Rajasekaran Gramani vs Nagarathinammal and Others

Srinivasan, J.—The appeal is at the instance of the third defendant in the suit, who is the brother of the plaintiff. The first defendant is another

sister of the appellant. The second defendant was a brother, who died after the filing of the suit. Defendants 4 to 17 are alienees.

The first defendant filed a suit O.S. No. 150 of 1960 on the file of the Second Additional Sub Court, Cuddalore, for partition and separate

possession of her 1/4th share. The plaintiff and defendants 2 and 3 were defendants in that suit. Defendants 2 and 3 contested the suit. A

preliminary decree was passed on 30.9.1961 granting 1/ 4th share to the plaintiff. Thereafter, a final decree was passed on 14.11.1962. That was

done after a Commissioner visited the properties and submitted a report containing a scheme of division. Based on that report, a final decree was

passed.

The plaintiff filed the present suit on 6.1.1975 for partition and separate possession of her share after setting aside the final decree passed in the

earlier suit O.S. No. 150 of 1960. In the plaint, it is alleged that the plaintiff came to know of the final decree in the earlier suit only when

defendants 4 to 7 gave out a month prior to the filing of the suit that they had purchased very valuable properties from the first defendant in the

present suit, who was the plaintiff in the earlier suit. Then she made enquiries and ascertained that the plaintiff in the earlier suit had got allotted for

her share valuable items of properties by exercise of fraud and undue influence upon the plaintiff in the present suit taking advantage of the illiteracy

and inexperience of the plaintiff. It is further stated that only fallow and uncultivable lands of practically no value had been left out in the earlier suit.

It is not necessary to refer to the other averments in the plaint.

The third defendant filed a written statement contesting the maintainability of the suit as well as the limitation.

Unfortunately when the suit was posted for trial, the defendants excepting the 9th defendant did not appear in court. The plaintiff entered the

witness box and gave evidence as P.W.1. The 9th defendant cross-examined her. There was no cross-examination by any of the other defendants.

The trial court passed a decree as prayed for by the plaintiff on the basis of her evidence. On the question of limitation, the trial court held that no

argument had been advanced on that issue and, therefore, the suit was not barred by limitation.

The court below is clearly in error in holding that the suit was in time. Section 3 of the Limitation Act prescribes that every suit instituted after the

prescribed period shall be dismissed, although limitation has not been set up as a defence. In the present case, the plea of limitation has been raised

by the third defendant in the written statement. Even if the third defendant had been absent on the date of trial, it is the duty of the court to have

considered the question of limitation with reference to the various Articles of the Limitation Act and the reliefs prayed for by the plaintiff. Article 59

of the Limitation Act provides for cancellation or setting aside of instruments or decrees. The period of limitation is three years from the date when

the facts entitling the plaintiff to have the instrument or decree cancelled first become known to her. We have already referred to the allegations

made in the plaint. They are vague and it has not been set out clearly as to when exactly the plaintiff came to know of the facts entitling her to set

aside the decree if at all. The evidence of the plaintiff is in no way better. She has admitted in the chief-examination that she was living with the first

defendant, who was the plaintiff in the earlier suit. She claims that she did not know that an application was filed for passing of final decree by the

first defendant herein. She claims that no summons was received by her in the final decree proceedings. She alleges that she came to know that

good lands had been allotted to the first defendant in the final decree.

Even if the evidence of P. W.1 is accepted as true, that does not save the suit from the bar of limitation. She has not set out the facts which are

relevant for setting aside the decree if at all and the date on which she came to know of the said facts.

A decree passed by a competent court can be set aside only on the ground of extrinsic fraud. The question as to when a decree can be set aside

on ground of fraud has been considered in detail by two Division Bench judgments of this Court in The Weavers Mills Ltd., Rajapalayam Vs.

Balkis Ammal and Others, and Jagannadh Vs. Perumal Naidu and Others, . Two different Benches have considered the question in detail and

referred to the previous judgments of this Court and other courts. It has been laid down that unless extrinsic fraud is proved clearly, the decree

passed by a competent court cannot beset aside. In the present case, there is absolutely no evidence to prove any such fraud. Even assuming that

the plaintiff was not served with the summons in the final decree proceedings, the remedy available to her was to approach the same court for

reopening the final decree proceedings and giving her appropriate reliefs. It is seen from the final decree marked as Ex.A-1 that she had never paid

Court-fee for allotment of her share in that suit. The preliminary decree declared only the share of the plaintiff in that suit and directed allotment of

her 1/4th share. The final decree was passed in accordance with the said preliminary decree. Unless the plaintiff herein had paid Court- fee and

claimed her share in the same suit, there was no question of passing any final decree in her favour.

In the circumstances, we have no hesitation to hold that the present suit is not maintainable and that it is barred by limitation.

The judgment and decree of the court below are set aside. The appeal is allowed. The memorandum of cross-objections filed by the plaintiff is

dismissed. As the parties are closely related, there will be no order as to costs.