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Civil Petition for Special Leave to Appeal No. 82‑P of 1972, decided on 19th April 1973.
(On appeal from the judgment and order of the Peshawar High Court, dated the 15th September 1972, in R. S. A. No. 85 of 1972).
Art. 120‑Time under Art. 120 Begins to run from date right to sue accrues‑Suit to declare gift void and ineffective on ground of fraud‑Right to sue accrues front date of discovery of fraud.
Mian Muhammad Yunas Shah, Advocate Supreme Court instructed by M. Qasim Imam,‑‑Advocate‑on‑Record for Petitioner.
Nemo for Respondents.
Date of hearing : 19th April 1973.
This is a petition for special leave to appeal from a judgment of 4 learned Single Judge of the Peshawar High Court In a second appeal which arose out of a suit for a declaration filed by the respondent No. 1 herein to have a gift deed registered on the 11th of February 1957, declared void and ineffective.
The said respondent alleged that the gift had been obtained from him by the petitioner posing as a Pir by fraud and undue influence. He further alleged that he came to know of the fraud on the 10th of September 1969, when the petitioner entered into an exchange transaction with regard to a part of the lands with respondent No. 2.
The gift deed was executed on 1‑1‑1957 and was registered on the 11th of February 1957, but the respondent No. 1, it appears, was admitted in Jail on 28‑6‑1957 under section 13 of the Lunacy Act under the orders of a Magistrate at Swabi. The evidence of the plaintiff' in the suit that he was not at the relevant time in full possession of his mental faculties was confirmed also by other witnesses who deposed to the effect that the said respondent was a lunatic in 1957.
The petitioner did not go in the witness‑box to rebut the evidence nor did he call any rebutting evidence. In this view of the matter, the High Court took the view that the first appel late Court bad rightly decreed the suit after setting aside the order of dismissal passed by the trial Court without consideration of all the relevant evidence.
The petitioner now seeks special leave to appeal and the only point urged in support of this petition is that the High Court and the first appellate Court had to notice that the suit was barred by time, if time is calculated from the date of execution of the deed of gift.
This contention is, however, without any substance, as under Article 120 of the Limitation Act the time begins to run from the date the right to sue accrues and in this case the right to sue accrued from the date of discovery of the fraud which was specifically alleged to be in 1969. This evidence remained unrebutted and, therefore, the suit instituted on the 26th February 1970 was rightly held to be well within time both by the Additional District Judge, Mardan, in first appeal and the High Court in second appeal.
No other point is urged. ,This petition must, therefore, fail and is, accordingly, dismissed.
Leave refused.
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