KIRITY BHUSHAN PAUL Vs. MADHU SUDAN PAUL

JUDGEMENT

(1.) The petitioners, defendant nos.6 and 7 in Title Suit No.3 of 2003, are aggrieved of order dated 09.09.2011 by which amendment in the plaint has been allowed.

(2.) Basis for instituting Title Suit No.3 of 2003 is section 22 of the Hindu Succession Act, 1956. It provides that if an interest in any immovable property of an intestate, or in any business carried by him or her, whether solely or in conjunction with others, devolve upon two or more class-I heirs and any one of such heirs proposes to transfer his or her interest in the property or business, the other heirs shall have a preferential right to acquire such interest which is proposed to be transferred. Plaintiff and defendant nos. 1 and 5 are agnets; they are claiming through common ancestor-Haribole Paul. After their impleadment in the suit it was contested by defendant nos. 67 by filing a written statement pleading that by a registered sale-deed dated 04.08.2005 the Schedule-B property has been transferred in their favour. The petitioners who are defendant nos.6 and 7 in the suit are aggrieved by the order by which the plaintiff has been permitted to challenge validity of sale-deed dated 04.08.2005.

(3.) At the outset, it is pertinent to record that in view of the language employed under section 22 of the Hindu Succession Act, 1956 and the fact that the subsequent purchasers have been impleaded as defendants in Title Suit No.3 of 2003 if the plaintiffs are not permitted to challenge validity of the sale-deed dated 04.08.2005; execution of the sale-deed was disclosed in the written statement, the relief sought in the suit would be rendered infructuous. Contention based on Art. 59 of the Limitation Act, 1963, that after expiry of 3 years cancellation of sale-deed cannot sought and thus a relief which is barred by limitation cannot be incorporated in the plaint through amendment, is untenable for the reason that limitation of three years for cancelling or setting-aside instrument or decree is attracted from the date when the fact "entitling the plaintiff" to have the instrument or decree cancelled becomes known to him. In paragraph nos.13 and 18 of the written statement, on which the learned counsel for the respondents has placed reliance, the defendant nos.6 and 7 have pleaded that they are not strangers to the family of the plaintiff and defendant nos.1 to 5. This is not such a fact which would give rise to cause of action for the plaintiff to seek cancellation of the sale-deed. In the above facts, Art. 59 of the Limitation Act, 1963 is not applicable in this case. Limitation of 3 years under Art. 59, thus, would not operate as a bar to the relief seeking cancellation of the sale-deed dated 04.08.2005.