PERAM CHENNAMMA Vs. PERAM MANGAMMA

JUDGEMENT

(1.) This is an appeal from the learned Additional Subordinate Judge of Guntur and raises the question of limitation. The claim is for possession of property which is claimed by the plaintiff as the widow of the deceased proprietor of the property against various persons whose substantial defence is that they are entitled under the terms of a will. The will has not been probated, but there have been two proceedings involving in some way or another, the will. Of these proceedings we need not deal with the mutation proceedings because counsel for the respondents admits that in view of Achut Raysappa V/s. Gopal Subbaya 1915 Bom. 136 he cannot rely upon the mutation point. There remains the other proceeding which was for issue of a succession certificate. There defendants 1 and 2 applied and the plaintiff and defendant 7 were impleaded as counter claimants, and in the result defendants 1 and 2 were granted succession certificate. The order granting the succession certificate was dated 5 November 1920 and the succession certificate was issued on 29 November 1920 and the date of the application was 24 April 1920. And it is said that those proceedings were an attempt to enforce this will against the plaintiff and as the plaintiff did not within three years from the date of that attempt take proceedings to declare the instrument a forgery, she is now precluded from so proceeding by Art. 93, Lim. Act, and that in this case although she is not proceeding for the declaration of the will as a forgery she ought to have so proceeded because she cannot claim as though there were not a will since she knows of the existence of the will and has not set aside the will. On the other hand, it is said that the scope and purpose of the Limitation Act is to impose a time limit upon the person seeking a remedy: it belongs to the adjective or procedural law and not to the substantive law and that if a plaintiff can get what that party seeks without making a claim of a particular nature but a claim of another nature, the only article that you should look at in determining whether the suit is barred is the article relating to the claim actually made and not to some other claim which the plaintiff might also have made.

(2.) That leads to this further point. Here it is said in effect that this plaintiff had only to allege and prove the following broad facts in order to obtain the relief she sought - the fact that the deceased died leaving a certain property, the fact that she is his widow - and on those simple allegations she is entitled to her rights as a widow to that property. It is then for the defendants to allege facts which establish that granted all those facts still they are entitled to the property. That they do by alleging this will. That will like any other allegation in the defence has got to be proved and if they fail to prove it, they lose the case. For the respondents it is said in effect that the mere allegation of the will in such a suit is sufficient to enable the defendants to succeed without the will being proved or any attempt being made to prove the will because the plaintiff knew of the will, knew that an attempt had been made against her in the succession certificate proceedings to enforce the will against her and she having let three years go by without setting aside or attempting to set aside the will as a forgery the mere allegation of the will defeats her. The question is which of these two points of view is correct. A considerable number of cases have been cited to us which it is necessary shortly to refer to. The case that is nearest to this case is Venkamma V/s. Narasimham 1918 Mad. 1198. There the headnote is as follows. There is no obligation on a party, who challenges as a forgery a document purporting to confer rights, to set it aside by a suit. He is entitled to treat it as waste paper and it cannot be regarded as binding on anyone even before it is set aside. The joinder of an unnecessary prayer in a claim which is barred with other substantial reliefs not barred cannot entail the dismissal of the suit. The former may be struck out and the claim adjudicated with regard to the substantial relief.

(3.) In that case the plaintiff was the reversioner of a Hindu widow. The suit was for a declaration that an alienation made by the widow was void beyond, her life-time. The widow during her lifetime had sued the plaintiff for a partition and had produced a will under which she claimed as the heiress of her husband. The plaintiff challenged that it was a forgery but partition was ordered without any adjudication on the genuineness of the will. The plaintiff in this suit claimed a declaration that the will was a forged document. That portion was barred under Art. 93 admittedly. The trial Court dismissed the whole suit as barred. It was held by this High Court on appeal that the plaintiff need not have added the prayer to declare the will a forgery, that the relief claimed in respect of the will was unnecessary and did not affect the plaintiff's right to the other substantial reliefs into which the Court was bound to enquire. Now there as here, it will be observed that if the will was good, it stood in the way of the reversionary rights. The suit was for a declaration that an alienation that would have been perfectly good if the will had been a valid will was bad. A claim was made in that suit to have the will declared void as being a forgery. The only difference that we can see between that case and this is that in this case that unnecessary prayer which was there struck out has not been made and of course therefore it is not necessary to strike it out. In this case the plaintiff claims quite apart from the will and it is for the defence to prove the will. If they prove it, then on the merits the plaintiff fails. If they fail to prove it, then the plaintiff, so far as that defence is concerned, succeeds. There is no obligation whatsoever upon the plaintiff to join to her present claim another claim for a relief which she does not ask for and does not need.