1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION SECOND APPEAL NO.1464 OF 2005 Shri Shivaji Bhagwan Patil ..... Appellant vs. Sau.Kamal Shivaji Patil ..... Respondent Mr.Umesh Mankapure,Advocate for Appellant. None for respondent Coram : Smt. R.P.SondurBaldota, J. Dated : 25th June 2009. PC : 1. The appellant is the husband of respondent. The marriage between them took place in the year 1976. Sometime thereafter on account of some differences, the respondent returned to her parents house. In the year 1982, while the first marriage was still subsisting, the appellant married one Rajakka. When the respondent learnt about the marriage, she along with her parents came to the house of appellant and it was agreed between all the family members that the appellant shall convey 50% share in the agricultural property to the respondent and she shall start residing with the appellant along with the second wife. Accordingly deed of conveyance dated 9th July 1982 was executed for consideration of Rs.2,000/- for the half share in the property. The respondent then started residing with the appellant and his second wife. She gave birth to a male child in the year 1986. It appears that some time in the year 1990, again differences arose between the appellant and respondent leading to the respondent leaving the house of the husband and shifting to her parents. Thereafter the appellant filed Regular Civil Suit No.208 of 1990 seeking declaration that he is 2 the owner of the suit property and that deed of convenience dated 9th July 1982 executed in favour of respondent was nominal without consideration and hence void. He also sought permanent injunction to restrain the respondent from taking any step that would affect his title over the said property. The trial Court dismissed the suit on merits as well as on the ground that the suit is barred by the law of limitation. The appellant then preferred Regular Civil Appeal No.557 of 1994 to the District Court, Sangli. That appeal was dismissed by the judgment and order dated 29th August 2005 upholding the decision of the trial Court and holding that the suit is barred by the Law of Limitation. Thus there are concurrent findings of both the courts below on the factual as well as the legal positions arising in the appeal. 2. Mr.Mankapure, the learned counsel for the appellant submits that the trial Court as well as the appellate Court erred in holding that the suit was barred by Law of Limitation by applying Article 113 thereto. He submits that the suit would be governed by Article 59 of the Limitation Act. The two provisions : 59 To cancel or set aside an instrument or decree or for the rescission of a contract Three years 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. 113 Any suit for which no period of limitation is provided elsewhere in this Schedule. Three years When the right to sue accrues. 3 3. The relief of declaration sought by the appellant is two fold. Firstly that he is an exclusive owner of the entire suit property and secondly for cancellation of the deed of conveyance. The trial Court applied Article 113 to the facts of the case and held that the provision of Article 59 are not applicable to a suit claiming that the deed was nominally executed. Considering the ground on which the document is sought to be set aside, the Court held that the suit was essentially not for cancellation of the deed but for seeking declaration of title of the appellant to the suit property and therefore it fell within the purview of Article 113 of the Limitation Act. This reasoning is approved by the appellate Court. I find no infirmity whatsoever with the decision and reasons therefor. Even if the contention of the appellant that Article 59 is applicable to the present suit, since the appellant is seeking relief of cancellation of deed of conveyance, is to be accepted, the same cannot be of any help to him as can be demonstrated hereinafter. The time from which the period under Article 59 begins to run, is when the facts entitling the plaintiff to have the instrument or decree cancelled or set aside or the contract rescinded first became known to him. In the instant case, if the appellant’s case is to be believed on merits, on the very date of execution of the deed of conveyance, he knew that the document was a nominal document without consideration etc. Therefore, the period of limitation began running from the date of the document i.e. 9th July 1982. The suit herein filed in the year 1990 is clearly barred by Law of Limitation. Mr.Mankapure then submits that the 4 starting point of limitation provided by Article 59, would be when the contract rescinded first became known to him. He draws attention of the Court to paragraph 3 of the plaint wherein it has been averred that the respondent disputed title of the appellant for the first time in September 1990 and started taking steps to challenge his title. In the instant case, there is no question of rescission of the contract. The contract was of transferring share in the suit property to the respondent which got completed on execution of deed of conveyance. In that circumstances, there is no substantial question of law arising in the Second Appeal for consideration of the Court. Hence, the Second Appeal is dismissed. (Smt.R.P.SondurBaldota,J.)