AJAF KHATOON Vs. ABU BAKKAR SIDDIQUE

JUDGEMENT

(1.) This appeal has been filed by the plaintiff. The plaintiff brought a suit being title suit No. 5 of 1970 and it was transferred from Court to Court and ultimately it came up before the Munsiff No. 3 Guwahati wherein it was renumbered as Title Suit No. 384/83 and the learned Munsiff by judgment dated 3.2.39 decreed the suit. As against that there was an appeal being title appeal No. 6/89 before the learned Assistant District Judge No. 1 at Guwahati and the learned Assistant District Judge by Judgment dated 27/11/1995 allowed the appeal and dismissed the suit. The lower appellate Court allowed the appeal and dismissed the suit on the ground of limitation. The brief facts are as follows: The aforesaid suit was filed by the present appellants against the respondent: Md. Abu Bakkar Siddique for declaration that the transfer of the suit property described in Schedule 'A' of the plaint by way of gift in favour of the respondent Md. Abu Bakkar Siddique by the predecessor- in-interest of the respondents Late Babul Seikh is null and void and not binding on them. The case set up by the plaintiffs inter-alia is that late Babul Seikh, Late Sona Mia and Sri Motiur Rahman were three sons of Late Lakhai Haji inherited the suit property along with the other properties of their father. Initially the three brothers lived together as joint family. Later, appellant No. 1 (wife of late Babul Seikh) came out of the joint mess by constructing separate houses in the 'AI' schedule land with the help of her own brother. Babul Seikh however stayed back in their old common residence along with his elder brother and younger brother even after departure of appellant No. 1 from the common mess. The houses of holding No. 38,40 and 40 A on Schedule-A land were constructed by appellant No. 1 and the house situated in holding No. 39 of the said plot of land was constructed by appellant No. 5. After separation of Babul Seikh with his brothers the Schedule-A land fell in the share of Babul Seikh. After death of Babul Seikh, the land was inherited by the plaintiffs and the defendant jointly as the same was not partitioned among the parties. Several mutation cases were filed by both the parties claiming their right over the said land and ultimately the defendant managed to obtain an order in his favour by producing a deed of gift alleged to have been executed by his father on 28.10.61. The plaintiffs have therefore instituted the instant suit for a declaration that the gift deed alleged to have been made by late Babul Seikh in favour of the defendant is null and void as prior to his death on 21.6.62 Babul Seikh was imbecile for about 6/8 years due to his extreme old age and therefore he was incapable of executing the alleged gift in favour of the defendant. They have also contended that as per Muslim law, they are entitled to inherit their respective shares of the disputed land along with the defendant and the land in question cannot simply be gifted away to the defendant by Babul Seikh to the entire exclusion of his heirs. The defendant contested the suit by filing written statement. Their case inter-alia is that the defendants father Babul Seikh was quite normal when the suit property was gifted to the defendant by him; that after execution of the gift deed the delivery of possession in respect of the gifted property was also performed by the donor as required under Mohomedan Law; that the plaintiff knew about his gift and plaintiff No. 1 was herself present at the time of gift and gave consent to it, that the suit is not properly valued that the suit is barred by limitation etc. On the basis of the pleadings of the parties the issues were framed by the trial Court.

(2.) Issue No. 3. was with regard to limitation and the lower appellate Court found that this suit land was mutated in the year 1966 in the name of defendant No. 1. Registered deed of gift was executed in the year 1961 and against the order of grant of mutation an appeal being revenue appeal No. 64 of 1967 was filed by the plaintiff in the Court of ADC Kamrup. The Exparte mutation order dated 31.10.66 was set aside and the matter was sent back for retrial by the order of the ADC dated 19.6.67. The SDC again granted mutation in favour of the defendant and thereafter only in the year 1970 the suit was filed by the plaintiff for declaration of recovery of possession as well as declaration of title and to cancel of the deed of gift executed in the year 1961. It is the finding of the lower appellate Court that plaintiff No. 5 admitted that even though they came to know about the existence of the purported gift deed in favour of the defendant in the year 1966 the suit was filed on 7.1.70 that is after more than 3 years from the date of knowledge. The prayer for cancellation of the deed of gift will be governed by Article 59 of the Limitation Act, though there was no specific prayer for cancellation of the deed of gift, there was a prayer that the transfer of the suit land by the deed of gift is null and void. If the deed of gift cannot be cancelled the transfer cannot be held to be null and void. The Article 59 of the Limitation Act provides that limitation will start to run when the facts entitling the plaintiff to have the instrument or decree cancelled or set aside or the contract rescinded, first became known to him.

(3.) When the plaintiff seeks to establish his title in the property and cannot establish that because of obstacle by such decree or deed to which he is a party the plaintiff has to cancel or set aside the decree or instrument, even if he filed a suit for declaration of decree or instrument as null and void and if it is a suit for cancellation of such a deed this article will apply. No doubt if an instrument is void and nullity in the eye of law the question of cancellation does not arise, because the void instrument being nullity cannot create any right on a person. That is not the situation in the case in hand. That being the position this finding on limitation arrived at by the appellate Court is basically correct. There is no merit in this second appeal. No substantial questions of law is involved. Accordingly the appeal shall stand dismissed.