Karnataka High Court
Jameel Ahmad Morab vs Shamshad Begum on 5 March, 2020
Bench: P.B.Bajanthri, Nataraj Rangaswamy
1
IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 05TH DAY OF MARCH, 2020
PRESENT
THE HON'BLE MR. JUSTICE P.B. BAJANTHRI
AND
THE HON'BLE MR.JUSTICE NATARAJ RANGASWAMY
REGULAR FIRST APPEAL No.100002 OF 2014 (PAR/POS)
BETWEEN:
JAMEEL AHMAD MORAB
S/O LATE ABDUL KAREEM MORAB,
AGED ABOUT 33 YEARS,
R/O RASULPURGALLI,
DHARWAD TOWN,
DHARWAD DISTRICT-580001.
.... APPELLANT
(BY SRI. SHARAD M. PATIL, ADVOCATE FOR
SRI.V.P.KULKARNI, ADVOCATE)
AND:
1. SMT. SHAMSHAD BEGUM,
W/O LATE ABDUL KAREEM MORAB,
AGED ABOUT 62 YEARS,
R/O KUKKANUR VILLAGE,
C/O G. IBRAHIM SAB,
NEAR POLICE STATION,
YELBURGA TALUK,
KOPPAL DISTRICT-583231.
2
(AS PER ORDER DATED 05.03.2019 APPELLANT -
JAMEEL AHMAD MORAB IS TREATED AS HER LEGAL
REPRESENTATIVE)
2. M/S KUMRARESHWARA GRUHA
NIRMANA ABHIVRUDHI SHAKARA SANGHA LTD.,
BY ITS CHAIRMAN AND SECRETARY,
MARATHA COLONY ROAD,
APMC COMPLEX, KATTA MARKET,
DHARWAD-580001.
.... RESPONDENTS
(BY SRI. SHIVARAJ C. BELLAKKI, ADVOCATE FOR
RESPONDENT NO.2;
VIDE ORDER DATED 05.03.2019 SOLE APPELLANT IS
TREATED AS LEGAL REPRESENTATIVES OF DECEASED
RESPONDENT NO.1)
THIS APPEAL IS FILED UNDER SECTION 96 OF THE
CIVIL PROCEDURE CODE, AGAINST THE JUDGMENT AND
DECREE DATED: 31.08.2013 PASSED IN O.S. NO.438/2007
ON THE FILE OF THE III ADDL. SENIOR CIVIL JUDGE &
CJM, DHARWAD, DISMISSING THE SUIT FOR PARTITION
AND SEPARATE POSSESSION.
THIS APPEAL HAVING BEEN HEARD AND RESERVED
FOR JUDGMENT ON 18.12.2019 AND COMING ON FOR
PRONOUNCEMENT THIS DAY NATARAJ RANGASWAMY J.,
DELIVERED THE FOLLOWING:
JUDGMENT
This Regular First Appeal is filed by the unsuccessful plaintiff whose suit in O.S.No.438/2007 for declaration that the sale deed dated 15.06.2001 was not binding upon him and for consequent partition and 3 separate possession of his 7/8th share in the suit schedule property was dismissed by the III Additional Senior Civil Judge and CJM, Dharwad, by Judgment and Decree dated 31.08.2013.
2. In this Judgment, the parties shall be referred to as they were arrayed before the Trial Court. The appellant herein was the plaintiff while the respondent No.2 herein was the defendant No.2 before the Trial Court. Respondent No.1, who was the defendant No.1 before the Trial Court, died during the pendency of this appeal and the appellant herein was ordered to be treated as her legal heir by an order of this Court dated 05.03.2019.
3. The plaintiff contended in his plaint in O.S. No.438/2007 that the suit schedule property was owned and possessed by his father Mr. Abdul Kareem Abdul Ghani Morab, who died intestate on 11.09.1998 leaving behind him and his mother, the first defendant. 4 The plaintiff was reeling under shock and was depressed over the death of his father. The defendant No.1 took advantage of the innocence of the plaintiff and colluded with strangers and created a sale deed in respect of the suit property in favour of the defendant No.2. The plaintiff stated that the defendant No.1 was addicted to leading a lavish life and was associated with several persons and she started neglecting the plaintiff. The defendant No.1 used to obtain signatures of the plaintiff on several papers and used to pacify him by paying little money. He stated that the defendant No.1 enacted a drama of gifting 24 guntas of property belonging to her husband, to the plaintiff. She, thereafter, managed to file a suit in O.S. No.246/2001 before the Court of II Additional Civil Judge (Senior Division), Dharwad, for cancellation of the gift deed and after filing that suit, the first defendant executed a sale deed in respect of the suit property in favour of the defendant No.2. The plaintiff alleged that he was not 5 bound by the sale deed executed by the defendant No.1 and that he was entitled to 7/8th share in the suit property. It is stated that defendant No.1 had filed several suits in O.S. Nos.180/2005 and 217/2005 before the Court of Civil Judge (Sr. Dn.), Dharwad. He, therefore, stated that suspecting her bona fides, he began unearthing the properties left behind by his father and came to know that during the first week of July 2007, the first defendant had executed a sale deed dated 15.06.2001 in favour of the second defendant. He claimed that he had not received any sale consideration and hence, he claimed that the sale deed was not binding upon him and also sought for partition and separate possession of his share in the suit property.
4. The defendant No.1 filed her written statement stating that the plaintiff had acknowledged the sale deed dated 15.06.2001 as he had signed it. Therefore, he cannot claim any share in the suit 6 property. She contended that the suit property was sold to the defendant No.2, who was placed in possession and the defendant No.2, a housing Society, in turn, had transferred the sites formed in the suit property through several transactions. She contended that the suit filed by her in O.S. No.246/2001 for cancellation of the gift deed in favour of the plaintiff was decreed on 13.02.2008. She therefore, sought dismissal of the suit.
5. The defendant No.2 filed a detailed written statement contending that during the year 1998, Mr. Abdul Kareem Morab had agreed to sell 27 Acres in Block No.513, Kelageri village, to the defendant No.2 and had executed an agreement of sale in the year 1998. However, Mr. Abdul Kareem Morab died on 11.09.1998, but left behind him a Will in favour of his wife, namely, the defendant No.1. It was stated that in the Will so executed, Mr. Abdul Kareem Morab had indicated that he had already executed an agreement of 7 sale in favour of the defendant No.2 and directed the defendant No.1 to convey the suit property to the defendant No.2 and receive the sale consideration. Pursuant thereto, the defendant No.2 moved the Government and other authorities to obtain permission to purchase the suit property. It is stated that the plaintiff partook in every stage of the sale transaction and he executed the required documents to obtain permission from the Government to purchase the said land. The plaintiff had also signed the agreement of sale dated 29.06.1998 as an attesting witness. It is stated that the defendant No.1 thereafter executed a deed of absolute sale dated 15.06.2001 in favour of the defendant No.2 and thereafter, revenue entries were brought out in the name of defendant No.2. The defendant No.2 obtained the requisite permission for formation of a layout which included permission under Section 109 of the Karnataka Land Reforms Act, 1961, change of land use from public / semi-public to 8 residential, approval of change of land use from the Hubli Dharwad Urban Development Authority (HDUDA), conversion for non-agricultural purposes layout plan from the HDUDA, survey and fixation of boundaries from the Assistant Director of Land Records, Dharwad. The defendant No.2 thereafter executed and developed a layout of residential sites in the suit property and other adjacent lands and sold the same to its members. The defendant No.2 claimed that the plaintiff was an attesting witness to the Will of late Abdul Kareem Abdulgani Morab dated 09.09.1998 and he was also an attesting witness to the sale deed executed by the defendant No.1 to defendant No.2. The plaintiff was fully aware of all the transactions till the suit property was developed into a layout of residential sites. The defendant No.2 alternatively contended that the agreement of sale dated 29.06.1998 executed by the plaintiff's father was binding upon the plaintiff and the defendant No.1 and even if it was held that the sale 9 deed dated 15.06.2001 was not binding upon the plaintiff, he was still under an obligation to perform and conclude the sale agreement that was executed by his father.
6. Based on the aforesaid rival contentions of the parties, the Trial Court framed the following Issues and additional issues:
1) Whether the plaintiff proves that the first Defendant by mis-using the innocence and confidence of the Plaintiff has taken signature on stamp papers and printed forms by mis-using the signature of the Plaintiffs created the document of the sale deed dated 15.06.2001?
2) Whether the Plaintiff further proves that he has got 7/8th share in the suit schedule property and the sale deed dated 15.06.2001 is not binding upon the Plaintiff?
3) What decree or Order?10
ºÉZÀÄѪÀj «ªÁzÁA±ÀUÀ¼ÄÀ
1) ¥ÀæwªÁ¢-2 vÁ£ÀÄ ºÉüÀĪÀAvÉ, zÁªÁ ªÀiË®åªiÀ Á¥À£À ¸Àj E¯Áè ªÀÄvÀÄÛ ¨sÀj¹gÀĪÀ £ÁåAiÀiÁ®AiÀÄzÀ ±ÀÄ®Ì ¸ÀªÀÄ¥ÀðPÀªÁV¯Áè CAvÁ gÀÄdĪÁvÀÄ ¥Àr¸ÀÄvÁÛgÉAiÉÄÃ?
2) ¥ÀæwªÁ¢-2 ªÀÄÄAzÀĪÀgÉzÀÄ vÁªÀÅ ºÉüÀĪÀAvÉ, F zÁªÉ PÁ®¥Àj«Äw¬ÄAzÀ ¨sÁ¢¸À®ànÖzÉ CAvÁ gÀÄdĪÁvÀÄ ¥Àr¸ÀÄvÁÛgÉAiÉÄÃ?"
7. Before the Trial Court, the plaintiff was examined as PW.1 and he marked Exs.P1 to P11 while the President of the defendant No.2 was examined as DW.1 and he marked Exs.D1 to D34.
8. The Trial Court relied upon the signatures of the plaintiff found on Ex.D7, sale deed dated 15.06.2001, and the execution of gift deed dated 25.06.2001 as per Ex.D6, which is a certified copy of the gift deed, by defendant No.1 in favour of the plaintiff, which was in respect of 24 guntas of land excluding the suit property that was sold to the 11 defendant No.2. The boundaries mentioned in Ex.D6 on the eastern and southern sides were shown to be the property sold to defendant No.2. The Trial Court held that the plaintiff was fully aware of the execution of the sale deed. The Trial Court also took into consideration the fact that the plaintiff after obtaining the gift of 24 guntas sought conversion of the land for non- agricultural purpose in respect of this 24 guntas. The Trial Court also noticed an unmarked document which was a challan for Rs.19,643/- (dated 11.02.2002) which was the conversion fee paid by the defendant No.2 in respect of 24 guntas of land gifted by the defendant No.1 to the plaintiff. Based on the aforesaid and other cognite facts, the Trial Court in terms of its Judgment and Decree dated 31.08.2013, dismissed the Suit. Feeling aggrieved by the aforesaid Judgment and Decree, the plaintiff has filed this Regular First Appeal. 12
9. It is noticed that the defendant No.1 died during the pendency of this appeal and the plaintiff was treated as her legal representative vide order of this Court dated 05.03.2019.
10. We have heard the learned counsel for the plaintiff and learned counsel for defendant No.2. We have perused the lower Court records, the Judgment and Decree of the Trial Court as well as the appeal memorandum filed by the plaintiff.
11. The following points arise for our consideration:
1. Whether the plaintiff has proved that he was unaware of the sale deed dated 15.06.2001 and that therefore, the sale deed is not binding upon him. ?
2. Whether he is entitled for the relief of partition of his 7/8th share in the suit properties ?13
12. Before we advert to the ocular evidence, we have considered the documentary evidence that would indicate the state of things and the understanding of the parties. Ex.P1 is the RTC in respect of the property bearing Sy. No.513. Ex.P2 is the certified copy of the sale deed dated 15.06.2001. Ex.P3 is the Judgment and Decree dated 13.02.2008 passed in O.S. No.246/2001 on the file of II Additional Civil Judge (Sr. Dn.), Dharwad. Ex.P4 is the plaint filed in O.S. No.246/2001. Ex.P5 is the mutation proceedings bearing No.5399. Ex.P6 is the evidence of the defendant No.1 in O.S. No.246/2001. Ex.P7 is the plaint in O.S. No.180/2005 filed by defendant No.1 in the present suit against the Smt. Khajabi and two others. Ex.P8 is a prescription dated 24.09.1997 issued by Honnathi Eye hospital. Ex.P9 is the medical certificate in respect of the father of the plaintiff. Ex.P10 is the date of birth / study / caste certificate of the plaintiff.
14
13. It is seen that the defendant No.1 in the present suit had filed O.S. No.246/2001 against the plaintiff for revocation of the gift deed dated 25.06.2001 executed in favour of the plaintiff. In the plaint filed in O.S. No.246/2001, the suit property is described as follows:
Sy. No.513 measuring 33 Acres and 30
guntas akar 8-78 situated at Kelgeri gram, Dharwad out of the said property 24 guntas agricultural land.
Its eastern and southern boundaries are shown as under:
East by: Site belonging to Kumareshwar Griha Nirman Society;
South by: Sy. No.39 and space belonging to Kumareshwar Graha Nirman Society.
14. In her deposition in O.S. No.246/2001 marked as Ex.P6, the defendant No.1 had given out shades of the fact that the suit property was sold to the 15 defendant No.2. It is also evident from Ex.P2 that the plaintiff was then aged 20 years had signed Ex.P2 as an attesting witness.
15. The defendant No.2 on the other hand, had placed on record Ex.D2, which was the written statement of the plaintiff (Jameel Ahamed Morab) in O.S. No.246/2001 wherein he had stated that the defendant No.1 had sold the suit property and that he reserved his right to initiate appropriate proceedings. This written statement is dated 14.02.2006. Ex.D6 is certified copy of the gift deed which indicates the conveyance of the suit property in favour of the defendant No.2 in very clear terms. Ex.D7 is the sale deed dated 15.06.2001 and the signature of the plaintiff is found at Ex.D7(a). Ex.D8 is a receipt executed by the father of the plaintiff acknowledging the receipt of sum of Rs.2,00,000/- from defendant No.2. Ex.D9 is another receipt executed by the father of the plaintiff 16 acknowledging the receipt of sum of Rs.20,00,000/- from defendant No.2. Ex.D10 is the receipt executed by the defendant No.1 acknowledging the receipt of Rs.3,00,000/- from defendant No.2 and Ex.D11 is the receipt executed by defendant No.1 acknowledging the receipt of 12.5 lakhs from defendant No.2. Ex.D12 is another receipt executed by defendant No.1 acknowledging the receipt of Rs.3,00,000/- from defendant No.2. Ex.D13 is the agreement of sale executed by the defendant No.1 in favour of defendant No.2 and the signature of defendant No.1 is found at Ex.D13(a). Exs.D14 and D15 are the RTC extracts of Sy. No.513, which indicates the execution of a Will and an agreement of sale. Ex.D16 is a notification issued by the Government of Karnataka under Section 109 of the Karnataka Land Reforms Act, 1961, approving the change of land use on the application made by defendant No.2 in respect of 27 Acres in Block No.513 subject to the conditions mentioned therein. Ex.D17 is 17 the mutation proceedings extract. Ex.D18 is the receipt for conversion fee paid by defendant No.2 in respect of the suit property to HDUDA while Ex.D19 is another receipt for payment of Rs.9,67,950/- made by defendant No.2 to HDUDA. Ex.D20 is the receipt evidencing the payment made by defendant No.2 to HDUDA towards approval of the plan. Ex.D21 is the proceedings of the grama panchayat giving its no objection for the development of the suit property by defendant No.2. Exs.D22 to D24 are the pass books in respect of the account maintained by defendant No.2 in the K.C.C. Bank Limited. Ex.D25 is a request made by defendant No.1 to the Commissioner HDUDA for approval of the change of land use. Ex.D26 and Ex.D27 are the notices issued by Deputy Commissioner, Dharwad District, to defendant No.2 and plaintiff respectively for payment of conversion fee. Ex.D29 is the official memorandum dated 05.03.2002 issued by Deputy Commissioner converting the lands mentioned therein for non- 18 agricultural purposes. Ex.D30 is notice issued by HDUDA calling upon the defendant to pay the fee for development of the suit property. Ex.D31 is the order issued by Hubli Electricity Supply Company Limited (HESCOM) approving the carrying of electrification works in the residential layout developed by defendant No.2. Ex.D32 is an affidavit of the plaintiff wherein he has admitted that the suit property was agreed to be sold to the defendant No.2. Exs.D33 and D34 are similar affidavits of the defendant No.1 and the President of the defendant No.2.
16. The aforesaid documents reveal that the sale deed dated 15.06.2001 was not an act solely brought about by the defendant No.1 without the notice or knowledge of the plaintiff, but the documents disclose that the plaintiff was fully aware and privy to the fact of the prior agreement of sale by his father in favour of defendant No.2. He was also aware of the sale deed 19 executed by defendant No.1 in favour of the defendant No.2.
17. The learned counsel for the plaintiff strenuously contended before us that even assuming that the sale deed dated 15.06.2001 was attested, it cannot be construed that the plaintiff had sold his share in the suit schedule property. He also contended that attestation of a document does not tantamount to that witness consenting to the terms of the document. He further rallied his argument to contend that the defendant No.1 claimed to be a legatee of her husband who had bequeathed the entire suit property to the defendant No.1, but such a bequest is prohibited amongst Mohammedans and relied upon a judgment of this Court reported in Allbux v. Allabi (disposed of on 27.08.2007 reported in ILR 2007 Karnataka 4662.
"12. A reading of Section 118 of the Mahomedan Law specifies, that a Mahomedan is not entitled 20 to bequeath more than 1/3rd of his estate after payment of funeral expenses and debts. It further specifies that any bequeath in excess of 1/3rd of his estate cannot take effect unless the heirs consent there to after the death of testator. Learned single Judge of this Court while interpreting the scope of Section 118 of the Mahomedan Law held, that the knowledge of bequeath and inaction for a long period by a heir challenging the bequeath are sufficient circumstances that the said heir had signified consent by his conduct. We are in agreement with the view of the learned Single Judge."
18. Now, coming to the oral evidence on record, PW.1 in his cross-examination has stated as under:
"¢: 15-6-2001gÀAzÀÄ £À£Àß vÁ¬Ä 24 UÀÄAmÉ £À£ÀUÉ zÁ£À ªÀiÁrzÀgÄÀ CAzÀgÉ ¸Àj. D ¸ÀªÀÄAiÀÄzÀ°è d«ÄãÀÄ ©Ã£ï±ÉÃwÌAiÀiÁV ¥ÀjªÀvÀð£ÉAiÀiÁVvÀÄÛ CAzÀgÉ ¸Àj.
xxx D zÁªÉAiÀÄ°è 24 UÀÄAmÉ ¥ÀƪÀðPÉÌ ¥ÀæwªÁ¢-2gÀ eÁUÀ JAzÀÄ vÉÆÃj¸À¯ÁVzÉ CAzÀgÉ ¸Àj. D zÁªÉAiÀÄ°è 21 £Á£ÀÄ ¢: 14-2-2006gÀAzÀÄ °TvÀ ºÉýPÉ ¸À°è¹zÉÝÃ£É CAzÀgÉ ¸Àj.
xxx £Á£ÀÄ DAUÀè ¨sÁµÉAiÀÄ°è d«Äî CAvÁ ¸À» ªÀiÁqÀÄvÉÛÃ£É CAzÀgÉ ¸Àj."
He has further stated as under:
"¨sÀQëøÀÄ ¥ÀvÀæ ¢: 15-6-2001 gÀ°è DVvÀÄÛ. CzÀgÀ°è £À£Àß ¸À» ¸ÀºÀ EzÉ. zÁR¯ÉUÉ £Á£ÀÄ ¸À» ªÀiÁqÀĪÀ ¥ÀƪÀðzÀ°è CzÀ£ÀÄß £Á£ÀÄ N¢®è, ¸ÀA¥ÀÆtð D¹Û PÉÆnÖzÁÝgÉ JAzÀÄ ºÉýzÀÝjAzÀ ¸À» ªÀiÁrzÉÝ JAzÀÄ ¸ÁQë ¥ÀÄ£ÀB ºÉüÀÄvÁÛgÉ. MAzÉgÉqÄÀ wAUÀ¼ÄÀ £ÀAvÀgÀ £À£Àß vÁ¬Ä £À£Àß ªÉÄÃ¯É ªÀÄÆ® zÁªÉ 246-2001 £ÀÄß ºÁQzÀ £ÀAvÀgÀ ¥ÀÆwð D¹Û PÉÆnÖ®è CAvÁ UÉÆvÁÛ¬ÄvÀÄ. D zÁªÉAiÀÄ°è£À ¸À°è¹gÀĪÀ °TvÀ ºÉýPÉAiÀÄ°è ¸ÀA¥ÀÆtð zÁªÁ D¹ÛAiÀÄ£Éßà ¸ÀA¥ÀÆtð ¤ÃrgÀĪÀÅzÁV vÀPÀgÁgÀÄ vÉUÉ¢zÉÝ. zÁªÁ D¹Û £À£Àß vÁ¬ÄAiÀÄ ºÉ¸Àj£À°è ªÀiÁvÀæ zÁR¯ÁVzÉ JAzÀÄ 2007 gÀ°è UÉÆvÁÛ¬ÄvÀÄ.
xxx £À£Àß vÁ¬Ä PÉÆÃjPÉAiÀÄ ªÉÄÃgÉUÉ £Á£ÀÄ 2-3 zÁR¯ÉUÀ½UÉ ¸À» ªÀiÁrPÉÆnÖzÝÉ . £Á£ÀÄ AiÀiÁªÀÅzÉà 22 PÁUÀzÀ¥ÀvÀæUÀ½UÉ ¸À» ªÀiÁqÀĪÁUÀ CzÀ£ÄÀ ß N¢ w½zÀÄPÉÆAqÉ ¸À» ªÀiÁqÀÄvÉÛÃ£É JAzÀgÉ ¸Àj. ¤¹_1(¹) £À£ÀßzÉà ¸À» JAzÀgÉ ¸Àj."
19. In the present case, evidence galore which points to the fact that the father of the plaintiff was the owner of the suit property, he had executed an agreement to convey the suit property to the defendant No.2 and had received part of the sale consideration from the defendant No.2. It is no doubt true that the father of the plaintiff could not have bequeathed his entire estate to the defendant No.1 but such a bequest in excess of 1/3rd can take effect if the heirs consent thereto after the death of the testator. In the case on hand, it is stated that the Will of the father of the plaintiff was attested by the plaintiff. The plaintiff had also attested the agreement of sale dated 29.06.1998 executed by the father of the plaintiff in favour of defendant No.2 and he had also attested the sale deed dated 15.06.2001 executed by defendant No.1 in favour 23 of the defendant No.2. The gift deed dated 25.06.2001 executed by defendant No.1 in favour of the plaintiff indicated in certain terms that the suit property was sold to the defendant No.2. The affidavit of the plaintiff at Ex.D32 clearly reinforces the fact that the suit property was sold to the defendant No.2 and the plaintiff was privy to such a transaction. The plaintiff has denied each and every document which contained the signature of his father and also his own signature. He even denied his signatures found on the vakalath and other Court documents. The plaintiff did not make any effort for a forensic examination of the signatures found on the Will, affidavit as well as the sale agreement. During his cross-examination, PW.1 initially accepted his signature on the sale deed - Ex.D7 and later resiled and claimed that it was not his signature. It is relevant to note that after the execution of the agreement of sale dated 29.06.1998 in favour of the defendant No.2, the father of the plaintiff died on 24 11.09.1998, but as a God fearing person, he ensured the compliance of his legal obligation and therefore, executed a Will (dated 09.09.1998) which was attested by the plaintiff. He had in his Will directed the defendant No.1 to conclude the sale transaction in favour of defendant No.2. The defendant No.1, consequent to such desire, had executed the sale deed dated 15.06.2001 conveying the suit property to the defendant No.2. Plaintiff who was the heir apparent cannot contend that he was a mere attestor and had no knowledge about the transaction when he signed Ex.D7
- sale deed.
20. The Madhya Pradesh High Court had an occasion to consider somewhat similar case in the matter of Abbasali Shah v. Mohammad Shah and Others (AIR (38) 1951 Madhya Bharat 92) , wherein it held as follows:
25
"Attestation of a deed by itself estops a man from denying nothing whatever excepting that he has witnessed the execution of the deed. But the fact of attestation taken in conjunction with other circumstances and other connected events may justify an inference that the attesting witness had knowledge of the contents of the document and had agreed to them."
21. The Apex Court had in similar circumstances in the case of Mahboob Sahab vs. Syed Ismail and Others reported in AIR 1995 Supreme Court 1205, has held that when the son attested the sale deed when the land was sold by his father and no objection was raised by the son though the sale was against his interest, the son is estopped from challenging the sale subsequently.
22. In addition to the above, the defendant No.2 has altered the nature of the suit property by getting it converted for non-agricultural purposes and formed 26 residential sites and allotted to various members of the defendant No.2.
23. It is also to be noted that the suit filed by the plaintiff was barred by the law of limitation. The plaintiff was a signatory to the agreement of sale dated 29.06.1998 as a witness. The plaintiff cannot feign ignorance of the contents of the sale deed dated 15.06.2001 executed by defendant No.1 in favour of defendant No.2 and he having participated in the conclusion of the sale, knowledge of the transaction has to be imputed to the plaintiff and the cause of action to sue for any declaration arose on the date of the sale deed namely 15.06.2001. The suit is filed on 25.09.2007.
24. Under Section 3 of the Limitation Act, 1963, every Court is bound to examine whether the plaint reliefs are well within the limitation prescribed. Section 3 of the Limitation Act, 1963 is extracted below: 27
"3. Bar of limitation.--
(1) Subject to the provisions contained in sections
4 to 24 (inclusive), every suit instituted, appeal preferred, and application made after the prescribed period shall be dismissed, although limitation has not been set up as a defence. (2) For the purposes of this Act--
(a) a suit is instituted--
(i) in an ordinary case, when the plaint is presented to the proper officer;
(iii) in the case of a pauper, when his application for leave to sue as a pauper is made; and
(iii) in the case of a claim against a company which is being wound up by the court, when the claimant first sends in his claim to the official liquidator;
(b) any claim by way of a set off or a counter claim, shall be treated as a separate suit and shall be deemed to have been instituted--
(i) in the case of a set off, on the same date as the suit in which the set off is pleaded;
(ii) in the case of a counter claim, on the date on which the counter claim is made in court;
(c) an application by notice of motion in a High Court is made when the application is presented to the proper officer of that court."
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25. In view of the above, we hold that the plaintiff was aware of the sale deed dated 15.06.2001 executed by defendant No.1 in favour of defendant No.2 and he had consciously partaken in conveyance of the suit property to the defendant No.2. We also hold that the plaintiff was not entitled to partition and separate possession of his share in the suit property.
26. In view of the above, the impugned Judgment and Decree of the Trial Court does not suffer from any error or irregularity and therefore, we do not feel it appropriate to interfere with the Judgment and Decree.
Hence, this Regular First Appeal is dismissed.
Sd/-
JUDGE Sd/-
JUDGE sma