LexRAGHWENDRA SHARAN SINGH versus RAM PRASANNA SINGH (DEAD) BY LRS
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1069
RAGHWENDRA SHARAN SINGH
v.
RAM PRASANNA SINGH (DEAD) BY LRS
(Civil Appeal No.2960 of 2019)
MARCH 13, 2019
[L. NAGESWARA RAO AND M. R. SHAH, JJ.]
Code of Civil Procedure, 1908 – Or.7, r.11 – Father of the
appellant (original plaintiff) and his brother jointly purchased the
land in question and executed registered gift deed dtd. 06.03.1981
in favour of the appellant – Appellant instituted partition suit in
2001 against his brothers and others for partition of the joint Hindu
family properties – Original plaintiff was joined as defendant no.10
in the 2001 suit – Original plaintiff filed Title Suit in 2003 against
the appellant inter alia for declaration that the gift deed executed in
favour of the appellant is sham – Appellant filed application u/Or.7
r.11 for rejection of the plaint inter alia on the ground that the suit is
barred by limitation – Rejected – Appellant filed revision application
before the High Court – Dismissed – On appeal, held: It is not
disputed that the gift deed, a registered gift deed was executed by
the original plaintiff himself along with his brother – Till 2003, for
approximately 22 years, neither the plaintiff nor his brother (who
died on 15.12.2002) during his lifetime claimed at any point of time
that the gift deed was showy deed of gift – It is the appellant who
instituted the partition suit in the year 2001 against his brothers to
which even the plaintiff was a party as defendant no.10 – Summon
and the copy of the plaint in the said suit was served upon the
plaintiff in 2001 itself – Despite the same, he instituted the present
suit in the year 2003 – By clever drafting, the plaintiff tried to bring
the suit within the period of limitation which, otherwise, was barred
by limitation – Plaintiff never prayed to set aside the gift deed –
Such a prayer was not asked cleverly – If such prayer would have
been asked, in that case, the suit can be said to be clearly barred
by limitation considering Art.59, Limitation Act and, therefore, only
a declaration was sought to get out of the provisions of the Limitation
Act – Judgment passed by the High Court and the trial Court set
aside – Application by the appellant u/Or.7 r.11 of the CPC to
reject the plaint, allowed – Limitation Act, 1963 – Art.59.
[2019] 4 S.C.R. 1069
1069
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1070
SUPREME COURT REPORTS
[2019] 4 S.C.R.
Allowing the appeal, the Court
HELD: 1.1 The plaintiff has specifically admitted that the
plaintiff and his brother executed the gift deed on 06.03.1981. It
is admitted that the gift deed is a registered gift deed. It also
emerges from the plaint that till 2003, neither the plaintiff nor his
brother (during his lifetime) challenged the gift deed dated
06.03.1981 nor, at any point of time, claimed that the gift deed
dated 06.03.1981 was a showy deed of gift. In fact, it is the
defendant-appellant herein who instituted the suit in the year 2001
against his brothers to which even the plaintiff was a party as
defendant No. 10 and that was a partition suit filed by the appellant
herein-original defendant. It appears that the summon and the
copy of the plaint – T.S. (Partition) Suit No. 203 of 2001 – was
served upon the plaintiff in the year 2001 itself. Still, the plaintiff
averred in the plaint that it came to the knowledge of the plaintiff
with respect to the gift deed on 10.04.2003. Thus, it is born out
from the averments in the plaint that, till 2003, the plaintiff never
disputed the gift deed and/or never claimed that the gift deed
dated 06.03.1981 was a showy deed of gift. [Para 6.1] [1077-G-H;
1078-A-C]
1.2 Both the Courts below have materially erred in not
rejecting the plaint in exercise of powers under Order 7 Rule 11
of the CPC. It is required to be noted that it is not in dispute that
the gift deed was executed by the original plaintiff himself along
with his brother. The deed of gift was a registered gift deed.
The execution of the gift deed is not disputed by the plaintiff. It
is the case of the plaintiff that the gift deed was a showy deed of
gift and therefore the same is not binding on him. For
approximately 22 years, neither the plaintiff nor his brother (who
died on 15.12.2002) claimed at any point of time that the gift deed
was showy deed of gift. One of the executants of the gift deed –
brother of the plaintiff during his lifetime never claimed that the
gift deed was a showy deed of gift. The summon of theExcerpt shown. Read the full judgment & AI analysis in Lexace.