Suit for cancellation of instrument

2020 CLC 976 QUETTA-HIGH-COURT-BALOCHISTAN Judicial Precedent

S.39Limitation Act (IX of 1908), Art. 91Suit for cancellation of instrumentLimitation

Suit for cancellation of instrument could be filed within three years.

2019 YLR 2609 KARACHI-HIGH-COURT-SINDH Judicial Precedent

S. 39Limitation Act (IX of 1908), Art. 91Suit for cancellation of instrumentLimitation

Suit for cancellation of instrument could be filed within three years.

2018 CLC 1720 KARACHI-HIGH-COURT-SINDH Judicial Precedent

O. XXII, R. 3Specific Relief Act (I of 1877), Ss. 39 & 9Suit for cancellation of instrumentDeath of plaintiffRights and liabilities of legal heirsScopeDispossession of legal heirs of plaintiff by defendant

Plaintiff died during pendency of suit and his legal heirs were impleaded who moved application for restoration of possession of a portion of the suit property

Validity

Original plaintiff's 'right to sue' had survived to the legal heirs who became plaintiffs in the present suit

Legal heirs could only pursue those rights for which original plaintiff had sued unless plaint was capable of and was allowed to be amended to assert their rights

Where a party was joined in the suit under O. XXII, R. 3, C.P.C. on the death of original party, then it were the original party's rights and liabilities which were to be considered and not those of legal representatives' impleaded in place of deceased party

Remedy prescribed for relief against unlawful dispossession under S.9 of Specific Relief Act, 1877 having not been invoked within time, nor suit for partition/administration of the said portion of property had been filed to allow the legal representatives possession of said portion of property in the suit, it would be injudicious to allow the possession of said portion to the legal representatives where suit property as a whole would devolve on all the legal heirs of the original plaintiff including the defendant

Legal heirs of original plaintiff would be at liberty to file separate proceedings of partition/administration of the portion of suit property in circumstances.

2017 YLRN 198 SUPREME-COURT-AZAD-KASHMIR Judicial Precedent

S. 39Limitation Act (IX of 1908), Ss. 3 & 18Suit for cancellation of instrumentGift deedLimitation for challenging gift in case of fraudScopeContention of defendants was that the suit was filed beyond the period of limitationValidity

Supreme Court observed that question of limitation had been resolved by the Trial Court in a legal manner; controversy started when the plaintiff started reconstructing the house and the defendants objected to the same by alleging that the defendants were owner of the land by virtue of gift deed and in that way, it could not be held that the suit was beyond the period of limitation

Limitation in case of fraud started from the date of knowledge of the fraud.

2017 YLRN 198 SUPREME-COURT-AZAD-KASHMIR Judicial Precedent

S. 39Suit for cancellation of instrumentGift deedDevolution of property under custom (riwaj)Relief granted beyond the pleadingsScopeFindings of the High Court were that the property devolved upon donor/mother of defendants under the custom (riwaj)

Supreme Court observed that such was not the case and no relief beyond the pleadings could be granted.

2017 YLRN 198 SUPREME-COURT-AZAD-KASHMIR Judicial Precedent

S. 39Suit for cancellation of instrumentGift deedInheritance of daughter of predeceased only son of predecessor-in-interestScope

Plaintiffs contended that donor/mother of the defendants was daughter of predeceased only son to whom no property was to be devolved through inheritance of predecessor-in-interest

Plaintiffs had alleged that donor/mother of defendants got incorporated suit property in her favour by fraud

Defendants contended that donor/mother of defendants inherited the suit property which was subsequently gifted to them

Validity

Controversy revolved around the gift deed which was executed by donor in favour of her sons/defendants in respect of suit property, allegedly being owner of the whole property, which was inherited by her from her grand-father

Question was as to whether donor was competent to execute the gift deed of the suit property in favour of her sons, which was left by her grandfather

No rebuttal was on record on the part of defendants that the property gifted by their mother was that of predecessor-in-interest

Trial Court had rightly reached the conclusion that donor was not competent to execute the gift deed of the whole property in favour of her sons

Islamic law of inheritance postulated that where the propositus died leaving behind only one son's daughter and one real brother, having no real daughter and no grandson, then son's daughter (granddaughter) would share half of the property and remaining half would go to the real brother of the propositus

Donor/granddaughter was entitled to half share of the property left by her grandfather; she was competent only to transfer her own share and not the whole

When donor/mother of defendants, herself, was not lawful owner of the whole property, she was not entitled to execute the gift deed of the whole property in favour of her sons

Gift by donor was in excess of her share, Trial Court had rightly concluded that she was only entitled to half of the suit property

Decree of Trial Court was maintained

Appeal was accepted accordingly.