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AMICUS AI
Citation Codes
Equivalent Citations
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Case Number
Attorney(S)
  • Mr. Sanjeev Soni and Mr. Y.R. Shamra, Advocates.
  • Mr. Ashim Vacher, Mr. M.L. Mahajan and Mr. Gaurav Mahajan, Advocates
Judges
  • Indermeet Kaur, J.
Acts
  • Article 65 of the Limitation Act, 1963, Schedule-I
  • SECTION 9 LIMITATION ACT
  • Limitation Act, 1963. Article 58
  • Order 7 Rule 11(d) CPC.I.A
  • 7 Rule 11(d))1.
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Cites
Cited by
Citation Codes
Equivalent Citations
citation codes
Case Number
Attorney(S)
  • Mr. Sanjeev Soni and Mr. Y.R. Shamra, Advocates.
  • Mr. Ashim Vacher, Mr. M.L. Mahajan and Mr. Gaurav Mahajan, Advocates
Judges
  • Indermeet Kaur, J.
Acts
  • Article 65 of the Limitation Act, 1963, Schedule-I
  • SECTION 9 LIMITATION ACT
  • Limitation Act, 1963. Article 58
  • Order 7 Rule 11(d) CPC.I.A
  • 7 Rule 11(d))1.
See more information ...
Smart Summary

Summary of Opinion — Indermeet Kaur, J. (oral)

Factual and Procedural Background

This opinion deals with I.A. No. 12881/2014 under Order 7 Rule 11(d) CPC, an application filed by the defendant seeking rejection of the plaint on the ground of limitation. The plaintiff instituted a suit (filed in 2014) for declaration, possession, permanent injunction and damages, seeking a declaration that by virtue of a relinquishment deed dated 21.01.2008 he had not relinquished his right, title or interest in respect of certain divided portions of the suit property (specifically the first floor and one garage). The defendant relied on a power of attorney dated 17.09.2007 (executed by the plaintiff in favour of defendant no. 2) and the relinquishment deed dated 21.01.2008 (executed by defendant no. 2 in favour of defendant no. 1) and maintained the suit was barred by limitation.

Documentary materials in the record included the Will of the deceased mother dated 07.05.1993 (describing the bequest and the division/entitlements in the multi-storeyed building), the power of attorney dated 17.09.2007, and the relinquishment deed dated 21.01.2008. The plaint contains a legal notice issued in October 2013. The court heard arguments, perused the record and delivered an oral judgment rejecting the plaint under Order 7 Rule 11(d) CPC on the ground of limitation. Two other interlocutory applications (I.A. No. 3707/2014 & I.A. No. 25069/2014) were rendered infructuous following rejection of the plaint and were disposed of.

Legal Issues Presented

  1. Whether the plaint should be rejected under Order 7 Rule 11(d) CPC on the ground that the suit is barred by limitation.
  2. Given the chronology (power of attorney dated 17.09.2007; relinquishment deed dated 21.01.2008; legal notice in October 2013; suit in 2014), when did the cause of action arise and whether the suit was filed within the applicable period of limitation.
  3. Whether the power of attorney and the Will (and their respective language) limited the authority of defendant no. 2 to the plaintiff's alleged "undivided" interest only, or whether it authorized dealing with the plaintiff's complete half-share (including the first floor and garage) such that the relinquishment deed operated against the plaintiff.

Arguments of the Parties

Defendant's Arguments (as recorded)

  • The plaintiff filed the present suit in 2014 challenging a relinquishment deed of 21.01.2008; therefore the suit is barred by limitation.
  • The plaintiff had executed a power of attorney dated 17.09.2007 pursuant to which the relinquishment deed was executed; on all counts the suit having been filed after more than six years from the date of cause of action is barred by limitation.
  • There is no averment in the plaint that the plaintiff learned of the fate of the relinquishment deed at any later point of time which would enlarge the period of limitation.

Plaintiff's Arguments (as recorded)

  • The plaintiff is not seeking invalidation of the power of attorney or the relinquishment deed; rather, he seeks possession of his divided share in the property (the first floor and the garage), which he says was not relinquished.
  • The power of attorney dated 17.09.2007 was only qua the plaintiff's undivided share in the property (argued to be limited to rights on the barsati floor and rent proceeds), and did not encompass his divided interest in the first floor and garage.
  • The Will dated 07.05.1993 shows the first floor and garage were separately identifiable/divided interests; plaintiff relied on this to assert his divided share was not released.
  • The plaintiff relied on Article 65 of the Limitation Act (Schedule I) contending a 12-year period would apply to his possession claim, and that the cause of action would arise when the defendant's possession became adverse to him.

Table of Precedents Cited

No precedents were cited in the provided opinion.

Court's Reasoning and Analysis

The court's analysis proceeded by examining the pleadings and the documentary record, principally the Will dated 07.05.1993, the power of attorney dated 17.09.2007 (executed by the plaintiff in favour of defendant no. 2) and the relinquishment deed dated 21.01.2008 (executed by defendant no. 2 in favour of defendant no. 1).

1. The court extracted and considered the relevant language of the power of attorney, which authorized defendant no. 2 "to sign and submit documents/papers ... in respect of transfer of my Undivided share in Property No. D-44" and also "to execute, sign and present documents for Release/Relinquish my share in respect of said property, before proper Registering Authorities". The power of attorney thus expressly authorized release/relinquishment of the plaintiff's share.

2. The court compared the power of attorney with the Will. The Will described the building, allocated the ground floor to defendant no. 1 and the first floor to the plaintiff, and provided equal devolution of garages and specific provisions about the barsati floor. The court observed that the Will did not create a clear legal demarcation into distinct "divided" and "undivided" shares such that the power of attorney's reference to "undivided" could be read as limiting the power of attorney exclusively to the barsati floor or some subset of the plaintiff's interest.

3. Reading the Will and the power of attorney together, the court concluded that the power of attorney authorized defendant no. 2 to deal with the plaintiff's complete half-share in the property and to release/relinquish it. The court therefore considered that the relinquishment deed of 21.01.2008 (executed pursuant to the power of attorney) effectively relinquished one half share of the plaintiff in favour of defendant no. 1.

4. The court noted that the plaintiff had not challenged the execution of the relinquishment deed; his dispute was limited to interpretation of the Will, power of attorney and relinquishment deed.

5. On limitation, the court identified that a suit seeking a declaration is governed by Part-III of the Limitation Act, 1963. The court specifically cited Article 58 which prescribes a three-year period for such suits, and stated that the period begins to run when the right to sue first accrues. The court held that the right to sue accrued on the date of execution of the relinquishment deed (21.01.2008), in the absence of any averment that the plaintiff learned of the relinquishment at a later date.

6. The court relied on Section 9 of the Limitation Act to note that once the period of limitation begins to run, any subsequent disability or inability to institute a suit does not stop it. The court observed that issuance of a legal notice (in October 2013) does not operate to enlarge the period of limitation, and that the plaint was silent as to when the plaintiff acquired knowledge of the relinquishment deed.

7. Because the plaint did not aver a later date of knowledge and the cause of action as pleaded arose on 21.01.2008, the three-year limitation period under Article 58 had expired well before the suit was filed in 2014. The court therefore concluded the plaint failed on the ground of limitation.

Holding and Implications

Core Ruling: The court allowed the defendant's application and rejected the plaint under Order 7 Rule 11(d) CPC on the ground that the suit is barred by limitation.

Consequences and implications as stated in the opinion:

  • The plaint is barred by limitation because the cause of action accrued on 21.01.2008 (date of the relinquishment deed) and no later date of knowledge was averred; Article 58 (three years) governs declaration suits and the plaintiff did not plead facts to defer the commencement of limitation.
  • The court found that the power of attorney, read with the Will, authorized defendant no. 2 to deal with the plaintiff's complete half-share and to relinquish it to defendant no. 1; the relinquishment deed was not challenged as to its execution.
  • Applications I.A. No. 3707/2014 and I.A. No. 25069/2014 were rendered infructuous by the rejection of the plaint and were disposed of accordingly.
  • The opinion does not purport to establish any new legal precedent beyond application of the Limitation Act provisions to the facts of this case; the decision's direct effect is to dispose of the plaintiff's suit by rejection under Order 7 Rule 11(d) CPC on limitation grounds.

Source: Oral opinion of Indermeet Kaur, J., as provided in the supplied text (I.A. No. 12881/2014 and related applications).

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    Sarjit Singh Awla v. Kuldeep Singh Awla

    Indermeet Kaur, J. (oral)

    I.A No. 12881/2014 (u/O 7 Rule 11(d))

    1. This is an application filed by the defendant seeking rejection of the plaint on the ground of limitation. Submission is that the plaintiff has instituted the present suit for declaration, possession, permanent injunction and damages. The plaintiff is seeking declaration to the effect that the plaintiff by virtue of a relinquishment deed dated 21.01.2008 had not relinquished his right, title or interest in favour of the defendant with respect to the suit property. Submission is that the present suit which has been filed in the year 2014 qua the relinquishment deed which is admittedly of the year 2008 is beyond the period of limitation. Attention has been drawn to the power of attorney dated 17.9.2007 pursuant to which this relinquishment deed had been executed. Submission being reiterated that on all counts the suit of the plaintiff having been filed after more than six years from the date on which cause of action had arisen is barred by limitation. Additional submission being that there is no averment in the plaint whatsoever that the plaintiff learnt about the fate of the relinquishment deed at any later point of time which would enlarge the period of limitation.

    2. Reply has been filed to the application. It is pointed out that to answer the arguments of the learned counsel for the applicant, the Will of the deceased mother of the parties as also the contents of the power of attorney and the relinquishment deed have to be adhered to; submission being that the plaintiff is not seeking invalidation of either the power of attorney or the relinquishment deed; his prayer is that he be granted possession of his divided share in the property which is the first floor and the garage. What he had relinquished in terms of the relinquishment deed dated 21.01.2008 was only his undivided rights in the suit property and not his divided interest.

    3. Arguments have been heard. Record has been perused.

    4. This is a dispute between two brothers. The plaintiff is a citizen of Germany and he had admittedly executed power of attorney dated 17.9.2007 in favaour of defendant no. 2 (wife of defendant no. 1). Relevant extract of the power of attorney reads herein as under:

    1. To sign and submit documents/papers what-so-ever required in respect of transfer of my Undivided share in Property No. D-44 situated at South Extn., Part-II, New Delhi inherited through WILL dated 07.5.1993, which is registered in the office of the Sub-Registrar, New Delhi as Doc. No. 2281 in Addl. Book No. III, Vol. No. 729 on pages 194-1999 in favour of Shri Kuldip Singh Awla Alis Kultheep Uongkhattri resident of D-44, South Extension Part-II, New Delhi

    2. To execute, sign and present documents for Release/Relinquish my share in respect of said property, before proper Registering Authorities for Govt. of India, Municipal Corporation of Delhi or Semi Government or others.”

    5. Submission being that this power of attorney was only qua the undivided share of the plaintiff in the aforenoted property i.e property D-44, South Extension, Part-II, New Delhi. It did not encompass the interest of the plaintiff in his divided share of the property which included the first floor and the garage on the ground floor. To further advance this argument, learned counsel for the plaintiff has drawn attention of this Court to the Will of the deceased mother of the parties. This Will is dated 07.5.1993 and is an admitted document. It has been executed by Mahender Kaur Awla detailing the bequeath of her immovable property i.e D-44, South Extension, Part-II, New Delhi. In this Will, it was stated that a 2½ storied building had been raised on this plot of land; the ground floor of the property fell to the share of the defendant; the first floor fell to the share of plaintiff declaring both the parties the absolute owners thereof. Qua the barasati floor, there was one room constructed upon it; the plaintiff had the right to give the same on rent and to take the proceeds thereof; the two garages in the annexe had devolved upon the plaintiff and the defendant in equal shares; the defendant had also been given entitlement to give on rent the annexe portion and to keep the proceeds thereof.

    6. Another relevant portion of the extract of the Will reads herein as under:

    “That it is made clear that after the devolving of the property as existing on the date of the Will both my sons/S/Sh. Sarjit Singh Awla and Kuldip Singh Awla would be entitled to raise further construction on the Barsati Floor and thereupon in accordance with the sanction from the authorities concerned. Such construction shall be raised with the funds to be provided by both of them in equal shares and, therefore, they shall be the owners in equal shares of such newly construction portion.”

    7. This part of the bequeath is related to the rights of the parties on the barasati floor of the suit property; the testator desired that whenever further construction on the barsati floor is raised in accordance with the sanction given by the authorities concerned the funds will be given by both her sons in equal shares and thereafter they would become owners of this newly constructed portion.

    8. Submission of the learned counsel for the plaintiff on this count being reiterated that it was the ground floor and the garage in the annexe which was the divided share of the plaintiff for which he had not given any power of attorney to defendant no. 2; the power of attorney specifically states that this power of attorney is qua his undivided share in the suit property meaning thereby that this power of attorney was executed only qua the undivided rights of the plaintiff on the barsati floor and the right of the plaintiff to take rent from the proceeds of the said barasati floor. Further submission being that the plaintiff had in fact given the first floor on lease w.e.f year 1996 for a period of three years which again shows that his interest in the property qua the first floor was his divided interest. Power of attorney had been given to defendant no. 2 only qua his undivided interest, pursuant to which the relinquishment deed had been executed by defendant no. 2 in favour of defendant no. 1. He has no grievance on this count. He is seeking possession of his divived interest in the immovable property which clearly continues to belong to him i.e the first floor and the garage on the ground floor qua which Article 65 of the Limitation Act, 1963, Schedule-I encompasses a period of 12 years and the cause of action would arise from the date when the possession of the defendant became adverse to the plaintiff. In this case, even presuming that the cause of action had arisen on the date of the execution of the relinquishment deed which in this case is 21.01.2008, the suit of the plaintiff filed in the year 2014 being within the span of 12 years is clearly within limitation.

    9. On the perusal of the record and the documentary evidence filed by both the parties i.e the will of the deceased mother of the parties, the power of attorney dated 17.9.2007 executed by the plaintiff in favour of defendant no. 1 and the subsequent relinquishment deed dated 21.01.2008 executed by defendant no. 2 in favour of defendant no. 1, it transpires that the case of the defendant no. 1 stands on a strong footing.

    10. Admittedly on 17.9.2007 a power of attorney had been executed by the plaintiff in favour of defendant no. 2 (his sister-in-law). The relevant extract of the same has been quoted supra. This power of attorney declares that the plaintiff who is a resident of Germany appoints and constitutes Baljit Kaur Vongkhattri (defendant no. 2) as his true and lawful legal attorney to submit documents and papers whenever required in respect of his undivided share in the suit property i.e D-44, South Ext. Part-II, New Delhi which has been inherited through the Will dated 07.5.1993 This power of attorney also authorizes defendant no. 2 to release/relinquish the share of the plaintiff in respect of the suit property.

    11. Vehement contention of the learned counsel for the plaintiff on this count is that this power of attorney refers only to his undivided share which would be his right and interest on the barsati floor alone, is negatived by a wholesome reading of the said documents. Both the documents i.e the Will and the power of attorney when read as a whole and in conjunction with one another clearly authorize defendant no. 2 to deal with the share of the plaintiff in the suit property which he had inherited in terms of the Will of his mother. A scrutiny of this Will shows that it does not bequeath the property in favour of her two sons separately as a divided and undivided interest; there is no division of a divided or an undivided share. It merely states that the ground floor of the property fell to the share of defendant no. 1 and first floor would fall to the share of the plaintiff and the two garages would devolve equally to the plaintiff and to the defendant. These portions of the property were constructed, demarcated and delineated. The barsati floor had only one room constructed upon it. The Will stipulated that on the raising of construction by the two brothers on the barsati floor which would be funded equally by both of them; the barsati floor would then again devolve upon both of them in equal shares. These two documents i.e the power of attorney and the Will when read in concurrence with one another do not demarcate the property separately as a divided and an undivided share of the plaintiff. It is a complete property and the complete interest of the plaintiff which the plaintiff had authorized (vide power of attorney of dated 17.9.2007) defendant no. 2 who had the full authority to deal with his complete share in this property. It was not only to submit papers in respect of the transfer of his share in the suit property but also to release/relinquish it. The word “undivided” does find mention in para 1 of the power of attorney but by no strech of imagination can it be restricted only to the share of the plaintiff on the barsati floor of the suit property.

    12. The subsequent document i.e relinquishment deed of the year 2008 executed by defendant n.2 in favour of defendant no. 1 had reqliquished/released this property i.e one half share of the plaintiff in the suit property in favour of defendant no. 1. As already noted supra the plaintiff has not challenged the execution of this relinquishment deed. His submission is only restricted to the interpretation of the terminology used in the Will, power of attorney and subsequently in the relinquishment deed.

    13. This Court is of the view that the intent of the plaintiff was to authorize defendant no. 2 to deal with his complete half share in the suit property and even to relinquish it/release it. The power of attorney is dated 17.9.2007 and the relinquishment deed followed just three months thereafter i.e on 21.01.2008 whereby defendant no. 2 relinquished this half share of the plaintiff in favour of her husband (defendant no. 1). The fact that the plaintiff was a resident of Germany and was living there since the last several years was probably the reason which has weighed in his mind to allow his brother (defendant no. 1) to enjoy the property completely.

    14. Even as per the case of the plaintiff, he did not care to find out what happened to the property after the execution of his power of attorney on 17.9.2007 The plaint speaks of the relinquishment deed dated 21.01.2008 but it is conspicuously silent as to when the plaintiff learnt about this relinquishment deed. Plaintiff had given a legal notice to the defendant in October, 2013. Issuance of legal notice would not by itself enlarge the period of limitation in favour of the plaintiff. This is also not his argument. Attention has been drawn to the cause of action which has been contained in para 13. After 17.9.2007 (the date of the execution of power of attorney) and 21.01.2008 (the date of execution of the relinquishment deed) there is no cause of action which has arisen in favour of the plaintiff except the issuance of the legal notice which has been mentioned as 31.10.2013

    15. The prayers made in the present plaint are also relevant. They read as under:

    a) Pass a decree of declaration in favour of the plaintiffs and against the defendant no. 1, thereby declaring that the plaintiff by virtue of relinquishment deed dated 21.01.2008 absolutely had never relinquished his right, title and interest in favour of defendant no. 1 with respect to the plaintiff specifically divided portions i.e the first floor and one garage in the Annexe portion i.e the “suit property”, and as such he is the absolute and exclusive owner of the above portions, and is entitled to its physical possession, damages against the defendants for unauthorized use and occupation of the said portion/suit property by them and/or by their tenants, and for getting the defendants injuncted from creating any third party interest, alienating, disposing it of.

    b) pass a decree of possession in favour of the plaintiffs and against the defendants jointly and severely thereby directing them to handover the peaceful vacant and physical possession of the entire first floor measuring about 334.29 sq. mtrs., and one garage measuring about 23.25 sq. mtrs, situated at the left hand side garage facing the main entrance, situated at the ground floor in the Annexe portion situated at the annexe portion i.e the suit property, part and parcel of property bearing no. D-44, situated at South Extension Part-II, New Delhi to the plaintiff.

    c) ……………

    d) ……………..”

    16. This Court is of the view that the plaintiff has failed to cross the hurdle of limitation. A suit seeking declaration is governed by Part-III of the Limitation Act, 1963. Article 58 stipulates a period of three years as limitation to file such a suit and the time begins to run from the date when the right to sue first accrues which in this case would be the date (21.01.2008) of execution of the relinquishment deed and as there is no further averment in the plaint that knowledge about the relinquishment deed was obtained by the plaintiff at any later date; the period of limitation has to be necessarily reckoned from the date of execution of the relinquishment deed. Section 9 of the Limitation Act also provides that once the period of limitation has begun to run, no subsequent disability or inability to institute a suit or make an application stops it.

    17. At the cost of repeition, there is no averment by the plaintiff that the knowledge about the relinquishment deed was brought to the notice of the plaintiff at any later date. This has neither been averred in the plaint nor does it find mention in the legal notice. The present suit is accordingly barred by limitation. The prayer made in the application filed by the defendant is allowed. plaint is rejected under Order 7 Rule 11(d) CPC.

    I.A No. 3707/2014 & I.A No. 25069/2014

    19. Since the plaint has been rejected, these applications have become infructuous. They are disposed of accordingly.

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    Comments

    Sarjit Singh Awla v. Kuldeep Singh Awla
    (Jan 13, 2015)