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Sunday, July 27, 2014

Or.14, rule 1 and 2 of C.P.C. and Art.10 , 59 ,92 and 96 of Limitation - suit filed against ex trustee for declaration that the settlement deeds dt. 27-3-1978 executed by him infavour of his daughter and grand daughters in respect of Trust Property is null and void - defendant took plea that it is barred by limitation as the suit is filed beyond three years - single judge under preliminary issue dismissed the suit and D.B. bench also confirmed the same - Apex court held that No suit be dismissed on the issue of preliminary issue - when it is a question of law and fact and when suit is not barred by limitation under Art.10 of limitation Act against the trustee or his legal representatives and when it is 12 years from the date of transfer as per Art. 92 - both lower courts committed error and as such allowed the appeal by setting aside the lower court orders = Satti Paradesi Samadhi & Philliar Temple … Appellant Versus M. Sankuntala (D) Tr. Lrs. & Ors. …Respondents = 2014 – July. Part – http://judis.nic.in/supremecourt/filename=41772

Or.14, rule 1 and 2 of C.P.C. and  Art.10 , 59 ,92 and 96 of Limitation - suit filed against ex trustee for declaration that the settlement deeds dt. 27-3-1978 executed by him infavour of his daughter and grand daughters in respect of Trust Property is null and void  - defendant took plea that it is barred by limitation as the suit is filed beyond three years  - single judge under preliminary issue dismissed the suit and D.B. bench also confirmed the same - Apex court held that No suit be dismissed on the issue of preliminary issue -  when it is a question of law and fact and when suit is not barred by limitation under Art.10 of limitation Act against the trustee or his legal representatives and  when  it is 12 years from the date of transfer as per Art. 92  - both lower courts committed error and as such allowed the appeal by setting aside the lower court orders =

plaintiff instituted a suit  for  declaration  seeking  that  the  three
settlement deeds dated 27.3.1978 executed by the former  trustee  in  favour
of his two daughters and a granddaughter as  null  and  void,  and  for  the
relief of recovery of possession of the land to the trust.


The defendant filed  the  written  statement  resisting  the  claim  of  the
plaintiff on many a ground and one of the grounds  was  that  the  suit  was
barred by limitation and, therefore, did not deserve any adjudication.   =

On preliminary Issue - Dismissed the suit        

Accepting the  submission  of  the  defendant,  the  learned
single Judge thought it appropriate  to  take  up  the  issue  No.  1  as  a
preliminary issue.

Before the learned single Judge it was contended by the  defendant  that  in
view of the limitation provided under Articles 56 to 59  of  the  Limitation
Act, the suit was enormously barred by limitation and,  therefore,  deserved
to be  dismissed.   There  was  also  a  reference  to  Article  26  of  the
Limitation Act and the learned single Judge referring  to  the  same  opined
that even under the said Article the suit for  recovery  of  possession  was
also barred by time.  The learned single Judge also referred to  Section  27
of the Limitation Act, 1963 and ruled that the  defendants  or  their  legal
representatives  had  acquired  right,  title  and   interest   by   adverse
possession and,  therefore,  the  suit  was  not  tenable  being  barred  by
limitation.=

Section 10 of the Limitation Act.  It reads as follows: -

“10. Suits against trustees  and  their  representatives  –  Notwithstanding
anything contained in the foregoing provisions of this Act, no suit  against
a person in whom property has  become  vested  in  trust  for  any  specific
purpose, or against his legal representatives or assigns (not being  assigns
for valuable consideration), for the purpose of following in  his  or  their
hands such property, or the proceeds thereof, or  for  an  account  of  such
property or proceeds, shall be barred by any length of time.



Explanation – For the purpose of this Section any property  comprised  in  a
Hindu, Muslim or Buddhist religious or charitable endowment shall be  deemed
to be property vested in trust for a specific purpose  and  the  manager  of
the property shall be deemed to be the trustee thereof.”



He has also drawn our attention to Articles 92  and  96  occurring  in  part
VIII of the Schedule of the Limitation Act.  He has emphasized on  both  the
Articles, namely, Articles 92 and 96.  The said Articles read as under: -

|92       |To recover possession |Twelve   |When the transfer becomes|
|         |of immovable property |years    |known to the plaintiff   |
|         |conveyed or bequeathed|         |                         |
|         |in trust and          |         |                         |
|         |after-wards           |         |                         |
|         |transferred by the    |         |                         |
|         |trustee for a valuable|         |                         |
|         |consideration         |         |                         |
|96       |By the manager of a   |Twelve   |The date of death,       |
|         |Hindu, Muslim or      |years    |resignation or removal of|
|         |Buddhist religious or |         |the transfer or the date |
|         |charitable endow-ment |         |of appointment of the    |
|         |to recover possession |         |plaintiff as manager of  |
|         |of movable or         |         |the endowment, whichever |
|         |immoveable property   |         |is later                 |
|         |comprised in the      |         |                         |
|         |endowment which has   |         |                         |
|         |been transferred by a |         |                         |
|         |previous manager for a|         |                         |
|         |valuable consideration|         |                         |

Article 59 reads as follows: -

|         |Description of suit  |Period of   |Time from which period |
|         |                     |limitation  |begins to run          |
|59       |To cancel or set     |Three years |When the facts         |
|         |aside an instrument  |            |entitling the plaintiff|
|         |or decree or for the |            |to have the instrument |
|         |rescission of a      |            |or decree cancelled or |
|         |contract             |            |set aside or the       |
|         |                     |            |contract rescinded     |
|         |                     |            |first become known to  |
|         |                     |            |him                    |

whether  an  issue  of
limitation could at all have been taken up as a preliminary issue.
 Sub-rule (2) of Order 14 Rule 2 CPC lays down that  where  issues  both
of law and of fact arise in the same suit, and the court is of  the  opinion
that the case or any part thereof may be disposed of  on  an  issue  of  law
only, it may try  that  issue  first  if  that  issue  relates  to  (a)  the
jurisdiction of the court, or (b) a bar to the suit created by any  law  for
the  time  being  in  force.  The  provisions  of  this  Rule  came  up  for
consideration before this Court in Major S.S. Khanna v.  Brig.  F.J.  Dillon
and it was held as under: (SCR p. 421)

“Under Order 14 Rule 2, Code of Civil Procedure where  issues  both  of  law
and of fact arise in the same suit, and the court is  of  opinion  that  the
case or any part thereof may be disposed of on the issues of  law  only,  it
shall try those issues first, and for that purpose may, if  it  thinks  fit,
postpone the settlement of the issues of fact until after the issues of  law
have been determined. The jurisdiction to try issues of law apart  from  the
issues of fact may be exercised only where in the opinion of the  court  the
whole suit may be disposed of on the issues  of  law  alone,  but  the  Code
confers no jurisdiction upon the court to try a suit on mixed issues of  law
and fact as preliminary issues. Normally all the issues in a suit should  be
tried by the court; not to do so, especially when  the  decision  on  issues
even of law depend upon the decision of issues of fact, would  result  in  a
lopsided trial of the suit.”

Though there has been a slight amendment in the language of Order 14 Rule  2
CPC  by  the  amending  Act,  1976  but  the  principle  enunciated  in  the
abovequoted decision still holds good and there can  be  no  departure  from
the principle that the Code confers no jurisdiction upon the court to try  a
suit on mixed issues of law and fact as a preliminary issue  and  where  the
decision on issue of law depends upon decision of fact, it cannot  be  tried
as a preliminary issue.”


In the case at hand, we find that unless there is determination of the  fact
which would not protect the plaintiff under Section  10  of  the  Limitation
Act the suit cannot be dismissed on the ground of limitation.  It is  not  a
case which will come within the ambit and sweep of Order 14,  Rule  2  which
would enable the court to frame a preliminary issue to  adjudicate  thereof.
The learned single Judge, as it appears, has remained totally  oblivious  of
the said facet and adjudicated the issue as if  it  falls  under  Order  14,
Rule 2.  We repeat that on the scheme of Section 10 of  the  Limitation  Act
we find certain facts are to be  established  to  throw  the  lis  from  the
sphere of the said provision so that it would come  within  the  concept  of
limitation.   The  Division  Bench  has  fallen  into  some  error   without
appreciating the facts in proper  perspective.   That  apart,  the  Division
Bench, by taking recourse of Articles 92  to  96  without  appreciating  the
factum that it uses the words “transferred by the  trustee  for  a  valuable
consideration” in that event the limitation would be  twelve  years  but  in
the instant case the asseveration of the plaintiff is that the  trustee  had
created three settlement  deeds  in  favour  of  his  two  daughters  and  a
granddaughter.  The issue  of  consideration  has  not  yet  emerged.   This
settlement made by the father was whether for consideration or  not  has  to
be gone into and similarly whether the property  belongs  to  the  trust  as
trust is understood within the meaning of Sectin10  of  the  Limitation  Act
has also to be gone into.  Ergo, there can be no shadow of  doubt  that  the
issue No. 1 that was framed by the learned single Judge was  an  issue  that
pertained to fact and law and hence, could not have been  adjudicated  as  a
preliminary issue.  Therefore, the impugned order is wholly unsustainable.



We have not expressed any opinion with regard to  the  issue  of  limitation
except saying that the present issue could not  have  been  taken  up  as  a
preliminary issue.

2014 – July. Part – http://judis.nic.in/supremecourt/filename=41772

           IN THE SUPREME COURT OF INDIA

                        CIVIL APPELLATE JURISDICTION

                        CIVIL APPEAL NO. 5954    2014
              (Arising out of S.L.P. (Civil) No. 33200 of 2014)

Satti Paradesi Samadhi & Philliar Temple          … Appellant

                                   Versus

M. Sankuntala (D) Tr. Lrs. & Ors.            …Respondents



                               J U D G M E N T


Dipak Misra


Leave granted.


In this appeal by  special  leave  the  plaintiff-appellant  has  called  in
question the legal sustainability of the judgment and order  passed  by  the
Division Bench of the High Court of Judicature at Madras in OSA No.  229  of
2006 whereby it has affirmed the judgment dated  24.07.2003  passed  by  the
learned single Judge in S.C. No. 673 of 1997 whereunder  he,  after  framing
of issues on the basis of prayer being made  by  the  defendant,  has  dealt
with the issue No. 1 as a preliminary issue and dismissed the suit.

The factual expose’ which arise for disposal of the present appeal are  that
the plaintiff instituted a suit  for  declaration  seeking  that  the  three
settlement deeds dated 27.3.1978 executed by the former  trustee  in  favour
of his two daughters and a granddaughter as  null  and  void,  and  for  the
relief of recovery of possession of the land to the trust.


The defendant filed  the  written  statement  resisting  the  claim  of  the
plaintiff on many a ground and one of the grounds  was  that  the  suit  was
barred by limitation and, therefore, did not deserve any adjudication.


The learned single Judge framed the following issues for consideration: -



“(1)  Whether the suit for declaration that the three settlement deeds,  all
dated 27.3.1978 and registered as Document Nos. 248, 249  and  443  of  1978
with the Sub Registrar’s Office,  Royapuram,  is  barred  by  limitation  of
time?



(2)   Whether the suit properties had ever been in  the  possession  of  Sri
B.S. Ramalingam in his individual capacity?


(3)   Whether there  existed  a  hereditary  trust  in  the  name  of  Satti
Paradesi Samadhi and Pillayar Temple Trust?

(4)   Whether the plaintiff owns the schedule properties?

(5)   Whether the defendants are the owners of the Schedule  Properties  and
in possession and occupation from the date of settlement in the year 1978?

(6)   Whether the plaintiff is entitled to mesne profits?

(7)   To what relief the parties are entitled?”


The plaint presented by the plaintiff showed that the suit  for  declaration
of the settlement  deeds  by  the  defendant  in  favour  of  daughters  and
granddaughter which were executed was done 19 years earlier,  the  defendant
made a submission before the learned single Judge that the suit  was  barred
by limitation.  Accepting the  submission  of  the  defendant,  the  learned
single Judge thought it appropriate  to  take  up  the  issue  No.  1  as  a
preliminary issue.

Before the learned single Judge it was contended by the  defendant  that  in
view of the limitation provided under Articles 56 to 59  of  the  Limitation
Act, the suit was enormously barred by limitation and,  therefore,  deserved
to be  dismissed.   There  was  also  a  reference  to  Article  26  of  the
Limitation Act and the learned single Judge referring  to  the  same  opined
that even under the said Article the suit for  recovery  of  possession  was
also barred by time.  The learned single Judge also referred to  Section  27
of the Limitation Act, 1963 and ruled that the  defendants  or  their  legal
representatives  had  acquired  right,  title  and   interest   by   adverse
possession and,  therefore,  the  suit  was  not  tenable  being  barred  by
limitation.



On an appeal being preferred against the  aforesaid  judgment  the  Division
Bench took note of Articles 92 and 96 and came to hold as follows: -

“22.  Taking the property as a trust property, under Article  92,  the  suit
for recovery of possession of immovable property conveyed or  bequeathed  in
the Trust out to have been filed within twelve  years  from  the  time  when
transfer becomes known to the plaintiff.  Under Article  92,  the  plaintiff
should  have  filed  the  suit  within  twelve  years  from  1978  when  the
settlement became known to the plaintiff.


23.   In the  plaint,  at  paragraph  No.  4,  the  appellant/plaintiff  has
clearly alleged that immediately after the death of settler, on  24.12.1978,
the settlement were questioned by  the  appellant  and  the  mother  of  the
appellant and the defendants  –  Vijaya  Saradambal,  who  was  the  earlier
trustee,  promised  to  settle  the  disputes   recovering   the   scheduled
properties to the plaintiff trust; but only the  defendants  influenced  her
and did not deliver the schedule properties to the plaintiff.  By a  reading
of plaint averments, it is clear that the  plaintiff  had  known  about  the
settlement deeds even in 1978.  Having known  about  the  settlement  deeds,
way back in 1978, the plaintiff ought to have filed the suit  to  set  aside
the settlement deeds within twelve years from the  date  of  his  knowledge.
When plaintiff had chosen to file the  suit  only  in  the  year  1977,  the
learned single Judge rightly held that the suit is barred by limitation.



24.   The only grievance of the appellant is that after framing the  issues,
the learned single Judge had taken up   the  question  of  limitation  as  a
preliminary issue and question of limitation is a mixed question of law  and
facts and  the  appellant  ought  to  have  been  given  an  opportunity  to
establish  that  the  suit  property  is  a  trust  property  and  also  the
circumstances under which the plaintiff could not bring the suit within  the
stipulated time and also to show as to how  the  suit  is  well  within  the
time.”



      Being of this view, the Division Bench dismissed the appeal.



We have heard Mr.  R.  Basant  learned  senior  counsel  appearing  for  the
appellant and Mr. Himanshu Munshi, learned counsel for the respondent.



Mr. Basant, learned senior counsel appearing for the  appellant,  has  drawn
our attention to Section 10 of the Limitation Act.  It reads as follows: -

“10. Suits against trustees  and  their  representatives  –  Notwithstanding
anything contained in the foregoing provisions of this Act, no suit  against
a person in whom property has  become  vested  in  trust  for  any  specific
purpose, or against his legal representatives or assigns (not being  assigns
for valuable consideration), for the purpose of following in  his  or  their
hands such property, or the proceeds thereof, or  for  an  account  of  such
property or proceeds, shall be barred by any length of time.



Explanation – For the purpose of this Section any property  comprised  in  a
Hindu, Muslim or Buddhist religious or charitable endowment shall be  deemed
to be property vested in trust for a specific purpose  and  the  manager  of
the property shall be deemed to be the trustee thereof.”



He has also drawn our attention to Articles 92  and  96  occurring  in  part
VIII of the Schedule of the Limitation Act.  He has emphasized on  both  the
Articles, namely, Articles 92 and 96.  The said Articles read as under: -

|92       |To recover possession |Twelve   |When the transfer becomes|
|         |of immovable property |years    |known to the plaintiff   |
|         |conveyed or bequeathed|         |                         |
|         |in trust and          |         |                         |
|         |after-wards           |         |                         |
|         |transferred by the    |         |                         |
|         |trustee for a valuable|         |                         |
|         |consideration         |         |                         |
|96       |By the manager of a   |Twelve   |The date of death,       |
|         |Hindu, Muslim or      |years    |resignation or removal of|
|         |Buddhist religious or |         |the transfer or the date |
|         |charitable endow-ment |         |of appointment of the    |
|         |to recover possession |         |plaintiff as manager of  |
|         |of movable or         |         |the endowment, whichever |
|         |immoveable property   |         |is later                 |
|         |comprised in the      |         |                         |
|         |endowment which has   |         |                         |
|         |been transferred by a |         |                         |
|         |previous manager for a|         |                         |
|         |valuable consideration|         |                         |


Learned senior counsel has emphatically put forth that  the  learned  single
Judge as well as the Division Bench has  committed  grave  error  by  taking
recourse to the principle of acquisition of knowledge by the  plaintiff  and
other aspects.  It is absolutely limpid that  if  there  is  a  transfer  by
previous manager for a valuable consideration then only  the  limitation  of
twelve years or any other article would come  into  the  play.   As  far  as
Article 59 is concerned, it is urged by him that the  said  Article  is  not
applicable to the present case.  Article 59 reads as follows: -

|         |Description of suit  |Period of   |Time from which period |
|         |                     |limitation  |begins to run          |
|59       |To cancel or set     |Three years |When the facts         |
|         |aside an instrument  |            |entitling the plaintiff|
|         |or decree or for the |            |to have the instrument |
|         |rescission of a      |            |or decree cancelled or |
|         |contract             |            |set aside or the       |
|         |                     |            |contract rescinded     |
|         |                     |            |first become known to  |
|         |                     |            |him                    |


The learned counsel for the respondent would contend that the  plaintiff  is
not a trust as understood  within  the  parameters  of  Section  10  of  the
Limitation Act and, therefore, the learned single Judge has  rightly  opined
that Article 59 would be applicable.  The learned  counsel  further  submits
that assuming Article 59 is not attracted and any  other  Article  contained
in Chapter VIII would be applicable and suit would be barred  by  limitation
inasmuch as it was filed after nineteen years.



The core question that emerges for consideration  is  whether  an  issue  of
limitation could at all have been taken up as a preliminary issue.


In Ramrameshwari Devi and  others  v.  Nirmala  Devi  and  others[1],  while
dealing with Order 14, Rule 2,  observed  that  sub-rule  (2)  of  Order  14
refers to the discretion given to the court  where  the  court  may  try  an
issue relating to the jurisdiction of the court  or  the  bar  to  the  suit
created by any law for the time being in force as a preliminary issue.



The controversy pertaining to the provisions contained in Order  14  Rule  2
had come up for consideration before this Court  in  Major  S.S.  Khanna  v.
Brig. F.J. Dillon[2] wherein it has been ruled thus: -

“Under O 14, r 2 where issues both of law and of  fact  arise  in  the  same
suit, and the Court is of opinion that the case or any part thereof  may  be
disposed of on the issue of law only, it shall try those issues  first,  and
for that purpose may, if it thinks  fit,  postpone  the  settlement  of  the
issues of fact until after the issues of  law  have  been  determined.   The
jurisdiction to try issues of law apart from  the  issues  of  fact  may  be
exercised only where in the opinion of the  Court  the  whole  suit  may  be
disposed  of  on  the  issues  of  law  alone,  but  the  Code  confers   no
jurisdiction upon the Court to try a suit on mixed issues of  law  and  fact
as preliminary issues.  Normally all issues in a suit  should  be  tried  by
the Court: not to do so, especially when the decision on issues even of  law
depends upon the decision of issues of fact, would  result  in  a  lop-sided
trial of the suit.”



Be it stated, the aforesaid pronouncement was made before the  amendment  of
the Code of Civil Procedure in 1976.



In Ramesh D. Desai and others v. Bipin Vadilal Mehta  and  others[3],  while
dealing with the issue of limitation,  the  Court  opined  that  a  plea  of
limitation cannot be decided as an abstract principle of law  divorced  from
facts as  in  every  case  the  starting  point  of  limitation  has  to  be
ascertained which is  entirely  a  question  of  fact.   The  Court  further
proceeded to state that a plea of limitation is a  mixed  question  of  fact
and law.  On a plain consideration of the language employed in sub-rule  (2)
of Order 14 it can be stated with certitude that when an issue  requires  an
inquiry into facts it cannot be tried as a preliminary issue.  In  the  said
judgment the Court opined as follows: -
“13. Sub-rule (2) of Order 14 Rule 2 CPC lays down that  where  issues  both
of law and of fact arise in the same suit, and the court is of  the  opinion
that the case or any part thereof may be disposed of  on  an  issue  of  law
only, it may try  that  issue  first  if  that  issue  relates  to  (a)  the
jurisdiction of the court, or (b) a bar to the suit created by any  law  for
the  time  being  in  force.  The  provisions  of  this  Rule  came  up  for
consideration before this Court in Major S.S. Khanna v.  Brig.  F.J.  Dillon
and it was held as under: (SCR p. 421)

“Under Order 14 Rule 2, Code of Civil Procedure where  issues  both  of  law
and of fact arise in the same suit, and the court is  of  opinion  that  the
case or any part thereof may be disposed of on the issues of  law  only,  it
shall try those issues first, and for that purpose may, if  it  thinks  fit,
postpone the settlement of the issues of fact until after the issues of  law
have been determined. The jurisdiction to try issues of law apart  from  the
issues of fact may be exercised only where in the opinion of the  court  the
whole suit may be disposed of on the issues  of  law  alone,  but  the  Code
confers no jurisdiction upon the court to try a suit on mixed issues of  law
and fact as preliminary issues. Normally all the issues in a suit should  be
tried by the court; not to do so, especially when  the  decision  on  issues
even of law depend upon the decision of issues of fact, would  result  in  a
lopsided trial of the suit.”

Though there has been a slight amendment in the language of Order 14 Rule  2
CPC  by  the  amending  Act,  1976  but  the  principle  enunciated  in  the
abovequoted decision still holds good and there can  be  no  departure  from
the principle that the Code confers no jurisdiction upon the court to try  a
suit on mixed issues of law and fact as a preliminary issue  and  where  the
decision on issue of law depends upon decision of fact, it cannot  be  tried
as a preliminary issue.”


In the case at hand, we find that unless there is determination of the  fact
which would not protect the plaintiff under Section  10  of  the  Limitation
Act the suit cannot be dismissed on the ground of limitation.  It is  not  a
case which will come within the ambit and sweep of Order 14,  Rule  2  which
would enable the court to frame a preliminary issue to  adjudicate  thereof.
The learned single Judge, as it appears, has remained totally  oblivious  of
the said facet and adjudicated the issue as if  it  falls  under  Order  14,
Rule 2.  We repeat that on the scheme of Section 10 of  the  Limitation  Act
we find certain facts are to be  established  to  throw  the  lis  from  the
sphere of the said provision so that it would come  within  the  concept  of
limitation.   The  Division  Bench  has  fallen  into  some  error   without
appreciating the facts in proper  perspective.   That  apart,  the  Division
Bench, by taking recourse of Articles 92  to  96  without  appreciating  the
factum that it uses the words “transferred by the  trustee  for  a  valuable
consideration” in that event the limitation would be  twelve  years  but  in
the instant case the asseveration of the plaintiff is that the  trustee  had
created three settlement  deeds  in  favour  of  his  two  daughters  and  a
granddaughter.  The issue  of  consideration  has  not  yet  emerged.   This
settlement made by the father was whether for consideration or  not  has  to
be gone into and similarly whether the property  belongs  to  the  trust  as
trust is understood within the meaning of Sectin10  of  the  Limitation  Act
has also to be gone into.  Ergo, there can be no shadow of  doubt  that  the
issue No. 1 that was framed by the learned single Judge was  an  issue  that
pertained to fact and law and hence, could not have been  adjudicated  as  a
preliminary issue.  Therefore, the impugned order is wholly unsustainable.



We have not expressed any opinion with regard to  the  issue  of  limitation
except saying that the present issue could not  have  been  taken  up  as  a
preliminary issue.  As the suit is pending since 1997 we would  request  the
learned single Judge of the High Court of Madras to dispose of the  suit  as
expeditiously as possible.





Resultantly, the appeal is allowed and the impugned judgments are set  aside
without any order as to costs.



                                                                ……………………….J.

                                                               [Dipak Misra]



                                                                ……………………….J.

                                                           [V. Gopala Gowda]

New Delhi;

July 03, 2014.

-----------------------
[1]



       (2011) 8 SCC 249
[2]    AIR 1964 SC 497 : (1964) 4 SCR 409
[3]    (2006) 5 SCC 638

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