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2013 DIGILAW 54 (JK)

Pushpa Devi v. Dharam Chand & Ors.

2013-02-01

HASNAIN MASSODI, M.M.KUMAR

body2013
Massodi, J.:-- 1. Dharam Chand R/o Nekowal P.O. Sai Tehsil R.S. Pura, a member of the armed forces, breathed his last on 1984. He was amongst other survived by his wife Smt. Pushpa Devi present appellant and his father Shri Dharam Chand respondent No. 1 herein. 2. The appellant as a nominee of her deceased husband received an amount of Rs. 60,000/- from Life Insurance Corporation of India on account of life insurance policy taken by her deceased husband. She deposited the amount in her bank account. However, an amount of Rs. 50,000/- out of the deposited amount was drawn by her and deposited under a joint FDR No. QDQ/913109 dated 8-3-1991 in her and her father-in-laws name. 3. The appellant commenced a suit in the High Court on 09-10-1991. The suit was transferred to District Court, Jammu and was registered on 21st September 1993. The appellant pleaded that she was fraudulently induced by the respondent to deposit the amount under joint FDR on a false promise that her marriage would be solemnized to Baghwan Dass brother of her deceased husband and son of the respondent No. 1. 4. The appellant’s case was that once she fell in a trap and deposited the amount under joint FDR, she was harassed by her in-laws and a few months thereafter turned out of her marital house; that the respondent No. 1 further refused to marry his younger son to her. The appellant on the strength of averments made in the complaint sought a decree declaring her entitled to receive Rs. 1,01,225/- i.e. maturity value of FDR No. QDQ/913109 dated 8-3-1991, to the exclusion of respondent No. 1. The appellant also prayed for a decree of mandatory injunction commanding the respondent No. 2 to release the amount in her favour. 5. The trial Court dismissed the suit on 06-03-1995, on the ground that in terms of Article 120, J & K Limitation Act, suit was to be filed within six years from the date, cause of action accrued to the appellant. The trial Court took the view that cause of action had accrued to the appellant in March, 1985 and suit ought to have been filed by or before March 1991. To arrive at the conclusion, the learned trial Judge referred to Paras 6 and 7 of the plaint that according to learned trial Court spelt out facts that constituted cause of action. To arrive at the conclusion, the learned trial Judge referred to Paras 6 and 7 of the plaint that according to learned trial Court spelt out facts that constituted cause of action. 6. The appellant aggrieved with the trial Court Judgment and decree dated 06-03-1995, preferred an appeal registered as Civil First Appeal No. 21/1995. The appeal also met the same fate. The Appellate Court recorded agreement with the conclusions drawn by learned trial Court that cause of action had accrued when the appellant came to know of the fraud played on her. The argument advanced by learned counsel for the appellant before the Appellate Court that cause of action would accrue on the date marriage of Baghwan Dass was solemnized or on the date of maturity of FDR, did not find favour with the 1st Appellate Court. 7. The First Appellate Court Judgment in questioned in the Letters Patent Appeal on hand on a variety of grounds set out in the appeal. 8. We have gone through the appeal as well as record received from the First Appellate Court and the trial Court. We have heard learned counsel for the appellant. 9. The trial Court held the appellants’s suit time barred on the ground that cause of action to file the suit had arisen in March, 1985 and in terms of Article 119, Jammu and Kashmir Limitation Act, the suit was to be filed within six years from the date cause of action had arisen. The trial Court to arrive at the conclusion that cause of action had arisen in March, 1985, placed reliance on para 6 of the plaint. “After the joint FDR in the name of the plaintiff and defendant No. 1 was executed with defendant No. 2 for the amount of Rs. 50,000/-, the plaintiff was made to realize by defendant No. 1 that this was done only with a view to take away half of the amount deposited by way of FDR by defendant No. 1. The plaintiff also reluctantly submitted to her fate and believed honestly that she would be rehabilitated.” The trial Court on sifting and analysing the above averments concluded “this means she came to know that she has been defrauded”. The trial Court also relied on para 7 of the plaint. The plaintiff also reluctantly submitted to her fate and believed honestly that she would be rehabilitated.” The trial Court on sifting and analysing the above averments concluded “this means she came to know that she has been defrauded”. The trial Court also relied on para 7 of the plaint. It reads:-- “That the time passed by for another 4/5 months when defendant No. 1 and his family members started harassing the plaintiff and ultimately after another 2/3 months threw her out of the house. The plaintiff was left with no choice except to come to the house of her parents. The plaintiff thereafter approached defendant No. 1’s family on a number of occasions but she was not accepted by them. Till about nine months the plaintiff had put up with defendant No. 1’s family and thereafter she was thrown out of the house. Since then the plaintiff is putting up with her parents as a widow of late Shri Mohan Lal.” 10. When we give a closer look to Paras 6 and 7 of the plaint and read the two paras conjointly, it becomes abundantly clear that the conclusions drawn by learned trial Court and upheld by the First Appellate Court are erroneous and not deducible from any part of Paras 6 and 7, noticed in the trial Court Judgment. When the appellant states in Para 6 of the plaint that after the amount was deposited in joint FDR, she was made to realize by defendant No. 1, that she was made to withdraw the amount from her Saving Bank Account and deposit it in joint names of appellant and respondent No. 1, to take away half of the amount from her, the appellant does not identify a particular date or time when she was made to so realize, so as to assume that she gained knowledge about the fraud, practised on her at said point of time. Had the appellant meant to plead that she came to know about the fraud after the amount was deposited, she would not have proceeded to plead in the same para that ‘she reluctantly submitted to her fate and believed honestly that she would be rehabilitated.’ 11. Had the appellant meant to plead that she came to know about the fraud after the amount was deposited, she would not have proceeded to plead in the same para that ‘she reluctantly submitted to her fate and believed honestly that she would be rehabilitated.’ 11. The expression ‘she was made to realized’ is to be read in the context of the facts and events set out in the plaint before fraud was practised on her and thereafter till she found that whatever was projected to be genuine by respondent No. 1 was nothing but fraud, which was motivated by a dishonest intention. The averments made in Para 7, noticed by the trial Court make the matter further clear. The appellant has pleaded that she stayed with the family of respondent No. 1, for about nine months after unfortunate death of her husband and even after she was turned out by the respondent No. 1 from her marital house, she approached the respondent No. 1’s family on a number of times but in vain as she was not accepted by her in-laws. The cause of action therefore, cannot be said to have arisen when the appellant was turned out by respondent No. 1 from her marital house in March. 1985. The averments made in Para 6 of the plaint make it clear that the appellant had not lost hope when she was turned out from her marital house and it was yet to dawn on her that deposit of Rs. 50,000/- in FDR was a fraud. It is in the said background that she pleads to have visited respondent No. 1 mote than once with a request to accept her. 12. The cause of action would arise when the respondent No. 1 either by his words or by his conduct refused to act upon the promise that he had fraudulently made to persuade the appellant to withdraw the amount and deposit under joint FDR. The cause of action to bring the suit would accrue on the date; the respondent No. 1 would marry his son Baghwan Dass with some other lady or otherwise categorically inform the appellant that she was not to be accepted in the family, as such an event would make the appellant aware of the fraud practised on her. The cause of action to bring the suit would accrue on the date; the respondent No. 1 would marry his son Baghwan Dass with some other lady or otherwise categorically inform the appellant that she was not to be accepted in the family, as such an event would make the appellant aware of the fraud practised on her. This did not happen in March, 1985 but a few months thereafter, when the appellant after repeated visits to the house of respondent No. 1 was informed that she was not to be accepted in the family. 13. The view taken by the trial Court is not sustainable when it held that cause of action to bring the suit had arisen in March, 1985 and the suit was instituted after a period of 6 years and a few months in October, 1991 after the cause of action had arisen and therefore was time barred. The view taken by the First Appellate Court also cannot stand legal scrutiny. 14. For the reasons discussed, the appeal is allowed. The Judgment recorded by First Appellate Court is set aside. The Civil First Appeal against the trial Court Judgment and decree succeeds. The trial Court Judgment and decree are set aside and the suit decreed. The appellant/plaintiff is declared entitled to receive maturity value of FDR No. QDQ/913109 dated 8-3-1991 together with interest that has accrued thereon till date and respondent No. 2 ‘defendant No. 2’ in the suit is directed to pay Rs. 1,01,225 reflecting maturity value of FDR with interest that has accrued thereon to the appellant/plaintiff. 15. Decree sheet be drawn up. 16. Disposed of along with connected CMA(s). Appeal allowed.