Case: SARANPAL KAUR ANAND Vs. PRADUMAN SINGH CHANDHOK AND OTHERS

SANJIV KHANNA, J. 1. Leave granted. 2. The appellant before us, Saranpal Kaur Anand, is the plaintiff who has filed a Civil Suit, C.S. (O.S.) No. 873 of 2012, seeking: a decree of declaration that the suit property bearing No. 4-C/7, New Rohtak Road, New Delhi, is a joint undivided family property of the plaintiff and defendant Nos. 3 to 9 being the successors of late Harnam Singh Anand and late Harbans Kaur; a decree of declaration that the purported sale deed dated 23rd August 1969 executed by late Harbans Kaur through her alleged attorney in favour of late Tej Kaur is a fictitious, sham, incompetent, bad, illegal, null and void; a decree of declaration that the purported sale deed dated 12th October 1995 executed by late Tej Kaur in favour of Pervinder Singh Chandhok (defendant No. 2) is fictitious, sham, incompetent, bad, illegal, nullity and void ab initio in law; and a decree for permanent injunction restraining Praduman Singh Chandhok and Pervinder Singh Chandhok (defendant Nos.1 and 2), their agents, nominees, successors, assigns, representatives etc., from raising/constructing/adding/ altering or entering into any agreement to sell or creating any third party interest, claims, or parting with possession thereof, in respect of any portion of the suit property besides seeking determination of the amount of damages and mesne profits. 3. Defendant Nos. 1 and 2 filed their respective written statements contesting the suit. They also filed an application for rejection of the plaint on the ground of limitation. 4. By the order dated 7th February 2014, the Single Judge of the High Court settled the preliminary issue of limitation as under: Whether the suit as framed is liable to be rejected under Order VII Rule 11(d) of the CPC on the ground of limitation? 5. Subsequently the plaintiff filed two applications for amendment of the plaint to incorporate prayer for possession and amending the cause of action clause, which were taken up for hearing along with hearing on the preliminary issue. 6. By the order dated 6th April 2015 the Single Judge decided the preliminary issue holding that the suit being barred by time, the plaint was liable to be rejected. The applications for amendment filed by the plaintiff were dismissed as mala fide and not maintainable. 7. The impugned order dated 25th April 2016 passed by the Division Bench of the High Court dismissed the appeal preferred by the plaintiff upholding the order rejecting the plaint on the ground that it was filed beyond the period of limitation. The applications filed for amendment of the plaint being unnecessary were, therefore, rightly rejected by the Single Judge. 8. A decision under clause (d) of Rule 11 to Order VII [Order 7, Rule 11- Rejection of plaint - The plaint shall be rejected in the following cases:—(d) where the suit appears from the statement in the plaint to be barred by any law;] of the Code of Civil Procedure, 1908 (for short, the Code) normally proceeds on demurrer. This means that the party objecting to the legal action assumes the truth of the matter alleged by the opposite party and sets up that it is insufficient in law to sustain the claim or there is some other defect on the face of the pleadings constituting a legal reason why the proceedings should not be allowed to proceed further See paragraph 14 in Ramesh B. Desai v. Bipin Vadilal Mehta & Ors. (2006) 5 SCC 638 . This is also the underlying principle behind clause (d) of Order VII Rule 11 of the Code which applies when it appears from a statement in the plaint that the suit is barred by any law. The law would include the Limitation Act,1963. Section 3 of the Limitation Act mandates that every suit, appeal or application instituted, preferred or filed after the prescribed period, and subject to provisions of Sections 4 to 24, shall be dismissed although limitation has not been set up as a defence. Sub-rule (2) to Rule 2 of Order XIV of the Code lays down that where issues of both law and fact arise in the same suit, and the court is of the opinion that the case or any part thereof can be disposed of on an issue of law only, it may try that issue first if the issue (a) relates to the jurisdiction of the court, or (b) bar to the suit is created by any law for the time being in force. Therefore, when decision on issues of law depend upon decision on issues of fact, the issue of law should not be decided as a preliminary issue [See paragraph 13 and 15 in Ramesh B. Desai (supra)]. However, when the issue of law can be adjudicated on admitted facts, the court can decide the issue of law as a preliminary issue under Order XIV Rule 2 of the Code. The position of law has been succinctly stated in Nusli Neville Wadia v. Ivory Properties and Others (2020) 6 SCC 557 in the following words: 51...As per Order 14 Rule 1, issues arise when a material proposition of fact or law is affirmed by the one party and denied by the other. The issues are framed on the material proposition, denied by another party. There are issues of facts and issues of law. In case specific facts are admitted, and if the question of law arises which is dependent upon the outcome of admitted facts, it is open to the court to pronounce the judgment based on admitted facts and the preliminary question of law under the provisions of Order 14 Rule 2. In Order 14 Rule 2(1), the court may decide the case on a preliminary issue. It has to pronounce the judgment on all issues. Order 14 Rule 2(2) makes a departure and the court may decide the question of law as to jurisdiction of the court or a bar created to the suit by any law for the time being in force, such as under the Limitation Act. (Emphasis added) 9. At the outset itself, it must be stated that unless the plaintiff succeeds in grant of declaration whereby the validity of the sale deed dated 23rd August 1969 executed and transferring the suit property in favour of late Tej Kaur has been challenged, all other reliefs would fail and cannot be granted. Thus, the question to be answered is whether the prayer for grant of declaration that the sale deed dated 23rd August 1969 is null and void being fictitious, sham, incompetent, bad and illegal is barred by limitation, can be decided as a legal issue without evidence being led? 10. As per Article 58 (To obtain any other declaration) of the Schedule of the Limitation Act, in a suit for declaration where Articles 56 (To declare the forgery of an instrument issued or registered) and 57 (To obtain a declaration that an alleged adoption is invalid, or never, in fact, took place) do not apply, the plaint should be filed within a period of three years when the right to sue first accrues. On applying Article 58 to the prayer for declaration, that the sale deed dated 23rd August 1969 is invalid, the suit filed after 42 years on 27th March 2012 is clearly barred by limitation. However, though not adverted to in the impugned order of the Division Bench and the order of the Single Judge of the High Court, it is apparent that the plaint, for the purpose of decree of declaration that the sale deed dated 23rd August 1969 is invalid, relies on Section 17 of the Limitation Act, which deals with the effect of fraud and mistake, and reads: 17. Effect of fraud or mistake.—(1) Where, in the case of any suit or application for which a period of Limitation is prescribed by this Act,— (a) the suit or application is based upon the fraud of the defendant or respondent or his agent; or (b) the knowledge of the right or title on which a suit or application is founded is concealed by the fraud of any such person as aforesaid; or (c) the suit or application is for relief from the consequences of a mistake; or (d) where any document necessary to establish the right of the plaintiff or applicant has been fraudulently concealed from him, the period of Limitation shall not begin to run until the plaintiff or applicant has discovered the fraud or the mistake or could, with reasonable diligence, have discovered it; or in the case of a concealed document, until the plaintiff or the applicant first had the means of producing the concealed document or compelling its production….. The general principle, which also manifests itself in Section 17 of the Limitation Act, is that every person is presumed to know his own legal right and title in the property, and if he does not take care of his own right and title to the property, the time for filing of the suit based on such a right or title to the property is not prevented from running against him. The provisions of Section 17(1) embody fundamental principles of justice and equity, viz. that a party should not be penalised for failing to adopt legal proceedings when the facts or the documents have been wilfully concealed from him and also that a party who had acted fraudulently should not be given the benefit of limitation running in its favour by virtue of such frauds Pallav Sheth v. Custodian and Others, (2001) 7 SCC 549 . However it is important to remember that Section 17 does not defer the starting point of limitation merely because the defendant has committed a fraud. Section 17 does not encompass all kinds of frauds, but specific situations covered by clauses (a) to (d) to Section 17(1) of the Limitation Act. Section 17(1)(b) and (d) encompass only those fraudulent documents or acts of concealment of documents which have the effect of suppressing knowledge entitling the party to pursue his legal remedy. Once a party becomes aware of antecedent facts necessary to pursue legal proceedings, the period of limitation commences P. Radha Bai and Others v. P. Ashok Kumar and Another, (2019) 13 SCC 445 . 11. Therefore in the event the plaintiff makes out a case that falls within any or more of the four clauses to sub-section (1) to Section 17 of the Limitation Act, the period of limitation for filing of the suit shall not begin to run until the plaintiff or applicant has discovered the fraud/ mistake or could with reasonable diligence have discovered it or if the document is concealed till the plaintiff has the means of producing the concealed document or compelling its production a fortiori. 12. Diligence as a word of common parlance means attention, carefulness, and persistence in efforts of doing something [P. Ramanatha Aiyar, The Major Law Lexicon (4th Edition, Lexis Nexis Publication)]. This Court in Chander Kanta Bansal v. Rajinder Singh Anand (2008) 5 SCC 117, in reference to proviso to Order VI Rule 17 of the Code, defined diligence as: 16...According to Oxford Dictionary (Edn. 2006), the word diligence means careful and persistent application or effort. Diligent means careful and steady in application to ones work and duties, showing care and effort. As per Blacks Law Dictionary (18th Edn.), diligence means a continual effort to accomplish something, care; caution; the attention and care required from a person in a given situation... The word diligence read with the word reasonable in the context of Section 17(1) of the Limitation Act is subjective and relative, and would depend upon circumstances of which the actor called upon to act reasonably, knows or ought to know. Vague clues or hints may not matter. Whether the plaintiff/applicant had the means to know the fraud is a relevant consideration. It is manifest that Section 17(1) of the Limitation Act does not protect a party at fault for failure to exercise reasonable diligence when the circumstances demand such exercise and on exercise of which the plaintiff/applicant could have discovered the fraud. When the time starts ticking subsequent events will not stop the limitation. The time starts running from the date of knowledge of the fraud/mistake; or the plaintiff/applicant when required to exercise reasonable diligence could have first known or discovered the fraud or mistake. In case of a concealed document, the period of limitation will begin to run when the plaintiff/applicant had the means of producing the concealed document or compelling its production. 13. Thus when the plaintiff relies on Section 17(1) (b) of the Limitation Act asserting fraud or mistake, he has to state the date on which he has discovered the fraud or mistake, and also state that he could not have discovered the fraud or mistake with reasonable diligence on a date earlier than on which he has based his cause of action. 14. Rules of pleadings relating to fraud and exemption from law of limitation are set out in Order VI Rule 4 [Order VI Rule 4. Particulars to be given where necessary.—In all cases in which the party pleading relies on any misrepresentation, fraud, breach of trust, wilful default, or undue influence, and in all other cases in which particulars may be necessary beyond such as are exemplified in the forms aforesaid, particulars (with dates and items if necessary) shall be stated in the pleading.] and Order VII Rule 6 of the Code. Order VI Rule 4 lays down that in all cases where a party pleading relies upon fraud, particulars with respect to the date and item, if necessary, shall be stated in the pleadings. The fraud as alleged in the plaint must state those facts which together taken as a whole, if proved, would show and establish fraud. Pleading of fraud should be conspicuous and palpable, and should not be predicated on mere suspicion and conjecture. Of course, the court, at the initial stage when deciding an application under clause (d) to Order VII Rule 11 has to proceed under demurrer, and therefore, should accept the facts as alleged in the plaint, but can in a given case draw irrefutable inferences from the facts stated. Order VII Rule 6 of the Code requires the plaintiff to show the grounds upon which exemption(s) from the law of limitation is claimed, and the plaint should set out the ground(s) for claiming such exemptions, which means that the plaintiff must state the causes or reasons or attributes or basis on which, according to the plaintiff, a period should be excluded and not be counted. The recitals in the plaint should be specific and comply with the terms of Order VI Rule 4 of the Code. Order VI Rule 6 is liberal and flexible as while mandating that a suit instituted post expiry of the period of limitation must state the grounds upon which exemption is claimed, permits the plaintiff to rely on a ground not inconsistent with the ground set out in the plaint. The proviso does not nullify the requirement that in the first place the plaint must set out the ground seeking exemption from limitation. When and to the extent Order VII Rule 6 and Order VI Rule 4 apply, these provisions being specific will prevail over the general rule found in Order VI Rule 2 of the Code. Nevertheless, the requirement of the Rules is to plead specific facts with dates, but not the factual evidence on the basis of which the plaintiff would ultimately seek to establish and justify his claim for exemption of limitation. When the minimum threshold required in terms of Order VI Rule 4 and Order VII Rule 6 is satisfied and met, cannot be put in a straitjacket or rigid formula, as it would depend upon the facts and circumstances including antecedent facts, and in particular the relationship between the parties or their predecessors and the period bygone without challenge. While examining these aspects, especially at the initial stage under clause (d) of Rule 11 to Order VII or Order XIV Rule 2 of the Code, the court cannot proceed on the basis of the assumption as to the evidence that would be led so as to record a finding on the evidence. At the same time, an artifice or clever drafting should not prevent the court from stopping plainly time-barred proceedings, an aspect we would again advert to subsequently. The court can take benefit of Order XII Rule 6 of the Code when there are admissions made by the plaintiff in the plaint and the documents which are admitted by the parties, or there being no dispute which would require oral evidence in the context of the documents. There is no bar against invoking provisions of Order VII Rule 11 and Order XIV Rule 2 together, or even applying Order XII Rule 6 while proceeding with demurrer. Provisions of the Code are not watertight compartments, unless such statutory construction is express or manifestly prohibited. we would not in the absence of constraints, deny the trial court or the appellate court flexibility in application of the procedural law. Underlying objective of prescribing procedure is to advance the cause of justice. Therefore unless compelled by express language or clear intend barring a course, the provisions of the Code as a procedural enactment ought to be construed to leave the court to meet and deal with situations in the ends of justice. 15. Having elucidated in brief the legal position, we would now refer to the averments made in the plaint in some detail: 15.1 Initial paragraphs of the plaint state that the plaintiff and defendant Nos. 3 to 9 are related to each other as brother, sister, and late brothers wife and sons. They belong to the family of Harnam Singh Anand and Harbans Kaur, who had since demised on 23rd September 1974 and 6th August 2005 respectively. Defendant No.1, Praduman Singh Chandhok, is the brother of late Harbans Kaur. Defendant No. 2, Pervinder Singh Chandhok, is the son of defendant No.1 and also the cousin of the plaintiff. Harnam Singh Anand, prior to his demise, had prosperous joint Hindu family businesses and establishments both in India and Iran. He had purchased various properties, including the suit property, in the name of his wife, Harbans Kaur, from one Ram Rattan vide sale deed dated 20th January 1958 for a consideration of Rs.83,800/- and registered with the Sub-Registrars Office, Delhi on 17th February 1958. It is averred that the suit property is a benami property of Harnam Singh Anand. The plaintiff and defendant Nos. 3 to 9, being successors-in-interest, are entitled to their respective shares in the suit property under the law of succession. At the time of purchase, the suit property was under tenancy of several tenants who were instructed to pay rent and had attorned to Harbans Kaur. However, Harbans Kaur was merely the ostensible and benami owner of the suit property and never had any right, interest or title. 15.2 Harbans Kaur was very close to her mother Tej Kaur and her brother, defendant No.1. To help them, and as a concession, she had permitted Tej Kaur and defendant Nos. 1 and 2 to temporarily reside in the suit property. Tej Kaur did not have any means to support herself and her family members comprising of defendant Nos. 1 and 2. Harbans Kaur, to make her mother Tej Kaur and her family members, including defendant Nos. 1 and 2, stay in the suit property considering their financial hardships, had negotiated with the tenants and had paid substantial amounts to persuade the tenants to vacate the property. Harbans Kaur had filed several eviction petitions against the tenants who had refused to vacate. Tej Kaur died on 24th July 2007. However, defendant Nos. 1 and 2, after the demise of Tej Kaur, had continued to reside and, thereafter, in spite of requests, refused to vacate the suit property. Tej Kaur was granted a permissive and limited concession to stay in the suit property without conferring any right, interest or title. 15.3 The plaint also states that defendant No. 1 was in employment of Harnam Singh Anand at Iran. This was done to enable defendant No. 1 to earn a living and sustain in life and maintain his family with dignity. Defendant Nos. 1 and 2 were deeply involved in the business activities and affairs at Iran. 15.4 Paragraph 8 of the plaint, which is of some importance, reads as under: 8. That in view of the above it is abundantly clear and evident that (i) Smt. Harbans Kaur was never the owner of suit property, (ii) Factually and legally Sh. Harnam Singh was the owner, (iii) Mrs. Harbans Kaur never have had an right or authority or competence to transfer rights, title or interest in the suit property; (iv) Right to stay was granted to Mrs. Tej Kaur which was a permissive usage only and that too during her life time. On death of Mrs. Tej Kaur and/or Mrs. Harbans Kaur, said permissive use came to an end, (v) Mrs. Harbans Kaur never had right to transfer title through any person claiming by or under her. It has two limbs. Firstly Mrs. Harbans Kaur never enjoyed title. Secondly she had never any right to transfer, thirdly she did not have any competence to confer any right upon any person to act for and on her behalf for any of these acts and deeds, (vi) Over and above all these issues, even on the touch tone of law, the alleged sale deed is illegal and nullity in law. Sale Deed is without consideration. No consideration was ever paid at the time of execution of alleged sale deed and terms of the deed were never performed. It was at best a contingent agreement which is not fulfilled and thus it gives or creates no right or title or interest thereunder. Sale Deed is bad, illegal and void document. It does not create any right in favour of deceased Mrs. Tej Kaur and/or the defendants 1 and 2. Plaintiff has therefore, sought a declaration with respect to said sale deed and has also prayed for its cancellation and finally (vii) After death of Mrs. Harbans Kaur and/or Mrs. Tej Kaur, the Defendants 1 and 2 were bound in law to hand over vacant peaceful possession of the suit property when called upon to do so which they have failed. Their possession IS absolutely illegal, unlawful and unauthorized and they are liable to pay charges towards illegal/unlawful and unauthorized use and occupation / mesne / profits / damages. These charges are payable from date of possession till date of delivery of vacant peaceful possession of suit property unto plaintiff and her family members. Inquiry is required to be caused by the Honble Court to determine the quantum of damages/mesne profits admissible and payable by Defendants 1 and 2 in the present case. 15.5 Paragraphs 12, 13, 14 of the plaint read as under: 12. That the plaintiff now has learnt recently that Smt. Tej Kaur together with Defendants 1 & 2 actuated with greed and taking undue advantage of the faith and trust reposed by Smt. Harbans Kaur, conspired to usurp the assets and properties of the Plaintiffs family. Late Smt. Tej Kaur and Defendants No. 1 & 2 fraudulently and deceitfully got signed from Late Smt. Harbans Kaur through her attorney the Defendant No. 3 a document purporting to be Sale Deed dated 23.08.1969 seeking to transfer/convey the right/interest/title in the said property in favour of Smt. Tej Kaur against purported consideration of Rs. 90,000/- and by falsely alleging that Rs. 20,000/- will be as an advance and Rs. 30,000/- will be paid before Sub-Registrar, Delhi and balance Rs. 40,000/- would be paid in equal 4 instalments in four years. Not only the documents created are forged, fictitious, sham, inconsequential in law but also a nullity being void ab-initio in as much neither Smt. Harbans Kaur was ever entitled/competent to create any third- party rights/interest/title in the said property but also Smt. Tej Kaur never had any ability to pay any amount and much less the alleged amounts in question and which till date has not been received. All this while Smt. Tej Kaur had been representing herself to be using the said property on the basis of the permission/consent granted by the family of the Plaintiff. 13. That pursuant to and acting on the basis of the fictitious Sale Deed dated 23.08.1969 claimed to have been registered on 27.08.1969 Late Smt. Tej Kaur purportedly acting as owner without any valid/lawful authority conferred upon her by the family of the Plaintiff and acting dishonestly to dilute the rights/interest/title of the Plaintiff and her family members fraudulently executed a fictitious General Power of Attorney dated 04.04.1982 in favour of the Defendant No. 1 in respect of the said property. That pursuant to the fictitious Sale Deed dated 23.08.1969 Late Smt. Tej Kaur purportedly made the document purporting to be a Sale deed dated 12.10.1995 in favour of the Defendant No. 2 for the afore-said property against the purported sham consideration of Rs. 4,00,000/-. The same is totally and absolutely illegal, null and void, non-est, fraudulent, sham and bogus transaction. No consideration was received by the family members of the plaintiff in any manner whatsoever nor the transaction permitted or even ratified by her family members. 14. That it is pertinent to mention that the Plaintiff has further come to know from the certified copies of proceedings before this Honble Court in C.M. (Main) No. 982 of 2004 that during the pendency of the said proceedings Smt. Tej Kaur demised on 24.07.2007 and the defendant No. 1 filed an application under Order 22 Rule 3 read with Section 151 CPC registered as C.M. No. 5848 of 2008 seeking impleadment of LRs of deceased Smt. Tej Kaur wherein he placed on record the copy of the Will dated 03.05.2007 executed by Smt. Tej Kaur allegedly claiming herself to the exclusive and sole owner of the said property having purchased vide the purported fictious Sale Deed dated 23.08.1969 claimed to have been registered on 27.08.1969 and bequeathing the same in favour of the Defendant No. 2 which is totally contradictory to the purported sham/illegal and null and void transaction made out herein above. 15.6 Paragraphs 15 to 18 of the plaint refer to an order passed by this Court dated 30th January 1973, which is a reported decision, relating to eviction proceedings filed by Harbans Kaur for misuse of property for commercial purposes by one of the tenants. The matter was remanded to the Rent Controller to adjudicate the issues afresh. Thereupon, one of the tenants had filed a second appeal against the order of the Rent Controller before the Delhi High Court. In 2004, Tej Kaur had also filed a petition under Article 227 before the High Court against an order passed by the Rent Controller. After the death of Tej Kaur, defendant No.1 had moved an application seeking impleadment as a legal heir disclosing and relying upon the Will dated 3rd May 2007. In terms of the said Will, defendant No.1 had become the sole and exclusive owner of the suit property. The Will, it is stated, does not refer to the sale deed dated 12th October 1995 and rather claims to have been executed by Tej Kaur in favour of defendant No.2. The plaintiff had appeared in the said proceedings after the publication of notices in the newspaper and opposed the prayer claiming that she too is a legal representative, being the daughter of Harbans Kaur. Immediately thereafter, defendant Nos. 1 and 2 compromised the matter with the tenant. The petition filed under Article 227 was withdrawn by defendant Nos.1 and 2, but the court vide order dated 29th September 2008 had given liberty to the legal representative of Harbans Kaur to raise claim/right as and when any subsequent proceeding arises. First Appeal filed by the tenant was also withdrawn on the same day. It is pleaded that Harbans Kaur had continued to prosecute the eviction proceedings against the tenants and there was no attornment of rights as Harbans Kaur had retained all rights with her. There were judicial findings on title against Tej Kaur by the Rent Controller against which no steps were taken to perform or conclude the sale transaction, and it remained inconclusive. It is averred that Tej Kaur had never acquired any right or title in the property because of which Harbans Kaur was always impleaded and remained a party in the eviction proceedings as an owner and landlord. 15.7 Paragraphs 19 to 21 of the plaint refer to the legal notice dated 10th October 2008 served by the plaintiff and her family members, including defendant No. 3, on defendant Nos.1 and 2; the reply thereto dated 15th October 2008 by defendant Nos.1 and 2 without furnishing details; rejoinder dated 24th October 2008, followed by specific legal notice dated 24th October 2008 to defendant Nos. 1 and 2; and the reply thereto dated 4th November 2008, which again was without providing any details or documents. we shall subsequently refer to these letters/legal notices as they are of substantial importance and relevance. It is pleaded that defendant Nos. 1 and 2, acting illegally and arbitrarily, have instigated and induced defendant Nos. 6 to 8, namely Damanpal Kaur Anand, Jaspreet Singh Anand and Gursimar Singh Anand (wife and children of late Kultaran Singh Anand, brother of the plaintiff), to rake up false, inconsistent claims and issues to divide the family and drag them into inter se litigation. At the behest and insistence of defendant Nos. 1 and 2, defendant Nos. 6 to 8 have initiated several proceedings against the plaintiff, her brother and other family members, which are still pending. In one such proceeding, from the written statement filed by defendant Nos. 7 and 8 on 16th December 2010, the plaintiff for the first time came to vaguely know about the purported sale of the suit property by Harbans Kaur to Tej Kaur. The plaintiff and other family members were utterly shocked and surprised and thus became suspicious about the intentions of defendant Nos. 1 and 2. Thereafter, the plaintiff had made enquiries of various court proceedings, pending and disposed of matters. Whereas at one such enquiry made in the Office of the Sub-Registrar, Delhi, they came to know about the fictitious, sham, illegal, fraudulent transactions created by defendant Nos. 1 and 2. 15.8 Paragraph Nos. 22 and 33 of the plaint state that the plaintiff was completely in the dark and had no knowledge of the sale deed dated 23rd August 1969 and the subsequent sale deed dated 12th October 1995. Regarding the date on which the cause of action arose, the plaint states: 22. That Smt. Harbans Kaur including the Plaintiff and her family members have been totally kept in dark about these false, mischievous and fraudulent deals entered into amongst Late Tej Kaur and the defendant No. 1 & 2 as made out herein above. The Plaintiff or even his mother Smt. Harbans Kaur deceased was at no point of time either apprised about the same or her concurrence or even her signatures were ever obtained in the said purported illegal and sham Deed of Sale dated 23.08.1969 claimed to have been registered on 27.08.1969 or even the subsequent purported fictitious documents/sale deeds dated 12.10.1995 and Will dated 30.05.2007 which are null and void ab initio being nullity and fraud conveying no right/interest/title upon the defendants No. 1 & 2 or even Smt. Tej Kaur in any manner at any point of time and thus does not affect the right/interest/title of the plaintiff and her family members to own, enjoy and possess the same. xx xx xx 33. That the cause of action first arose on 23.08.1969 claimed to be registered on 27.08.1969 when the purported fictitious sale deed was executed by Late Harbans Kaur in favour of Late Smt. Tej Kaur in respect of the subject property. It again arose on 04.05.1982 when purported General Power of Attorney was executed by Late Tej Kaur in favour of defendant no. 1. It again arose on 12.10.1995 when purported fictitious sale deed was executed by Late Smt. Tej Kaur in favour of defendant no. 2 in respect of the subject property. The cause of action further arose on 30.05.2007 when purported Will bequeathing the subject property was executed by Smt. Tej Kaur in favour of Defendant No. 2 on the basis of the purported fictitious sale deed dated 23.08.1969 claimed to be registered on 27.08.1969. The cause of action again arose in on 10.10.2008, 24.10.2008, when the defendants No.1 & 2 when called upon to admit and acknowledge the rights/interest/title of the Plaintiff and her family members and handover the possession of the suit property denied vide reply dated 15.10.2008 and 04.11 2008… 15.9 Paragraphs 23 to 28 of the plaint state that defendant Nos. 1 and 2, along with Tej Kaur, had a mala fide and ulterior intention in usurping the suit property and assets of the plaintiff and her family members. Defendant Nos. 1 and 2 in their possession have certain blank papers and other documents of other properties allegedly signed by Harbans Kaur and other family members of the plaintiff and Tej Kaur, and based upon which they are now trying to forge and create fictitious documents. The sale deed executed by Harbans Kaur in favour of Tej Kaur and the sale deed executed by Tej Kaur in favour of defendant No.1 are null and void, being vitiated by fraud, cheating, fraudulent misrepresentation, forgery, illegality etc. and thus, inconsequential in law. It is averred that Harbans Kaur could not have transferred a better title in favour of Tej Kaur, and further, Tej Kaur could not have transferred a better title than she had. The sale deeds are also fraudulent on the count of being without consideration. They are a result of a conspiracy hatched by the defendant Nos. 1 and 2 amongst themselves with Harbans Kaur and Tej Kaur with the sole and cheap objective to usurp the lawful ownership and title of the plaintiff and the defendant Nos. 3 to 9. The plaintiffs deceased mother could never have and had no intent or purpose or necessity to execute the sale deed in favour of Tej Kaur. Defendant Nos. 1 and 2 are in permissive possession, having limited and restricted rights to use and occupy the property through late Tej Kaur. The ownership, title and interest claim predicated by them are based on documents, mutations, etc., that are inconsequential in law, not valid, being fraudulent, concocted act of forgery, fabrication, misrepresentation, etc. Defendant Nos. 1 and 2 are liable to be removed from the suit property once the purpose and object of granting permissive possession, restricted and limited right to use and occupy the suit premises has been served. It is claimed that the plaintiff is entitled to seek recovery of mesne profits at the rate of Rs. 1 lakh per year or such rate as determined by courts from defendant Nos. 1 and 2 for the illegal, unlawful and unauthorised use and occupation of the suit property. 16. The sale deed dated 23rd August 1969 in favour of Tej Kaur was executed by Gurdev Singh Anand as the attorney of Harbans Kaur. Gurdev Singh Anand, the third defendant in the suit, is the brother of the plaintiff. Execution of the sale deed and signatures of Gurdev Singh Anand acting as the attorney of his mother Harbans Kaur are undisputed. The sale deed is a registered document. The plaint accepts that the sale was for a consideration of Rs.90,000/- . The sale deed states that Rs.20,000/- was received in advance and Rs.30,000/- was paid before the Sub-Registrar. The balance amount of Rs.40,000/- was to be paid to the vendor by the vendee in four equal monthly instalments. The plaint does not state if any suit or proceedings were initiated for the recovery of Rs.40,000/-. Any suit or proceedings for recovery of Rs.40,000/- would be barred by limitation. The sale deed mentions that on the date of execution Harbans Kaur was present in Tehran, Iran, and therefore, her son Gurdev Singh Anand, who is the brother of the plaintiff, as an attorney, was executing the sale deed as authorised vide Special Power of Attorney authenticated on 23rd August 1969. These facts are again not challenged and contested in the plaint. Sale deed dated 23th August 1969 is more than thirty years old, and during the lifetime of Harbans Kaur or Tej Kaur it was never challenged and questioned by Harbans Kaur or any of their family members. In terms of Section 90 of the Evidence Act, the presumption is that the signature and every other part of the document, its execution and attestation is by persons by whom it purports to be executed and attested. 17. Legal notice dated 10th October 2008, states that late Harbans Kaur, after her marriage, took steps to establish late Tej Kaur and her son Praduman Singh Chandhok, the first defendant. The legal notice dated 10th October 2008 regarding the suit property states: 3. In fact property No. 4-C/7, New Rohtak Road, New Delhi – 110005 was given by Smt. Harbans Kaur unto her mother Ms. Tej Kaur and she took all steps to establish her brother namely Praduman Singh Chandhok. Smt. Harbans Kaur settled her brother by entrusting him with jobs of managing various business(s) and estate of her late husband Shri Harnam Singh in Iran and elsewhere. 4. Since Ms. Tej Kaur died intestate, Ms. Harbans Kaur legally succeeds to her share in estate of Ms. Tej Kaur along with other remaining legal heirs, Praduman Singh, Chandhok and others. Her share to the estate is joint and undivided and is to be succeeded upon my clients jointly. xx xx xx 9 (iii) All my clients being sons daughters and grandsons of deceased Ms. Harbans Kaur are jointly entitled and have their claims in joint undivided share to the estate of Ms. Tej Kaur claiming by or under or through Ms. Harbans Kaur and further notify that they are no longer interested in having unity of the and possession in said estate of Ms. Tej Kaur. Legal Notice dated 24th October 2008 states: 3. Post to marriage of Mrs. Harbans Kaur to Shri Harnam Singh, she took all steps to establish home for her mother & brother (late Ms. Tej Kaur and her son- noticee No/1) in furtherance thereof, property No. 4- C/7 New Rohtak Road, New Delhi 110 005 was given by Smt. Harbans Kaur into her mother Ms. Tej Kaur and she also took all steps to establish & same her brother, noticee No.1. Smt. Harbans kaur settled her brother in his life by entrusting him with jobs of managing various business(s) and estate of her husband Shri Harnam Singh (since deceased now) in Iran and elsewhere. xx xx xx 13 (v). partition property No. 4C/7, New Rohtak Road, New Delhi where deceased Harbans Kaur has acquired her undivided share in the eve of death of Mrs. Tej Kaur. (Emphasis Supplied) 18. The language and the words used in the legal notices on behalf of the plaintiff and other family members are admissions of facts which uncover the illusion made by creative and crafty narration to obfuscate the patent delay of over four decades. To get over the admissions, the plaintiff has submitted that the word/expression used in the notices is given and not transfer/sale. That the word given used is factually correct, albeit when one reads the notices holistically it is lucid that the plaintiff, along with her family members and defendant No.3, have accepted that there was transfer of the suit property in favour of Tej Kaur. The notice was for partition of the estate left behind by Tej Kaur in the form of the suit property. The plaintiff in the notices did not challenge the legal title of Tej Kaur but had claimed the right of inheritance being a granddaughter of Tej Kaur. Further, the plaintiff was aware and had knowledge of the Will dated 3rd May 2007 executed by Tej Kaur. The bequest included the suit property is a fact admitted by the plaintiff in paragraph 14 of the plaint. Reliance placed on the eviction proceedings does not further the plaintiffs case, as on reading of paragraphs 14 to 18 of the plaint it is manifest that the compromise between the tenant and defendant Nos. 1 and 2 as owners/landlord had led to the withdrawal of the proceedings vide order dated 29th September 2008. This order placed on record and relied by the plaintiff states that the rights and claims of the plaintiff and the legal representatives of Harbans Kaur are protected, while referring to the ownership and inheritance claimed by defendant Nos. 1 and 2 as legal heirs of Tej Kaur. Legal notices dated 10th October 2008 and 24th October 2008 were issued after the order dated 29th September 2008 was passed. 19. In view of the said background, the assertions made in the plaint by the plaintiff against her mother late Harbans Kaur that she had acted in an active and joint concert, connivance and conspiracy with late Tej Kaur are self-serving and phantastic. As per need and factual background of the matter, assertions in the pleadings have to be examined and understood with other statements and documents relied by the plaintiff without feeling helpless and paralysed by unclear, illusory or contradictory drafting. Meaningful reading of the entire plaint may be required when grossly implausible and dubious statements are made See T. Arivandandam v. T.V. Satyapal (1977) 2 SCC 467 . The idea is to check and weed out manifestly vexatious and meritless cases at the threshold See Madanuri Sri Rama Chandra Murthy v. Syed Jala (2017) 13 SCC 174 . 20. The plaint accepts the close relationship inter se the parties as relatives and in business activities. The person who had executed the sale deed in 1969 as attorney of Harbans Kaur is the brother of the plaintiff with whom the plaintiff has no dispute. Tej Kaur and defendant Nos. 1 and 2 were residing in the suit property. No claim was made until the death of the plaintiffs mother and grandmother, Harbans Kaur and Tej Kaur respectively, on 6th August 2005 and 24th July 2007. Harnam Singh Anand had died earlier in 1974. For 42 years post the execution of the sale deed in 1969, there was no dispute and challenge to the ownership of Tej Kaur. In 2008, disputes had arisen but regarding inheritance of the estate of Tej Kaur however the plaintiff and defendant No. 3 did not challenge the title and ownership of Tej Kaur. In this background, as the plea of lack of knowledge appears to be conjured and unreal, we read the pleading and the documents with discernment and perceptiveness without getting carried away by bald and pretentious accusations that do not infuse with the accepted and admitted facts. 21. As already observed, the notices dated 10th October 2008 and 24th October 2008 are admitted and referred to without reservation in the plaint. They have been filed by the plaintiff with the plaint as relevant documents relied upon by the plaintiff. The plaint does not dispute or explain the contents and admissions made in the two notices. 22. Consequently, on application of the principle of demurrer, it has to be held, on the basis of the averments made in the plaint and the documents relied upon and admitted by the plaintiff, that even prior to 2008, the plaintiff was aware and had knowledge of the sale deed dated 23rd August 1969 by which the ownership rights were transferred to Tej Kaur. The plaintiff did not, in 2008, question and challenge the transfer, though she was fully aware that Tej Kaur had acquired ownership rights. 23. We have denoted the ambit and conditions of Section 17(1) of the Limitation Act, which is to protect rights of a party defrauded from lapse of time till he remains in ignorance of the fraud, or with reasonable diligence could have discovered the fraud. Section 17(1) does not assist a person who merely shuts his eyes in spite of circumstances requiring him to ascertain facts on which he would have discovered the fraud. Section 17(1) of the Limitation Act saves rights of the party defrauded from lapse of time as long as the party is not at fault on his own account. In the aforesaid factual background, it is apparent that the plaintiff was aware and had knowledge in October 2008 about execution and transfer of the ownership rights in favour of late Tej Kaur vide sale deed dated 23rd August 1969 executed by defendant No.3, Gurdev Singh Anand. Unadorned assertion in the plaint feigning ignorance as to the sale deed would not help, as in the facts as pleaded and accepted in the plaint, the plaintiff was required to state and indicate that ignorance was not due to failure to exercise reasonable diligence.

Decision:
0[ds]8. A decision under clause (d) of Rule 11 to Order VII [Order 7, Rule 11- Rejection of plaint - The plaint shall be rejected in the following cases:—(d) where the suit appears from the statement in the plaint to be barred by any law;] of the Code of Civil Procedure, 1908 (for short, the Code) normally proceeds on demurrer. This means that the party objecting to the legal action assumes the truth of the matter alleged by the opposite party and sets up that it is insufficient in law to sustain the claim or there is some other defect on the face of the pleadings constituting a legal reason why the proceedings should not be allowed to proceed further See paragraph 14 in Ramesh B. Desai v. Bipin Vadilal Mehta & Ors. (2006) 5 SCC 638 . This is also the underlying principle behind clause (d) of Order VII Rule 11 of the Code which applies when it appears from a statement in the plaint that the suit is barred by any law. The law would include the Limitation Act,1963. Section 3 of the Limitation Act mandates that every suit, appeal or application instituted, preferred or filed after the prescribed period, and subject to provisions of Sections 4 to 24, shall be dismissed although limitation has not been set up as a defence. Sub-rule (2) to Rule 2 of Order XIV of the Code lays down that where issues of both law and fact arise in the same suit, and the court is of the opinion that the case or any part thereof can be disposed of on an issue of law only, it may try that issue first if the issue (a) relates to the jurisdiction of the court, or (b) bar to the suit is created by any law for the time being in force. Therefore, when decision on issues of law depend upon decision on issues of fact, the issue of law should not be decided as a preliminary issue [See paragraph 13 and 15 in Ramesh B. Desai (supra)]. However, when the issue of law can be adjudicated on admitted facts, the court can decide the issue of law as a preliminary issue under Order XIV Rule 2 of the Code. The position of law has been succinctly stated in Nusli Neville Wadia v. Ivory Properties and Others (2020) 6 SCC 557  in the following words:51...As per Order 14 Rule 1, issues arise when a material proposition of fact or law is affirmed by the one party and denied by the other. The issues are framed on the material proposition, denied by another party. There are issues of facts and issues of law. In case specific facts are admitted, and if the question of law arises which is dependent upon the outcome of admitted facts, it is open to the court to pronounce the judgment based on admitted facts and the preliminary question of law under the provisions of Order 14 Rule 2. In Order 14 Rule 2(1), the court may decide the case on a preliminary issue. It has to pronounce the judgment on all issues. Order 14 Rule 2(2) makes a departure and the court may decide the question of law as to jurisdiction of the court or a bar created to the suit by any law for the time being in force, such as under the Limitation Act.9. At the outset itself, it must be stated that unless the plaintiff succeeds in grant of declaration whereby the validity of the sale deed dated 23rd August 1969 executed and transferring the suit property in favour of late Tej Kaur has been challenged, all other reliefs would fail and cannot be granted.18. The language and the words used in the legal notices on behalf of the plaintiff and other family members are admissions of facts which uncover the illusion made by creative and crafty narration to obfuscate the patent delay of over four decades. To get over the admissions, the plaintiff has submitted that the word/expression used in the notices is given and not transfer/sale. That the word given used is factually correct, albeit when one reads the notices holistically it is lucid that the plaintiff, along with her family members and defendant No.3, have accepted that there was transfer of the suit property in favour of Tej Kaur. The notice was for partition of the estate left behind by Tej Kaur in the form of the suit property. The plaintiff in the notices did not challenge the legal title of Tej Kaur but had claimed the right of inheritance being a granddaughter of Tej Kaur. Further, the plaintiff was aware and had knowledge of the Will dated 3rd May 2007 executed by Tej Kaur. The bequest included the suit property is a fact admitted by the plaintiff in paragraph 14 of the plaint. Reliance placed on the eviction proceedings does not further the plaintiffs case, as on reading of paragraphs 14 to 18 of the plaint it is manifest that the compromise between the tenant and defendant Nos. 1 and 2 as owners/landlord had led to the withdrawal of the proceedings vide order dated 29th September 2008. This order placed on record and relied by the plaintiff states that the rights and claims of the plaintiff and the legal representatives of Harbans Kaur are protected, while referring to the ownership and inheritance claimed by defendant Nos. 1 and 2 as legal heirs of Tej Kaur. Legal notices dated 10th October 2008 and 24th October 2008 were issued after the order dated 29th September 2008 was passed.19. In view of the said background, the assertions made in the plaint by the plaintiff against her mother late Harbans Kaur that she had acted in an active and joint concert, connivance and conspiracy with late Tej Kaur are self-serving and phantastic. As per need and factual background of the matter, assertions in the pleadings have to be examined and understood with other statements and documents relied by the plaintiff without feeling helpless and paralysed by unclear, illusory or contradictory drafting. Meaningful reading of the entire plaint may be required when grossly implausible and dubious statements are made See T. Arivandandam v. T.V. Satyapal (1977) 2 SCC 467 . The idea is to check and weed out manifestly vexatious and meritless cases at the threshold See Madanuri Sri Rama Chandra Murthy v. Syed Jala (2017) 13 SCC 174 .20. The plaint accepts the close relationship inter se the parties as relatives and in business activities. The person who had executed the sale deed in 1969 as attorney of Harbans Kaur is the brother of the plaintiff with whom the plaintiff has no dispute. Tej Kaur and defendant Nos. 1 and 2 were residing in the suit property. No claim was made until the death of the plaintiffs mother and grandmother, Harbans Kaur and Tej Kaur respectively, on 6th August 2005 and 24th July 2007. Harnam Singh Anand had died earlier in 1974. For 42 years post the execution of the sale deed in 1969, there was no dispute and challenge to the ownership of Tej Kaur. In 2008, disputes had arisen but regarding inheritance of the estate of Tej Kaur however the plaintiff and defendant No. 3 did not challenge the title and ownership of Tej Kaur. In this background, as the plea of lack of knowledge appears to be conjured and unreal, we read the pleading and the documents with discernment and perceptiveness without getting carried away by bald and pretentious accusations that do not infuse with the accepted and admitted facts.21. As already observed, the notices dated 10th October 2008 and 24th October 2008 are admitted and referred to without reservation in the plaint. They have been filed by the plaintiff with the plaint as relevant documents relied upon by the plaintiff. The plaint does not dispute or explain the contents and admissions made in the two notices.22. Consequently, on application of the principle of demurrer, it has to be held, on the basis of the averments made in the plaint and the documents relied upon and admitted by the plaintiff, that even prior to 2008, the plaintiff was aware and had knowledge of the sale deed dated 23rd August 1969 by which the ownership rights were transferred to Tej Kaur. The plaintiff did not, in 2008, question and challenge the transfer, though she was fully aware that Tej Kaur had acquired ownership rights.23. We have denoted the ambit and conditions of Section 17(1) of the Limitation Act, which is to protect rights of a party defrauded from lapse of time till he remains in ignorance of the fraud, or with reasonable diligence could have discovered the fraud. Section 17(1) does not assist a person who merely shuts his eyes in spite of circumstances requiring him to ascertain facts on which he would have discovered the fraud. Section 17(1) of the Limitation Act saves rights of the party defrauded from lapse of time as long as the party is not at fault on his own account. In the aforesaid factual background, it is apparent that the plaintiff was aware and had knowledge in October 2008 about execution and transfer of the ownership rights in favour of late Tej Kaur vide sale deed dated 23rd August 1969 executed by defendant No.3, Gurdev Singh Anand. Unadorned assertion in the plaint feigning ignorance as to the sale deed would not help, as in the facts as pleaded and accepted in the plaint, the plaintiff was required to state and indicate that ignorance was not due to failure to exercise reasonable diligence.