LexMD. NOORUL HODA versus BIBI RAIFUNNISA AND ORS.
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A B c D MD. NOORUL HODA v. BIBI RAIFUNNISA AND ORS. DECEMBER 1, 1995 [K. RAMASWAMY AND B.N. KIRPAL, JJ.] Limitation Act 196rArticle 59 of the Schedule-Applicability of-X not party to a decree-Claims title through Y who was a party to the decree-- Suit by X for setting aside the decree-If Article 59 is applicable. Specific Relief Act, 196rSection JI-Person-Meaning of-Whether includes person seeking delivative title from seller. Transfer of Property Act, 1882-Section 3 Explanation II and S 55(1)-Constrnctive notice-,--Meaning of The petitioner had bought the suit land benami in the name of one R (who was his brother-in-law) on December 1,1959. The respondents filed suit No. 220/69 for partition of the suit land. A preliminary decree was passed in the said suit on January 22, 1973 and final decree was passed E on February 9, 1974. R was a party to the said suit and be had produced the sale deed dated December 1, 1959 in the said suit. The petitioner obtained another sale deed dated September 6, 1980 and filed a suit for declaration in 1981 claiming that the preliminary as well as final decree passed in T.S. No. 220/69 were illegal and collusive and F did not bind him as he was not a party to the said suit. The petitioner claimed that as he was not a party to decrees passed in T.S. 220 of 1969, Article 59 of the Schedule of the Limitation Act, 1963 was inapplicable and Article 113 of the Schedule was applicable. The petitioner further claimed that under Article 113 of the Schedule of the Limitation Act, 1963 the G period of limitation begins to run from the date right to sne accrues which in the case of the petitioner would be June 17, 1981. when the possession was sought to be taken from him. The Trial Court decreed the suit of the petitioner but the District court set aside the order of the Trial Court on the ground that the H petitioner had constructive knowledge of the preliminary as well as the final 110 _, NOOR UL HODA v. BIBI RAIFUNNISA 111 decree 1througb his benamidar who was a party to the said decrees and A therefore, the suit filed in 1981 was barred by limitation. The High Court affirmed the judgment and order of the District Court. Hence this Special Leave Petition. Dismissing the special leave petition, this Court HELD : 1.1. Section 55(1) of the Transfer of Property Act, 1882, regulates rights and liabilities of the buyer and seller. The seller is bound to disclose to the buyer any material defect in the property or in the seller's title thereto of which the seller is, and the buyer is not, aware, and which B the buyer could not with ordinary care discover. Under Section 55 when C second sale deed dated September 6, 1980 was got executed by the petitioner from R, it is imputable that R had conveyed all the knowledge of the defects in title and he no longer had title to the property. [114-G, 115-D] 1.2. Constructive notice in equity treats as man who ought to have known a fact, as if he actually knows it. Generally speaking, constructive D notice may not be inferred unless some specific circu~stances can b~ shown as a starting point of enquiry which if pursued would have lead to the · discovery of the fact. [115-B] 13. It is a finding of fact recorded by the appellate court and affirmed by the High Court that the petitioner was in the know of full facts of the E preliminary decree and the final decree passed and execution thereof from his benamidar. Having had that knowledge, he got the second sale deed executed and registered on September 6, 1980. Obvious to these facts, he did not produce the second original sale ,deed nor in an attempt made to produce secondary evidence on proof of the loss of original sale deed. F [115-E] 2. In a suit to set aside or cancel an instrument, contract or a decree on the ground of fraud, Article 59 of the Schedule of the Limitation Act is attracted. The starting point of limitation is the date of knowledge of the alleged fraud. When the plaintiff seeks to establish his title to the property G which cannot be established without avoiding the decree or an instrument that stands as an insurmountable obstacle in his way which otherwise binds him, though not a party, the plaintiff necessarily has to seek a declaration and have that decree, instrument or contract cancelled or set aside or rescinded. Section 31 of the Specific Relief Act, 1963 regulates suits for cancellation of an instrument which lays d
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