Dismissed

Mr Blany D'Souza v. Mr Rudolf Valerian D Souza

Karnataka HC19 Dec 2023CRP/449/2022

Case brief

AI extract

What is this about?

In a civil revision petition, the High Court of Karnataka held that the Trial Court was correct in not rejecting the plaint for limitation. The Court observed that questions regarding the validity of the power of attorney, its termination, and the lawfulness of the gift deed require trial. The revision petition was dismissed.

What did the court decide?

The civil revision petition was dismissed; the Trial Court is directed to decide the suit uninfluenced by these observations.

Mr Blany D'Souza Vs Mr Rudolf Valerian D Souza — Property and Title | Karnataka HC (2023)

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1 - NC: 2023:KHC:46374 CRP No. 449 of 2022

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 19^TH DAY OF DECEMBER, 2023

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BEFORE

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THE HON'BLE MR JUSTICE R. NATARAJ CIVIL REVISION PETITION NO.449 OF 2022

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BETWEEN:

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MR. BLANY D'SOUZA AGED 51 YEARS, S/O. LATE JOHN BAPTIST D'SOUZA, R/AT. EZABELLA HOUSE, MADYANTHYAR, PARENKY VILLAGE, BELTHANGADY, D.K DISTRICT-574 224

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…PETITIONER (BY SRI. P.P.HEGDE, SENIOR ADVOCATE FOR SRI. VENKATESH SOMAREDDI, ADVOCATE)

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AND:

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Digitally signed by SUMA Location: HIGH COURT OF KARNATAKA

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MR. RUDOLF VALERIAN D'SOUZA AGED 62 YEARS, S/O. LATE JOHN BAPTIST D'SOUZA, R/AT. EZABELLA HOUSE, MADYANTHYAR, PARENKY VILLAGE, BELTHANGADY, D.K. DISTRICT REP. BY HIS GPA HOLDER, MR. VICTOR MICHAEL D'SOUZA, AGED 64 YEARS, S/O. LATE JOHN BAPTIST D'SOUZA, R/AT. AVILA HOUSE, MIRANDA COMPOUND, BENDOORWELL, KANKANADY, MANGALORE, D.K.

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…RESPONDENT (BY SRI. SANDEEP LAHIRI, ADVOCATE FOR GPA HOLDER FOR RESPONDENT) THIS CRP IS FILED UNDER SECTION 115 OF CPC AGAINST THE ORDER DATED 05.07.2022 PASSED ON IA NO.3 IN OS

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NC: 2023:KHC:46374 CRP No. 449 of 2022

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NO.13/2022 ON THE FILE OF THE PRINCIPAL SENIOR CIVIL JUDGE AND JMFC, BELTHANGADY D.K, DISMISSING THE IA NO.III FILED UNDER ORDER VII RULE 11 OF CPC FOR REJECTION OF PLAINT.

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THIS PETITION, COMING ON FOR ADMISSION, THIS DAY, THE COURT MADE THE FOLLOWING:

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ORDER

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The petitioner has challenged the correctness of the order dated 05.07.2022 passed by the Principal Senior Civil Judge and JMFC, Belthangady, Dakshina Kannada in O.S.No.13/2022 by which, an application filed by him under Order VII Rule 11(d) of Civil Procedure Code, 1908 was rejected.

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The suit in O.S.No.13/2022 was filed for cancellation of the gift deed dated 27.12.2021 executed by the defendant in his own favour based on a power of attorney dated 06.01.2010 allegedly executed by the plaintiff in favour of the defendant.

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The plaintiff and the defendant are brothers. The plaintiff claimed that he is a resident of Canada and that he and his two brothers were interested in a property and that one of his brothers Mr.Victor Michael D'souza was looking after the properties belonging to the plaintiff. The plaintiff claimed that

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3 - NC: 2023:KHC:46374 CRP No. 449 of 2022

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in the year 2010, his brother Mr.Victor Michael D'souza proposed to settle the suit 'A' properties in favour of the plaintiff and that he agreed for the same. However, the defendant who is the other brother of the plaintiff, approached Mr.Victor Michael D'souza and represented that a power of attorney dated 06.01.2010 was executed by the plaintiff to facilitate registration of a settlement deed in favour of the plaintiff. Thus Mr.Victor Michael D'souza executed a deed of settlement dated 07.01.2010 in favour of the plaintiff - then represented by the defendant. The plaintiff claimed that this power of attorney was not executed by him as he never visited India, but was in Canada on 06.01.2010. The plaintiff claimed that this fact came to the knowledge of Mr.Victor Michael D'souza who informed the plaintiff. However the plaintiff did not desire to take any action in view of the delicate family relationship and also as the properties were settled in his favour in terms of the settlement deed dated 07.01.2010. The plaintiff claimed that after lapse of nearly 12 years, the defendant again misusing the power of attorney dated 06.01.2010, got a gift deed dated 27.12.2021 executed in his

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NC: 2023:KHC:46374 CRP No. 449 of 2022

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own favour. Therefore, the plaintiff filed a present suit for a cancellation of the gift deed dated 27.12.2021.

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This suit was contested by the defendant on various grounds. The defendant also filed an application under Order VII Rule 11(d) of Civil Procedure Code contending that the suit was hopelessly barred by the law of limitation, as the plaintiff even after coming to know of the power of attorney dated 06.01.2010, did not take any steps for cancellation of the said power of attorney and therefore could not have sought for cancellation of the gift deed dated 27.12.2021, on the ground that the power of attorney was forged and fabricated. The defendant also raised a contention regarding the proper court fee payable for the relief sought for.

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The application was contested by the plaintiff who contended that the issue of limitation was a mixed question of fact and law and therefore, the Court cannot reject the plaint at the threshold.

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Based on this contentions, the Trial Court held that

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the issue of limitation was purely a mixed question of fact and law, having regard to the fact that the plaintiff and defendant

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NC: 2023:KHC:46374 CRP No. 449 of 2022

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were brothers. It also held that an issue would be framed whether the suit was barred by the law of limitation and consequently rejected the application. Being aggrieved by the said order, this petition is filed.

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The learned Senior Counsel representing the defendant submitted that the law of limitation bars a stale claim and bars the remedy, if not the right. He submits that the execution of the power of attorney by the plaintiff in favour of the defendant on 06.01.2010, though came to the knowledge of the plaintiff, soon after the settlement deed dated 07.01.2010 was registered, he did not take any steps for cancellation of the power of attorney and the consequent settlement deed. However, after nearly 12 years from the date of execution of the settlement deed, the present suit is filed for cancellation of a gift deed dated 27.12.2021, brought about based on the general power of attorney executed by the plaintiff. He submits that in the facts and circumstances of this case, the plaint ought to have been filed within three years from the date when the right to first sue accrued that is three years from 06.01.2010. Since the suit is not filed within three years, the suit is hopelessly barred by the law of limitation. He

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NC: 2023:KHC:46374 CRP No. 449 of 2022

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contends that the plaintiff has cleverly drafted the plaint without disclosing the date on which he came to know that the power of attorney dated 06.01.2010 was forged. He therefore, submits that the plaint is clearly barred by the law of limitation and hence, the Trial Court committed an error in not noticing this fundamental aspect and in not rejecting the plaint. In support of his contention, he relied upon the following judgments:

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T.Arivandandam Vs. T.V.Satyapal and Another - (1977) 4 SCC 467:

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2. Dahiben Vs. Arvindbhai Kalyanji Bhanusali (Gajra) dead through Legal Represesntatives and others - (2020) 7 SCC 366:

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3. Ramisetty Venkatanna & Anr. Vs. Nasyam Jamal Saheb & Ors. - 2023 LiveLaw (SC) 372:

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4. M/s. Durga Projects and Infrastructure Pvt. Ltd. Vs. Sri. S.Rajagopala Reddy and others - Civil Revision Petition No.168/2019 c/w Civil Revision Petition No.157/2019 dated 05.07.2019:

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7 - NC: 2023:KHC:46374 CRP No. 449 of 2022

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5. N.V.Srinivasa Murthy and others Vs. Mariyamma (dead) by proposed Lrs. and others - (2005) 5 SCC 548:

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6. Kanjibhai Bhagwanjibhai Patel Vs. Nanduben Shamjibhai Sorathiya through Poa Dharmesh P. Trivedi and others - 2012 SCC Online Guj 6313;

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7. N.Govindarajan Vs. S.Srinivasan - CRP No.1756/2017 dated 28.04.2018

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Per contra, the learned counsel for the plaintiff submitted that it was the intention of the plaintiff and his brother - Mr.Victor Michael D'souza that the property should be settled in favour of the plaintiff. Though the general power of attorney dated 06.01.2010 was forged, yet since the property was settled in favour of the plaintiff based on power of attorney, the plaintiff did not chose to take further action against the defendant. He submits that the need to file a suit for cancellation of the gift deed arose, in view of the misuse of the power of attorney dated 06.01.2010 by the defendant. He contends that the question when the plaintiff came to know that the power of the attorney dated 06.01.2010, was forged or not was a pure question of fact which had to be established

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before the Trial Court at the time of trial and therefore, the plaint cannot be rejected on the ground that the plaint is cleverly drafted to create an illusory cause of action. He submitted that the plaintiff did not chose to challenge the power of attorney, as the property ultimately vested in him based on the settlement deed dated 07.01.2010 brought about by the defendant in favour of the plaintiff. It is the misuse of power of attorney by the defendant by executing a gift deed dated 27.12.2021 in his own favour and that a cause of action arose for the plaintiff to sue for cancellation of the gift deed. He therefore, contends that the contention raised by the defendant involves a mixed question of fact and law and cannot be considered at an interlocutory stage.

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I have considered submissions made by the learned

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senior counsel for the defendant and learned counsel for the plaintiff.

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As rightly contended by the learned Senior Counsel for the defendant, the suit filed by the plaintiff for cancellation of the gift deed is primarily based on the assertions that the plaintiff did not execute the power of attorney dated

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NC: 2023:KHC:46374 CRP No. 449 of 2022

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06.01.2010. As also rightly contended by the learned senior counsel for the defendant, the plaintiff was aware of the alleged fraudulent nature of the power of attorney dated 06.01.2010, but the date on which, the plaintiff came to know about the same was deliberately not mentioned. Therefore, ordinarily, if the defendant had brought out any document based on the said power of attorney, the time prescribed for seeking appropriate relief was three years from the date on which the plaintiff came to know that the power of attorney dated 06.01.2010 was forged and fabricated. However, the plaintiff has claimed that after the power of attorney dated 06.01.2010 was used by the defendant to obtain a settlement deed dated 07.01.2010 favouring the plaintiff, the plaintiff executed a power of attorney dated 06.01.2015, in favour of his brother Mr.Victor Michael D'souza. Therefore, the question whether the power of attorney dated 06.01.2010 stood terminated upon the plaintiff executing power of attorney dated 06.01.2015, arose for consideration before the Trial Court.

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Further more, the plaintiff has pleaded that the gift deed brought about by the defendant in his own name, was not lawful. Therefore, the question that may arise for consideration

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NC: 2023:KHC:46374 CRP No. 449 of 2022

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before the Trial Court is whether the power of attorney dated 06.01.2010 was in force, in view of the power of attorney dated 06.01.2015 executed by the plaintiff in favour of his other brother and whether the gift deed was lawful, notwithstanding the fact that the plaintiff did not chose to cancel the power of attorney dated 06.01.2010, even after finding it to be forged and fraudulent. Having regard to the nature of the relationship between the plaintiff and defendant, it cannot be discounted that the plaintiff even after coming to know that the power of attorney dated 06.01.2010 was forged, did not take any action to maintain the relationship in the family. However, since other questions arose for consideration before the Trial Court, the plaint cannot be rejected on the assertions made by the defendant that the suit was not brought within three years from the date, the right to sue first arose. Therefore, the application filed by the defendant deserves to be rejected on grounds mentioned above, rather than the one mentioned by the Trial Court in the impugned order. However, the Trial Court is bound to frame an issue whether the suit is brought within limitation or not.

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NC: 2023:KHC:46374 CRP No. 449 of 2022

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In view of the above, there is no need to interfere with the impugned order passed by the Trial Court. Hence, the petition is dismissed , however, subject to the observations made above.

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All contentions are left open. The Trial Court shall decide the suit uninfluenced by any observations contained hereinabove, which are for the purpose of deciding this petition only.

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Sd/JUDGE

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List No.: 1 Sl No.: 30

Mr Blany D'Souza v. Mr Rudolf Valerian D Souza

Case brief

What is this about?

What did the court decide?

Mr Blany D'Souza v. Mr Rudolf Valerian D Souza

Case brief

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What did the court decide?

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