2022 S C M R 1009
Gift---
----Proof---"Reasonable" and "natural gift"---In the present case the gift transaction recorded in the impugned gift mutation appeared to be reasonable and natural in the facts and circumstances of the case; where a father (donor), whose son had contracted a second marriage, transferred some of his property to his first daughter-in-law (donee), who also happened to be his niece, and to his granddaughters (donees) to ensure their financial security, out of his love and affection for them---Impugned gift mutation was held to be valid---Appeal was partially allowed.
Transfer of Property Act (IV of 1882)---
----S. 54---Agreement to sell and sale mutation---Genuineness and validity---Purported vendee was unable to prove the essential ingredients of the sale transaction and the due sanction of the sale mutation that recorded it---Record showed that there were inconsistencies and clear contradictions in the testimony of the purported vendee's two witnesses on material particulars of the sale transaction and of the sale mutation recording the same in the revenue record---No independent witnesses, in particular, the patwari who entered, and the revenue officer who sanctioned the sale mutation were examined in evidence---In fact, no cogent, reliable evidence was produced by the purported vendee to prove payment of the sale-consideration, the most essential ingredient of a valid sale, to the purported vendor---High Court had rightly found the alleged sale and sale mutation as invalid---
Limitation Act (IX of 1908)---
----First Sched. Art. 120---Specific Relief Act (I of 1877), S. 42---Right to sue--- Limitation period, commencement of--- Principles for ascertaining when the right to sue accrues to a donor or owner of property, to seek a declaration of his ownership right over the property stated.
Article 120 of First Schedule to the Limitation Act, 1908 ('the Limitation Act') clearly declares that for computing the limitation, the period of six years would commence from the date of accrual of right to sue, but it does not state when such right accrues. To ascertain, when does the right to sue accrue to a donor, to seek a declaration of his ownership right over the property shown to have been gifted and of his such right not to be affected by the gift mutation, section 42 of the Specific Relief Act, 1877 ('the Specific Relief Act") has to be considered.
Joint reading of Article 120 of First Schedule to the Limitation Act and section 42 of the Specific Relief Act shows that right to sue accrues to a person against the other for declaration of his right, as to any property, when the latter denies or is interested to deny his such right. It thus postulates two actions that cause the accrual of right to sue, to an aggrieved person: (i) actual denial of his right or (ii) apprehended or threatened denial of his right.
An important question to consider next was as to what "actions" can be termed as an "actual denial of right", and what a mere "apprehended or threatened denial of right", in the context of adverse entries recorded in the revenue record. It is important to note that a person may ignore an "apprehended or threatened denial" of his right taking it not too serious to dispel that by seeking a declaration of his right through instituting a suit, and may exercise his option to institute the suit, when he feels it necessary to do so, to protect his right. For this reason, every "apprehended or threatened denial" of right gives a fresh cause of action and right to sue to the person aggrieved of such apprehension or threat. However, this option to delay the filing of the suit is not available to him in case of "actual denial" of his right; where if he does not challenge the action ofactual denial of his right, despite having knowledge thereof, by seeking declaration of his right within the limitation period provided in the Limitation Act, then his right to do so becomes barred by law of limitation.
Admittedly, entries in the revenue record do not create or extinguish proprietary rights. Such an entry may at most be termed as a mere "apprehended or threatened denial" of right, and not an "actual denial" of right. Accordingly, every new adverse entry in the revenue record relating to proprietary rights of a person in possession (actual or constructive) of the land regarding which the wrong entry is made, gives to such person, a fresh cause of action to institute the suit for declaration.
The situation is, however, different in a case where the beneficiary of an entry in the revenue record also takes over the possession of the land on the basis of sale or gift transaction, as the case may be, recorded in that entry. His action of taking over possession of the land in pursuance of the purported sale or gift is certainly an "actual denial" of the proprietary rights of the purported seller or donor. Therefore, in such a case, if the purported seller or donor does not challenge that action of "actual denial" of his right, within the prescribed limitation period, despite having knowledge thereof, then his right to do so becomes barred by law of limitation.
Limitation Act (IX of 1908)---
----Ss. 2(, 9 & 18---Civil Procedure Code (V of 1908), O. VI, R. 4---Fraud---Right to sue---Limitation period, commencement of---Principles relating to commencement of limitation period where a person(or his legal heir)claim to be deprived of the knowledge of his right to sue based on the fraud of the other party stated.
Section 18 of the Limitation Act, 1908 ('the Limitation Act") postpones the commencement of the limitation period in cases where a person is by means of fraud kept from the knowledge of his right to institute a suit. In such circumstances, the period of limitation commences from the date when the fraud first became known to the "person injuriously affected". Such injuriously affected person can, therefore, institute a suit within the limitation period specified for such suit in the First Schedule ("Schedule") to the Limitation Act, but computing it from the date when he first had knowledge of the fraud, whereby he was kept from knowledge of his right to institute the suit. Thus, section 18 of Limitation Act is an umbrella provision that makes the limitation period mentioned in the Articles of the Schedule, begin to run from the time different from that specified therein.
The "fraud" stated in section 18 of the Limitation Act must not be confused with the fraud that constitutes cause of action, and creates a right to institute the suit for the relief prayed therein. The "fraud" envisaged in section 18 only relates to concealing, not creating, the right to sue, and thus affects only the limitation period, and has nothing to do with the cause of action and the relief prayed.
When despite obtaining knowledge of such fraud and his right to sue, as mentioned in section 18, the injuriously affected person does not institute the suit within the prescribed limitation period, no fresh period of limitation can be available to his legal heir(s) or any other person who derives his right to sue from or through him (the injuriously affected person); for once the limitation period begins to run, it does not stop as per section 9 of the Limitation Act.
Further, the definition of the term "plaintiff", as given in section 2(
of the Limitation Act also has the effect of barring the fresh start of the limitation period for the legal heir(s) or any other person, who derives his right to sue from or through such injuriously affected person, as it provides that "plaintiff" includes any person from or through whom a plaintiff derives his right to sue.
Therefore, it is the date of knowledge of the "person injuriously affected" of the fraud mentioned in section 18, and of his right to sue that is relevant for computing the limitation period, not of his legal heir(s), unless he asserts and prove that his predecessor (the person injuriously affected) never came to know of the fraud, whereby his right to institute the suit was concealed, in his lifetime; in the latter eventuality, it is, of course, the knowledge of the present plaintiff (his successor) that would be the starting point for the limitation to run.
A plaintiff who wants to avail the benefit of section 18 of the Limitation Act must assert the commission of such fraud by the defendant, in the plaint, and should also give the particulars thereof, and the date of knowledge, as required under Rule 4 of Order VI of the Code of Civil Procedure 1908, and then prove the same through positive evidence.
Limitation Act (IX of 1908)---
----S. 18 & First Sched., Art. 120---Specific Relief Act (I of 1877), S. 42---Gift mutation---Suit for declaration challenging a gift mutation on grounds of fraud---Limitation period, commencement of---Scope---Date of knowledge of donor and not of his legal heir as the starting point for computing period of limitation---In the present case, bar of limitation applied to the challenge made by the respondent to the gift mutation of 1977 after a period of 32 years---Respondent was claiming his right over the suit property based on his inheritance from the estate of his father, and challenged the gift mutation, essentially on the ground that the same was the result of fraud, and asserted that he gained knowledge thereof some days before the institution of the suit---However, neither in the plaint nor in the evidence, did the respondent assert that his father, the purported donor, who remained alive for about 23 years after sanction of the gift mutation, was not aware of the gift mutation and thus could not challenge the same during his lifetime---Such omission on the part of the respondent, was crucial and in fact, defeated the very legal basis upon which he could have saved his claim from the bar of limitation---In the present case, the "person injuriously affected" by the alleged fraud (if it were committed) in getting the gift mutation sanctioned was the respondent's father(the purported donor)---Respondent derived his right to institute the suit to challenge the gift mutation from his father, being his legal heir, therefore, it was the date of the knowledge of his father, not of the respondent that was the starting point for computing the limitation period of six years provided in Article 120 of the Schedule to the Limitation Act, 1908 - the residuary Article applicable to suits instituted, under section 42 of the Specific Relief Act 1877 for declaration of any right as to any property---Furthermore the respondent (plaintiff) did not assert in the plaint that the appellants (defendants), by means of fraud, kept, his father (the person injuriously affected) from the knowledge of his right to institute the suit to challenge the gift mutation, during his life, nor did he give the particulars thereof---Respondent (plaintiff) did not assert any such fraud of the appellants even against himself, and give any date of his attaining knowledge of such fraud and his right to institute the suit---Therefore, the benefit of section 18 of the Limitation Act, 1908 for computing the limitation period for instituting the suit to challenge the gift mutation could not be extended to the respondent (plaintiff)---Appeal was partially allowed.
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