SADANANDA MOHANTY Vs. URMILA DAS

JUDGEMENT

(1.) HEARD .

(2.) THE facts reveal that the opposite party No.1 as plaintiff filed a suit for partition of the properties, which were described in Schedule A, Band C of the plaint. She claimed 1/6th share in both A and C Schedule properties and 1/3rd share in Schedule B property. The petitioner is one of the defendants being defendant No.1, who is the brother of the plaintiff. He pleaded, inter alia, that their mother Bhabi, who is the widow of Krushna executed two registered gift deeds in his favour in respect of her share in schedule A and B properties. The said gift deeds were executed in the year 1981. The written statement was filed on 20.07.1998. Waiting for about six years, the plaintiff filed an amendment application on 18.09.2004 to amend the plaint by introducing the pleading that the petitioner defendant No.1 taking advantage of the old age, ailment, innocence and helplessness of their mother got the two gift deeds executed and registered by exercising undue influence, which are unacceptable in law. She further wanted to introduce by way of amendment the pleadings that the alleged two gift deeds are not genuine and were kept in a concealed manner, which were disclosed in the written statement for the first time. She also sought for amendment of the prayer in the suit by increasing the valuation and making a prayer to declare the two gift deeds executed in favour of the petitioner to be null and void.

(3.) THE moot question raised by Mr. Mohanty, learned counsel for the petitioner is that the amendment of the plaint as sought for, cannot be permitted on the ground of limitation. He vehemently urged that under Article 59 of the Limitation Act the gift deeds can be challenged only within three years from the date of knowledge of existence of the gift deeds and in the instant case even assuming that the opposite party plaintiff did not have knowledge of the said gift deeds earlier but after the same was disclosed in the written statement in the year 1998, the plaintiff cannot take the plea that she did not have the knowledge of the said gift deed and wait for more than the period prescribed to bring the amendment. In the case of Radhika Devi v. Bajrangi Singh and others, AIR 1996 SC 2358 a similar question arose under similar facts before the Apex Court where the Supreme Court accepting the contention of the respondent in the said appeal that the registration of the document is a notice to everyone claiming any right, title and interest therein; even otherwise, the respondents in the written statement filed in June 15, 1998 has specifically pleaded about the gift being made in their favour which was not challenged by the appellant till 1992 by which time even the suit for declaration within the limitation of three years from the date of knowledge had got time barred, dismissed the appeal filed against the order passed by the High Court rejecting the amendment. Even otherwise it is well settled in law that an amendment sought to introduce new facts in the pleadings and a new prayer basing on such new facts, which is time barred, cannot have retrospective effect and cannot be considered to be part of the pleading from the date when the plaint was filed.