KUNDALAYYA Vs. SIDDALINGAMMA

JUDGEMENT

(1.) In this Second Appeal the questions of limitation and maintainability of the suit fall for determination. The plaintiff-respondent filed a suit in the Munsif's Court at Narayanpet for declaring the Gift Deed, dated 17th October, 1946, executed by her husband Shivlingayya in favour of the defendant-appellant, inoperative and ineffective against her and for cancellation of a decree, dated and November, 1946. The suit was dismissed and in appeal the District Judge, Mahbubnagar, reversed by the judgment and decreed her suit.

(2.) A few facts may now be stated. Shivlingappa and Erayya were two brothers. Shivlingappa's wife Shiddalingamma is the respondent-plaintiff. Erayya died during the lifetime of Shivlingappa leaving his widow Sharnamma, defendant No. 3. They had one daughter Erainma, defendant No. 2 and her husband is Kundalayya, defendant No. 1. Shivlingappa and his brother were members of a joint family having certain lands, the patta of which was in the name of Shivlingappa, he being the elder of the two. The suit lands were mortgaged to one Venkoba Rao Anthu for Rs. 6,200 and the mortgagee was in possession of the said lands. It is alleged that after the death of Erayya and after the marriage of Eramma to defendant No. 1, defendants Nos. 3 and 1 got Shivlingappa to execute a registered gift- deed in the name of the 1st defendant on 17th October, 1946, of which the defendant No. 3 was also an executant, transferring the entire landed property consisting of 20 fields situate in Parapalla. The gift-deed recited that as Shivlingappa was issueless and as his niece Eramma's husband, Kundalayya, was the illatom son- in-law of the family, he and his brother's wife alienated the entire family property in the name of Kundalayya through the said gift-deed and that the said Kundalayya was put in possession of the entire property. Immediately after the execution of this document, the 1st defendant filed a suit on 30th October, 1946, for a declaration of the patta in his favour in which a consent decree was passed on and November, 1946. Shivlingappa thereafter filed a suit on 7th Bahman, I358-F., corresponding to 11th December, 1947, against the 1st defendant for cancellation of the gift-deed alleging fraud. But no sooner was this suit filed, the 1st defendant hid himself and saw to it that the suit summons were not served on him. This suit was ultimately dismissed for default on 17th Sherewar 1358-F. (8th July, 1948). Shivlingappa died on 10-2-1358-F (10th November, 1948). This present suit has been filed by his widow on 10th September, 1951, on the ground that she was unaware of the gift-deed executed by her husband ; that she had without his knowledge paid the mortgage money and redeemed the mortgages and is now in possession of the suit lands ; that she only became aware of the gift-deed on 3rd Meher, 1358-F. when notice was received by her as an L.R. in execution proceedings of the declaratory decree obtained by the 1st defendant and hence she filed this suit. The District Judge held that Articles 91 and 92 do not apply to this suit, because she was not a party to the gift-deed and that the only article applicable is Article 120 and since Siddalingamma became aware of the fraud at the time of the notice, the suit was within time. He further held that the 1st defendant had committed fraud. Learned advocate for the appellant contends inter alia (a) that once limitation had begun to run in the lifetime of Shivlingappa when he discovered fraud and filed a suit it cannot stop on his death, so that if his heirs had not filed a suit within the time prescribed, the suit will be time-barred ; (b) that no fresh suit can be filed, the remedy being only by restoration under Order 9, rule 9; and (c) if it is assumed that the suit was dismissed after the death of Shivlingappa, as was assumed by the District Judge, then also no suit can be filed, the remedy being to set aside the abatement under Order 22, rule 9.

(3.) Taking the last two points first, it would appear from the facts narrated and the dates given that the suit was dismissed in the lifetime of Shivlingappa so that the question of abatement does not arise. The argument based on Order 9, rule 9, also, in my view, has no force. Order 9, rule 9, is as follows :- 1. "Where a suit is wholly or partly dismissed under rule 8, the plaintiff shall be precluded from bringing a fresh suit in respect of the same cause of action. But he may apply for an order to set the dismissal aside, and if he satisfies the Court that there was sufficient cause for his non-appearance when the suit was called on for hearing, the Court shall make an order setting aside the dismissal upon such terms as to costs or otherwise as it thinks fit, and shall appoint a day for proceeding with the suit. 2. No order shall be made under this rule unless notice of the application has been served on the opposite party".