Karnataka High CourtAmbammal vs J. Muddiah And Ors. on 8 November, 1951Equivalent citations: AIR1952KANT65, AIR1952MYS65, AIR 1952 MYSORE 65JUDGMENT


 

 Venkataramaiya, J.1. The property in dispute in both these appeals is a house situated in Ulsoor, Civil Station, Bangalore, which admittedly belonged to one Somappa. Alleging that he sold the house to Yellappa under a sale-deed, dated 8-12-1941 and that the latter sold it by means of a registered sale-deed, dated 29-10-1942 to Ambamma, she sued her vendor, the original owner and another Muddiah who was in possession of the property for recovery of possession of the same with mesne profits and damages. The other suit was filed by Somappa against Yellappa and Ambamma for cancellation of the sale-deed executed in favour" of the former on the ground that it was nominal. The house is said to be in possession of Somappa himself and Ambamma's right to the house by virtue of the subsequent sale is denied. The main points in controversy in the two suits were the genuineness of the transaction of sale by Somappa, 'bona fides' of the purchase by Ambamma and the bar of limitation to the suit by Somappa. Though the suits were tried separately the evidence recorded in both was considered for disposal of the two suits. The findings arrived at being in favour of Somappa, his suit for cancellation of the sale was decreed and that of Ambamma was dismissed. The decisions are confirmed in appeal and so Ambamma has preferred these Second Appeals.2. When the appeals were first heard with a view to find out whether the Respondents need be notified at all as there are concurrent findings on which decisions of the two Courts against the Appellant are based, what was mainly urged was that the contention about the bar of limitation to the suit of Sumappa has not been correctly considered, and that the procedure adopted in importing the evidence of one case into another is an irregularity which has prejudiced the Appellant. At the final hearing of the two appeals Sri Ramachandra Rao, learned Counsel for Appellant raised further objection to the decisions of the Courts below by stating that there is a wrong assumption of the sale being attacked as fraudulent though there are no particulars in support of it. When the points needing consideration are specified at the time of admission the Appellant must, according to 43 Mys H C R 436, confine his arguments at the hearing to those points only and cannot traverse others which may arise in the appeal A different view is expressed by a Full Bench of the Madras High Court in 'ESWABIAH v. RAMES-WARAYYA', AIR (27) 1940 Mad 433 (FB), to the effect that the appeal cannot be admitted in part that it has to be either admitted or dismissed as a whole, until the question is reconsidered and the view of the Madras High Court is adopted '43 Mys H C R 433'. Which is a decision of a Division Bench has to be adhered to. The only points therefore which need examination are the question of limitation and the effect of the evidence in each case being taken into account for the purpose of the decision. Since the witnesses were examined in both cases and one of the defendants in one suit was not a party in the other case the ordinary rule of dealing with each case independently of the other could have been followed and that would have spared the Court the trouble of picking up evidence of each witness from each case to be read together. But the Appellant has no reason to complain since this course was acquiesced in and there is nothing to show that she is in any way prejudiced.3. It only remains to see whether the findings of the two Courts concerning the question, of limitation are correct. The article applicable to the case according to Sri Ramachandra Rao isArticle 91which prescribes for a suit to cancel or set aside an instrument not otherwise provided for, a period of 3 years from the time the facts entitling the plaintiff to have the instrument cancelled or set aside become known to him.'SOMESHWAR DUTT v. TRIBHAWAN DUTT, AIR (21) 1934 PC 130', is cited to show that under the said Article time begins to run from the discovery of the plaintiff of the true nature of the deed. Although fraud is imputed to the defendant, the ground on which relief is sought is that the deed is nominal and unsupported by consideration : in other words, that it is sham and inoperative. In the case of a document alleged to be ineffective there is strictly speaking no need for cancellation as it has no force even without cancellation and is in the eye of law void. A suit for declaration that it is so is governed by residuaryArticle 120under which the period of limitation is six years.Both Courts have held that Somappa is in possession of the house and that the sale-deed is nominal In'MT. AISHA BEOAM v. MT. KUNDAN JAN', AIR (32) 1945 All 367, the suit was for cancellation of a mortgage-deed on the allegation it was nominal and it was held thatArticle 120and notArticle 91applied to the case. In the course of the judgment it is observed:"If no possession is transferred under a void document and a suit is brought merely for a declaration that the document is void the maximum period for such a suit would be six years underArticle 120from the date the cause of action arose.Article 91is the residuary article for cancellation and for setting aside of all instruments not otherwise provided for."In support of this view'MOHAMMAD NAZIR v. ZULAIKHA, AIR (15) 1928 All 267 was referred to. Since the suit was filed within six years from the date of the sale-deed, it must be held that there is no bar of limitation. In view of this, there is no need to consider whether the conclusion of the lower Courts that plaintiff became aware of the facts entitling him to sue only within three years before the suit for the purpose ofArticle 91is correct. The appeals fail and are dismissed with costs.4. Appeals dismissed.