Andhra Pradesh High Court – Amravati
D. Sivakesava Reddy vs Kanni Ammal & Ors1And In The Case Of … on 8 April, 2026
Author: R Raghunandan Rao
Bench: R Raghunandan Rao
APHC010013762006
IN THE HIGH COURT OF ANDHRA PRADESH
AT AMARAVATI [3206]
(Special Original Jurisdiction)
WEDNESDAY, THE EIGHTH DAY OF APRIL
TWO THOUSAND AND TWENTY SIX
PRESENT
THE HONOURABLE SRI JUSTICE R RAGHUNANDAN RAO
S.A.No.611 of 2006, W.P.No.19156 of 2017 and C.C.Nos.68 of 2016, 700 of
2020 & 1648 of 2022
SECOND APPEAL NO: 611/2006
Between:
1. D. SIVAKESAVA REDDY, S/O LATE D. SIARAMI REDDY
AGRICULTURE R/O NALLAMADA POST AND MANDAL,
ANANTAPUR DISTRICT
...APPELLANT
AND
1. SMT CHENNAMMA K BHARATHI, W/o K. Prabhakar Reddy Household
R/o D.No.2-3-391, Venkatramana Yayout, Tirupathi, Chittoor District
...RESPONDENT
Appeal under section ___________ against orders
IA NO: 1 OF 2006(SAMP 1429 OF 2006
Petition under Section 151 CPC praying that in the circumstances stated
in the affidavit filed in support of the petition, the High Court may be pleased
To suspend the operation of the Judgement and decree in OS No.359/1997
on the file of the Junior Civil Judge, Kadiri, Anantapur pending disposal of the
Second Appeal.
IA NO: 1 OF 2007(SAMP 3197 OF 2007
Petition under Section 151 CPC praying that in the circumstances stated
in the affidavit filed in support of the petition, the High Court may be pleased to
bring the Petitioners 1 and 2 herein as Legal representatives of the deceased
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S.A.No.611 of 2006 & batch
sole appellant on record as appellants 1 and 2 respectively in SA.No.
611/2006 in the interest of justice
IA NO: 1 OF 2012(SAMP 3048 OF 2012
Petition under Section 151 CPC praying that in the circumstances stated
in the affidavit filed in support of the petition, the High Court may be pleased to
fix an early date for hearing of the main appeal preferably in the first week of
Novermber 2012.
IA NO: 1 OF 2013(SAMP 2276 OF 2013
Petition under Section 151 CPC praying that in the circumstances stated
in the affidavit filed in support of the petition, the High Court may be pleased to
pass order restraining the Respondent, in changing the nature, creating third
party interest under a deed of conveyance or otherwise, in respect of the suit
scheudle properties and pass
IA NO: 1 OF 2016(SAMP 313 OF 2016
Petition under Section 151 CPC praying that in the circumstances stated
in the affidavit filed in support of the petition, the High Court may be pleased
hear and dispose of the above SA No.611/2006 as expeditiously as possible
IA NO: 1 OF 2025
Petition under Section 151 CPC praying that in the circumstances stated
in the affidavit filed in support of the petition, the High Court may be pleased
Pleased to grant temporary injunction restraining the Respondents or their
agents or henchmen from interfering with possession, alienating or altering
the Petition Schedule Property to third party in the interest of justice
Counsel for the Appellant:
1. SITA RAM CHAPARLA
Counsel for the Respondent:
1. …
2. PUSHPA KUMARI.B
3. K MOHAN RAMI REDDY
Date of Reserved : 06.02.2026
Date of Pronouncement : 08.04.2026
Date of Upload : 08.04.2026
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S.A.No.611 of 2006 & batchThe Court made the following Common Judgment:
As all these cases arise out of the same dispute and between the
same parties, they are being disposed of, by way of this common order.
2. Heard Sri Sita Ram Chaparla the learned counsel appearing for
the appellants in S.A.No.611 of 2006 and Sri Patanjali Pamidighantam,
learned counsel appearing for the contesting respondents.
3. The parties are being referred to as they are arrayed in
O.S.No.359 of 1997. The deceased 1st defendant had married
Smt. Thulasamma. Four daughters were born to this couple, namely
Smt. Sarojamma, Smt. Lakshmikanthamma, Smt. Chennamma alias
K. Bharathi and Smt. Girijamma. Smt. Thulasamma, the wife of the 1st
defendant and the mother of the plaintiff had passed away even before the
marriages of any of the daughters had been performed. On account of the
demise of Smt. Thulasamma, the property belonging to her had devolved
upon the four daughters and the deceased 1st defendant herein. The
marriages of three daughters were performed in 1974. These three daughters
namely Smt. Sarojamma, Smt. Lakshmikanthamma and Smt. Girijamma,
before their marriage, along with the 1st defendant herein, had gifted their
shares in the property of Smt. Thulasamma to the plaintiff that is Smt.
Chennamma alias K. Bharathi. These gifts were by way of registered deeds of
gifts, dated 07.05.1974 & 09.08.1974. These documents were marked as
Exhibits A.1 to A.3, in the suit.
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S.A.No.611 of 2006 & batch
4. The marriage alliance of the plaintiff was fixed in December, 1974
and the marriage was performed in the month of February, 1975. At that
stage, the plaintiff had executed a registered deed of gift, dated 19.12.1974,
transferring all the property, which had been gifted to her, by her three sisters
and the deceased first defendant, apart from her share which had devolved
upon her, on account of the demise of her mother, to the deceased first
defendant. It is the contention, of the plaintiff, that the property was transferred
to the 1st defendant only for the purposes of his livelihood and with a clear
understanding that the property would revert back to the plaintiff after the
demise of the 1st defendant. After the execution of Exhibit B-1 and after the
marriage of the plaintiff had been performed, the 1st defendant had contracted
a 2nd marriage. At that stage, the plaintiff is said to have confronted the 1st
defendant, on the ground that the property had been given to the 1st defendant
solely for his livelihood with the understanding that the property would be
revert back to the plaintiff, while the second marriage was in violation of the
said undertaking. The 1st defendant is said to have convinced the plaintiff that
her interest would not be harmed in any manner, by the second marriage, and
that he would continue to safeguard the property, in her favour.
5. The defendant No.1 had continued to cultivate the suit schedule
property, during his lifetime. In the course of time, children were also born to
the 1st defendant, out of his second marriage. In the year 1995, the 1st
defendant is said to have stopped paying any part of usufruct to the plaintiff.
At that stage, the plaintiff, having realized that the 1st defendant had all around
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S.A.No.611 of 2006 & batch
misused his relationship with her to transfer the property, to his children, born
from second marriage, had issued a legal notice. The 1st defendant is said to
have replied to the legal notice with false allegations. On account of these
facts, the plaintiff filed O.S.No.359 of 1997 before the Principal Junior Civil
Judge, Kadiri, seeking cancellation of the deed of gift, dated 19.12.1974; the
delivery of suit schedule property to the plaintiff; mesne profits as well as costs
of the suit. The suit was decreed by the trial court on 20.02.2004. Aggrieved
by this judgment/decree, the 1st defendant filed AS.No.21 of 2004 before the
Senior Civil Judge, Kadiri. This appeal came to be dismissed on 21.11.2005.
Aggrieved by the said order of dismissal, the 1st defendant filed S.A.No.611 of
2006. During the pendency of this appeal, the 1st defendant had passed away
and his son and wife were brought on record as appellants 2 &3.
6. Sri Sita Ram Chaparla, the learned counsel appearing for the
appellants would contend that the allegations made in the plaint are incorrect
and there were no conditions attached to the deed of gift, dated 19.12.1974,
as alleged by the plaintiff. He would further contend that the suit itself was
barred by limitation inasmuch as the deed of gift was executed and registered
on 19.12.1974 while the suit came to be filed in the year 1997 and the same is
barred by limitation, by any stretch of imagination.
7. Sri Patanjali Pamidighantam, the learned counsel appearing for
the plaintiff, would contend that the facts pleaded in the plaint have been
proved by the plaintiff entering the witness box, as P.W.1, and no part of her
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S.A.No.611 of 2006 & batch
evidence was shaken in the cross-examination . He would further submit that
the 1st defendant, which was alive during the pendency of the suit and the first
appeal, had chosen not to enter the witness box and as such, an adverse
inference against the 1st defendant would have to be drawn by this Court. He
would submit that the suit is within limitation inasmuch as the plaintiff had
discovered the true nature of the deed only in the year 1995 and had filed the
suit in the year 1979 which is within the period of three years stipulated under
the Article 59 of the Schedule to the Limitation Act, 1963. He would also
submit that E.P.No.104 of 2006 filed for execution of the Judgment/decree, of
the trial court, dated 20.02.2004 had been allowed by an Order, dated
17.05.2006 and possession of the property had been delivered, to the plaintiff,
on 08.06.2006.
8. The pleading in the plaint is that the plaintiff was in the care and
protection of the 1st defendant, till her marriage, in February, 1975, and was
under the total control, and influence of the 1st defendant, as she had no
independent advice and had implicit faith in the 1st defendant. The plaintiff
pleads that the 1st defendant being the father of the plaintiff was in a position
to dominate her will and taking advantage of this position, he had exercised
undue influence over the plaintiff and obtained a nominal deed of gift, dated
19.12.1974. The plaintiff contends that this transaction was devoid of good
faith.
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S.A.No.611 of 2006 & batch
9. The plaintiff also goes on to the plead that the 1st defendant had
persuaded her to execute the deed of gift on the ground that he would be left
alone, with no means of livelihood, once the plaintiff, after her marriage,
settles down with her husband, at her marital home and that he would need
sustenance for his livelihood. The plaintiff also pleads that she continued to
believe her father, the 1st defendant, even when he got married a second time,
on account of his position of dominance over her. She contends that she
finally understood and recognized that her father, the 1st defendant was
misusing his position of dominance over her, to deprive her of her property,
only when he brought the brothers, of his second wife, to his house. At that
stage, she got issued a legal notice on 27.02.1997 claiming that the gift
executed by her in favour of the 1st defendant, dated 19.12.1974 is void. In the
cause of action paragraph, in the plaint, the plaintiff states that the cause of
action for the suit arose on 19.12.1974 when the plaintiff executed a deed of
gift in favour of the 1st defendant and the year 1995 when the plaintiff came to
know about the fraud committed by the 1st defendant.
10. The 1st defendant filed a written statement admitting the execution
of the deeds of gift by him and his three daughters to the plaintiff and the
subsequent deed of gift executed by the plaintiff in favour of the 1st defendant.
The 1st defendant also stated that he was blessed with a son and two
daughters, from the second wife he had married, after the marriages of his
daughters.
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S.A.No.611 of 2006 & batch
11. The 1st defendant took the defence, that there was no undue
influence on the plaintiff and the transaction was done in good faith and no
undue influence was involved. The specific pleading of the 1st defendant is
that, the property was conveyed to the 1stdefendant, as all the daughters had
got married and left the house leaving behind the 1st defendant who required
sustenance for his livelihood and betterment. It is also contended that his
second marriage was actually arranged by the plaintiff and other three
daughters.
12. In the trial court the following issues came up for consideration:
I. Whether the plaintiff is entitled for setting aside the gift deed,
dated 19.12.1974?
II. Whether the plaintiff is entitled for delivery of possession by the
defendants?
III. Whether the plaintiff is entitled for Rs.20000/- towards mesne
profits and Rs.1000/- for future profits by the defendant?
IV. Whether the suit is barred by limitation?
V. To what relief?
13. The trial court accepted the contention of the plaintiff that the
plaintiff and the 1st defendant, on account of their relationship, were in a
fiduciary relationship and the 1st defendant taking advantage of this position of
dominance over the plaintiff had obtained the deed of gift from the plaintiff. On
that ground, the trial court had held in favour of the plaintiff, in relation to
issues1 to 3. On the question of limitation, the trial court held that Article-91, in
the schedule to the Limitation Act, (the trial court was referring to Article 91 of
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S.A.No.611 of 2006 & batchthe Limitation Act, 1908) would be applicable and that the starting point for the
period of limitation, would not be the date of execution of the gift deed but the
time when the fraud becomes known to the wronged party. The trial court then
held that the plaintiff discovered the true nature of the deed, only in the year
1995, and accordingly, the suit was within limitation. The trial court had also
held that the relevant date would be the date on which the plaintiff discovered
the nature of the deed and not the date when she escaped from the influence
by which the 1st defendant dominated her.
14. In the appeal, the appellate Court framed the following issues:-
I. Whether the judgment and decree of the Principal Junior Civil Judge,
Kadiri is erroneous?
II. Whether the plaintiff is entitled for declaration that the gift deed
executed by her in favour of defendant is null and void?
III. To what relief?
15. As can be seen from the aforesaid issues, the question of
limitation was not framed as one of the issues. However, the said issue was
considered, in paragraph No.31, of the judgment in appeal. The appellate
court accepted the contention of the plaintiff that she became aware of the
nature of the deed of gift only from 1995 when the behavior of the 1st
defendant had changed. On that basis, the appellate court agreed with the
findings of the trial court.
16. Sri Sita Ram Chaparla, learned counsel for the appellants while
assailing the findings of the trial court and the appellate Court had essentially
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S.A.No.611 of 2006 & batchcontended that a suit for cancellation of a deed of gift could not have been
filed after more than 22 years and the same was clearly barred by limitation.
17. In the aforesaid circumstances, the following questions of law,
arise:
i. Whether the limitation under the Article 59 of the schedule to the
Limitation Act. 1963 would commence from the date of execution of the
document or from the date when the undue influence over the plaintiff
ends or when the nature of the document is understood by the plaintiff.
ii. Whether the burden of demonstrating the presence or absence of
undue influence would rest on the plaintiff or the 1st defendant.
18. Question No.2 is being considered first.
19. The case of the plaintiff is that, she was under the care and
protection of her father till she was married and also at the time when she had
executed the deed of gift, dated 19.12.1974. She contends that the
relationship, of a father and daughter, is a fiduciary relationship where the
father has a position of dominance over the will of the daughter and that she
had executed the said gift deed on account of her father dominating her will
and getting her to execute the said deed of gift on a false pretext.
20. The question of who would have to demonstrate, the presence or
absence of such undue influence, had come up before the Courts. Both the
trial court and the appellate court held that the burden would lie upon the
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S.A.No.611 of 2006 & batchperson who is said to have been in a position of dominance over the transferor
of the property. For this purpose, the trial court had relied upon the Judgments
of the High Court at Madras in the case of S. Rathnam Naidu & Anr Vs.
Kanni Ammal & Ors1and in the case of Mannankatti Ammal Vs. Vaiyapri
Udayar2, the Judgment of the High Court at Calcutta in the case of Wajid
Khan Vs. Ewas Ali Khan3, the Judgment of the Hon’ble Supreme Court of
India in the case of Ladli Parshad Vs. Karnkak Distillery Company4, the
Judgment of the High Court of Allahabad in the case of Daya Shankar Vs.
Smt. Bachi & Ors5.
21. A review of these Judgments, read with Section 16 of the Indian
Contract Act, reveals the following:
“Any contract between two persons, in which one of the parties is
in a position to dominate the will of the other and uses such dominance, for
obtaining unfair advantage, would have to be treated as a contract which is
induced by “undue influence”. Once such a relationship is shown, especially
when such relationship is between that of a daughter and her father, the
burden of demonstrating that such undue influence had not been pressed into
service by the dominant person would fall on the dominant person only.”
22. In the present case, the relationship between the plaintiff and the
deceased 1st defendant is that of a daughter and father. Such a relationship
1
AIR 1972 Madras 413
2
1961 (2) Madras LJ 367
3
(1886) ILR 13 cal. 545
4
AIR 1963 SC 1279
5
AIR 1982 Allahabad 376
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S.A.No.611 of 2006 & batch
has been treated as a fiduciary relationship. Consequently, the 1st defendant
has to be treated as a person in a position of dominance over the plaintiff. The
aforesaid Judgments also hold that, when an allegation of undue influence is
made, the burden of denying such undue influence would fall on the dominant
person. In the present case, the pleadings of the 1st defendant, in the written
statement do not make out any case to dispel that undue influence had not
occurred. Except a denial of such undue influence, the 1st defendant has not
made out any positive case in his favour. Further, the 1st defendant chose not
to step into the witness box and consequently, he has not been able to dispel
the contention of the plaintiff that there was undue influence in the execution
of the deed of gift.
23. The substantial question of law, that remains to be considered by
this Court, is on the question of whether the suit was within limitation or not.
The deed of gift was executed, on 19.12.1974, and the suit came to be filed
only in the year 1997, which is about 24 years since the execution of the deed
of gift. In the normal course, the suit would be barred, by limitation, by any
stretch of imagination. However, the plaintiff relies upon Article-59 of the
schedule, in the Limitation Act, 1963. The said provision is an enlargement, of
the Articles 91 & 114 of the Limitation Act, 1908. Articles 91 & 114 of the First
Schedule, in the Limitation Act, 1908 read as follows:-
Article Description of suit Period of Time from which
Nos. limitation period begins to run
91. To cancel or set Three years When the facts entitling
aside an instrument the plaintiff to have the
nototherwise instrument cancelled or
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S.A.No.611 of 2006 & batchprovided for. set aside become known
to him.
114. For the rescission of Three years When the facts entitling
a contract the plaintiff to have the
contract rescinded first
become known to him.
24. Both these Articles were combined as Article-59 in the Limitation
Act, 1963 which reads as follows:-
Article Description of suit Period of Time from which
Nos. limitation period begins to run
59. To cancel or set Three years Time from which period
aside an instrument begins to run: When the
or decree or for the facts entitling the plaintiff
rescission of a to have the instrument or
contract. decree cancelled or set
aside or the contract
rescinded first become
known to him.
25. Under this Article, the period of three years, for filing a suit to set
aside or cancel an instrument, commences from the date on which the plaintiff
gets knowledge of the facts because of which the instrument requires to be
cancelled or set aside. This Article has been considered in Someshwar Dutt
Vs. Tirbhawan Dutt & Ors and in the case of Ningawwa Vs Byrappa & 3 Ors.
26. In the present case, the plaintiff contends that, on account of the
fiduciary relationship between her and her father, she was always under the
belief that the property would revert to her, upon the demise of her father. She
also contended that it was only, after her suspicion was raised, regarding the
intentions of her father and after receiving the reply of her father, to the legal
notice issued by her, that she became aware of the real intentions of her
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S.A.No.611 of 2006 & batch
father, the 1st defendant. It is her case that, her father had induced her to
believe that the property would come back to her as she would be his legal
heir. The plaintiff contends that she became aware of the actual intention of
her father only upon receipt of his reply notice. If this contention were to be
rejected, the suit would have to be dismissed and consequently, this Second
Appeal would have to be allowed.
27. The case of the plaintiff is that her father, the deceased 1st
defendant, had been sharing the usufruct of the suit schedule property with
her, right from the date on which the deed of gift had been executed till a short
period prior to the exchange of notices and the plaintiff, examined herself as
P.W.1 and made the statement, while deposing as P.W.1. This statement was
not shaken during her cross-examination. Neither the deceased 1st defendant
nor any of the defendants had deposed as witnesses, to dispute or deny the
statement made by the plaintiff, as a witness. The defendants have also not
raised any pleading nor produced any evidence, to set up an alternative case,
to demonstrate that the original deed of gift, executed in December-1974 was
an absolute gift and there was never any understanding or assurance given by
the deceased 1st defendant that the property would revert to the plaintiff, upon
the demise of the deceased 1st defendant. In the circumstances, applying the
principles of preponderant probabilities, the only conclusion this Court can
draw is that the version of the plaintiff is correct and the defendants have not
placed any material before this Court, to reject such a plea.
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S.A.No.611 of 2006 & batch
28. Article 59 provides for a period of three years for setting aside or
cancelling an instrument. This three years period would commence from the
date on which the facts entitling the plaintiff to have the said instrument
cancelled or set aside first become known to the plaintiff. Article-59 (erstwhile
Article-91) came to be considered by the Privy Council in the case of
Someshwar Dutt Vs. Tirbhawan Dutt & Ors6. In this case, the younger brother
had executed a deed of gift, in favour of the elder brother conveying his entire
property to the elder brother. Thereafter, the younger brother, initiated
litigation, for setting aside the deed of gift executed by the younger brother.
One of the issues that came up for consideration, right from the stage of trial
was the question of limitation. The suit was primarily filed on the ground of
fraudulent misrepresentation and the weakness of mind of the younger
brother, apart from the commanding position of the elder brother on the
younger brother, which made the fraud feasible. The Trial Court dismissed the
suit on the ground that the younger brother could not prove the allegations of
misrepresentation etc. However, the Appellate Court had held that a case, of
undue influence, was established and accepted the case of the younger
brother. The Privy Council, in the appeal before it, had held that no case, on
merits, had been made out by the younger brother. Apart from this, the Privy
Council had also went into the question of limitation and held as follows:-
“20. One further consideration on this head falls to be mentioned. If a
substantive case of undue influence may be deemed– contrary to their Lordships’
view–to have been disclosed in the pleadings, and established in evidence, then
the present suit is plainly barred by time, as the Subordinate Judge held. In the6
Manu/PR/0145/1934
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S.A.No.611 of 2006 & batchview taken by their Lordships, the plaintiff, not being of weak intellect, was aware
of the character, of the transaction at the date when it was entered into. But,
apart from that, the plaintiff, on his own confession, became aware of the true
character of the deed which he signed within a few months of its execution. It was
suggested that the phrase a deed of gift” may be ambiguous, and that in a sense
a deed of management may be regarded as a deed of gift. But, even assuming
that to be so, the plaintiff makes it quite clear, in the passage cited, that he came
to know, a few months after its execution, that he had signed, not a deed of
management, but a deed of gift of his property. If that be so, the suit is plainly out
of time, and is barred by art. 91 of the Indian Limitation Act (of Rani Janki Kunwar
v. Raja Ajit Singh MANU/PR/0038/1887 L.R. 14 I.A. 148. The error into which the
Chief Court fell, in their Lordships’ opinion, is that they thought the three years
permitted by the Limitation Act began to run, not from the discovery of the plaintiff
of the true nature of the deed which he had signed, but from the date when he
escaped from the influence by which, according to the plaintiff, he was
dominated. Whether the facts as proved bring the claim within the limitation
period even on this view is a question on which their Lordships express no
opinion. It suffices to say that for the doctrine of the Chief Court their Lordships
are unable to find any sufficient justification. Their Lordships will therefore humbly
advise His Majesty that the appeal of the defendant should be allowed, and that
the decree of the Subordinate Judge of September 9, 1909, be restored. It
follows that the cross-appeal fails to be dismissed. The plaintiffs must pay the
costs here and in the Chief Court.”
29. The Hon’ble Supreme Court of India also had an occasion to
consider the Article-59 (erstwhile Article-91) in the case of Ningawwa Vs
Byrappa & 3 Ors7. In this case, a wife had executed a gift deed transferring
certain plots to her husband. Subsequently, she filed a suit for setting aside
the deed of gift. The case of the wife, was that she had been told that she was
executing a deed of gift in relation to two plots while other properties apart
from the two plots, were also included in the deed of gift. The matter reached
the Hon’ble Supreme Court of India wherein the Hon’ble Supreme Court of
India considered not only the question of limitation, but also the question of
whether a document executed, under undue influence of fraud would be a
void document or avoidable document. The relevant passage in the said
judgment as follows:-
7
1968 AIR 956
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S.A.No.611 of 2006 & batch“We are accordingly of the opinion that the transaction of gift was voidable and
not void and the suit must be brought within the time prescribed under Article 95
of the Limitation Act.
7. It was contended on behalf of the respondents that the terminus a quo for the
limitation was the date of the execution of the gift deed and claim of the appellant
was therefore barred as the suit was filed more than three years after that, date.
We are unable to accept this argument as correct. Article 95 prescribe a period of
limitation of three years from the time when the fraud becomes known to the
party wronged. In the present case, the appellant stated that she did not come to
know offraud committed by her husband in respect of plots 91 and 92 of
Lingadahalli village till his death. The trial court has discussed the evidence on
this point and reached the conclusion that the case of the appellant is true. The
appellant lived with her husband on affectionate terms till the time of his death.
Till then she had no reason to suspect that any fraud had been committed on her
in respect of the two plots in Lingadahalli village. It is only after his death when
his brothers and respondent no.4’s brothers removed grain from the house
against her wishes that the appellant came to know that the lands at Lingadahalli
village were included in the gift deed by fraud. The suit was instituted by the
appellant within a few days after she came to know of the fraud. We are therefore
of the opinion that the suit was brought within time prescribed under Art.95 of the
Indian Limitation Act so far a plots 91 and 92 of Lingadahalli village are
concerned.
8. As regards plots nos.407/1 and 409/1 of Tadavalga village the trial court has
found that the husband of the appellant was in a position of active confidence
towards her at the time of the gift deed and that he was in a position to dominate
her will and the transaction of gift was on the face of it unconscionable. Section
16(3) of the Indian Contract Act says that where a person who is in a position to
dominate the will of another enters into a transaction with him which appears, on
the face of it or on the evidence adduced, to be unconscionable, the burden of
proving that such transaction was not induced by undue influence, shall lie upon
the person in a position to dominate the will of another. Section 111 of the Indian
Evidence Act also states:
“Where there is a question as to the good faith of a transaction between
parties, one of whom stands to the other in a position of active confidence,
the burden of proving the good faith of the transaction is, on the party who is
in a position of active confidence.”
9. The trial court found that the respondents had not adduced sufficient
evidence to rebut the presumption under these statutory provisions and reached
the finding that the gift deed was obtained by the appellant’s husband by undue
influence as alleged by her. The finding of the trial court has been affirmed by the
High Court. But both the trial court and the High Court refused to grant relief to
the appellant on the ground that the suit was barred under Art.91 of the Limitation
Act so far as plots nos. 407/1 and 409/1 were concerned. On behalf of the
appellant it was contended that the lower courts were wrong in taking this view.
We are, however, unable to accept this argument as correct. Article 91 of the
Indian Limitation Act provides that a suit to set aside an instrument not otherwise
provided for (and no other provision of the Act applies to the circumstances of the
case) shall be subject to a three year’s limitation which begins to run when the
facts entitling the plaintiff to have the instrument cancelled or set aside, are
Known to him. In the present case, the trial court has found, upon examination of
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S.A.No.611 of 2006 & batch
the evidence, that at the very time of the execution of the gift deed, Ex.45 the
appellant knew that her husband prevailed upon her to convey survey plots nos.
407/1 and 409/1 of Tadavalga village to him by undue influence. The finding of
the trial court is based upon the admission of the appellant herself in the course
of her evidence. In view of this finding of the trial court it is manifest that the suit
of the appellant is barred under Art.91 of the Limitation Act. So far as plots nos.
407/1 and 409/1 of Tadavalga village are concerned. On behalf of the appellant
Mr. K. R. Chaudhuri presented, the argument that the appellant continued to be
under the undue influence of her husband till the date of his death and the three
year’s period under Art.91 should therefore be taken to run not when the
appellant had knowledge of the true nature of the gift deed but from the date
when she escaped the influence of her husband by whose will she was
dominated. It is not possible, to accept this argument in view of the express
language of Art.91 of the Limitation Act which provides that the three years’
period runs from the date when the plaintiff came to know the facts entitling her to
have the instrument cancelled or set aside, This view is borne out by the decision
of the Judicial Committee in Someshwar Dutt v. TirbhawanDutt(1) in which it was
held that the limitation of a suit to set aside a deed of gift on the ground that it
was obtained by undue influence was governed by Art.91 of the Indian Limitation
Act, and the three years period runs from the date when the plaintiff discovered
the true nature of the deed, and not from the date when he escaped from the
influence by which be alleged that he was dominated.
10. For the reasons expressed we hold that this appeal must be allowed and the
appellant must be granted a decree that the, gift deed, Ex.45 is not binding on
her so far as plots 91 and 92 of Lingdahalli village are concerned and she is
further entitled to recover possession of the said two plots from the defendant-
respondents with mesne profits. We accordingly set aside the decree of the High
Court, restore the decree of the Civil Judge, Senior Division, Bijapur dated
January 29, 1953 and allow this appeal with costs.
11. Appeal allowed.”
30. The aforesaid judgments make it clear that the period of three
years, for filing the suit to set aside a document would commence from the
date on which the plaintiff has knowledge of the true nature of the deed
executed by the plaintiff. The point of time when the plaintiff comes out of the
undue influence of the beneficiary of the document, would not berelevant for
determining the starting point of the aforesaid three years.
31. In the present case, the document had been executed on
19.12.1974. The plaintiff was fully aware of the fact she was executing the
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deed of gift in favour of her father transferring all the property, of her mother,
which had been transferred to her, by her sisters and by the 1st defendant.
32. The pleading of the plaintiff, regarding the reason why she had
instituted the suit, for setting aside the deed of gift, dated 19.12.1974, is as
follows:
“11. Till two years ago the plaintiff had no reason to suspect the good faith of
her father. Since two years the attitude of thedefendant has thoroughly changed.
The defendant has notbeen on visiting terms with the plaintiff and was keeping
himself away though all these years he was frequently visiting Tirupati and taking
the plaintiff to Nallamada giving her cash and kind. The plaintiff bagan to suspect
the defendant since two years as the defendant was loosing affection on her and
was developing lot of affection towards his second wife and children. At the
instance of his second wife and her brothers the defendant has been acting
prejudicially to the interests ofthe plaintiff and he was also trying to alienate the
properties to third parties and trying to create rights to his step children. The
plaintiff learns that the defendant has brought the brothers of his second wife to
Nallamada and keeping them in his house. The plaintiff coming to know the
attitude of the defendant got issued a notice on dt.27-2-1997 claiming that the gift
executed by her in favour of the defendant on 19.12.74 is void under law and that
it does not affect the rights of the plaintiff. The defendant gave a reply notice with
false allegations. Hence this suit.
13. The cause of action for the suit arose on 19.12.74 when the plaintiff
executed a gift deed infavour of the defendant giving the schedule mentioned
suit, properties and in the year 1995 when the plaintiff came to know about the
fraud played by the defendant at Nallamada where the defendant resides and the
suit properties situate all within the jurisdiction of this Hon’ble Court.”
33. On the question of limitation, the Trial Court held as follows:-
“28) With respect to the question of limitation as rightly contended by the counsel
for the plaintiff, the appropriate article applicable is Sec.95 of the Limitation Act.
As per the decision in the case of Nigawwa Vo. Byrappa Shiddappa Hireknrabar
and others reported in A.I.R.1968 S.C. 956 wherein the Hon’ble Supreme Court
held that it is not date of execution of gift deed but time when fraud becomes
known to the party wronged. It is the date when plaintiff discovered nature of the
deed and not date when he escaped from Influence by which he was dominated.
A contract or other transaction Induced or tainted by fraud is not void., but only
voidable at the option of the party defrauded. Until it is avoided, the transaction is
valid, so that third parties without notice of the fraud may in the meantime acquire
right and Interests in the matter which they may enforce against the party
defrauded, The legal position will be different if there is a fraudulent
misrepresentation not merely as to the contents of the document but as toits
character.With reference to the former, the transaction is void, while in the case
of the latter, it is merely voidable. According to the plaintiff, from 1995 onwards
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when the defendant has stopped giving share to the plaintiff, failed to explain
accounts and the details of the properties, the plaintiff has started getting her
initial suspicionand she has issued legal notice under Ex. A-5 on 27-2-97 and
therefore when the plaintiff has got doubt about the nature of the transaction the
point of limitationstarts and as such the suit is within time and not barred by
limitation.”
34. The findings of the appellate Court, in this regard is as follows:-
“31. The learned counsel for the defendant contends that the suit is barred by
limitation. The plaintiff filed the suit nearly after lapse of 23 years after execution
of Ex.B.1. The plaintiff’s counsel cited a decision reported in A.I.R.1968 SC 956
wherein it was observed that under Art. 95 of the Limitation Act– starting point of
limitation. Art-91 of the limitation Act -It is not date of execution of gift deed but
time when fraud becomes known to the party wronged. It is the date when
plaintiff discovered truenature of deed and not date when he escaped from
influence by which he was dominated. So in this case it is specific case of the
plaintiff that even after execution of Ex.B.1, the defendant had been cordial
towards the plaintiff and he had been supplying produce realized from the plaint
schedule properties. The plaintiff also says that from 1995 onwards when the
defendant has stopped giving share to the plaintiff, failed to explain accounts and
the details of the properties, the plaintiff has started getting her initial suspicion
and she has issued legal notice. The plaintiff came to know about the nature of
document and the defendant started to act adverse to the interests of the plaintiff.
The period of limitation starts from the date of knowledge of the plaintiff about the
fraud played by the defendant. Therefore the suit is perfectly within time. The
finding of the learned Principal Junior Civil Judge, Kadiri is correct and I do not
see any reason to interfere with the same. The points 1 and 2 are answering
accordingly.”
35. In the present case, there is no dispute that the plaintiff was
aware of the nature of the deed of gift, executed by her, as well as the
contents of the deed. However, she became aware that she had been
induced, into executing the deed of gift, on false pretences, only in 1995. Both
the trial court and appellate courts accepted this version of the plaintiff. This
court has not been shown any evidence to hold otherwise. Applying the ratio,
set out in the above judgments, it must be held that the suit was within
limitation.
36. The deceased 1st defendant, is said to have executed a registered
deed of will, dated 07.05.2002, registered as document No.35 of 2002,
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bequeathing the suit schedule property to his son of D. Kalidas Reddy. After
the demise, of the deceased 1st defendant, on 17.11.2007, the revenue
records were mutated in favour of Sri D. Kalidas Reddy and fresh pattadar
pass books and title deeds were issued in favour of Sri D. Kalidas Reddy.
Aggrieved by the issuance of the pattadar pass books and title deeds, the
plaintiff filed an appeal, before the Revenue Divisional Officer, Kadiri, who
granted a stay of operation of the orders, of the Tahsildar, by proceedings
dated 07.10.2014. Aggrieved by this Order, Sri D. Kalidas Reddy, filed a
revision before the Joint Collector, who stayed the proceedings before the
Revenue Divisional Officer, by proceedings, dated 18.12.2014 and directed
the Revenue Divisional Officer to dispose of the appeal. Against this order of
the Joint Collector, the plaintiff moved W.P.No.3903 of 2015 before the
erstwhile Common High Court of Andhra Pradesh at Hyderabad. By an Order
dated 02.03.2015, the Hon’ble Common High Court had set aside the orders
of the Revenue Divisional Officer as well as the Joint Collector and directed
the Revenue Divisional Officer to dispose of the appeal, filed by the
respondent, on merits, within a period of four months from the date of receipt
of the Order. The Revenue Divisional Officer, had thereupon dismissed the
appeal, by an Order dated 16.06.2015 and remanded the case to the
Tahsildar for a de novo enquiry. The Tahsildar, in the course of the de novo
enquiry had prepared a report, which stated that about 3.5 acres of land was
in the possession of persons who had purchased these lands between 1982
to 2004 and that an extent of 0.96 cents of land was also gifted out to the
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APSRTC for setting up a bus stand. The report also stated that out of 8.38
acres of land in Sy.Nos.269-2 to 269-5 & 269-7, only an extent of 4.88 acres
of land remains in the possession of Sri D. Kalidas Reddy. The Tahsildar
refused to make any changes on the ground that the litigation over the said
property, in the form of Second Appeal No.611 of 2006, remained pending
and the orders could only be passed after the disposal of the Second Appeal.
37. Aggrieved by this Order of the Tahsildar dated 09.10.2015, the
plaintiff moved an appeal before the Revenue Divisional Officer who refused
to intervene in the matter, in view of the Status-quo orders passed by the
erstwhile Common High Court of Andhra Pradesh at Hyderabad, in
S.A.M.P.No.1429 of 2006 in S.A.No.611 of 2006 on 27.06.2006. The Revision
filed before the Joint Collector also came to be dismissed on the ground that
no steps can be taken while S.A.No.611 of 2006 is pending before the Hon’ble
High Court. Aggrieved by the said order of Joint Collector dated 17.04.2017,
the plaintiff has approached this Court by way of W.P.No.19156 of 2017. The
contention of the plaintiff is that the revenue authorities ought to have
corrected the revenue entries and issued the pattadar pass books and the title
deeds in her favour, in view of the favourable orders received by her in the
Suit as well as the First Appeal. This Court does not find any illegality in the
said orders, inasmuch as the revenue authorities could not have gone into the
question of title and possession, while the Status-quo order of the Court, in the
Second Appeal remained in force. Accordingly, this Writ Petition is dismissed
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leaving it open to the plaintiff, to approach the revenue authorities in view of
the present orders in the Second Appeal.
38. C.C.Nos.68 of 2016, 700 of 2020 & 1648 of 2022, came to be
filed against various sale deeds and deeds of alienation executed by Sri D.
Kalidas Reddy alienating the properties which are the subject matters of the
present appeal, despite the orders of Status-quo granted by the Court, on
27.06.2006, in S.A.M.P.No.1429 of 2006 in S.A.No.611 of 2006.
39. In view of the aforesaid, the cases before this Court are disposed
in the following manner:-
1) Second Appeal No.611 of 2006 is dismissed.
2) Writ Petition No.19156 of 2017 is dismissed.
3) Contempt Case Nos.68 of 2016, 700 of 2020 & 1648 of 2022,
are delinked from these cases and again posted for further
hearing as there is a prima facie case of violation, by Sri D.
Kalidas Reddy, of the order of Status-quo granted by the
erstwhile Common High Court of Andhra Pradesh, dated
27.06.2006 in S.A.M.P.No.1429 of 2006 in S.A.No.611 of 2006.
There shall be no order as to costs.
As a sequel, pending miscellaneous petitions, if any, shall stand closed.
________________________
R. RAGHUNANDAN RAO, J
BSM
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THE HON’BLE SRI JUSTICE R RAGHUNANDAN RAO
S.A.No.611 of 2006, W.P.No.19156 of 2017 and C.C.Nos.68 of 2016, 700 of
2020 & 1648 of 2022
08.04.2026
BSM
