Case: Ningawwa Vs. Byrappa &amp; 3 Ors

2. In the suit which is the subject-matter of this appeal the appellant asked for a decree for possession of the properties mentioned in the schedule to the plaint on the ground that she was the owner of the properties in spite of the gift deed, Ex. 45 executed by her on January 16. 1938. According to the case of the appellant, plots Nos. 91 and 92 of Lingadahalli village were inherited by her from her father and plots Nos. 407/1 and 409/1 of Tadavalga village were originally the properties of her husband Shiddappa. These plots had been usufructually mortgaged but they were redeemed from the funds supplied by the appellant and a reconveyance of the two plots was taken in the name of the appellant. At about the time Ex. 45 was executed it is alleged by the appellant that her husband Shiddappa was dominating her will and persuaded her to execute the gift deed in respect of plots 407/1 and 409/1 of Tadavalga village. The appellant was taken to Bijapur by her husband on January 16, 1938 and there Ex. 45 was written and she was made to sign it. The document was registered on January 18, 1938 at Indi. The appellant believed that the document, Ex. 45 related to only plots Nos. 407/1 and 409/1 of Tadavalga village. She was never told by her husband that the document related either to plot No. 91 or plot No. 92 of Lingadahalli village. Shiddappa died in about the end of December, 1949 and till then she was amicably living with him and consequently she had no occasion to know about the true character of Ex. 45 or about its contents. Shiddappa had taken a second wife in the year 1941 and after the death of Shiddappa in 1949 the relations of the second wife, respondent No. 4 began to assert their rights in respect of the properties of the appellant. Growing suspicious of the conduct of the respondents, the appellant made enquiries from the Karnam of the village and found that in Ex. 45 she was purported to have made a gift of properties included in plots 91 and 92 of Lingadahalli village to her husband Shiddappa. Consequently the appellant brought the present suit for possession of properties. Respondent No. 4 is the second wife of Shidddappa and respondents 1 to 3 are the children of Shiddappa through respondent No. 4. They resisted the appellants suit and contended that the gift deed in favour of Shiddappa, Ex. 45 was valid and that the same was executed voluntarily by the appellant and consequently it was not liable to be set aside. The trial court came to the conclusion that Shiddappa obtained Ex. 45 by the exercise of undue influence over the appellant, that he had represented to her that it related only to plots Nos. 407/1 and 409/1 of Tadavalga village and he had fraudulently included in the document plots Nos. 91 and 92 of Lingadahalli village. The trial court, however, dismissed the appellants suit in respect of plots Nos. 407/1 and 409/1 on the ground that the suit was barred under Article 91 of the Limitation Act. With regard to plots 91 and 92 of Lingadahalli village the trial court gave a decree in favour of the appellant. The respondents took the matter in appeal to the Mysore High Court. The appellant filed cross-objections against the decree of the trial court. By its judgment dated July 29, 1960, the High Court allowed the appeal and dismissed the cross-objections thereby dismissing the suit of the appellant in its entirety. The High Court confirmed the finding of the trial court so far as plots Nos. 407/1 and 409/1 of Tadavalga village were concerned and held that the suit was barred by limitation as it was not filed within three years of the execution of the deed. As regards plots Nos. 91 and 92 of Lingadahalli village the High Court held that the alleged fraud had not been established by the appellant.

Reasoning:
In our opinion the Civil Judge was right in taking the view that the appellant never agreed to convey the lands in plots Nos. 91 and 92 of Lingadahalli village and that they were included in the gift deed by the fraud of Shiddappa without the knowledge of theIt was contended on behalf of the respondents that the terminus a quo for the limitation was the date of the execution of the gift deed and the claim of the appellant was therefore barred as the suit was filed more than three years after that date.We are unable to accept this argument as correct. Article 95 prescribes a period of limitation of three years from the time when the fraud becomes known to the party wronged.In the present case, the appellant stated that she did not come to know of the fraud committed by her husband in respect of plots 91 and 92 of Lingadahalli village till his death. The trial court has discussed the evidence on this point and reached the conclusion that the case of the appellant is true. The appellant lived with her husband on affectionate terms till the time of his death. Till then she had no reason to suspect that any fraud had been committed on her in respect of the two plots in Lingadahalli village. It is only after his death when his brothers and respondent No. 4s brothers removed grain from the house against her wishes that the appellant came to know that the lands at Lingadahalli village were included in the gift deed by fraud. The suit was instituted by the appellant within a few days after she came to know of the fraud. We are therefore of the opinion that the suit was brought within time prescribed under Art. 95 of the Indian Limitation Act so far as plots 91 and 92 of Lingadahalli village aretrial court found that the respondents had not adduced sufficient evidence to rebut the presumption under these statutory provisions and reached the finding that the gift deed was obtained by the appellants husband by undue influence as alleged by her. The finding of the trial court has been affirmed by the High Court. But both the trial court and the High Court refused to grant relief to the appellant on the ground that the suit was barred under Art. 91 of the Limitation Act so far as plots Nos. 407/1 and 409/1 were concerned. On behalf of the appellant it was contended that the lower courts were wrong in taking this view. We are, however, unable to accept this argument as correct. Article 91 of the Indian Limitation Act provides that a suit to set aside an instrument not otherwise provided for (and no other provision of the Act applies to the circumstances of the case) shall be subject to a three years limitation which begins to run when the facts entitling the plaintiff to have the instrument cancelled or set aside are known to him. In the present case, the trial court has found) upon examination of the evidence, that at the very time of the execution of the gift deed, Ex. 45 the appellant knew that her husband prevailed upon her to convey survey plots Nos. 407/1 and 409/1 of Tadavalga village to him by undue influence. The finding of the trial court is based upon the admission of the appellant herself in the course of her evidence. In view of this finding of the trial court it is manifest that the suit of the appellant is barred under Art 91 of the Limitation Act so far as plots Nos. 407/1 and 409/1 of Tadavalga village are concerned.