HIGH COURT OF JUDICATURE AT ALLAHABAD A.F.R. RESERVED Case :- FIRST APPEAL No. - 324 of 2012 Appellant :- Mrs. [ENTITY] Respondent :- [ENTITY] And Others Counsel for Appellant :- [ENTITY] Counsel for Respondent :- [ENTITY] Hon'ble [ENTITY],J.
Hon'ble [ENTITY],J.
(By the Court) This appeal under [SECTION] of the [ACT] (in short the '[ACT]') has been filed by the plaintiff-appellant challenging the judgment and decree dated 05-02-2012 passed by the IInd Additional Civil Judge (Senior Division), Kanpur Nagar dismissing [CASE NUMBER] (Smt. [ENTITY] vs. [ENTITY]) under [SECTION] of the [ACT] as barred by limitation.
We have heard Smt. [ENTITY], the plaintiff-appellant (in person) through her husband Sri [ENTITY] and Sri [ENTITY] for the defendant-respondents.
Facts, in brief, giving rise to the dispute are as under :
The plaintiff-appellant filed [CASE NUMBER] before the Civil Judge (Senior Division), Kanpur Nagar seeking following reliefs :
"A) That a decree of permanent injunction be granted in favour of the plaintiff against defendant nos. 1 to 4, thereby restraining the said defendants, their agents, servants, employees, associates, representatives, assigns, etc. from inter meddling, swindling and siphoning the assets/funds left by the deceased, Mr. [ENTITY], as the Will set up by the defendant are forged and fabricated, non existence and non-operative.
B) That it be declared that the alleged Will alleged to have been left by the deceased Mr. [ENTITY], as non-existent and void, as well as nullity.
C) That the cost of the suit be awarded in favour of the plaintiff against the defendants.
D) That any other relief, which this Hon'ble court may deem fit and proper, in the circumstances of the case, be also awarded in favour of the plaintiff."
The suit was filed with the allegations that Sri [ENTITY] died on 01-02-1994 and was survived by his widow Smt. [ENTITY], one son Sri [ENTITY] (defendant-respondent no.1) and two daughters namely; Km. [ENTITY] and the plaintiff-appellant Smt. [ENTITY]; that defendant-respondent no. 1 [ENTITY] set up a forged and fabricated will dated 11-08-1993 of Shri [ENTITY]; that Mr. [ENTITY], the witness was neither friend nor companion of testator and so in normal circumstances, he could not have been the attesting witness and thus the will is shrouded in mystery and creates suspicion; that will does not disclose that the signature of the witness was appended in the presence of testator and all the pages of the will do not bear the signature of the witness; that on death of Mr. [ENTITY], a probate case registered as case no. 44/99/70 (Sudhir Bhargav vs. Smt. [ENTITY] & others) was filed by [ENTITY], the respondent but since all the heirs in accordance with the law of succession and inheritance were not impleaded in the said proceedings, as such, the same was devoid of merits and not maintainable, which was bonafidely contested by her; that it was pleaded in paragraph 27 that the cause of action for filing the suit accrued when she received information and knowledge from reliable sources on 09-07-2010 that defendant no. 1 is intermeddling with the assets of the deceased and swindling the funds which was beyond the reach of the plaintiff. Para 27 of the plaint is being reproduced hereunder :-
"27. That the cause of action accrued to the plaintiff for filing the present suit, as the plaintiff has gained information and knowledge from reliable sources on 9.7.2010, that the defendant no. 1, as intermedeller, is intermeddling with the assets of the deceased and is fully prepared to swindle away the funds beyond the reach of the plaintiff, despite the pendency of probate petition, as such, the cause of action is subsisting each and every day in regard to the right of the plaintiff being at stake, at the motion of defendant no. 1, who is in collusion with his wife and son and his other henchmen, wherefore, the cause of action is subsisting each and every day."
The defendant-respondent no.1 contested the suit by filing written statement denying the plaint allegations and apart from filing written statement, an application under [SECTION] of the [ACT] was also moved seeking rejection of the plaint on the ground that suit is barred by time.
Trial court framed issue no. (1) to the effect that "Whether the suit is liable to be dismissed under [SECTION] of the [ACT], being barred by time". Trial court answered the said issue in affirmative and dismissed the suit as barred by time. The trial court has recorded a finding that the suit seeking a declaration that the will was non-existent and void was filed in 2010 whereas proceedings for probate registered as [CASE NUMBER] were being contested by the plaintiff by filing objections in 2001 and thus she had knowledge of the will since 2001 and since the limitation for filing a suit, to declare an instrument issued or registered as forged, is three years from the date when the issue or registration becomes known to the plaintiff, suit filed by her in 2010 was beyond the prescribed period of limitation and barred by time.
It has been argued by the appellant that the impugned judgment and order rejecting plaint is wrong on facts and law; that the plaint could not have been rejected under [SECTION] of the [ACT] as the law of limitation does not come within the ambit of the said clause; that for the purpose of disposal of issue relating to provisions of [SECTION] of the [ACT], only the averments made in the plaint as a whole are to be taken into consideration and not in piecemeal and thus the court below has committed an illegality; that though the plaintiff got knowledge of the will in 2001 through probate proceedings and filed objections therein, but real cause of action for filing the suit for declaring the will as null and void accrued on 09-07-2010 when it came to her knowledge from reliable sources that the defendant-respondent no. 1 is infringing her rights and has started inter meddling with the assets of the deceased, denying plaintiff's share and was determined to swindle away the funds beyond reach of plaintiff; that the probate application has been dismissed on 03-11-2011 and till 17-07-2010 when the present suit was filed, bonafidely, the litigation was going on and as such, the appellant is entitled to get the benefit of the provisions of [SECTION] and [SECTION] of the [ACT] by excluding the time spent in prosecuting the probate proceedings and on exclusion of the said period from 02-03-2001 to 09-07-2010, the suit is well within the period of limitation; that [SECTION] or [SECTION] of the [ACT] are not applicable rather limitation prescribed by provisions of [SECTION] of the [ACT] was applicable, which prescribes the period of limitation of three years from the date when the right to sue accrues, and the period of limitation would commence from 09-07-2010 when the plaintiff came to know from reliable sources about the real threat to her rights and not from the date of knowledge of the will in 2001.
In reply, Sri [ENTITY], learned counsel for the respondents contended that the plaintiff-appellant has not come with clean hands and has filed the suit on false and baseless allegations just to harm and harass the respondents and the suit is clearly barred by time; that by malafide and willful suppression of facts and cleaver drafting of the plaint, a litigant cannot be permitted to proceed with a time barred suit and the plaintiff being one of the legatee having contested the probate proceedings by filing objections in 2001, the will was very well within her knowledge since then; that it will not be correct to say that the plaintiff without feeling any threat to her rights, filed objections in probate petition on 2.3.2001; that the suit having been filed beyond the prescribed period of limitation of three years, from the date of acquiring the knowledge of the will, is clearly barred by time and has rightly been dismissed by the trial court; that the plaintiff though admitting knowledge of will in 2001 deliberately did not mention the date of knowledge of the will in the plaint, and willfully & malafide suppressed the facts of contesting probate proceedings since 2.3.2001; that instead of making a specific and clear allegations of having acquired knowledge of the will in 2001, she concealing the true facts very cleverly made vague allegations that the cause of action arose on 09-07-2010 when she came to know from reliable sources, (details of alleged reliable source were not disclosed); that the provisions of [SECTION] of the [ACT] do not apply to the suits and the argument advanced on behalf of the appellant in this regard is misconceived; that benefit of [SECTION] of the [ACT] may not be extended to the plaintiff inasmuch as there was neither any pleadings in this regard, any applications, nor the provisions are attracted as the benefit may be extended only in a cases where the proceedings are prosecuted with due deligence in a good faith in a court, which, from defect of jurisdiction or other cause of like nature, is unable to entertain, while in the present case it cannot be said that the court where the probate proceedings were being contested by the plaintiff lacks jurisdiction or was unable to entertain it for any such cause of a like nature and moreover the plaintiff was not prosecuting the probate case rather was defending the same, which remained pending on the date of institution of suit and thereafter.
Before proceeding to consider the rival arguments advanced on behalf of the parties, it may be pertinent to reproduce the relevant provisions of [SECTION] the [ACT] and [SECTION] and [SECTION] and [SECTION], [SECTION] and [SECTION] of [ACT] which read as under :-
"11. Rejection of plaint. - the plaint shall be rejected in the following cases:-
(a) where it does not disclose a cause of action;
(b) where the relief claimed is under-valued, and the plaintiff, on being required by the Court to so correct the valuation within a time to be fixed by the Court, fails to do so;
(C) where the relief claimed is properly valued, but the plaint is written upon paper insufficiently stamped, and the plaintiff, on being required by the Court to supply the requisite stamp-paper within a time to be fixed by the Court, fails to do so;
(d) where the suit appears from the statement in plaint to be barred by any law;"
[SECTION] of the [ACT] reads as under :
"5. Extension of prescribed period in certain cases. - Any appeal or any application, other than an application under any of the provisions of [SECTION] of the [ACT], may be admitted after the prescribed period, if the appellant or the applicant satisfies the Court that he had sufficient cause for not preferring the appeal or making the application within such period.
Explanation. - The fact that the appellant or the applicant was misled by any order, practice or judgment of the High Court in ascertaining or computing the prescribed period may be sufficient cause within the meaning of this section."
[SECTION] of the [ACT] reads as under :
"[SECTION]. Exclusion of time of proceeding bona fide in Court without jurisdiction. - (1) In computing the period of limitation for any suit the time during which the plaintiff has been prosecuting with due diligence another civil proceeding, whether in a Court of first instance or of appeal or revision, against the defendant shall be excluded, where the proceeding relates to the same matter in issue and is prosecuted in good faith in a Court which, from defect of jurisdiction or other cause of a like nature, is unable to entertain it.
(2) In computing the period of limitation for any application, the time during which the applicant has been prosecuting with due diligence another civil proceeding, whether in a Court of first instance or of appeal or revision, against the same party for the same relief shall be excluded, where such proceeding is prosecuted in good faith in a Court which, from defect of jurisdiction or other cause of a like nature, is unable to entertain it.
(3) Notwithstanding anything contained in [SECTION] of the [ACT], the provisions of sub-section (1) shall apply in relation to a fresh suit instituted on permission granted by the Court under [SECTION] of that Order, where such permission granted on the ground that the first suit must fail by reason of a defect in the jurisdiction of the Court or other cause of a like nature.
Explanation. - For purpose of this section, -
(a) in excluding the time during which a former civil proceeding was pending, the day on which that proceeding was instituted and the day on which it ended shall both be counted;
(b) a plaintiff or an applicant resisting an appeal shall be deemed to be prosecuting a proceeding;
(c) misjoinder of parties or of causes of action shall be deemed to be a cause of a like nature with defect of jurisdiction."
[SECTION] and [SECTION] of the [ACT] reads as under :
Description of suit Period of limitation Time from which period begins to run
56. To declare the forgery of an instrument issued or registered.
[SECTION]. To cancel or set aside an instrument or decree or for the rescission of a contract.
Three years Three years When the issue or registration becomes known to the plaintiff.
When the facts entitling the plaintiff to have the instrument or decree cancelled or set aside or the contract rescinded first become known to him.
[SECTION] of the [ACT] reads as under :
Description of application Period of limitation Time from which period begins to run
[SECTION]. Any suit for which no period of limitation is provided elsewhere in this Schedule.
Three years When the right to sue accrues The language and provisions of [SECTION] of [ACT] are quite clear that unambiguous and the plaint shall be rejected, where the suit appears from the statement in the plaint to be barred by any law, which includes the law of limitation. Reference on this point may be made to the judgment of the Hon'ble Apex Court in the case of Hardesh Ores (P) Ltd., vs. Hede and Company, (2007) 5 SCC 6[SECTION] wherein in paragraph 25 it has been held as under :
"The language of [SECTION] [ACT] is quite clear and unambiguous. The plaint can be rejected on the ground of limitation only where the suit appears from the statement in the plaint to be barred by law. Mr. [ENTITY] did not dispute that "law" within the meaning of [SECTION] must include the law of limitation as well. "
Thus the arguments advanced on behalf of the appellant that the law of limitation does not come within the ambit of law under [SECTION] of the [ACT] or plaint being barred by time may not be rejected under [SECTION] [ACT] has no force.
Undisputedly an issue of rejection of plaint under [SECTION] of the [ACT], has to be considered in view of averments made in plaint itself and for the said purpose the averments made in the plaint in their entirety reqired are to be taken into consideration. It is not permissible to cull out a sentence or a passage and to read it out of the context in isolation. It is the substance and not merely the form that has to be looked into and the pleadings are to be construed as they stand without addition or subtraction of words or change of its grammatical sense. It is equally well settled proposition of law, that cleaver drafting creating illusion of cause of action are not permitted in law and a clear right to sue should be shown in the plaint. Reference may be made to the following observations of the Hon'ble Apex Court in this context in the celebrated case of [PRECEDENT] :
" The learned Munsif must remember that if on a meaningful - not formal - reading of the plaint it is manifestly vexatious, and meritless, in the sense of not disclosing a clear right to sue, he should exercise his power under [SECTION], [ACT] taking care to see that the ground mentioned therein is fulfilled. And, if cleaver drafting has created the illusion of a cause of action, nip it in the bud at the first hearing by examining the party searchingly under [SECTION], [ACT] An activist Judge is the answer to irresponsible law suits."
We shall now advert to the facts stated in the plaint in this regard. The paragraph 7 & 8 of the plaint are being reproduced as under :
"7. That the property, on the death of Mr. [ENTITY], devolved upon his heirs, through the Law of Succession & Inheritance and as such, all the heirs of the deceased were to be necessary parties. They do not stand represented or impleaded in the so called alleged probate case bearing no. 44/70/1999 ([ENTITY] v. [ENTITY] and others). In the absence of making them as necessary parties, the said petition, being devoid of merit, as well as, being highly unsustainable, is not at all maintainable even for a fraction of a second. Probate is bonafidely being contested by the plaintiff.
8) That the application for Probate is in respect of two properties, namely Government of India 9% relief bond, valued at Rs.30,000 and Bond in Mahanagar Telephone Ltd, valued at Rs.50,000. Out of the said two properties, property, government of India 9% relief bond, no KN 000246, valued at Rs.30,000, does not find place in the alleged Will. Had the Will was genuinely made by the deceased, this property would have found place in the alleged Will."
According to settled principles of law, cause of action is not a date, rather it is to be gathered from the bunch of facts mentioned in plaint. It is clear from above mentioned para 7 of the plaint that the defendant no.1 had filed [CASE NUMBER] which was being contested by plaintiff, but concealing the true and relevant facts that she was contesting probate proceedings w.e.f. 2.3.2001 she stated in para 27 of plaint that the cause of action accrued on 9.7.2010 upon gaining information from alleged reliable, source. In the circumstances, the allegations made in para 27, may not be considered in insolation from contents of para 7 wherein facts of knowledge (as well as cause of action) from 2.3.2001, date of knowledge of Will have deliberately and malafidely been concealed. It is further noteworthy that the fact of having knowledge of Will from 2001 has been admitted by plaintiffs appellant in paras 3 and 4 of memorandum of appeal and further by putting a case of condonation of delay (at appellate stage) from 2001 to 9.7.2010 under provisions of [SECTION] and [SECTION] of [ACT].
In [PRECEDENT], the Hon'ble Apex Court has observed in paragraph 16 as under :
"16. The question is whether a real cause of action has been set out in the plaint or something purely illusory has been stated with a view to get out of [SECTION] [ACT]. Clever drafting creating illusions of cause of action are not permitted in law and a clear right to sue should be in the plaint."
The averments made in above two paragraphs 7 and 8 clearly refer to the probate proceedings initiated on the basis of will were being contested by the plaintiff but at the same time, the plaintiff-appellant willfully, deliberately very conveniently and cleverly avoided to disclose the fact in the plaint that she was contesting the probate proceedings since 2001 and thus had acquired complete knowledge of the will in 2001 when she entered appearance for contesting the probate proceedings. The said fact was suppressed and not disclosed in the plaint with malafide intention only to overcome the limitation as the suit was filed almost after 10 years of acquiring knowledge of the will, though the limitation prescribed is only three years. Thus, it is a clear case of cleaver and skillful drafting to create illusion of cause of action for bringing it within the prescribed period of limitation, which is not permissible in law. In view of the above facts and averments made in plaint, without any addition or subtraction, do show that the plaintiff had knowledge of will and cause of action since 2.3.2001 and the suit is barred by law of limitation and order of rejection of plaint under [SECTION] of [ACT] may not be considered erroneous or incorrect.
The second argument advanced on behalf of the appellant claiming benefit of [SECTION] & [SECTION] of the [ACT] is also devoid of merits. A plain reading of [SECTION] of the [ACT] goes to show that time spent in prosecuting another proceedings bonafidely, and in good faith with due diligence in a court which lacks jurisdiction to entertain the proceedings is liable to be excluded. In the present case it cannot be said that there was any defect of jurisdiction or any such cause in respect of the probate proceedings and the court on account of the same was unable to entertain it. It is also noteworthy that probate proceedings were undisputedly pending at the time of institution of suit by plaintiff-appellant and so also she cannot seek benefit of provisions of [SECTION] of the [ACT]. In fact the provisions of [SECTION] are meant to help such plaintiffs who went on prosecuting with due deligence another civil proceedings in good faith, and loose limitation. In this case plaintiff-appellant was not prosecuting probate proceedings rather was defending them, which continued even after filing of the suit by plaintiff.
It is also noteworthy that there are neither any pleadings nor any applications, seeking benefit of limitation under [SECTION] of [ACT] and so also the argument is not tenable.
In view of above, the provisions of [SECTION] of [ACT] are not attracted at all and the plaint cannot be treated to be within time by granting benefits of [SECTION] of the [ACT].
The next argument on behalf of the plaintiff-appellant that the provision of [SECTION] of the [ACT] are not attracted is also without any merit. The question as to which Article of the [ACT] is applicable to a particular case has to be decided with reference to pleadings. A plaintiff cannot be permitted to invoke any particular Article of the [ACT] of her choice, by suppressing material facts and skillful drafting of pleadings.
The view taken by us finds support from the decision of the Hon'ble Apex Court in the case of [PRECEDENT]. While considering the question in a suit instituted for possession based on title, the Apex Court finding that the plaintiff has instituted the suit for possession based on title and not on the basis of previous possession holding that, under [SECTION] of the [ACT], the suit was well within time, as limitation commenced from the date when the possession became adverse held that :
"The question whether the article of limitation applicable to a particular suit is [SECTION] or [SECTION], has to be decided by reference to pleadings. The plaintiff cannot invoke [SECTION] by suppressing material fact."
We find two reliefs have been claimed in the plaint; one is for permanent injunction to restrain the defendants, their agents etc. from intermeddling, swindling and siphoning the assets/funds left by the deceased, Mr. [ENTITY], as the will set up by the defendants is forged, fabricated, non-existent and non-operative, and other is to declare the alleged will as non-existent and void as well as nullity. Relife 'A' does not contain is simplicitor prayer of injunction rather it involves and is dependant on relief 'B' for declaration of Will as null and void and non existent. Essentially the real relief prayed for is of a declaration in respect of will and is based on the allegations that it is a forged and fabricated document. In this regard it may be relevant to reproduce paragraph [SECTION], 15 and 26 of the plaint, as under : -
"[SECTION]. That Mr. [ENTITY] was mere student in the year 1994 and a large sum could never be bequeathed to a student. 300 shares have been bequeathed to Km. [ENTITY], daughter of defendant no. 1, but no shares have been given to Smt. [ENTITY] and Km. [ENTITY], daughters of plaintiff and no right in the property is said to have been given to Master [ENTITY], son of Smt. [ENTITY]. Thus, the said Will, obviously appears to be fabricated one.
15. That the alleged Will, stated to be dated 11.8.1993, contains a description that a sum of Rs. 5 lacs was to be paid to the plaintiff, out of realisation of compensation from the Government, for acquisition of land. The matter pertaining to the acquisition of land was decided by the Hon'ble High Court of Judicature at Allahabad by its Lucknow Bench on 18.7.1994. The deceased could not have anticipated in 1993, the quantum of compensation to be awarded in 1994. The amount of Rs. 5 lacs consisted of two drafts dated 9.3.1995 fo Rs. 1 lac and dated 23.7.1997 for Rs. 4 lacs. The said dates itself suggest and lead to the conclusion that no such Will has been left by Mr. [ENTITY]. The alleged Will was fabricated by the propounder.
26. That looking to the deep suspicion and circumstances, it is clear and apparent that the defendants no. 1, Mr. [ENTITY] has prepared the fake Will of Mr. [ENTITY], after his death, by way of fraud and deception to grab the property of the deceased in the garb of the said fabricated Will, in exclusion of all other heirs with whom late mr. [ENTITY] had great affection in comparison to Mr. [ENTITY], defendant no. 1. Fabrication of Will is a criminal offence."
The basis of seeking declaration has been based on the fact that the will is forged and fabricated. Under provisions of [SECTION] of the [ACT] the prescribed period of limitation is three years, which begins to run from the date when the issue becomes known to the plaintiff, as prescribed thereunder. The suit filed after about 10 years from the date of knowledge of will is clearly barred by time. By suppressing the material facts, skillful pleadings and camouflaging relief, the plaintiff-appellant cannot be permitted to avoid prescribed period of limitation under provisions of [SECTION] of the [ACT], which apparently on the face of it is inconvenient to her as it prescribes the limitation of only three years from the date of knowledge whereas the suit was filed after ten years.
With regard to the provisions [SECTION] of the [ACT], it may be pointed out that the said Article prescribes limitation for filing suit for cancellation or setting aside an instrument or decree or for rescission of a contract. In plaint there is no prayer of cancellation or setting aside the will but the relief, which has been prayed is for declaration so that the suit may fall within the provisions of the said Article. In any case [SECTION] also prescribes period of only three years of limitation, which begins to run, from the date when the instrument first became known to plaintiff. Even if for the sake of arguments the provisions of [SECTION] are made applicable, the suit may not be brought within limitation as plaintiff/appellant has filed the suit after about ten years from the date of knowledge of will on 2.3.2001.
The argument advanced in respect of applicability of [SECTION] of the [ACT] is also without any basis and substance. This Article prescribes limitation of three years when the right to sue accrues in respect of any suit for which no limitation is prescribed anywhere else. [SECTION] is a residuary article with a general amplitude whereas [SECTION] and [SECTION] govern suits in which declarations specified in those articles are sought or cancellation is involved. [SECTION] being a residuary article comes into play in respect of suits for which no limitation is prescribed elsewhere in the Schedule of [ACT]. However, where the Schedule prescribes a period of limitation for a particular specified nature of suit, the residuary article cannot be invoked. In any case [SECTION] of [ACT] also prescribes a period of 3 years which begins to run from the date when the right to sue accrues and since right to sue first accrued on 2.3.2001, from the knowledge of will, the same having been filed on 17.7.2010 with the allegations of knowledge from alleged reliable source on 9.7.2010, may not be considered to or treated to be within time.
A careful and meaningful reading of the entire plaint and relief claimed goes to show that a decree of declaration in respect of the will (which came to knowledge of plaintiff on 2.3.2001) to declare it as null and void has been sought on the ground that it is forged and fabricated. The limitation for such a suit has been specifically provided under [SECTION] of the [ACT]. It cannot be said that it is a suit for which no period of limitation is provided anywhere else in the Schedule. Again by a purposeful and cleaver drafting concealing material facts, the plaintiff-appellant cannot be permitted to avoid inconvenient Article to bring the suit within the scope and ambit of another Article convenient to her. The argument in this regard is based on averments made in paragraph 27 of the plaint relating to cause of action wherein it has been stated that the cause of action accrued when the plaintiff gained knowledge and information from reliable sources on 09-07-2010 that the defendant no. 1 is intermeddling the assets of the deceased and is preparing to swindle away the funds beyond the reach of the plaintiff despite pendency of the probate petition.
The plaintiff has not disclosed the details of the alleged reliable source in the plaint. It is a clear case of cleaver drafting and deliberate concealment in respect of having acquired knowledge of the will in 2001 itself when she filed objections and started contesting the probate proceedings on 2.3.2001.
Before we proceed to record our conclusion on the aforesaid discussions, we find it necessary to put on record that the appellant appearing in person has filed innumerable citations in three compilations. We have carefully gone through all the judgments in the compilations. Except the judgments being referred herein under, the other are either on same point or are irrelevant having no application to the facts of the case hence are not being referred to avoid unnecessary bulk to this judgment.
Much reliance has been placed by the appellant upon the judgment of the Hon'ble Apex Court in the case of Mst. [ENTITY] v. Lala Laxminarayan, AIR 1960 SC 335 and [PRECEDENT] wherein it has been held that limitation would not commence unless there is unequivocal threat to the right claimed by the plaintiff. The above argument does not find support from the averments made in paragraph 27 of the plaint which has been reproduced hereinabove. Relying upon the above pronouncement, it has been argued that plaintiff felt real threat to her rights when she gained information and knowledge from reliable sources on 09-07-2010 with respect to inter meddling of assets of the deceased by defendant.
We find no substance in the averments made in paragraph 27 of the plaint. Further "the clear and unequivocal threat" is to be culled out from the facts and circumstances of the case and not from the convenient feelings or clever drafting of the plaintiff because in such circumstances, limitation would be left upon the independent choice of the plaintiff who can choose to make allegations, as in the present case, to her convenience, rendering the law of limitation, negatory. There is no whisper anywhere in the plaint that when the plaintiff acquired knowledge of the will and started contesting probate proceedings on 2.3.2001, there was no clear or unequivocal threat to her rights and it arose only upon knowledge through alleged (undisclosed and imaginary) reliable source on 9.7.2010. There may be no presumption that real and unequivocal threat would not have arisen on 2.3.2001 (when feeling real threat she started contesting probate proceedings and it would arise on imaginary date of 9.7.2010.
Again by concealment of real facts, cleaver drafting and camouflaging the reliefs, the plaintiff-appellant cannot be permitted to defeat the law of limitation. The two case laws relied upon by the plaintiff in support of the argument without pleadings have no application and are clearly distinguishable on facts. The case of Mst. [ENTITY] (Supra) was pertaining to [SECTION] of the [ACT] and while interpreting the said Article, the Apex Court observed as under :
"There can be no right to sue until there is an accrual of the right asserted in the suit and its infringement".
It was further observed that right to sue under [SECTION] (of [ACT] accrues only when the defendant clearly and unequivocally threats to infringe the right of the plaintiff in the suit.
It may be relevant to quote paragraphs 31 & 32 of the said judgment :
"31. The argument on the question of limitation is put thus: The plaintiff, respondent herein, had knowledge of the fraudulent character of the trust deed as early as 1917 or, at any date, during the pendency of the partition suit between [ENTITY] and [ENTITY] instituted in the year 1929, and the suit filed in 1940, admittedly after six years of the said knowledge, would be barred under [SECTION] of the [ACT]. [SECTION] of the old [ACT] reads as under:
Description of suit Period of limitation Time from which period begins to run
120. Suit for which no period of limitation is provided elsewhere in this Schedule.
Six years When the right to sue accrues This Article was subject to judicial scrutiny both by the Judicial Committee as well as by the High Courts of various States. The leading decision on the subject is that of the Judicial Committee in [PRECEDENT]. Therein Sir [ENTITY] observed:
"There can be no right to sue until there is an accrual of the right asserted in the suit and its infringement, or at least a clear and unequivocal threat to infringe that right, by the defendant against whom the suit is instituted."
(32) The said principle was restated and followed by the Judicial Committee in [PRECEDENT], and in [PRECEDENT]. The other question is, if there are successive invasions or denials of a right, when it can be held that a person's right has been clearly and unequivocally threatened so as to compel him to institute a suit to establish that right. In [PRECEDENT] at p. 198, a Division Bench of the Madras High Court had to consider the said question. In that case, [ENTITY], J., after considering the relevant decisions, expressed his view thus:
"There is nothing in law which says that the moment a person's right is denied, he is bound at his peril to bring a suit for declaration. The Government beyond passing the order did nothing to disurb the plaintiff's possession. It would be most unreasonable to hold that a bare repudiation of a person's title, without even an overt act, would make it incumbent on him to bring a declaratory suit."
He adds at p. 199:
"It is a more difficult question, what is the extent of the injury or infringement that gives rise to, what may be termed, a compulsory cause of action?"
The observation of the Apex Court in the said judgment, 'whether a particular threat gives rise to a compulsory cause of action depends upon the question whether that threat effectively invades or jeopardizes the said right' is the guiding factor. As already observed above, it cannot be left upon the choice of the plaintiff and facts and circumstances are to be seen in totality. It is also noteworthy that the plaintiff came to know of will in 2001 and the cause of action for this suit had arisen at the same time as feeling real and unequivocal threat to her rights, by above will, the plaintiff filed objections in probate proceedings and it does not lie in her mouth that under any imagination there was no real or unequivocal threat to her rights at that time.
In the case in hand, the imaginary date given by the plaintiff in paragraph 27 cannot be said to be the date of threat effectively invading and jeopardizing her rights. Facts and circumstances clearly demonstrate that her rights were effectively invaded when the probate of the will was sought by the legatee defendant-respondent no. 1 and she claim its knowledge in 2001.
Similarly, the case of [ENTITY] (Supra) is also distinguishable. In the said case, the suit was filed claiming following reliefs :
(a) For declaration of plaintiff's title in the suit property;
(b) For consequential injunction, restraining the defendant, their men, agents, servants, etc. from in any manner interfering with the plaintiff's peaceful possession and enjoyment of the suit property;
(c) Alternatively, if for any reason this Hon'ble Court comes to a conclusion that the plaintiff is out of possession, for recovery of vacant possession of the suit property.
The cause of action in the suit was said to have arisen in 1994 when the defendants therein allegedly tresspassed the suit property. The defendant alleged the suit to be barred by time and sought rejection of the plaint under [SECTION] of the [ACT] alleging that the plaintiff admitted that he had defective title on 24-11-1974 and mistake was repeated on [SECTION]-09-1979 and even despite knowledge the mistake was not rectified and thus the plaintiff lost his right to rectify the alleged mistake. The trial court rejected the application holding that the mistake came to his knowledge only on 02-11-1998 and as such it was a mixed question of facts and law, to be considered during the trial by casting the issue suitably. The judgment of the trial court was reversed in revision. The Apex Court observed in paragraph 13 as under :
"13. If the plaintiff is to be granted a relief of recovery of possession, the suit could be filed within a period of 12 years. It is one thing to say that whether such a relief can be granted or not after the evidences are led by the parties but it is another thing to say that the plaint is to be rejected on the ground that the same is barred by any law. If the suit has been filed for possession, as a consequence of declaration of the plaintiff's title, [SECTION] will have no application."
Again in paragraph 18, it has been held as under :
"18. We have noticed hereinbefore that the defendant, inter-alia, on the plea of identification of the suit land vis-a-vis the deeds of sale, under which the plaintiff has claimed his title, claimed possession. The defendant did not accept that the plaintiff was in possession. An issue in this behalf is, therefore, required to be framed and the said question is, therefore, required to be gone into. Limitation would not commence unless there has been a clear and unequivocal threat to the right claimed by the plaintiff. In a situation of this nature, in our opinion, the application under [SECTION] was not maintainable. The contentions raised by the learned counsel for the respondent may have to be gone into at a proper stage. Lest it may prejudice the contention of one party or the other at the trial, we resist from making any observations at this stage. "
The ratio laid down by the Hon'ble Apex Court is in a case where a relief of possession sought was based on declaration and thus this case has no application to the facts of present case where only a declaration and injunction based on declaration has been sought. Moreover, in the two cases relied by appellant there was reason to believe that there was no real and unequivocal threat earlier and the real and unequivocal threat arose only subsequently, unlike this case.
It is pertinent to mention under [SECTION] of [ACT] and [SECTION] of [ACT], a residuary provision has been made for suits which are not covered under the provisions of any other article in schedule, and for such suit where period of 6 years limitation was prescribed under [SECTION] of Old Act, a period of only 3 years limitation has been prescribed under [SECTION] of [ACT]. All the articles of [ACT] provides that the period of limitation for filing suit begins to run from some definite date of happening of some event or the other unlike [SECTION] which provides the limitation to begin, when right to sue accrues, and only for the suits falling under this article the concept of feeling of real and unequivocal threat may be applied if the facts of such case require so. Since the suit filed by plaintiff is not governed by [SECTION] of [ACT] and limitation begins from the date of knowledge of Will, the plaintiff can not seek benefit of above concept of clear and unequivocal threat, particularly in absence of any facts or pleadings to above effect as there can be no presumption of arising of real and unequivocal threat on 9.7.2010 and not since 2.3.2001.
Further from a perusal of the plaint, we find that there are no pleadings that despite knowledge in 2001, and filing objections in probate proceedings there was no real and actual threat to the rights of the plaintiff till 09-07-2010 when she got knowledge from alleged reliable source. In absence of any such pleadings with regard to not having any clear and unequivocal threat till 09-07-2010, it cannot be said that limitation would not start running from the date when the plaintiff acquired knowledge of the will by entering appearance and contesting the probate proceedings in 2001.
It is also pertinent to mention that on one hand the plaintiff-appellant has argued that the cause of action in the suit did not arise before 9.7.2010, but on the other hand, she has sought exclusion of a period from 2.3.2001 to 9.7.2010 under the provisions of [SECTION] of [ACT] (for contesting probate case with due diligence) after exclusion of which period she claims the suit to be well within time.
The above two arguments are contrary to each other and shows that the plaintiff has not come with clean hands and has very cleverly and with malafide intentions by wilfully concealing material facts and not disclosing the admitted date of knowledge of Will dated 2.3.2001 in plaint, has made an attempt to overcome the limitation and take it away from the notice of Court that suit is barred by time. However, when the Court noticed it correctly, the earlier knowledge which is admitted in para 7 of plaint she is now wants to seek exclusion of period of limitation from 1.3.2004 to 9.7.2010 under the provisions of [SECTION] of the Act on one hand, and wants to get rid of limitation on the pretext that the real cause of action did not arise till 9.7.2010, on the other knowing fully well that the limitation for filing her suit expired on 1.3.2004 and it was barred by time as on date of institution. Moreover, there is neither any whisper in plaint, nor any application for exclusion of time under provisions of [SECTION] of Act.
Upon careful consideration of arguments and pleadings in plaint, we find that undisputedly there are no pleadings to support any of above two self contradictory arguments, advanced on behalf of appellant and there can be no presumption in favour of plaintiff. The appellant neither has pleaded that despite knowledge of will on 2.3.2001 and putting a contest in probate proceedings, since the defendant no.1 was not intermeddling with the properties/funds, there was no unequivocal, real or clear threat to her rights till 9.7.2010 when she allegedly got further knowledge from alleged reliable source, nor has pleaded that despite knowledge of Will on 2.3.2001 as above, since she was contesting probate proceedings with due diligence and in good faith till 9.7.2010, and onwards as above, the period from 2.3.2001 till 9.7.2010 is liable to be excluded under the provisions of [SECTION] of the [ACT] and suit may be treated within the prescribed period of limitation. In absence of pleadings, the above baseless arguments have force and are untenable. Otherwise also the appellant who has not come with clean hands and bonafide intentions rather has made willful and malafide concealment of facts as discussed above, is not entitled to get benefit as claimed by her.
In view of the discussions made above, we find that there is no illegality, or incorrectness in the impugned judgment and decree, and the impugned order is neither erroneous nor perverse. The learned lower Court has rightly held that the prescribed period of limitation is three years from the date of knowledge of will when the cause of action arose under provisions of law and since it has been filed beyond the prescribed period of 3 years from the date of knowledge and cause of action since 2.3.2001, it is barred by time. It has rightly decided the issue no.1 against the plaintiff-appellant holding that the suit is liable to be dismissed under [SECTION] of [ACT] being barred by time and there is no sufficient ground for interfering with or setting aside the findings of court below or to set aside the impugned judgment/order and decree. The appeal is devoid of merits and is liable to be dismissed with costs.
The appeal is dismissed accordingly.
Date :10.7.20[SECTION] vs/nd