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2015 DIGILAW 810 (CAL)

Dipti Paik v. Jogesh Chandra Roy

2015-09-23

SUBRATA TALUKDAR

body2015
ORDER : Subrata Talukdar, J. In this application under Article 227 of the Constitution of India the order dated 3rd June, 2013 passed by the Ld. 9th Senior Civil Court at Alipore in Title Suit No. 1091 of 2010 is under challenge. By the order impugned dated 3rd June, 2013 the Ld. 9th Civil Court was pleased to consider and reject an application of the plaintiff's present petitioners for amendment of the plaint in Title Suit No. 1091 of 2010. The Ld. Trial Court came to the finding that any claim to amendment is required to be assessed on the guidelines formulated by the Hon'ble Apex Court in Revajeetu Builders & Developers v. Narayana Swami & Sons reported in 2009 (1) SCC 84. 2. After outlining the six guiding principles to be taken note of while considering a claim to amendment as laid down In Re: Revajeetu Builders (supra), the Ld. 9th Civil Court noticed that the plaintiffs have challenged three documents namely, the Deed of Trust executed in the year 1950, the Deed of Gift in the year 1957 and the Deed of Settlement in the year 1958 to be forged and manufactured documents. 3. The Ld. 9th Civil Court thereafter held that these documents are ancient documents being nearly 50 years of age and neither the possession nor the registration of the documents in accordance with law by the predecessors in interest of the parties is denied. The late Nani Gopal Roy was the son of late Bhusan Chandra Roy, the latter being also the common father of both Nani Gopal Roy and some of the present defendants as well as their common predecessor-in-interest. Furthermore, the alleged Deed of Trust of 1950 was challenged in an earlier suit being Title Suit No. 95 of 1970 filed by Nani Gopal Roy (since deceased) as plaintiff. However, in spite of such challenge the earlier suit was dismissed for non-prosecution on the prayer of the plaintiff. 4. In the further view of the Ld. 9th Civil Court with the passage of time a valuable legal right has accrued in favour of the respondents in respect of the documents in issue, particularly the Deed of Trust dated 10th February, 1950. Such legal right cannot be allowed to be snatched away by ignoring the prescription of limitation as applicable to the facts of this case. Accordingly, the Ld. Such legal right cannot be allowed to be snatched away by ignoring the prescription of limitation as applicable to the facts of this case. Accordingly, the Ld. 9th Civil Court rejected the prayer for amendment. 5. Sri Kashinath De, Ld. Counsel appearing for the plaintiffs-present petitioners submits that the amendment is crucial to the fate of the present lis being Title Suit No. 1091 of 2010 in as much as the shares of the present plaintiffs and the defendants depend on the Deed of Trust dated 10th February, 1950. Sri De forcefully argues that in order to determine the shares issues have to be framed qua the said Deeds. 6. Further, according to the Ld. Counsel for the petitioners, the presumption with regard to old documents as attracted under Section 90 of the Evidence Act and noticed by the ld. 9th Civil Court is a rebuttable presumption and the ld. Trial court fell into error by overwhelmingly relying on the authenticity attached to the age of the documents. Sri De further points out that the limitation as noticed by the ld. 9th Civil Court is a mixed question of law and fact. The question of limitation begs an issue which is required to be framed. Once the issue with regard to limitation is framed the amendment must be allowed. 7. With regard to withdrawal of the earlier suit on the ground of non-prosecution, Sri De submits that whether subsequent to such withdrawal a fresh suit can be filed by the successors-in-interest of the first plaintiff is also an issue which requires to be framed. According to Sri De, the schedule of the amendment contains facts which touch the validity of the Deeds in issue. Since it has been stated in the amendment application that the opinion of handwriting experts have been obtained and there is an apprehension that the signature of their common predecessor-in-interest, the Late Bhusan Chandra Roy is not genuine, the plaintiffs-present petitioners ought to be allowed to assail the same by way of the present amendment. 8. Distinguishing the reliance placed by the Ld. 9th Civil Court on In Re: Revajeetu Builders (supra), Sri De submits that the guidelines at paragraph 63 thereof are only illustrative and, not exhaustive. Sri De strongly relies upon a decision of this Hon'ble Court reported in 2011 (1) CHN (Cal) 515 in the matter of Namita Roy & Ors. 8. Distinguishing the reliance placed by the Ld. 9th Civil Court on In Re: Revajeetu Builders (supra), Sri De submits that the guidelines at paragraph 63 thereof are only illustrative and, not exhaustive. Sri De strongly relies upon a decision of this Hon'ble Court reported in 2011 (1) CHN (Cal) 515 in the matter of Namita Roy & Ors. v. Bengal Greenfield Housing Development Co. Ltd. and argues that once knowledge of fraud allegedly committed by the defendants qua the signature of their common predecessors-in-interest to the Deeds in issue has come to the knowledge of the plaintiffs-present petitioners, the valuable right to challenge such Deeds by way of an amendment should not be allowed to be destroyed. Relying on Paragraphs 30, 31, 33 and 34 of In Re: Namita Roy (supra) Sri De submits that the amendment was prayed for within the period of limitation prescribed by law and such amendment was admittedly bona fide. 9. Sri De also relies upon a judgment of the Hon'ble Apex Court reported in 2001 (1) SCC 472 : 2001 (2) ICC (S.C.) 14 in the matter of Ragu Thilak D. John v. S. Rayappan to make the point that the plea of limitation can be made the subject matter of an issue in the trial after allowing the amendment as prayed for. 10. Therefore, Sri De submits that the order impugned of the Ld. 9th Civil Court disallowing the amendment deserves to be set aside. 11. Arguing for the present opposite parties (for short OPs)-the defendants in Title Suit No. 1091 of 2010, Sri Shyama Prasanna Roy Chowdhury, Ld. Senior Counsel, submits that this is the second amendment claimed by the plaintiffs-present petitioners in the suit. Drawing the attention of this Court to the amendment as prayed for now Sri Roy Chowdhury submits that the amended plaint is sought to be reamended by another amendment. The original plaint was filed in the year 2010 and the present amendment is being invoked after two years in 2012. 12. According to Sri Roy Chowdhury, knowledge of the Deeds in issue has been pleaded by the plaintiffs-present petitioners on the basis of the written objection filed on behalf of the present OPs to the injunction application in the suit. 12. According to Sri Roy Chowdhury, knowledge of the Deeds in issue has been pleaded by the plaintiffs-present petitioners on the basis of the written objection filed on behalf of the present OPs to the injunction application in the suit. Alleging that the amended plaint is sought to be re-amended again by the second amendment Sri Roy Chowdhury submits that the thrust of the amendment is forgery. 13. Also drawing the attention of this Court to the pleadings in the present suit Sri Roy Chowdhury submits that there is no whisper either in the original plaint or in the amended plaint of the filing of the earlier suit in 1970. Expressing surprise that a document as ancient as of the year 1950 can be alleged to be forged or concocted in a suit of the year 2010, Sri Roy Chowdhury submits that when amendment was challenged by the defendants-present OPs, at this stage the pendency of the first suit came to light. Sri Roy Chowdhury points out that it may not be material to stress on the point whether the earlier suit was dismissed or withdrawn. It is definitely material, according to Ld. Senior Counsel, that the predecessor-in-interest of the plaintiffs-present petitioners being the plaintiff in the first suit had the knowledge of the documents being the Deeds in issue. In spite of having such knowledge the stand taken by the plaintiff in the first suit in respect of the said Deeds was that such Deeds were the outcome of undue influence or coercion. Now, the plaintiffs-present petitioners have created a new story that the signature of their common predecessor-in-interest is forged. 14. Therefore, Sri Roy Chowdhury submits that the issue of limitation becomes vital. The limitation, according to Ld. Senior Counsel, will be governed by Article 59 of the Limitation Act, 1963 in case of void documents and the right to sue shall accrue from the date of knowledge. 15. The stand taken by the plaintiffs-present petitioners with regard to lack of knowledge of the documents in issue being the said Deeds is a pretence when viewed in the context of their definite knowledge of the said Deeds as projected in the pleadings of the earlier suit. 16. 15. The stand taken by the plaintiffs-present petitioners with regard to lack of knowledge of the documents in issue being the said Deeds is a pretence when viewed in the context of their definite knowledge of the said Deeds as projected in the pleadings of the earlier suit. 16. Reiterating that the earlier suit being Title Suit No. 95 of 1970 contained identical prayers for partition, Sri Roy Chowdhury submits that the details regarding the earlier suit were completely suppressed in the present suit. Assuming but not admitting that the Deed of Trust dated 10th February, 1950 is void, it is essential to answer the question whether in spite of having definite knowledge of the Deed in 1970 can such Deed be allowed to be challenged in 2012, that is after a lapse of 42 years on a pretence of claiming knowledge subsequent to filing pleadings in the present suit by the defendants-present OPs. 17. In support of his submissions Sri Roy Chowdhury strongly relies upon a decision of an Hon'ble Division Bench of this Hon'ble Court reported in 2008 (3) CHN 639 in the matter of Hamida Begum alias Alo Bibi v. Umran Bibi & Ors.. The Hon'ble Division Bench, inter alia, held that it is the duty of the Court to see whether on the basis of the materials on record the suit is barred by limitation notwithstanding the fact whether limitation is pleaded or not. The time to apply to the competent Court or forum to cancel an instrument begins to run when the facts entitling the plaintiffs to have the instrument cancelled or set aside "first become known to them" (emphasis supplied). According to Article 59 of the Limitation Act the period is three years. Therefore, the Hon'ble Division Bench further held that even a void ab initio transaction can only be avoided by filing a suit within the period of limitation. 18. Sri Roy Chowdhury also relies upon a judgment of the Hon'ble Apex Court reported in AIR 1996 SC 2358 : 1996 (1) ICC (S.C.) 803 in the matter of Radhika Devi v. Bajrangi Singh & Ors. which relies on an earlier decision of the Hon'ble Apex Court reported in AIR 1964 SC 11 . 18. Sri Roy Chowdhury also relies upon a judgment of the Hon'ble Apex Court reported in AIR 1996 SC 2358 : 1996 (1) ICC (S.C.) 803 in the matter of Radhika Devi v. Bajrangi Singh & Ors. which relies on an earlier decision of the Hon'ble Apex Court reported in AIR 1964 SC 11 . The Hon'ble Apex Court In Re: Radhika Devi (supra), inter alia, held that an amendment allowed beyond the period of limitation as prescribed by law seeking a declaration that a Deed of Gift was obtained fraudulently would defeat the right accrued in favour of the defendants created by the bar of limitation. 19. Sri Roy Chowdhury also relies upon a judgment of the Hon'ble Division Bench of this Court reported in AIR 1977 Cal 189 in the matter of Kanailal Das & Anr. v. Jiban Kanai Das & Anr. on the point that the right to sue under Article 58 of the Limitation Act arises when the plaintiffs import knowledge of certain facts. Therefore, in the view of the Hon'ble Division Bench, any amendment beyond limitation should not be allowed to defeat a legal right accrued in favour of the defendants except when such consideration is outweighed by the special circumstances of the case. 20. Having heard the parties and considering the materials on record this Court is required to notice the substance of the pleadings in the earlier suit being Title Suit No. 95 of 1970. The relevant pleadings are at paragraphs 3, 4, 5, 6, 7 and 8 and the same are set out for a better understanding of the facts in issue:- "3. Some times after the death of Bhusan Chandra Roy Sardar in May 1968, the plaintiff demanded partition of the suit properties left by his deceased father, when the defendant no. 2 disclosed for the 1st time that their father Bhusan Chandra Roy Sardar since deceased had executed a deed of trust on 10th February, 1950 in respect of the Schedule A to F properties whereby the plaintiff has been rived of his share in those properties and refused to make partition thereof. 4. 2 disclosed for the 1st time that their father Bhusan Chandra Roy Sardar since deceased had executed a deed of trust on 10th February, 1950 in respect of the Schedule A to F properties whereby the plaintiff has been rived of his share in those properties and refused to make partition thereof. 4. Thereafter the plaintiff took a certified copy of the said deed of trust which the plaintiff submits is illegal and void document, and though alleged to have executed in 1950 there was no whisper about such document so long and the said Trust deed was never acted upon. 5. The said Trust dated 10.2.50 is void, illegal (page) inoperative and invalid in as such as it did not make any interest in favour of the defendants. Under the said deed of Trust Bhusan Chandra Roy Sardar put a term that the trust would ensure only upto a certain time and would come to an end on the attain attainment of majority of his last son or on his death whichever is later and his last son Janaki alias Jahar Lal having already attained majority before the death of Bhusan Chandra Roy already Sardar the alleged trust deed has come to an end of 23.5.68 where after there was no existence of the alleged trust to the eye of law in any view of the matter and that the so called trust deed when read as a whole is nothing but a testamentary documents and the same could not and did not create any interest in respect of the properties covered by the so-called trust deed in favour of any person purported to have been benefited in terms thereof. As a matter of fact the properties mentioned in the alleged trust deed were not demised thereunder as required under the law and as such the said deed (page begins) is of no effect and natural succession followed in regard to the properties left by the said Bhusan Chandra Roy Sarkar who died intestate on 23.5.68. 6. The so-called trust deed has never been acted upon by the author of the trust as he all along possessed the suit properties covered under the alleged deed of trust and treated the same as absolute owner thereof in his personal capacity till his death. 7. 6. The so-called trust deed has never been acted upon by the author of the trust as he all along possessed the suit properties covered under the alleged deed of trust and treated the same as absolute owner thereof in his personal capacity till his death. 7. The so-called trust deed was not executed by the said author of the trust with his own free will. In his old age he came under the absolute control and influence of the 2nd wife the defendant no.1 and her eldest son the defendant no.2 in particular who directed and controlled all his actions and the alleged trust deed was brought into existence by exercise of undue influence, pressure andduress upon Bhusan Chandra Roy Sardar to deprive the plaintiff of his legitimate share in the paternal properties as also the properties which the (page begins) the plaintiff also inherited from his material grandfather and remained under the management and control of the plaintiff's father. 8. By the alleged deed of trust dated 10.2.50 the plaintiff a right title and interest in the suit properties described in the schedule A to F has not been affected in any way and on the death of his father the plaintiff and the defendants jointly inherited all the properties left by him and have been in joint possession thereof." 21. On the basis of the above noted pleadings, this Court is required to come to the obvious conclusion that the Deed of Trust dated 10th February, 1950 in respect of the properties from which the then plaintiff in Title Suit No. 95 of 1970 claims to have been deprived was very much within the knowledge of the then plaintiff. The imputation of such knowledge therefore cannot be also denied qua the plaintiffs-present petitioners - successors-in-interest to the then plaintiff of Title Suit No. 95 of 1970. 22. It is also an inescapable conclusion that the thrust of the plaint in Title Suit No. 95 of 1970 was not the alleged forgery or concoction of the said Deed of Trust dated 10th February, 1950 but, that the said Deed of Trust was executed under undue influence. 23. Therefore, this Court cannot help but notice the inconsistent stand of the first plaintiff and the present derivative plaintiffs qua the said Deed of Trust dated 10th February, 1950. 24. 23. Therefore, this Court cannot help but notice the inconsistent stand of the first plaintiff and the present derivative plaintiffs qua the said Deed of Trust dated 10th February, 1950. 24. At the same time this Court notices that in spite of having complete knowledge of the said Deed of Trust dated 10th February, 1950, the Title Suit No. 95 of 1970 was allowed to be dismissed for non-prosecution in presence of the defendants by order dated 29th January, 1991. 25. This Court is also required to notice that after a period of 19 years thereafter the present petitioners have filed a fresh suit for partition and after a further period of two years have prayed for the present amendment. In the opinion of this Court the right accrued in favour of the defendants-present OPs on the ground of limitation as clearly spelt out by the Hon'ble apex Court in AIR 1996 SC 2358 (supra) and the Hon'ble Division Bench of this Court in 2008 (3) CHN 639 (supra) applies with full force to the facts of the present case. 26. This Court echoes the language of the Hon'ble Division Bench in 2008 (3) CHN 639 to the effect that limitation will begin to run "when the facts entitling the plaintiff to cancel or set aside the instrument first become known to him". Therefore, in the considered view of this Court the order impugned dated 3rd June, 2013 suffers from no infirmity. The application under Article 227 of the Constitution of India must therefore fail. CO 3450 of 2013 stands accordingly dismissed. There will be, however, no order as to costs.