ZAFAR ALAM Vs. MD. NIZAM AND OTHERS

JUDGEMENT

(1.) This second appeal is at the instance of defendant no. 1 arising out of a suit for declaration that the Mokarari Heyati deed dated 25.8.47 (Exhibit 3) executed by the father of the plaintiffs in favour of Bibi Sahidan and the sale deed executed by Bibi Sahidan dated 26.7.50 (Exhibit B) in favour of defendant no. 1 are void. The plaintiffs further prayed for declaration of title and recovery of possession of the said holding. Two substantial questions of law were formulated at the time of the admission of the appeal and they are : whether the provisions of the Evacuee Property Act bar the suit and whether the judgment of reversal is a proper judgment.

(2.) Mr. Balbhadra Prasad Singh appearing for the appellant gave up the substantial questions of law framed and wanted this Court to formulate another substantial question of law, that is, whether the suit is barred under Sec. 3 of the Limitation Act. Learned counsel contended that since it is a question of jurisdiction and this question having been gone into in the court below can be raised even though not formulated earlier. According to learned counsel, the court below completely misdirected itself in law in excluding the period 14.12.62 to 20.8.67 under Sec. 14 of the Limitation Act in computing the period of limitation for the institution of the suit, if the said period is not excluded, on the plaintiffs own case, the date of knowledge of the sale deed being 14.8.61 and the date of institution of the suit being 21.8.67, the suit would be barred in view of Sec. 59 of the Limitation Act which requires a suit to cancel or set aside an instrument to be instituted within three years of the knowledge of the existence of such an instrument. Mr. Asghar Hussain, on the other hand, contended that in view of the proviso to Sec. 100 (5) of the Code of Civil Procedure the Court should refrain from formulating the said question. According to learned counsel this is not a fit case where Court should exercise its discretion in formulating the said question as it is not a substantial question of law at all in view of the finding rendered by the court of appeal below.

(3.) Both the plaintiffs were minors. Plaintiff no. 1 attained majority in November 1950 and plaintiff no. 2 attained majority in December 1954. Hamiduddin and his second wife Sahidan executed a sale deed in favour of the plaintiffs during their minority on 22.2.1946 (Ext. 4) for a sum of Rs. 2500/ -. The plaintiffs are the sons from the daughter of the first wife of Hamiduddin. In spite of the sale deed, Bibi Sahidan was allowed life interest by the plaintiffs' father -Vide Mokarari Heyati deed dated 25.8.47 (Ext). According to the plaintiffs case, even though Sahidan was conferred with life interest under the aforesaid deed by the father of the plaintiffs, she executed a sale deed on 6.7.50 (Ext. B) for a sum of Rs. 3000/ - in favour of the defendants who are none else but her brother's sons. The consideration of Rs. 3000/ -, however, was released because of love and affection. The plaintiffs learnt about the existence of the sale deed (Ext. B) on 14.8.61 and the suit was instituted by them on 14.12.62 for cancellation of the said sale deed. The suit, however, was valued at Rs. 2,500/ -. This valuation, according to the plaintiffs, was given in view of the valuation set cut in the sale deed. The learned Munsif, held that the suit should be valued at Rs. 8,000/ - and, therefore, he returned the plaint on 20.8.67 and thereafter the present suit was instituted on 21.8.67.