SRI K.S.MUNIBYRAPPA vs SRI.ANNAYAPPA SINCE DEAD BY HIS LRS
- Court
- Karnataka High Court
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HC-KAR
NC: 2026:KHC:55973
WP No. 8418 of 2013
C/W RFA No. 15 of 2013
CNR: KAHC010296952013
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
TH
DATED THIS THE 7 DAY OF OCTOBER, 2026
BEFORE
THE HON'BLE MR. JUSTICE SACHIN SHANKAR MAGADUM
WRIT PETITION NO. 8418 OF 2013 (GM-CPC)
C/W
REGULAR FIRST APPEAL NO. 15 OF 2013 (DEC)
IN WP No. 8418/2013
BETWEEN:
K.S. MUNIBYRAPPA
SON OF DODDAMUNISWAMAPPA,
63 YEARS, KALKERE VILALGE,
K.R. PURAM HOBLI,
BANGALORE EAST TALUK,
BANGALORE - 560 043.
…PETITIONER
(BY SRI. ABHINAY Y.T, ADVOCATE)
AND:
1. SRI. ANNAYAPPA
SINCE DEAD BY HIS LRS
1(A). SMT. PILLAMADAMMA,
WIFE OF LATE ANNAIAPPA, MAJOR,
1(B). MADAPPA
WIFE OF LATE ANNAIAPPA, MAJOR,
1(C). SMT. SHOBHA
WIFE OF LATE GOPALAPPA, MAJOR,
1(D). G. RAVI
SON OF LATE GOPALAPPA, MAJOR,
Digitally Signed By:
SACHIN SHANKAR MAGADUM
Verified
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1(E). SRI. G. LAXMANA
DAUGHTER OF LATE GOPALAPPA, MAJOR,
1(F). SMT. MAMATHA
DAUGHTER OF LATE GOPALAPPA, MAJOR,
1(G). SMT. MATHA
DAUGHTER OF LATE GOPALAPPA, MAJOR,
1(H). SMT. RAMADEVI
DAUGHTER OF LATE GOPALAPPA, MAJOR,
1(I).
MADESH
SON OF LATE GOPALAPPA, MAJOR,
1(J). KUM. MADHAVI
DAUGHTER OF LATE GOPALAPPA, MAJOR,
1(K). SRI. NAGESH
SON OF LATE GOPALAPPA, MAJOR,
R1(A) TO (K) ALL RESIDING AT
KALKERE VILLAGE, HORAMAVU POST,
K.R PURAM HOBLI, BANGALORE EAST TALUK,
BANGALORE - 560 043.
2. SRI. REVANNA
SINCE DEAD BY HIS LRS
2(A). SRI. MUNIRAJAPPA,
SON OF LATE REVANNA, MAJOR,
2(B). SRI. MUNIPAPANNA
SON OF LATE REVANNA, MAJOR,
2(C). SRI NAGARAJU
SON OF LATE REVANNA, MAJOR,
Digitally Signed By:
SACHIN SHANKAR MAGADUM
Verified
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WP No. 8418 of 2013
C/W RFA No. 15 of 2013
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2(D). SRI. RAMANNA
SON OF LATE REVANNA, MAJOR,
2(E). SRI. ANNAPPA
SON OF LATE REVANNA, MAJOR,
RESPONDENTS 2(A) TO (E) ARE
ALL RESIDING AT KALKERE VILLAGE,
HORAMAVU POST, KR PURAM HOBLI,
BANGALORE EAST TALUK,
BANGALORE - 560 043.
2(F). SMT. RATHNAMMA
DAUGHTER OF LATE REVANNA, MAJOR,
RESIDING AT ATTIBELE, HOSKOTE TALUK,
SULEBELE HOBLI, SULBELE - 562 129.
2(G).
SMT. NAGAMMA
WIFE OF KRISHNAPPA, MAJOR,
RESIDING AT SUGTURU,
SIDDALGHATA TALUK,
JANGAMAKOTE HOBLI,
CHIKKABALLAPUR DISTRICT.
3. SMT. MUNIYAMMA
WIFE OF CHINNAPPA, MAJOR,
RESIDING AT
KALKERE VILLAGE,
KR PURAM HOBLI,
BANGALROE EAST TALUK.
4. SRI. PILLA MADAPPA
SON OF ADOOR CHINNANNA, MAJOR,
RESIDING AT KALKERE VILLAGE,
K.R. PURAM HOBLI,
BANGALORE EAST TALUK.
5. THAMANAPPA
SINCE DEAD BY HIS LEGAL HEIRS
Digitally Signed By:
SACHIN SHANKAR MAGADUM
Verified
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5(A). SMT. MADAGOWRAMMA
WIFE OF NARAYANAPPA,
AGED ABOUT 62 YEARS,
RESIGING AT BETTAHALLI,
VIDYANARAYANAPURA POST,
BENGALURU - 560 096.
5(B). CHIKKAMMAYYA
WIFE OF THAMANAPPA,
AGED ABOUT 70 YEARS,
RESIDING AT 53, MAHADESHWARANILAYA,
RAMMURTHYNAGAR MAIN ROAD,
KALIKARE, VARMOVA POST,
BENGALURU - 560 043.
5(C). EASHWARA
SON OF THAMANAPPA,
AGED ABOUT 50 YEARS,
RESIDING AT 53, MAHADESHWARANILAYA,
RAMMURTHYNAGAR MAIN ROAD,
KALIKARE, VARMOVA POST,
BENGALURU - 560 043.
5(D). KANTHAMMA
DAUGHTER OF THAMANAPPA,
WIFE OF KARAGAPPA,
AGED ABOUT 45 YEARS,
RESIDING AT KADUSONNAPPANAHALLI,
BENGALURU EAST, KANNURU POST,
BENGALURU - 560 149.
5(E). MUNEGOWDA
SON OF THAMANAPPA,
AGED ABOUT 40 YEARS,
RESIDING AT 53, MAHADESHWARANILAYA,
RAMMURTHYNAGAR MAIN ROAD,
KALIKARE, VARMOVA POST,
BENGALURU - 560 043.
Digitally Signed By:
SACHIN SHANKAR MAGADUM
Verified
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6. SRI. SEETHAPPA
SINCE DEAD BY HIS LEGAL HEIRS
6(A) SMT. RATHNAMMA,
WIFE OF LATE SRI. NARAYANAPPA,
RESIDING AT YELACHENAHALLI,
NADAGUDI HOBLI, TAVAREKERE POST,
HOSAKOTE TALUK.
6(B).
MAHADESH
SON OF LATE SEETHAPPA,
RESIDING AT 332, MAHASOROVARA,
KALKERE MAIN ROAD,
HORAMAVI POST,
BENGALURU - 560 043.
6(C). MAHADEVA
SON OF LATE SEETHAPPA,
RESIDING AT SHIVASADANA,
ANNAYAPPA COCONUT GARDEN LAYOUT,
KALAKERE MAIN ROAD, HORAMAVU POST,
BENGALURU - 560 043.
6(D). RAJANNA @ TANKER RAJANNA
SON OF LATE SEETHAPPA,
RESIDING AT MAHADEVESWARA NILAYA,
LAKSHMI APARTMENT BEHIND,
KALAKERE MAIN ROAD,
HORAMAVI POST, BENGALURU - 560 043.
6(E).
RADHAMMA
WIFE OF LATE JALIGE ANJINAPPA,
RESIDING AT 445/4,
MAHAKALPANA NEAR KALKERE,
KAREKALLU HARAKE
SEETHABYRAVESHWARA PRASANNA,
KALAKERE MAIN ROAD, HORAMAVU POST,
BENGALURU - 560 043.
6(F). RANI
WIFE OF SRINIVASA GOWDA,
Digitally Signed By:
SACHIN SHANKAR MAGADUM
Verified
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RESIDING AT 24/10, MATHRU KRUPA,
MANGAMANAPALYA, VISHUVARDHANA ROAD,
BOMMANAHALLI POST, BENGALURU - 560 068.
7. STATE OF KARNATAKA
BY ITS CHIEF SECRETARY,
VIDHANASOUDHA,
BENGALURU - 560 001.
…RESPONDENTS
(BY SRI. V. MANJUNATH RAYAPPA, AGA FOR R7;
SRI. SANGMESH G. PATIL, ADVOCATE FOR 5(A);
SRI. VIGNESHWARA U, ADVOCATE FOR R5(B, C, E);
SRI. MADHUKAR DESHPANDE, ADVOCATE FOR R6(D);
SRI. S. ARUMUGHAM, ADVOCATE FOR R1(B)
R5(D) - KANTHAMMA - SERVED;
R6(A) - R6(B) - R6(C) - R6(F) - SERVED AND
UNREPRESENTED;
VIDE ORDER DATED 4.06.2021, R6(E) - RADHAMMA IS
HELD SUFFICIENT)
THIS WP IS FILED ARTICLES 226 AND 227 OF THE
CONSTITUTION OF INDIA PRAYING TO QUASH THE ORDERS
DT.14TH SEPTEMBER 2012 PASSED BY THE LEARNED X ADDL.
CITY CIVIL & SESSION JUDGE, BANGALORE IN
OS.NO.3712/2002 ON PRLY. ISSUE NO.8 VIDE ANN-D.
IN RFA NO. 15/2013
BETWEEN:
SRI. K.S. MUNIBYRAPPA
SON OF DODDAMUNISWAMAPPA,
63 YEARS
KALKERE VILLAGE, KR PURAM HOBLI
BANGALORE EAST TALUK
BANGALORE - 560 043.
...APPELLANT
(BY SRI. ABHINAY Y.T, ADVOCATE)
Digitally Signed By:
SACHIN SHANKAR MAGADUM
Verified
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AND:
1.
SRI. ANNAYAPPA
SINCE DEAD BY HIS LRS
1(A). SMT. PILLAMADAMMA,
WIFE OF LATE ANNAIAPPA, MAJOR,
1(B). SRI. MADAPPA
WIFE OF LATE ANNAIAPPA, MAJOR,
1(C).
SMT. SHOBHA
WIFE OF LATE GOPALAPPA, MAJOR,
1(D). SRI. G. RAVI
SON OF LATE GOPALAPPA, MAJOR,
1(E). SRI. G. LAXMANA
DAUGHTER OF LATE GOPALAPPA, MAJOR,
1(F). SMT. MAMATHA
DAUGHTER OF LATE GOPALAPPA, MAJOR,
1(G). SMT. MATHA
DAUGHTER OF LATE GOPALAPPA, MAJOR,
1(H).
SMT. RAMADEVI
DAUGHTER OF LATE GOPALAPPA, MAJOR,
1(I). MADESH
SON OF LATE GOPALAPPA, MAJOR,
1(J). KUM. MADHAVI
DAUGHTER OF LATE GOPALAPPA, MAJOR,
1(K).
SRI. NAGESH
SON OF LATE GOPALAPPA, MAJOR,
2. SRI. REVANNA
SINCE DEAD BY HIS LRS
Digitally Signed By:
SACHIN SHANKAR MAGADUM
Verified
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2(A). SRI. MUNIRAJAPPA,
SON OF LATE REVANNA, MAJOR,
2(B). SRI. MUNIPAPANNA
SON OF LATE REVANNA, MAJOR,
2(C).
SRI NAGARAJU
SON OF LATE REVANNA, MAJOR,
2(D). SRI. RAMANNA
SON OF LATE REVANNA, MAJOR,
2(E). SRI. ANNAPPA
SON OF LATE REVANNA, MAJOR,
RESPONDENTS 2(A) TO (E) ARE
ALL RESIDING AT KALKERE VILLAGE,
HORAMAVU POST, KR PURAM HOBLI,
BANGALORE EAST TALUK,
BANGALORE - 560 043.
2(F). SMT. RATHNAMMA
DAUGHTER OF LATE REVANNA, MAJOR,
RESIDING AT ATTIBELE, HOSKOTE TALUK,
SULEBELE HOBLI, SULBELE - 562 129.
2(G). SMT. NAGAMMA
WIFE OF KRISHNAPPA, MAJOR,
RESIDING AT SUGTURU,
SIDDALGHATA TALUK,
JANGAMAKOTE HOBLI,
CHIKKABALLAPUR DISTRICT - 563 101.
3. SMT. MUNIYAMMA
WIFE OF CHINNAPPA, MAJOR,
4. SRI. PILLA MADAPPA
SON OF ADOOR CHINNANNA, MAJOR,
5. SRI. THAMANAPPA
Digitally Signed By:
SACHIN SHANKAR MAGADUM
Verified
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SON OF ADOOR MUNISHAMAPPA, MAJOR
6. SRI. SEETHAPPA
SINCE DEAD BY HIS LEGAL HEIRS
6(A) SMT. RATHNAMMA,
WIFE OF LATE SRI. NARAYANAPPA,
AGD ABOUT 58 YEARS
RESIDING AT YELACHENAHALLI,
NADAGUDI HOBLI, TAVAREKERE POST,
HOSAKOTE TALUK.
6(B). MAHADESH
SON OF LATE SEETHAPPA,
AGD ABOUT 56 YEARS
RESIDING AT 332, MAHASOROVARA,
KALKERE MAIN ROAD,
HORAMAVI POST,
BENGALURU - 560 043.
6(C).
MAHADEVA
SON OF LATE SEETHAPPA,
AGD ABOUT 54 YEARS
RESIDING AT SHIVASADANA,
ANNAYAPPA COCONUT GARDEN LAYOUT,
KALAKERE MAIN ROAD, HORAMAVU POST,
BENGALURU - 560 043.
6(D).
RAJANNA @ TANKER RAJANNA
AGD ABOUT 54 YEARS
SON OF LATE SEETHAPPA,
RESIDING AT MAHADEVESWARA NILAYA,
LAKSHMI APARTMENT BEHIND,
KALAKERE MAIN ROAD,
HORAMAVI POST, BENGALURU - 560 043.
6(E). RADHAMMA
WIFE OF LATE JALIGE ANJINAPPA,
AGD ABOUT 52 YEARS
RESIDING AT 445/4,
Digitally Signed By:
SACHIN SHANKAR MAGADUM
Verified
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MAHAKALPANA NEAR KALKERE,
KAREKALLU HARAKE
SEETHABYRAVESHWARA PRASANNA,
KALAKERE MAIN ROAD, HORAMAVU POST,
BENGALURU - 560 043.
6(F). RANI
WIFE OF SRINIVASA GOWDA,
AGED ABOUT 50 YEARS
RESIDING AT 24/10, MATHRU KRUPA,
MANGAMANAPALYA,
VISHUVARDHANA ROAD,
BOMMANAHALLI POST,
BENGALURU - 560 068.
...RESPONDENTS
(BY SRI. V. CHANDRAPPA, ADVOCATE FOR R2(A) TO R2(G);
SRI. M.R. BALAKRISHNA, ADVOCAE FOR R1(B);
R1(K)-R6(A)-R6(B)-R6(D)-R6(E)-R6(F) - ARE SERVED;
VIDE ORDER DATED 24.06.2021-NOTICE TO R6(C) -
RADHAMMA IS HELD SUFFICIENT;
VIDE ORDER DATED 04.01.2024 - NOTICE TO R1 (D TO G
AND I) ARE HELD SUFFICIENT)
THIS RFA IS FILED U/SEC.96 OF CPC, AGAINST THE
ORDERS DATED11.01.2012 PASSED IN O.S.NO.3712/2002
ON THE FILE OF X-ADDITIONAL CITY CIVIL AND SESSIONS
JUDGE, BANGALORE, AFFIRMATIVE ISSUE NO.8 AND 9 THE
SUIT FOR DISMISSED AS BARRED BY LIMITATION.
THIS APPEAL AND PETITION, COMING ON FOR
PRELIMINARY IN 'B' GROUP HEARING, THIS DAY, ORDER WAS
MADE THEREIN AS UNDER:
CORAM: HON'BLE MR. JUSTICE SACHIN SHANKAR MAGADUM
Digitally Signed By:
SACHIN SHANKAR MAGADUM
Verified
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ORAL ORDER
This first appeal is at the instance of the plaintiff, calling
in question the judgment and decree passed by the learned
Trial Judge, whereby the suit came to be dismissed on the
ground that the same was hopelessly barred by limitation and
also on the ground of insufficiency of court fee, while answering
the preliminary issues framed in that regard.
2. For the sake of convenience and brevity, the parties
shall be referred to as per their ranking before the Trial Court.
3. The plaintiff instituted the suit questioning the validity
of the sale deeds executed by his adoptive mother, namely,
Bayamma. The first sale deed is dated 06.01.1956 and relates
to Item No.1 of the suit schedule properties. The second sale
deed is dated 31.05.1965 and was executed in favour of
defendant No.3 in respect of Item No.2. The subsequent sale
deeds are dated 11.04.1968 and were executed by Bayamma
and the plaintiff in favour of defendant Nos.1 to 3 in respect of
Item Nos.1 to 3 of the suit schedule properties.
Digitally Signed By:
SACHIN SHANKAR MAGADUM
Verified
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4. The plaintiff specifically pleaded that he was born on
26.06.1951 and that, when he was aged about four years, he
was adopted by Bayamma and her husband
Doddamuniswamappa, who were issueless. It is further pleaded
that, pursuant to the adoption, the plaintiff was integrated into
the adoptive family and shifted to the family of his adoptive
parents and pursued his education at Kalkeri Village.
5. According to the plaintiff, his adoptive father,
Doddamuniswamappa, had made a testamentary arrangement
in his favour and, therefore, upon the death of his adoptive
father, his adoptive mother, who was a widow, had no right to
alienate the properties which, according to the plaintiff, had
already been bequeathed to him. The plaintiff alleges that,
taking advantage of his minority, his adoptive mother, by
resorting to fraud, misrepresentation and undue influence,
executed the aforesaid sale deeds in favour of the defendants.
It is in this background that the plaintiff instituted
O.S.No.3712/2002 seeking, inter alia, cancellation/declaration
in respect of the aforesaid alienations and consequential reliefs.
Digitally Signed By:
SACHIN SHANKAR MAGADUM
Verified
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6. On service of summons, the defendants entered
appearance and filed their written statements. A specific
defence was taken that the suit was hopelessly barred by
limitation and was liable to be dismissed on that ground.
7. The learned Trial Judge, after completion of the
pleadings, treated Issue Nos.8 and 9 as preliminary issues.
Issue No.8 related to the sufficiency of court fee, whereas Issue
No.9 related to limitation.
8. While considering the question of limitation, the
learned Trial Judge noticed that the alienations impugned by
the plaintiff were of the years 1956, 1965 and 1968. The
learned Judge proceeded on the premise that even if the
plaintiff’s assertion that he was a minor when the initial
alienations were made was accepted, the suit instituted in the
year 2002 was hopelessly barred by limitation. The learned
Trial Judge also held that the court fee paid by the plaintiff was
insufficient and, on the said grounds, dismissed the suit.
9. Learned counsel appearing for the plaintiff would
contend that the learned Trial Judge committed a serious error
Digitally Signed By:
SACHIN SHANKAR MAGADUM
Verified
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in non-suiting the plaintiff by invoking Section 3 of the
Limitation Act, 1963, after completion of pleadings and framing
of issues. His contention is that the plaint contains specific
allegations of fraud, misrepresentation and undue influence and
that the plaintiff was admittedly a minor at the relevant point of
time. According to learned counsel, the question as to when the
plaintiff acquired knowledge of the impugned alienations,
particularly in the backdrop of the allegation of fraud, is
essentially a mixed question of fact and law, which could not
have been decided without permitting the parties to lead
evidence.
10. Learned counsel would further contend that the
subsequent sale deeds, particularly those dated 11.04.1968,
contain the plaintiff’s name and that the plaintiff specifically
disputes the manner in which his name came to be shown in
the said documents. According to him, the allegation is that the
plaintiff, who was then a minor, was falsely represented as a
major and the documents were brought into existence by
practising fraud upon him.
Digitally Signed By:
SACHIN SHANKAR MAGADUM
Verified
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11. It is therefore contended that, once the Trial Court
had completed the pleadings and framed issues, the proper
course was to permit the parties to adduce oral and
documentary evidence and thereafter adjudicate the question
of limitation along with the other issues. It is urged that the
dismissal of the suit at the preliminary stage has resulted in
denial of an opportunity to the plaintiff to establish the
allegations made in the plaint.
12. Learned counsel would also contend that insufficiency
of court fee could not have constituted a ground for dismissal of
the suit without first determining the deficit court fee and
granting an opportunity to the plaintiff to make good the
deficiency in accordance with law.
13. Per contra, learned counsel appearing for the
defendants, particularly the transferees under the impugned
sale deeds, would support the judgment and decree of the
learned Trial Judge. It is contended that the alienations in
question are of the years 1956, 1965 and 1968, whereas the
suit came to be instituted only in the year 2002. According to
the learned counsel, the rights of the transferees have stood
Digitally Signed By:
SACHIN SHANKAR MAGADUM
Verified
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crystallized over several decades and any interference at this
distant point of time would seriously prejudice third-party
rights. It is therefore submitted that the learned Trial Judge has
rightly exercised the mandate contained in Section 3 of the
Limitation Act, 1963.
14. Having heard the learned counsel for the parties and
having perused the judgment and decree under challenge, the
following point arises for consideration:
“Whether the learned Trial Judge was justified in
dismissing the suit as barred by limitation by
exercising jurisdiction under Section 3 of the
Limitation Act, 1963?”
Finding on point for consideration:
15. Before proceeding to examine the aforesaid point, it
would be apposite to extract the reliefs sought by the plaintiff
in the suit. The same reads as under:
Digitally Signed By:
SACHIN SHANKAR MAGADUM
Verified
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"(a) for a Declaration, declaring that the sale deed dated:
06.01.1956, vide registered No.5667/1955-55, registered
in. the office of the Sub-Registrar, Bangalore Taluk,
Executed by Smt.Bayyamma, in favour of the 1st
Defendant, in respect of the properties described in the
Item No.1 of the suit schedule and declare that the sale
deed dated: 31.5.1965, vide registered No.1128/65-66,
registered in the office of the Sub-Registrar, Bangalore
South Taluk, executed by Smt.Bayyanima in favour of the
3rd Defendant in respect of the Item No.II of the suit
schedule property are ab initio null and void, and non est,
and ineffective, and no valid title has been passed
thereunder to the Defendants 1 & 3, by reasons of the
fraud and mis-representation and un-due influence of the
Defendants, in getting the documents;
(b) For a declaration that the sale deeds dated: 11.4.1968
vide registered Nos. 412/1968-69, 413/1968-69 and
414/1968-69, executed by the said Smt.Bayyamma and the
Plaintiff, in favour of the Defendants-1 to 3 in respect of the
suit schedule properties in item Nos. 1 to 3, concerned,
registered in the office of the Sub-Registrar, Bangalore
South Taluk, are ab-initio- null and void, and non est and
ineffective and no valid title has passed there under to any
of the Defendants, by reasons of the fraud and mis-
representation, and undue influence of the Defendants 1 to
3, in getting the documents executed and registered in the
name of the Plaintiff, by falsely and mischievously
representing that, the Plaintiff was a major, while in fact,
the Plaintiff was minor and declare that the Plaintiff is the
absolut owner of the suit schedule properties in Item No.1
to 3;
(c) Defendants 1 to 3 possession is permissive, and as that
of a and that by reasons of the above circumstances,
trustee, holding the same for the benefit of the real
beneficiary, namely the Plaintiff, and consequently to direct
the Defendants 1 to 3 to deliver vacant possession of the
suit schedule properties to the Plaintiff, free from all
encumbrances, and in the event of the Defendants 1 to 3
failure to deliver such possession, the Hon'ble Court be
pleased to evict them and put the Plaintiff in peaceful
possession of the suit schedule properties;
Digitally Signed By:
SACHIN SHANKAR MAGADUM
Verified
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(d) to direct the Defendants to account for the income etc.,
of the suit schedule properties for the last three years
preceding the suit;
(e) to direct the inquiry into future mesne proits in respect
of the suit schedule properties from the date of the suit til
delivery of possession of the suit schedule properties to the
Plaintiff;
(f) grant such other relief or reliefs as this Hon'ble Court
deem fit to in the circumstances of the case and to award
costs of the suit, interests and such other ancillary reliefs,
as may be found just and proper on the facts and
circumstances of the case, in the Interest of justice and
equity."
16. A careful examination of the reliefs sought by the
plaintiff would indicate that the entire foundation of the
plaintiff’s claim rests on the alleged testamentary arrangement
said to have been made by his adoptive father,
Doddamuniswamappa, on 08.01.1955.
17. The plaintiff asserts that, pursuant to the said
testamentary arrangement, he acquired rights in the suit
schedule properties and that his adoptive mother, after the
demise of Doddamuniswamappa, had no authority to deal with
the properties. However, the plaintiff has not sought an
independent declaration in respect of the alleged testamentary
arrangement. Be that as it may, it is significant that, in prayer
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(b), while seeking a declaration that the sale deeds dated
11.04.1968 are null and void, the plaintiff has also sought a
declaration that he is the absolute owner of Item Nos.1 to 3 of
the suit schedule properties.
18. The chronology of events assumes considerable
significance. The plaintiff was adopted in the year 1955 and the
alleged testamentary arrangement is dated 08.01.1955. The
first impugned sale deed came to be executed on 06.01.1956.
The second sale deed is dated 31.05.1965 and the subsequent
sale deeds are dated 11.04.1968. The suit, however, was
instituted only on 10.06.2002.
19. The plaintiff has pleaded that he came to know of the
alleged fraudulent acts of the defendants only in December
2001 and January 2002. However, the plaint does not disclose,
in any meaningful or specific manner, the circumstances in
which the plaintiff allegedly acquired knowledge of the
alienations after the lapse of several decades.
20. It is true that, ordinarily, the averments in the plaint
have to be taken as a whole and, at the stage of considering
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limitation, the Court should not embark upon a detailed
appreciation of evidence. It is equally true that where the
question of limitation depends upon disputed questions of fact,
particularly the date of knowledge in a case founded on fraud,
the matter may ordinarily require adjudication upon evidence.
21. However, the aforesaid principle cannot be applied
mechanically in every case, particularly where the admitted
chronology emerging from the plaint itself demonstrates that
the challenge is mounted after an extraordinarily long lapse of
time and where valuable third-party rights have intervened.
22. In the present case, the first alienation was made as
far back as 06.01.1956 and the last of the impugned
alienations was made on 11.04.1968. The suit came to be
instituted only in the year 2002. The plaintiff was born on
26.06.1951 and, according to his own pleading, he attained
majority in the year 1970. Even proceeding on the basis of the
plaintiff’s case that the alienations were made during his
minority, the statutory period available to him after attaining
majority cannot be ignored.
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23. In this regard, Article 60 of the Limitation Act, 1963,
assumes relevance. Insofar as a suit by a ward who has
attained majority to set aside a transfer of property made by
the guardian is concerned, the period prescribed is three years
from the date when the ward attains majority.
24. Thus, even accepting, for the purpose of argument,
the plaintiff’s assertion that the relevant alienations were made
during his minority, the plaintiff, having attained majority in the
year 1970, was required to take appropriate steps within the
period prescribed by law. No such steps were taken. Instead,
the plaintiff allowed the transactions and the possession flowing
therefrom to remain undisturbed for several decades.
25. The circumstance that assumes greater significance is
that the properties are situated at Kalkeri Village, whereas the
cause title itself discloses the plaintiff’s residence as Kalkeri
Village, K.R. Puram Hobli. The plaintiff’s own case is that the
properties had been alienated and possession had passed
pursuant to the impugned transactions. If, as pleaded, the
plaintiff’s family had been divested of possession of all the
three properties from 1956 onwards and the transferees
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continued in possession thereafter, such possession constitutes
a circumstance which cannot be completely brushed aside while
considering the plea of limitation.
26. It is by now well-settled that Section 3 of the
Limitation Act, 1963 casts a mandatory and non-discretionary
obligation upon the Court to examine, suo motu , whether the
suit before it is instituted within the prescribed period of
limitation and, if found barred, to dismiss the same irrespective
of whether the defence of limitation has been pleaded or not.
The statutory mandate under Section 3 is couched in
imperative terms:
“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.”
27. This provision is not a mere technicality available to
the defendant, it embodies a rule of public policy aimed at
ensuring certainty, finality of transactions and protection of
rights that have crystallised over time. Consequently, where
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the pleadings, dates of the impugned transactions, and the
admitted chronology on the face of the plaint disclose that the
suit is hopelessly time-barred, the Court is not only empowered
but duty-bound to apply the bar of limitation of its own motion
and dismiss the suit at the threshold.
28. The Hon’ble Supreme Court has consistently
emphasised that the question of limitation is a substantive
question of law which goes to the very root of the
maintainability of the suit, and that the Court cannot entertain
stale or frivolous claims merely because the defendant has not
raised the plea of limitation. In Manindra Land and Building
Corporation Ltd. v. Bhutnath Banerjee, AIR 1964 SC
1336 , the Hon’ble Apex Court held that Section 3 makes the
question of limitation a material question for determination in
every case, irrespective of whether it is raised by the parties or
not, and the Court is bound to apply the statutory bar where
the suit is filed beyond the prescribed period. Similarly,
in Salgaocar and Bros. v. Board of Trustees of Port of
Mormugao, (2005) 4 SCC 613 , the Hon’ble Supreme Court
reiterated that the Court has a mandatory obligation to dismiss
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a suit barred by limitation even if the defendant fails to raise
this defence. The Gauhati High Court in Dipali Das v. Shafali
Sur 2020 (4) Gauhati Law Journal (NOC) 714 has likewise
relied upon Manindra Land (supra) to hold that Section 3
mandates dismissal of suits barred by limitation even if not
pleaded, thereby reinforcing the Court’s bounden duty to
examine limitation from the pleadings and material on record.
29. In the facts on hand, the admitted chronology
emerging from the plaint itself namely, that the first alienation
was effected on 06.01.1956, the last on 11.04.1968, the
plaintiff attained majority in 1970, and the suit was instituted
only in 2002 demonstrates on the face of the record that the
statutory period under Article 60 of the Limitation Act (three
years from attaining majority) stood exhausted decades prior
to the filing of the suit. The plaintiff’s belated plea of fraud,
without any specific or meaningful disclosure as to how
knowledge of alienations effected in 1956–1968 was acquired
only in 2001–2002, cannot indefinitely postpone the
commencement of limitation or absolve the Court of its
statutory duty under Section 3. Where the pleadings
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themselves disclose an inordinate delay of several decades,
coupled with crystallisation of third-party rights under
registered instruments and long, undisturbed possession, the
Court is bound to exercise the authority conferred under
Section 3 and dismiss the suit as hopelessly barred by
limitation. To hold otherwise would be to render the statutory
mandate under Section 3 nugatory and to permit stale claims
to unsettle rights that have long since crystallised, contrary to
the public policy underlying the law of limitation.
30. Accordingly, the learned Trial Judge was not only
justified but legally bound to invoke Section 3 of the Limitation
Act, 1963 and dismiss the suit on the ground of limitation, and
this Court, in first appeal, cannot fault a conclusion that flows
directly from the statutory command and the admitted facts on
record.
31. In the present case, the learned Trial Judge has
noticed the dates of the impugned transactions, the date of
institution of the suit and the age of the plaintiff. The Trial
Court has also taken note of the fact that the plaintiff had
attained majority decades prior to the institution of the suit.
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The conclusion reached by the learned Trial Judge, therefore,
cannot be said to be based on an irrelevant consideration or on
an erroneous exercise of jurisdiction.
32. The submission that the allegation of fraud
necessarily required the Trial Court to defer the question of
limitation until conclusion of the trial cannot be accepted in the
peculiar facts of the present case. A mere allegation of fraud in
the plaint cannot, by itself, have the effect of indefinitely
postponing the commencement of limitation. The plea of fraud
must be considered in the context of the specific pleadings, the
dates of the transactions, the plaintiff’s age, the subsequent
possession and the enormous delay in approaching the Court.
33. The Court is also required to bear in mind the rights
of third parties which have intervened during the interregnum.
The impugned transactions are now nearly seven decades old.
The defendants/transferees have asserted rights under
registered instruments and have remained in possession for
several decades. The rights created under such transactions
cannot be lightly unsettled at this distant point of time.
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SACHIN SHANKAR MAGADUM
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34. The Hon’ble Supreme Court, while considering the
effect of long delay and crystallization of third-party rights, has
repeatedly emphasised that settled rights should not ordinarily
be unsettled after an inordinate lapse of time. In Chhedi Lal
Yadav v. Hari Kishore Yadav (2018) 12 SCC 527 the
,
Hon’ble Supreme Court has emphasised the importance of
protecting third-party rights which have stood crystallized by
passage of time.
35. Therefore, this Court is of the considered view that
the learned Trial Judge was justified in invoking the statutory
mandate under Section 3 of the Limitation Act, 1963. The
conclusion that the suit was hopelessly barred by limitation
cannot be characterised as perverse or as one rendered without
jurisdiction.
36. In view of the above finding, it is unnecessary for this
Court to undertake an elaborate examination of the question
relating to insufficiency of court fee. Nevertheless, it may be
observed that the objection regarding court fee ordinarily has
to be dealt with in accordance with the procedure prescribed by
law, including determination of the deficit court fee and
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affording an opportunity to the plaintiff to make good such
deficit. However, in the present case, since the suit itself is
found to be hopelessly barred by limitation, no useful purpose
would be served by remanding the matter for adjudication on
the question of court fee.
37. The plaintiff cannot, after permitting the impugned
transactions to remain unchallenged for several decades, seek
to revive a stale claim merely by pleading that the alleged
fraud came to his knowledge immediately before institution of
the suit. The Court cannot lose sight of the fact that the law of
limitation is founded upon considerations of public policy,
certainty and finality of transactions and, more particularly,
protection of rights which have crystallized by passage of time.
38. Accordingly, the point for consideration is answered in
the affirmative , holding that the learned Trial Judge was
justified in dismissing the suit as barred by limitation by
invoking Section 3 of the Limitation Act, 1963.
39. For the foregoing reasons, this Court is of the
considered view that the judgment and decree passed by the
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learned Trial Judge dismissing the suit on the ground of
limitation does not suffer from any perversity, illegality or
jurisdictional infirmity warranting interference in this first
appeal.
40. Accordingly, this Court proceeds to pass the
following:
ORDER
(i) The regular first appeal is dismissed .
(ii) The judgment and decree passed by the learned
Trial Judge dismissing O.S.No.3712/2002 on the
ground of limitation is affirmed.
(iii) In view of the dismissal of the suit on the ground
of limitation, no separate adjudication is called for on
the question of sufficiency of court fee.
(iv) Pending interlocutory applications, if any, do not
survive for consideration and stand disposed of
accordingly.
Digitally Signed By:
SACHIN SHANKAR MAGADUM
Verified
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W.P.No.8418/2013
In view of the dismissal of the accompanying first appeal,
the connected writ petition, wherein the order relating to
insufficiency of court fee is under challenge, has been rendered
infructuous and does not survive for further consideration.
Accordingly, the writ petition stands dismissed as having
become infructuous.
Digitally Signed By:
SACHIN SHANKAR MAGADUM
Verified
(SACHIN SHANKAR MAGADUM)
JUDGE
HDK
List No.: 1 Sl No.: 6