A Will has to be Cancelled within Three Years

Period of limitation for suit to cancel instruments

The period of limitation for filing a suit to cancel or set aside an instrument or decree or for rescission of a contract is 3 years as per Article 59 of the Limitation Act, the High Court of Kerala reasserts in its judgement in Cheriyan T Tharakan & Others v Saramma Cheriyan @Ammini & Others.

The period of limitation begins to run from the date on which facts entitling the plaintiff has first become known to him based on the pleadings.

Exclusion of time from limitation u/s 14 of limitation act

The Section 14 of the Limitation Act states that in computing the period of limitation for any suit, the time during which the plaintiff has been prosecuting with due diligence another civil proceeding, against the defendant shall be excluded.

This exclusion of time is applicable only when the proceeding relates to the same matter in issue and is prosecuted in good faith in a court which, from defect of jurisdiction or other cause of a like nature, is unable to entertain it.

In the above appeal, the appellant argued that even though the appeal would have to be filed within 3 years as on 13/4/97, it was filed only on 15/12/97. He claimed that he is entitled to the exclusion of time on account of filing another OP (Probate) which was dismissed as withdrawn under Section 14 of the Limitation Act.

Conditions to be applicable to enjoy exclusion

In order to enjoy the benefit of Section 14 of the Limitation Act, the following conditions are to be satisfied:

1. Both the prior and subsequent proceedings are civil proceedings prosecuted by the same party;
2. The prior proceeding had been prosecuted with due diligence and in good faith;
3. The failure of the prior proceeding was due to defect of jurisdiction or other cause of like nature;
4. The earlier proceeding and the latter proceeding must relate to the same matter in issue and;
5. Both the proceedings are in a Court.

Section 14 protects diligent litigants only

The purpose of the Section 14 Limitation Act is to protect the litigant against the bar of limitation when he institutes a proceeding which eventually gets dismissed due to selection of a wrong forum or a mistaken remedy despite his caution and due diligence. (Consolidated Engineering Enterprise and Another v Principal Secretary. Irrigation Department and Others [2008 (7) SCC 169]).

To get the benefit of Section 14 Limitation Act the party should show and satisfy that he initiated the proceeding with due diligence and in good faith and the suit was rejected or dismissed due to defect of jurisdiction or error in jurisdiction.

Further reading

1. Cherian T Tharakan & Others v Saramma Cheriyan @Ammini & Others [ 2022 KHC SN1].