//
you're reading...
legal issues

Or.14, rule 1 and 2 of C.P.C. and Art.10 , 59 ,92 and 96 of Limitation – suit filed against ex trustee for declaration that the settlement deeds dt. 27-3-1978 executed by him infavour of his daughter and grand daughters in respect of Trust Property is null and void – defendant took plea that it is barred by limitation as the suit is filed beyond three years – single judge under preliminary issue dismissed the suit and D.B. bench also confirmed the same – Apex court held that No suit be dismissed on the issue of preliminary issue – when it is a question of law and fact and when suit is not barred by limitation under Art.10 of limitation Act against the trustee or his legal representatives and when it is 12 years from the date of transfer as per Art. 92 – both lower courts committed error and as such allowed the appeal by setting aside the lower court orders = Satti Paradesi Samadhi & Philliar Temple … Appellant Versus M. Sankuntala (D) Tr. Lrs. & Ors. …Respondents = 2014 – July. Part – http://judis.nic.in/supremecourt/filename=41772

Or.14, rule 1 and 2 of C.P.C. and  Art.10 , 59 ,92 and 96 of Limitation – suit filed against ex trustee for declaration that the settlement deeds dt. 27-3-1978 executed by him infavour of his daughter and grand daughters in respect of Trust Property is null and void  – defendant took plea that it is barred by limitation as the suit is filed beyond three years  – single judge under preliminary issue dismissed the suit and D.B. bench also confirmed the same – Apex court held that No suit be dismissed on the issue of preliminary issue –  when it is a question of law and fact and when suit is not barred by limitation under Art.10 of limitation Act against the trustee or his legal representatives and  when  it is 12 years from the date of transfer as per Art. 92  – both lower courts committed error and as such allowed the appeal by setting aside the lower court orders =

plaintiff instituted a suit  for  declaration  seeking  that  the  three

settlement deeds dated 27.3.1978 executed by the former  trustee  in  favour

of his two daughters and a granddaughter as  null  and  void,  and  for  the

relief of recovery of possession of the land to the trust.

The defendant filed  the  written  statement  resisting  the  claim  of  the

plaintiff on many a ground and one of the grounds  was  that  the  suit  was

barred by limitation and, therefore, did not deserve any adjudication.   =

On preliminary Issue – Dismissed the suit    

Accepting the  submission  of  the  defendant,  the  learned

single Judge thought it appropriate  to  take  up  the  issue  No.  1  as  a

preliminary issue.

Before the learned single Judge it was contended by the  defendant  that  in

view of the limitation provided under Articles 56 to 59  of  the  Limitation

Act, the suit was enormously barred by limitation and,  therefore,  deserved

to be  dismissed.   There  was  also  a  reference  to  Article  26  of  the

Limitation Act and the learned single Judge referring  to  the  same  opined

that even under the said Article the suit for  recovery  of  possession  was

also barred by time.  The learned single Judge also referred to  Section  27

of the Limitation Act, 1963 and ruled that the  defendants  or  their  legal

representatives  had  acquired  right,  title  and   interest   by   adverse

possession and,  therefore,  the  suit  was  not  tenable  being  barred  by

limitation.=

Section 10 of the Limitation Act.  It reads as follows: –

“10. Suits against trustees  and  their  representatives  –  Notwithstanding

anything contained in the foregoing provisions of this Act, no suit  against

a person in whom property has  become  vested  in  trust  for  any  specific

purpose, or against his legal representatives or assigns (not being  assigns

for valuable consideration), for the purpose of following in  his  or  their

hands such property, or the proceeds thereof, or  for  an  account  of  such

property or proceeds, shall be barred by any length of time.

Explanation – For the purpose of this Section any property  comprised  in  a

Hindu, Muslim or Buddhist religious or charitable endowment shall be  deemed

to be property vested in trust for a specific purpose  and  the  manager  of

the property shall be deemed to be the trustee thereof.”

He has also drawn our attention to Articles 92  and  96  occurring  in  part

VIII of the Schedule of the Limitation Act.  He has emphasized on  both  the

Articles, namely, Articles 92 and 96.  The said Articles read as under: –

|92       |To recover possession |Twelve   |When the transfer becomes|

|         |of immovable property |years    |known to the plaintiff   |

|         |conveyed or bequeathed|         |                         |

|         |in trust and          |         |                         |

|         |after-wards           |         |                         |

|         |transferred by the    |         |                         |

|         |trustee for a valuable|         |                         |

|         |consideration         |         |                         |

|96       |By the manager of a   |Twelve   |The date of death,       |

|         |Hindu, Muslim or      |years    |resignation or removal of|

|         |Buddhist religious or |         |the transfer or the date |

|         |charitable endow-ment |         |of appointment of the    |

|         |to recover possession |         |plaintiff as manager of  |

|         |of movable or         |         |the endowment, whichever |

|         |immoveable property   |         |is later                 |

|         |comprised in the      |         |                         |

|         |endowment which has   |         |                         |

|         |been transferred by a |         |                         |

|         |previous manager for a|         |                         |

|         |valuable consideration|         |                         |

Article 59 reads as follows: –

|         |Description of suit  |Period of   |Time from which period |

|         |                     |limitation  |begins to run          |

|59       |To cancel or set     |Three years |When the facts         |

|         |aside an instrument  |            |entitling the plaintiff|

|         |or decree or for the |            |to have the instrument |

|         |rescission of a      |            |or decree cancelled or |

|         |contract             |            |set aside or the       |

|         |                     |            |contract rescinded     |

|         |                     |            |first become known to  |

|         |                     |            |him                    |

whether  an  issue  of

limitation could at all have been taken up as a preliminary issue.

 Sub-rule (2) of Order 14 Rule 2 CPC lays down that  where  issues  both

of law and of fact arise in the same suit, and the court is of  the  opinion

that the case or any part thereof may be disposed of  on  an  issue  of  law

only, it may try  that  issue  first  if  that  issue  relates  to  (a)  the

jurisdiction of the court, or (b) a bar to the suit created by any  law  for

the  time  being  in  force.  The  provisions  of  this  Rule  came  up  for

consideration before this Court in Major S.S. Khanna v.  Brig.  F.J.  Dillon

and it was held as under: (SCR p. 421)

“Under Order 14 Rule 2, Code of Civil Procedure where  issues  both  of  law

and of fact arise in the same suit, and the court is  of  opinion  that  the

case or any part thereof may be disposed of on the issues of  law  only,  it

shall try those issues first, and for that purpose may, if  it  thinks  fit,

postpone the settlement of the issues of fact until after the issues of  law

have been determined. The jurisdiction to try issues of law apart  from  the

issues of fact may be exercised only where in the opinion of the  court  the

whole suit may be disposed of on the issues  of  law  alone,  but  the  Code

confers no jurisdiction upon the court to try a suit on mixed issues of  law

and fact as preliminary issues. Normally all the issues in a suit should  be

tried by the court; not to do so, especially when  the  decision  on  issues

even of law depend upon the decision of issues of fact, would  result  in  a

lopsided trial of the suit.”

Though there has been a slight amendment in the language of Order 14 Rule  2

CPC  by  the  amending  Act,  1976  but  the  principle  enunciated  in  the

abovequoted decision still holds good and there can  be  no  departure  from

the principle that the Code confers no jurisdiction upon the court to try  a

suit on mixed issues of law and fact as a preliminary issue  and  where  the

decision on issue of law depends upon decision of fact, it cannot  be  tried

as a preliminary issue.”

In the case at hand, we find that unless there is determination of the  fact

which would not protect the plaintiff under Section  10  of  the  Limitation

Act the suit cannot be dismissed on the ground of limitation.  It is  not  a

case which will come within the ambit and sweep of Order 14,  Rule  2  which

would enable the court to frame a preliminary issue to  adjudicate  thereof.

The learned single Judge, as it appears, has remained totally  oblivious  of

the said facet and adjudicated the issue as if  it  falls  under  Order  14,

Rule 2.  We repeat that on the scheme of Section 10 of  the  Limitation  Act

we find certain facts are to be  established  to  throw  the  lis  from  the

sphere of the said provision so that it would come  within  the  concept  of

limitation.   The  Division  Bench  has  fallen  into  some  error   without

appreciating the facts in proper  perspective.   That  apart,  the  Division

Bench, by taking recourse of Articles 92  to  96  without  appreciating  the

factum that it uses the words “transferred by the  trustee  for  a  valuable

consideration” in that event the limitation would be  twelve  years  but  in

the instant case the asseveration of the plaintiff is that the  trustee  had

created three settlement  deeds  in  favour  of  his  two  daughters  and  a

granddaughter.  The issue  of  consideration  has  not  yet  emerged.   This

settlement made by the father was whether for consideration or  not  has  to

be gone into and similarly whether the property  belongs  to  the  trust  as

trust is understood within the meaning of Sectin10  of  the  Limitation  Act

has also to be gone into.  Ergo, there can be no shadow of  doubt  that  the

issue No. 1 that was framed by the learned single Judge was  an  issue  that

pertained to fact and law and hence, could not have been  adjudicated  as  a

preliminary issue.  Therefore, the impugned order is wholly unsustainable.

We have not expressed any opinion with regard to  the  issue  of  limitation

except saying that the present issue could not  have  been  taken  up  as  a

preliminary issue.

2014 – July. Part – http://judis.nic.in/supremecourt/filename=41772 – for full text – LAW FOR ALL

Advertisements

About advocatemmmohan

ADVOCATE

Discussion

Comments are closed.

Blog Stats

  • 1,727,238 hits

ADVOCATE MMMOHAN

archieves

Enter your email address to subscribe to this blog and receive notifications of new posts by email.

Join 1,853 other followers

Follow advocatemmmohan on WordPress.com