Neeta Mitroo & Others v. Deepak Sant Ram & Deepak Gupta & Others

11. It is in these circumstances that the present suit came to be filed by the plaintiff on 29.10.2015. While the defendant nos.[2] and 6 to 7 who are the sisters of the plaintiff are supporting the plaint, it is the defendant nos. 1,3,4, and 5 who as noted hereinabove, besides filing a written statement opposing the plaint, have filed the present application seeking rejection of the plaint under Order VII Rule 11 CPC.

12. In support of the application, Mr. Aditya Wadhwa, learned counsel for the applicants at the outset submits that once the title of the defendant no.1 on the suit property is based on registered documents i.e., a perpetual sub lease dated 19.05.1965 and a conveyance deed dated 27.05.2008, the plaintiff cannot be permitted to question these documents which ought to be treated as having been validly executed and, that too, after 50 years. By placing reliance on Section 3 of the Transfer of property Act (TPA), he submits that the registration of these documents would amount to deemed knowledge by the plaintiff and other defendants, who are now estopped from seeking cancellation of these documents or declaration that they are void or illegal. In support of his plea, he seeks to place reliance on the decisions of the Apex Court in Rajinder Kumar Kapur v. Madan Mohan Lal Kapur 2019 SCC OnLine Del 9472, Dilboo v. Dhanraji, (2000) 7 SCC 702 and of the Gujarat High Court in Bechar Bhai Zaverbhai Patel & Ors. Vs. Jashbhai Shivabhai Patel & Ors., Civil Revision Application No. 186 of 2011.

13. He further submits that the plaintiff cannot, by vaguely urging that the documents are fabricated documents or had been obtained by fraud, be permitted to overcome the fatal delay in approaching this Court when the registered documents in favour of defendant no.1 had been in public domain since May 1965. Merely by way of clever drafting, the plaintiff cannot be urged to take a bald plea that the question of limitation being a mixed question of fact and law ought not to be determined by way of an application under Order VII Rule 11, CPC. In support of his plea, he places reliance on the decision in C.S. Ramaswamy Vs. V. K. Senthil & Ors. Civil Appeal NO. 500 of 2022, Dahiben v. Arvidbhai Kalyanji Bhausali (Gujra) dead through legal representatives and ors (2020) 7 SCC 366 SC and Parminder Singh v. Virender Pal Singh Jolly, 2014 SCC OnLine Del

1366.

14. He further submits that the prayer sought by the plaintiff seeking a decree of cancellation of the aforesaid perpetual lease is barred by limitation, in view of Article 59 of the Limitation Act, 1963, whereby a limitation of 3 years is placed upon the plaintiff’s right to seek the said cancellation, ascertained from the date it first came to be known to her. He further contends that the factum of the registration of the sub-lease dated 19.05.1965, which was executed on 22.05.1965, must be considered as equivalent to deemed notice to the world at large, and therefore on the period of limitation having expired three years after the said registration, the plaintiff cannot seek cancellation of the aforesaid document at this belated stage. Similarly, with respect to the conveyance deed dated 27.05.2008 having been registered on the same day, cancellation thereof is barred by limitation and therefore contends that the suit is liable to be dismissed without compelling the parties to lead evidence.

15. By placing reliance on Section 17 of the Limitation Act, he submits that, even if the plea of the plaintiff that the documents qua the transaction of the suit property were obtained fraudulently were to be accepted, the limitation period would still commence from the day the plaintiff, by exercise of reasonable diligence, had the means to discover the purported fraud. He contends that the defendant no.1 was always in exclusive possession of the suit property and appropriated the rent received from the tenants without any intervention whatsoever from the plaintiff or any other siblings. The plaintiff ought to have therefore made inquiries regarding the title documents of the suit property, which the defendant no. 1 always treated as his exclusive property. Having failed to do so for over 50 years, the present suit is clearly barred under Section 17 of the Limitation Act as well. In support of his plea, he places reliance on a decision of the Calcutta High Court in Mridula Ghosh and Ors vs. Mitra & Ghosh Publishers Company Pvt ltd and Ors MANU/WB/0766/2002 as also on a decision of Madras High Court in Re: Marappa Goundar 1957 SCC Online Mad 136. He, therefore, prays that the application be allowed and the plaint be rejected.

16. On the other hand, Mr. Rajesh Yadav, learned senior counsel for the plaintiff opposes the application by urging that while considering an application under Order VII Rule 11 CPC, this Court is required to take into account only the averments in the plaint as made by the plaintiff, and not to test the correctness thereof on the basis of pleas raised by the defendant. He submits that a bare perusal of the averments made in paras no. 4, 13, 14, 15, 24, 25, 30, 34, 37, 38, 40 and 41 of the plaint, it is evident that the plaintiff has specifically averred that cause of action arose in June 2015, when she, upon receiving replies to her RTI applications, acquired knowledge of the existence of the impugned documents in favour of defendant no.1. It is the categoric case of the plaintiff that right from 1998 to June, 2015 she and her siblings, who are all residents of USA always remained under a bona fide belief that they continue to be co-owners of the suit property where they always stayed during their visits to India. It was only in July, 2013 that they realized that the intention of the defendant no.1 was dishonest, and he had not only reconstructed the building but also sold a portion thereof to a third party without even informing them. It was then that they sought to obtain information under the RTI Act and learnt about the perpetual sub-lease dated 19.05.1965, sale agreement dated 19.05.1965, conveyance deed dated 27.05.2008 as also the share transfer certificate dated 01.12.1962 and the share certificate dated 05.05.2008, the documents of which they have sought cancellation in the present suit.

17. He further submits that once it is the plaintiff’s specific case that she acquired knowledge about the documents in favour of defendant no.1 only in June 2015, the limitation for seeking cancellation of the same would begin only from that date. There is nothing to show that the plaintiff had any knowledge about these documents at any time prior to June 2015 and therefore the period of 3 years prescribed under Article 59 of the Limitation Act would commence only from the date the plaintiff acquired knowledge about these documents and not from the date of execution thereof, as is sought to be urged by the defendants. He, therefore, contends that it cannot be held that the suit is barred by limitation.

18. He next submits that even otherwise the documents are fabricated and were fraudulently executed by the defendant no.1 in collusion with the Maharani Bagh Co-operative Society by misrepresentation, which fraud was discovered by the plaintiff only on receiving the replies to her RTI applications in 2015. He submits that a bare perusal of these documents reveals various discrepancies therein; furthermore, even the Shares Transfer form, based on which other documents were executed in favor of defendant no.1, in itself is an incomplete, undated and unsigned document. The defendant no.1 was a young student on 21.11.1962 when the said application recommending his name for enrollment as a member of the society was submitted. There was never any application for substitution of his name in place of their father, Dr. Sant Ram and therefore prays that the plaintiff ought to be granted an opportunity to lead evidence to substantiate her pleas that all the documents in respect whereof declaration is being sought are liable to be declared as being null and void.

19. He next submits that the applicants’ plea that the plaintiff had deemed knowledge of the perpetual sub lease dated 19.05.1965 and the conveyance deed dated 27.05.2008 by virtue of mere registration of these documents is wholly misconceived. By relying on Section 3 of the Transfer of Property Act, he contends that a case of deemed knowledge/constructive notice could be made out against the plaintiff only if she had either wilfully abstained to inquire about any such document, or there is anything to attribute negligence on her part to make enquiries in this regard. The said provision, he contends is applicable only when a person is acquiring a new property and not in a case like the present when the plaintiff remained under a bona fide belief that the property, being an ancestral property, was jointly owned by the siblings. As the aforesaid documents were never brought to the knowledge of the plaintiff by her late parents or by the defendant no.1, coupled with the fact that all siblings despite residing in USA for last many years, continued to stay in the suit property on their visits to India, the plaintiff had no reason to suspect qua any transaction relating to the suit property. She therefore had no reason to make any enquiries about the existence of any such documents and consequently there is no question of her being attributed with constructive notice about these documents. In support of his plea that there was no such onus on the plaintiff to make inquiries about the existence of the documents, he places reliance on decisions of the Apex Court in Ahmedabad Municipal Corpn. v. Haji Abdulgafur Haji Hussenbhai, (1971) 1 SCC 757, Uma Devi Nambair vs Thamarasseri (2022)7 SCC 90 and Tilakdhari Lal v. Khedan Lal, 1920 SCC OnLine PC 49.

20. He finally submits that the question whether the plaintiff had the knowledge about the execution of the documents at the time of their execution between 1965 and 2008 and therefore, whether the suit is barred by limitation can be decided only after the plaintiff is granted an opportunity to lead evidence. By placing reliance on the decision of the Apex Court in Ramesh B. Desai v. Bipin Vadilal Mehta, (2006) 5 SCC 638, he submits that the question of limitation is always a mixed question of law and facts and cannot be decided by way of an application under Order VII Rule 11, CPC.

21. Learned senior counsel appearing on behalf of defendant nos. 6 and 7, also supports the plaintiff and contends that in the present case where the plaintiff has specifically averred and prima facie demonstrated about having acquired the knowledge about these documents only in 2015 and therefore this is a fit case where the plaintiff should be given an opportunity to lead evidence to prove the fraud played by the defendant no.1 in execution of these documents.

22. Having considered the submissions of the learned counsel for the parties and perused the record, I find that the primary ground on which the applicants are seeking rejection of the plaint is that the suit is barred by limitation which therefore would be the sole issue to be determined in the present case. An ancillary issue would be as to whether on the basis of the averments made in the plaint, the suit can be said to be barred by law, so as to warrant the rejection of the plaint under Order VII Rule 11 CPC.

23. I may now proceed to deal with the rival submissions of the parties on the issue as to whether the suit is barred by limitation. I may begin by noting Article 59 of the Limitation Act, 1963 which provides the limitation for seeking cancellation of a document/instrument. The same reads as under- Description of suit Period of limitation Time from which period begins to run

59. To cancel or set aside an instrument or Three years When the facts entitling the plaintiff to have decree or for the rescission of a contract the instrument or decree cancelled or set aside or the contract rescinded first become known to him

24. From a plain reading of Article 59, it emerges that though the period of limitation for seeking cancellation of an instrument has been fixed as three years, the starting point for the commencement of limitation would depend on the facts of each case as the same is linked with the date plaintiff acquires knowledge of facts which entitle him to seek cancellation of the instrument. Thus, it is evident that the period of three years would not commence necessarily from the date of execution of the instrument but could shift to a much later date if the plaintiff can demonstrate that the facts on which the instrument was sought to be challenged came to his knowledge much later. The crucial fact for determining whether the suit is liable to be rejected in each case would thus be the date on which the plaintiff acquires knowledge about the facts based on which cancellation of the instrument is sought.

25. Having noted the contours of Article 59, I may now turn to the facts of the present case. Learned counsel for the applicants has contended that since the sub-lease deed dated 19.05.1965, which was executed on 22.05.1965 and similarly the conveyance deed dated 27.05.2008 were registered documents, the date of registration of these documents has to be treated as a deemed knowledge. By placing reliance on Section 3 of the TPA, he has urged that the bald statement of the plaintiff that she did not knew about the existence of these instruments since 2015 cannot be accepted. The plaintiff having willfully abstained from making enquires in this regard, cannot now be allowed to take benefit of her own wrong by laying challenge to registered instruments at this belated stage and that too on vague grounds that they were fraudulently executed. In order to appreciate this plea of the defendant no.1, it would be apposite to refer to relevant extracts of Section 3 of the TPA along with Explanation I & II which reads as under: “[“a person is said to have notice”] of a fact when he actually knows that fact, or when, but for wilful abstention from an enquiry or search which he ought to have made, or gross negligence, he would have known it. Explanation I.—Where any transaction relating to immovable property is required by law to be and has been effected by a registered instrument, any person acquiring such property or any part of, or share or interest in, such property shall be deemed to have notice of such instrument as from the date of registration or, 2 [where the property is not all situated in one sub-district, or where the registered instrument has been registered under sub-section (2) of section 30 of the Indian Registration Act, 1908 (16 of 1908), from the earliest date on which any memorandum of such registered instrument has been filed by any Sub-Registrar within whose sub-district any part of the property which is being acquired, or of the property wherein a share or interest is being acquired, is situated]: Provided that— (1) the instrument has been registered and its registration completed in the manner prescribed by the Indian Registration Act, 1908 (16 of 1908) and the rules made thereunder, (2) the instrument 3 [or memorandum] has been duly entered or filed, as the case may be, in books kept under section 51 of that Act, and (3) the particulars regarding the transaction to which the instrument relates have been correctly entered in the indexes kept under section 55 of that Act. Explanation II.—Any person acquiring any immoveable property or any share or interest in any such property shall be deemed to have notice of the title, if any, of any person who is for the time being in actual possession thereof.

26. In order to appreciate the rival submissions of the parties on this aspect, it would be apposite to refer to the relevant extracts of the plaint wherein the plaintiff has averred about her remaining under a bona fide belief that the property was a joint family property and about her acquiring knowledge of these instruments for the first time in June 2015. Reference may therefore be made to paras 14, 15, 22, 29, 30, 34, 37 & 38 of the plaint which read as under:

27. From the aforesaid, what emerges is that while it is the plaintiff’s specific plea that ever since the death of their parents, she and her siblings always remained under a bona fide belief that the suit property was jointly owned by them. It has been averred that after the suit property was constructed in 1966-67, it is their mother, who till her death, was receiving rent from the suit property whereafter, though the defendant no.1 was collecting the rent, the same was being used for managing the property where all the siblings were residing during their trips to India. It has been further averred that the defendant no.1 had earlier distributed amongst the siblings, the compensation received from surrender of the jointly held tenanted premises at 24, Narendra Place, Parliament Street, New Delhi and therefore the plaintiff never had any reason to doubt the intentions of the defendant. It is her further case that it is only when she and her sisters learnt in 2013/2014 about the defendant no.1 demolishing the single unit house and construction of flats thereon without their consent, that they started doubting his intentions. As none of the siblings had copies of any documents relating to suit property, they then made enquiries under the RTI Act and then received the copies of the documents of which cancellation is being sought.

28. In the light of the aforesaid averments of the plaintiff, it is evident that it is her categoric case that she and her siblings always remained under a belief that the suit property continued to be joint family property; further she was never informed about these instruments in favour of defendant no.1. It is noteworthy that it is not even the case of the applicants that the plaintiff was ever specifically informed about the existence of these instruments. The only plea of the applicants is that since these instruments are registered documents, a presumption has to be drawn against the plaintiff that she was aware about these instruments. On the other hand, it is the plea of the learned senior counsel for the plaintiff that the reliance of the applicants on Section 3 of the TPA is wholly misplaced as the said provision would be applicable when a person is acquiring an interest in an immovable property and not in a case like the present, where the plaintiff was always under a belief that she was the co-owner in the suit property, which was being managed by her only brother. He has urged that the plea of the applicants to attribute constructive notice, about the execution of these instruments, to the plaintiff overlooks the fact that it was not a case where the plaintiff was acquiring any interest in the suit property and ought to therefore, in terms of mandate under Section 3 have made enquiries about the existence of registered documents.

29. Having given my thoughtful consideration to these rival pleas of the parties, I am of the considered view that taking into account that despite all the parties residing in USA for the last many decades, were given equal access to the suit property on their visits to India, the plaintiff’s plea that she remained under a bona fide belief that the property was a joint property of the siblings, cannot, at this stage, be altogether discarded. I may also note that the defendant no.1 has not specifically denied that all the siblings were all along given equal access to the suit property. Thus, what prima facie emerges from the rival submissions of the parties is that despite the existence of the purported perpetual lease deed qua the suit property in favor of the defendant no.1 since 1965, the sisters were always allowed to treat the same as joint family property. It is therefore not a case where the plaintiff was acquiring any interest in the suit property. I am therefore of the view that it cannot be said that there was any onus on the plaintiff to make enquiries about such instruments, even though they were registered instruments. The applicants’ plea that she could have easily learnt about the existence of these instruments had she made relevant enquires in time, though appears to be attractive at the first blush, but if examined in the light of this admitted fact that all the siblings were all along given equal access to the suit property, has to be rejected. No doubt, when a person is acquiring an interest in a property, he/she is required to make due inquiries qua all the registered documents in respect of the said property; any failure on this count has to be treated as constructive notice of the registered documents. In the present case, the plaintiff was admittedly not acquiring any new interests in the suit property but is asserting her right therein which she believed, always existed. There was, in these facts, no occasion for her to make any inquiries about the registered documents qua the suit property. I am therefore of the view that no such presumption of the plaintiff having notice of these instruments, as envisaged under Section 3 of the TPA, could be drawn.

30. I have also considered the decision in Dilboo (supra) relied upon by the applicants but find that the same is not applicable to the facts of the present case. In the said decision, the Apex Court found that there was no averment or proof as to how the suit could in the face of the existence of registered documents, be treated in time and therefore held that the plaintiff must fail. In the present case, the plaintiff has specifically averred that all the sisters were granted equal access to the suit property by defendant no.1 and therefore, they were under a bonafide belief that the suit property remained a joint property and it is only in June 2015 that she, for the first time, became aware about the existence of the instruments in favor of defendant no.1. Similarly, the decision in Lata Chauhan (supra), where the Court was dealing with a situation where a simpliciter suit for partition was filed without seeking any declaratory relief for cancellation of the documents executed in favor of the defendant, would not be applicable to the facts of the present case. In the present case, the plaintiff has not only sought partition of the suit property but has sought a specific prayer for cancellation of the instruments executed in favor of defendant no.1 and has prayed that the same be declared as null and void.

31. I may now deal with the applicants’ plea that the suit is hit by Section 17 of the Limitation Act. In this regard, it needs to be noted that plaintiff has sought cancellation of the instruments executed in favor of defendant no.1 on the ground that they have been fraudulently executed with the connivance of Maharani Bagh Co-operative Society. It is the plaintiff’s case that till June 2015, she was not even aware about the existence of any such instruments in favor of the defendant no.1 and therefore there was no question of her being aware of the fraud played by him in the execution of these documents. On the other hand, the applicants have, by relying on Section 17 of the Limitation Act, averred that merely because the plaintiff claims to have discovered the fraud in 2015, the suit cannot be held to be within time. It has been urged that if the plaintiff had acted with reasonable diligence, she could have easily discovered about the purported fraud in execution of these instruments in 1965 itself. In order to appreciate this plea of the applicants, it may be useful to note the relevant extract of Section 17 of the Limitation Act, which reads as under: “Effect of fraud or mistake.— (1) Where, in the case of any suit or application for which a period of limitation is prescribed by this Act,— (a) the suit or application is based upon the fraud of the defendant or respondent or his agent; or (b) the knowledge of the right or title on which a suit or application is founded is concealed by the fraud of any such person as aforesaid; or

(c) the suit or application is for relief from the consequences of a mistake; or

(d) where any document necessary to establish the right of the plaintiff or applicant has been fraudulently concealed from him, the period of limitation shall not begin to run until plaintiff or applicant has discovered the fraud or the mistake or could, with reasonable diligence, have discovered it; or in the case of a concealed document, until the plaintiff or the applicant first had the means of producing the concealed document or compelling its production”

32. When seen in the context of the aforesaid provision, I find that the applicants are justified in urging that the limitation for assailing an instrument on the ground of fraud would commence from the date the same is discovered or could have been discovered by the plaintiff with reasonable diligence. The plaintiff’s specific case is that she learnt about the existence of these documents upon receiving copies thereof in June 2015. It is her specific plea that she was not even aware of the execution of these instruments and infact saw these instruments for the first time only in June 2015 when she noticed the discrepancies therein and realized that the same had been obtained by fraud. In the light of this plea of the plaintiff that she learnt about the existence of these instruments in June 2015, which plea has not been seriously disputed by the applicants, I am of the view that the plaintiff is justified in urging that the alleged fraud played by the applicants could have been discovered by her only after seeing these documents and not at any time prior thereto. At this stage, the bald plea of the applicants that the plaintiff could have discovered about this fraud at any time prior to June, 2015, therefore, cannot be accepted. I am therefore of the considered view that the suit is not barred by Section 17 of the Limitation Act.

33. I have also considered the decision in Mridula Ghosh (supra) relied upon by the applicants but find that the same is not applicable to the facts of the present case. In the said decision, the Calcutta High Court was dealing with a situation where the plaintiff being a Chief Executive Director in the company had the means to discover the fraud regarding transfer of shares not only from the office of the Registrar of Companies but also by inspecting the records of the company itself. However, in the present case, the plaintiff has all along been residing in USA and there was no occasion for her to examine the record of registered documents qua the suit property when the same was all along treated as a joint family property.

34. The applicants have also urged that the plea of the plaintiff regarding the instruments having been executed fraudulently are vague and are merely an attempt by them to get the suit within the period of limitation. In this regard, the applicants have relied on the decision of the Apex Court in C.S. Ramaswamy (supra), of the Madras High Court in Re: Marappa Goundar (supra), and on a decision of this Court in Rajinder Kumar Kapur (supra). On the other hand, learned senior counsel for the plaintiff has vehemently urged that the plaintiff has given reasons for suspecting that fraud has been committed by defendant no.1. He has further urged that whether fraud is made out or not can be determined only after trial and therefore unless the plaintiff is given the opportunity to lead evidence, she would not be able to establish fraud on the part of defendant no.1.

35. In order to determine as to whether the averments regarding fraud made by the plaintiff can be said to be vague so as to warrant rejection of the plaint under Order VII Rule 11 CPC, it would be necessary to refer to the relevant paras of the plaint. Paras 41 to 44 of the plaint, wherein the plaintiff has given particulars of fraud alleged to have been committed by defendant no.1, read as under: “41. It is also respectfully submitted that at the relevant time of making the purported Application for transfer in 1962, Defendant No.1 was a student with no income of his own. Moreover, Dr. Sant Ram was alive at the relevant time. The suit land being in the sole name of Dr. Sant Ram at the time, the question of transferring ownership in the sole name of Defendant No.1 did not arise, as, even the mother of the Plaintiff and Defendant Nos. 1,2, 6 and 7 was alive at the relevant time.

42. Further, the said transfer could not have taken place in the year 1962 and consequent lease executed purportedly in 1965, in the name of Defendant No.1, as his father Dr.Sant Ram had passed away in 1964. Thus, without specific noobjection certificates from the rest of the siblings, the suit land could not have been transferred in the sole name of Defendant No.1, to the exclusion of the other surviving heirs. It may also be pertinent to mention here that the Plaintiff (or Defendant Nos. 6 and 7) did not recall handing over any no-objection in the name of Defendant No.1 in respect of the suit land nor was such no-objection available on record.

43. It is further submitted that during their lifetime, the sisters were never informed by Dr.Sant Ram or Mrs.Sant Ram that the ownership of the suit land stood transferred in the sole name of Defendant No.1, and that too during the lifetime of Dr.Sant Ram. It is submitted that the possibility of such a purported transfer having been considered by the father, Dr.Sant Ram, at the relevant time was highly unlikely, considering that his wife and all his other children were all still alive. Furthermore, even after the demise of Dr.Sant Ram, when all daughters had attained majority, Mrs. Sant Ram never informed them that the suit land had been transferred in the name of Defendant No.1 during her lifetime or the lifetime of Dr.Sant Ram.

44. It is submitted that in view of the aforementioned and from the information available on record it appears that Defendant No.1, in collusion with Defendant No.8, has wrongfully transferred the right, title and interest in the suit property in his sole name, to the exclusion of the Plaintiff and Defendant No. 2, 6 and 7, the other surviving legal heirs of Late Dr. Sant Ram and late Mrs. Kaushalya Sant Ram. It is verily believed by the Plaintiff that Defendant NO. 1, in collusion with Defendant No.8, has deliberately misrepresented to the relevant authorities by submitting false or fabricated information/documents and has played a fraud upon the other siblings by attempting to transfer the suit land and property in his sole name.”

36. In the light of the aforesaid specific contentions raised in the plaint wherein the plaintiff has alleged that even though the application dated 21.11.1962 was for recommending enrolment of defendant no.1 as a member of Maharani Bagh Co-operative House Building Society, forgery was committed to mention that the share of Dr. Sant Ram be transferred in his favour. The plaintiff has also averred that the ‘transfer of shares’ form was incomplete, undated and unsigned and was therefore a fabricated document. Furthermore, as per the plaintiff, there was a mismatch in the signatures of Dr. Sant Ram in the various documents relied upon by the applicants, which in itself show that the documents were fraudulently obtained. In the light of these specific pleas and grounds raised to allege fraud, it cannot be said that the averments made by the plaintiff regarding fraud are vague. No doubt as held in Marappa Goundar (supra), Rajinder Kumar Kapur (supra) and C.S. Ramaswamy (supra), the pleadings regarding fraud must be specific but this does not imply that the plaintiff must set out the entire evidence in this regard in the plaint itself. In the present case, the plaintiff has in para nos. 41 to 44, given specific details of fraud and therefore it cannot be said that particulars regarding fraud have not been set out in the plaint or that they are vague, as is sought to be contended by the applicants. The plaintiff, in my view, must be given an opportunity to lead evidence to prove her allegations of fraud levelled against the defendant no.1 in the matter of execution of the instruments of which cancellation is being sought. The decisions Marappa Goundar (supra), Rajinder Kumar Kapur (supra) and C.S. Ramaswamy (supra) are therefore not applicable to the facts of the present case.

37. There is yet another reason as to why I do not find any merit in the present application. As noted hereinabove, the plaint contains various specific allegations of fraud and mentions in detail about the plaintiff acquiring knowledge of these instruments only in June, 2015. It is well settled that while dealing with an application under Order VII Rule 11 CPC, the Court must consider the pleadings in the plaint alone and read the plaint as a whole; the written statement filed by the defendant is wholly irrelevant at that stage. In this regard, it may be useful to refer to para 7 of Mandanuri Sri Rama Chandra Murthy vs. Syed Jalal, (2017) 13 SCC 174, wherein the principles governing the exercise of power under Order VII Rule 11 CPC were succinctly summarised by the Apex Court as under:

38. When the averments made in the plaint in the instant case are examined in the light of the aforesaid principles, it cannot be said that the plaint when read as a whole does not disclose any cause of action. The plaintiff has not only given reasons as to why she and her siblings remained under a belief that the suit property was a joint family property but has also mentioned in detail as to how she acquired knowledge of these instruments in June 2015. Furthermore, she has set out in detail, the reasons why she suspects fraud having been committed at the time of execution of the instruments of which cancellation is being sought. In the light of these factual averments, which alone have to be considered at this stage, it cannot be said that the suit is liable to be dismissed on the ground of limitation or that the same is barred by law. In my considered view, it would be pre-mature to hold that even if the plaintiff is given an opportunity to lead evidence, she will not be able to prove that despite having exercised due diligence, she learnt about the execution of the documents and the alleged fraud committed by defendant no.1 only in June 2015. I am therefore unable to agree with the applicants that the suit must at this stage, be held as being barred by limitation or law on any ground whatsoever.

39. For the aforesaid reasons, I find no merit in the application which is accordingly dismissed. Needless to state, the observations made in this order are only prima facie and will have no bearing on the final outcome of the suit.

40. List before the learned Joint Registrar on for marking of exhibits on 26.09.2023.

JUDGE SEPTEMBER 6, 2023