BRINDABAN MISRA ADHIKARY Vs. DHRUBA CHARAN ROY

JUDGEMENT

(1.) This appeal arises out of a suit for a declaration of title and confirmation of possession and in the alert native for recovery of possession. The plaintiff's case briefly was that he had purchased this land from defendant 3 by a kobala dated 16 September 1923 and after his purchase he had been receiving rent from defendant 4 who was actually in possession of the house and was his tenant. But since then defendant 1 had induced defendant 4 to pay rent to him. Defendant 1 who contested the suit contended that he had purchased the property from defendant 2 and that defendant 2 derived his title under a deed of gift of the property executed in his favour by defendant 3. The trial Court held that there had been a valid deed of gift by defendant 3 to defendant 2 and therefore as defendant 3 had at the time of the plaintiff's purchase no title to the property the plaintiff had acquired no title to the property by his purchase from her; so he dismissed the plaintiff's suit. The plaintiff appealed to the District Court. The learned Subordinate Judge who heard the appeal would seem to have come to the finding that defendant 3 never really executed a deed of gift in favour of defendant 2. He would seem to find that defendant 3 when she executed this document was under the impression that she was executing a power-of-attorney and that she did not realize that what she was executing was a deed of gift, He held that the document was taken by misrepresentation and undue influence and that defendant 2 had practically practised fraud, misrepresentation and undue influence on defendant 3 in getting the deed of gift executed whereas she intended to execute a general power-of-attorney. One would perhaps think that these findings were sufficient to dispose of the case even though perhaps the findings of undue influence, fraud and misrepresentation were somewhat contradictory. The learned Subordinate Judge, however, goes on further to find that as there was no acceptance of the gift the gift was void. This finding is perhaps unnecessary in view of what he has already found. He goes on further to find somewhat unnecessarily that the gift being a conditional one and the donee not having performed the condition when defendant 3 has subsequently sold the land to the plaintiff she has evidently revoked the gift.

(2.) Mr. Pal who appears for the appellant has first of all contended that the suit was barred by limitation. He contends that the period of limitation applicable to the present suit is as provided in Art. 91, Lim. Act. The plaintiff, he contends, cannot succeed in his suit unless he first of all sets aside the deed of gift and as the deed was executed more than three years before the institution of the suit. The suit was out of time. In support of his contention the learned vakil relies upon the case of Harihar Ojha V/s. Dasarathai Misra [1905] 33 Cal. 257 with special reference to the remark of Woodroffe, J., at pp. 265 and 266 where the learned Judge states as follows: There can be no doubt that when a person seeks to recover property against an instrument executed by himself or one under whom he claims he must first obtain the cancellation of the instrument, and that the three years rule enacted by Art. 91 applies to any suit brought by such person. The reason why a party seeking to recover property against his own instrument must show that it is voidable or void, as for instance for fraud, is that, as long as an instrument creating a later title is valid his former title cannot prevail.

(3.) Mr. Pal argues on the strength of this decision that the plaintiff's suit must fail. No doubt this decision lends considerable support to the contention of the learned vakil. As a matter of fact, however, the decision of that particular point which I have just referred to was not necessary, as far as can be seen, for the decision of that particular case ; and therefore to that extent the decision must be considered as obiter. On the other hand the case of Sanni Bibi V/s. Siddik Husain [1919] 23 C.W.N. 93 a decision directly in point, it has been held that when it is established that the plaintiff by defendant's misrepresentation was induced to execute a deed of sale believing the same to have been a deed of a different kind the transaction is void and not voidable only, and Art. 91, Lim. Act has no application to his suit to recover the property. It will be seen that that decision is directly in point, because in this case the plaintiff sues as the transferee of defendant 3 and stands in her shoes. Defendant 3 was induced by the misrepresentation of defendant 2 to execute a deed of a different kind to what she thought she was executing. It has been found that she thought that she was executing a power-of-at tourney when she was really executing a deed of gift. A further support to the case of the respondent would be found in the case Petherpermal Chetty v. Muniandy Servai [1908] 35 Cal. 551 a decision of the Privy Council. On p 659 of the report Lord Atkinson in delivering the judgment of the Judicial Committee remarks: As to the point raised on the Limitation Act 1877, their Lordships are of opinion that the conveyance of 11 June 1895, being an inoperative instrument, as in effect, it has been found to be, does not bar the plaintiff's right to recover possession of his land and that it is unnecessary for him to have it set aside as a preliminary to his obtaining the relief he claims.