SAFDAR SINGH Vs. AKBAR SHAH

JUDGEMENT

(1.) This appeal arises out of a suit brought by the plaintiff-appellant on the following allegations. The appellant was the owner of certain immovable property. On 17 June 1903, he created a mortgage on a part thereof. On 14 July 1903, he executed in favour of the respondents an unconditional deed of gift, reciting therein that the respondents would be liable for payment of the mortgage debt, and that he delivered possession to them in respect of the whole of the property in so far as it was capable of physical possession. After the execution, the respondents applied for mutation of names. The appellant contested this application but the Revenue Court held in favour of the other side and granted the application. The plaintiff then brought the present suit, stating that the defendants had assured him that they would redeem the mortgaged land and that they would pay him Rs. 84 a year out of the income of the estate and that on this condition, he executed a deed of gift but it was also agreed that until the mortgage was redeemed, he was to retain possession of the property, that the mortgage has not been redeemed, that he is still in possession of the property, that on the 22nd August 1904, the defendants failed to pay him Rs. 34 as agreed and that, therefore, a cause of action has accrued to him for the suit. The prayer is contained in para. 6 of the plaint. There the plaintiff prayed that it might be declared that the deed of gift of 14 July 1903 was, ineffectual and inoperative owing to material conditions and stipulations not having been fulfilled and that the defendants were not entitled to retain their names in the khewat on the basis thereof.

(2.) The Court of first instance dismissed the suit. The lower appellate Court, without going into the facts, has held that the suit is one falling under Art. 91 of the second Schedule of the Limitation Act and that it, was barred by time in that the suit had been brought more than three years from the execution of the deed. The plaintiff on appeal urges two pleas, first, that the suit is not barred by limitation in that it falls under Art. 120 and not Art. 91 and second, that if it falls under the latter article, then the cause of action arose on the 22nd August 1904 when the defendants failed to pay him a sum of Rs. 84.

(3.) In our opinion looking to the prayer continued in the plaint the suit is clearly one which falls under Section 39 of the Specific Relief Act. The plaintiffs asked the Court to adjudge the instrument void or voidable. He asks for no declaration of his title. If he had done so, his suit might possibly have been held to fall under Section 42 of the said Act. As it stands, the suit is clearly one which falls under Section 39 of the Act and, in our opinion, there can be no doubt that Art. 91 applies to it.