicable to the dispute and not Article 109 or 110 of the Limitation Act".
10. The next point to be dealt with is about framing of an issue as regards limitation. According to the respondent, limitation is a mixed question of law and facts and hence without raising an issue in that regard, plaint cannot be rejected under Order VII Rule 11 of CPC. In this context he referred to a Division Bench judgment of this court in the case of Mr.Jagadish Poonja (supra). In this judgment, it is held as below : -
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"29. ... When in the plaint the plaintiff specifically avers that the suit is filed within the time of limitation and hence the suit is in time, the Court cannot embark upon an enquiry on an application filed by the defendant under Order 7 Rule 11 (d) to find out whether 34 the statement is correct or not and then decide the said issue. The plaint to be rejected on the ground of bar of limitation under Section 3 what has to be seen is only the plaint averments. If the plaint averments do not disclose that the suit is barred by limitation, then the question of rejecting the plaint under Order 7 Rule 11 (d) would not arise. When the defendant raises the plea of bar of limitation, the Court is bound to frame an issue regarding limitation. As the issue regarding limitation cannot be tried as a preliminary issue, the said issue has to be decided after recording of evidence upon all the issues framed in the suit including the issue regarding limitation. It is only thereafter the Court could decide the question whether the suit is barred by the law of limitation. Therefore, the question of 15 the Court going into the question of bar of limitation on an application filed under Order 7 Rule 11 (d) CPC would not arise. Rejection of the plaint on the ground that the suit is barred by limitation is ex facie illegal and cannot be sustained. In that view of the matter, the order passed by the trial Court cannot be sustained".
11. If the above view taken by the Division Bench of this court has to be applied, as I opine, it is to a case where the plea taken up by plaintiff with regard to cause of action is disputed by the defendant, and it is not possible to take an apparent opinion as regards the starting point of limitation. But on plain reading of the plaint above, if it is possible to arrive at a definite opinion that the suit is time barred, framing of an issue is not necessary and the court can exercise power under Order VII Rule 11 CPC for rejection of plaint. In this context, the decision of the Supreme Court in the case of Hardesh Ores (P) Limited vs Hede and Company [(2007) 5 SCC 614] can be referred to. It is held : -
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"25. The language of Order VII Rule 11 CPC is quite clear and unambiguous. The plaint can be rejected on the ground of limitation only where the suit appears from the statement in the plaint to be barred by any law. Mr. Nariman did not dispute that "law"
within the meaning of clause (d) of Order VII Rule 11 must include the law of limitation as well. It is well settled that whether a plaint discloses a cause of action is essentially a question of fact, but whether it does or does not must be found out from reading the plaint itself. For the said purpose the averments made in the plaint in their entirety must be held to be correct. The test is whether the averments made in the plaint if taken to be correct in their entirety a decree would be passed. The averments made in the plaint as a whole have to be seen to find out whether clause (d) of Rule 11 of Order VII is applicable. It is not permissible to cull out a sentence or a passage and to read it out of the context in isolation. Although it is the substance and not merely the form that has to be looked into, the pleading has to be construed as it stands 17 without addition or subtraction of words or change of its apparent grammatical sense. As observed earlier, the language of clause (d) is quite clear but if any authority is required, one may usefully refer to the judgments of this court in Liverpool & London S.P. & I Association Ltd. Vs. M.V. Sea Success I and another : (2004) 9 SCC 512 and Popat and Kotecha Property Vs. State Bank of India Staff Association : (2005) 7 SCC 510".
12. The counsel for respondent has relied upon another judgment of the Supreme Court in Raghunath Das (supra), I am of the opinion that this decision has no application here. Therefore, before concluding it is to be stated that the courts cannot routinely hold that limitation is mixed question of law and fact; as has been held by the Supreme Court in A.ARIVANDANDAM vs T.V.SATYAPAL AND ANOTHER [(1977) 4 SCC 467], what is required is meaningful reading of the plaint. If from the plaint averments alone, despite certain dates being mentioned with regard to cause of action, it is possible to say that suit 18 is time barred, the plaint must be rejected, otherwise an issue has to be framed and answered along with other issue.
13. In this case, the respondent/plaintiff did not take action within three years after he attained majority. He instituted the suit in the year 2015, probably he was 45 years old then. The sale by his mother was not void, but voidable. Therefore, limitation hits the suit. In the result, appeal is allowed. The order of the trial court on I.A.No.3 is set aside. I.A.No.3 is allowed. Plaint is rejected.
Sd/-
JUDGE ckl