Mahant Gyan Prakash Das vs Mt. Dukhan Kuar and Others

Wort, J.—It is necessary in this case to state with some detail the case which the plaintiff made against the defendant-appellant. The plaintiff''s prayer in the suit was that, after declaring a certain deed of 28th May 1917 to be null and void and not binding on the plaintiff, the title of the plaintiff to hold her share in the properties, etc., be found and the plaintiff be restored to possession. There is then a prayer for partition.

The learned Judge in this case has found in favour of the plaintiff in the following circumstances: The plaintiff is the widow of one Situ Singh. She had an eight annas interest in the property of her deceased husband, the other eight annas belonging to Jai Prakash Singh the brother of Situ Singh. On 28th May 1917, the plaintiff executed a deed which has been described as a deed of relinquishment in favour of her brother-in-law who was defendant 2 in the action. On the title to the 16 annas which was obtained by defendant 2 by reason of the deed executed by the plaintiff, a mortgage was executed and eventually a mortgage decree was obtained and the mortgagee purchased the property in execution of the decree; the mortgagee-purchaser is defendant 1 in the suit.

Now the two questions which arise are first what was the effect of the deed executed by the Musammat; and, secondly, whether as alleged by the defendant-appellant, the action was barred by limitation. These were two separate issues but they were wrapped up one with the other for the reasons which will presently appear.

It is contended by Mr. De on behalf of the respondents that the prayer which the plaintiff makes in the plaint accurately represents the position in law, that is to say, that the deed of 28th May was null and void.

On the other hand, it is contended by the defendant-appellant that it was necessary for the plaintiff to have the deed set aside before she was entitled to a decree for partition claimed in the third clause of the relief paragraph. Mr. De contends that the deed of relinquishment conveys no title. But the matter does not depend upon the description of the deed but its provisions. In this case it is argued that all that the plaintiff stated in her deed was that the entry in the Record of Rights recording her interest in the property was wrong. If that is a complete statement of the facts, something might be said for the argument that no title passed by the deed which the Musammat executed.

But the facts are, and they were understood to be as one sees from the plaint itself, that the Musammat had an 8 annas interest and that the deed as she had sub. sequently learnt conveyed 8 annas interest to defendant 2. Whether it was called a deed of relinquishment or not is quite immaterial (I understand that is not the name by which it was described). If that is the position as it undoubtedly is, then it becomes necessary for the plaintiff to have the deed set aside and the fact that in the first portion of the relief the plaintiff claims to have a declaration that the deed is null and void is immaterial.

This discussion of the position is necessary by reason of the contention of the appellant that Article 91, Limitation Act, applies. Article 91 provides for oases of cancellation or setting aside of an instrument not otherwise provided for. The period of limitation is three years and the three years by Col. 3 runs from the time when the facts entitling the plaintiff to have the instrument cancelled or set aside became known to her. There can be no dispute as to when the plaintiff had knowledge that the deed which she thought to be a deed handing over the management of the property to the defendant and in fact created a title to her 8 annas interest in the defendant as in para. 15 of the plaint it is alleged "that the plaintiff thereupon came to know of the deed and on enquiry discovered the fraud practised upon her by defendant 2." The reference there is to the earlier paragraph 14 which alleges:

That the learned Bent Suit Deputy Collector relying on the aforesaid deed ignored the claim of the plaintiff and decreed the aforesaid rent suits in favour of defendant 1 on 19th March 1928.

There is therefore no dispute and can be no dispute as to when the plaintiff obtained knowledge of the real nature of the deed which she had executed on 28th May 1917; and, that being the date, there is no doubt that the action is therefore hope, lessly barred by limitation. There is one observation which I need make and that is with regard to the judgment of the learned Judicial Commissioner. The Judge was the final Court of fact and he says, referring to the judgment of the trial Court, as follows: "I am of the opinion however that it is in accordance with the evidence on the record"; and, on the question of limitation, states:

As regards (a) (which is the question of limitation) that matter has been dealt with in detail by the lower Court and I see no real reason to differ from his finding to the effect that the plaintiff''s suit is not barred by limitation.

There is no indication in those two findings that the learned Judicial Commissioner exercised his judicial function with regard to these two important matters, the more important of which perhaps is the finding of fact with regard to which he was the final Court. It is not a sufficient judgment within the CPC to state that the Judge is in agreement with the finding of the Court below. He is bound to express his reasons for the finding at which he arrives, and although he need not, so far as the questions of fact are concerned, deal in detail with the evidence, a definite finding must be arrived at by him in order to comply with the provisions of the Code.

With these observations I am of opinion that the decision of the learned Judge in the Court below is erroneous and the appeal should be allowed and the plaintiff''s suit dismissed with costs throughout.

Manohar Lall, J.

I agree.