REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO.  598 OF 2005

Baljinder Singh …. Appellant

Versus

Rattan Singh …..Respondent

(With C.A. Nos. 605/2005 and 601/2005)

J U D G M E N T

Dr. ARIJIT PASAYAT, J.

1. These appeals are directed against a common judgment

of  a learned Single  Judge of  the Punjab and Haryana High

Court disposing of three Second Appeals filed under Section

100 of the Code of Civil Procedure, 1908 (in short ‘CPC’). All

the  three  appeals  and  the  cross  objections  filed  related  to

certain acts of one Shivdev Singh. All the appeals and cross

objections were dismissed except with certain modifications.  

2. The background facts in a nutshell are as follows:

Shiv Dev Singh was allotted land measuring 811 kanal

14 marlas out of which he effected sale of 440 kanals earlier.

The said sale is not disputed in the present proceedings. Shiv

Dev Singh earlier  married Harbans Kaur and from the said

wedlock one son i.e. plaintiff Lt. Col. Rattan Singh, and four

daughters  who are also plaintiffs along with Lt.  Col.  Rattan

Singh  in  Civil  Suit  No.172  of  3.9.1994  were  born.  Smt.

Harbans  Kaur  died  in  the  year  1986.  Shiv  Dev  Singh

thereafter married Iqbal Kaur and from wedlock of Shiv Dev

Singh  with  Iqbal  Kaur,  Jaspal  Singh,  Lakhwinder  Kaur,

Sukhjinder  Kaur  and  Baljinder  Singh  and  Balwinder  Singh

were born. The dispute in these appeals is in respect of the

land  measuring  337  kanals  10  marlas.  Shiv  Dev  Singh

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executed a gift deed on 19.12.1962 in favour of Jaspal Singh,

one of the sons of Shiv Dev Singh in respect of land measuring

10 kanals 5 marlas. The said gift deed was disputed by his

another son Lt. Col. Rattan Singh and four daughters in Civil

Suit  No172 of 3.9.1994.  Regular Second Appeal  No.2550 of

2000 before the High Court arose out of the said suit.

The said suit was for declaration to the effect that they

are co owners in joint possesson to the extent of ½ share, and

that  the  property  in  the  hands  of  Shiv  Dev  Singh  was

ancestral. In the written statement, the defendant denied that

the land was ancestral.  It  was asserted  that same was self

acquired property of Shiv Dev Singh. It was pleaded that since

19.12.1962 when Shiv Dev Singh gifted the land in his favour,

possession  was  delivered  to  him  and  ever  since  he  is

continuing  in  possession  as  owner  of  the  suit  land.  Jaspal

Singh, the donee, was minor at the time of execution of gift

deed. The learned trial Court recorded a finding that the suit

land was ancestral in the hands of Shiv Dev Singh and that

alienation of ancestral property effected by father of a Hindu

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governed by Mitakshara law could be challenged in terms of

Article 109 of the Limitation Act, 1963 (in short the ‘Limitation

Act’)  within  12  years  from  the  date  when  alienee  takes

possession of the property alienated. Since Jamabandi for the

year 1973-74, (Exhibit D-8) Jamabandi for the year 1978-79

(Exhibit D-9), Jamabandi for the year 1983-84 (Exhibit D-10)

record  Jaspal  Singh  as  a  person  in  possession,  the  Court

returned  a  finding  that  Jaspal  Singh  came  into  possession

more than 12 years before the filing of the suit and thus, the

suit is beyond the period of limitation.

Shiv Dev Singh also executed two separate sale deeds on

25.2.1980  and  27.3.1980  in  respect  of  land  measuring  73

kanals 11 marlas in favour of Pritam Kaur, widow of Thakur

Singh, who happened to be sister of Iqbal Singh, wife of Shiv

Dev Singh. After the death of Pritam Kaur on 1.4.1990, the

same devolved upon defendant Baljinder Singh, minor son of

Jaspal  Singh i.e.  grandson Shiv Dev Singh by virtue of  will

dated 30.1.1984. The said sale deeds were disputed by Lt.Col.

Rattan Singh in Civil Suit No.171 of 6.9.1994. Regular Second

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Appeal No.2549 of 2000 before the High Court arose out of

said suit.

In the said suit, the challenge is to the sale deeds dated

25.2.1980 and 27.3.1980 whereby Shiv Dev Singh has sold

the land in favour of Pritam Kaur,  his sister-in-law through

his attorney Jaspal Singh. In the said suit it was alleged that

the  suit  land was  ancestral  having  been  inherited  from his

forefathers  and  that  the  sale  deeds  were  without  legal

necessity  and  thus  null  and  void.  It  was  alleged  that  the

defendant, son of Jaspal Singh is in illegal and unauthorized

possession of the suit land without any legal right for the last

four  years.  The  plaintiff  alleged  that  the  cause  of  action

accrued  in  the  year  1993 when the  share  of  compensation

amount in respect of the land acquired by the Improvement

Trust was not allowed to be withdrawn by the plaintiff at the

instance of  Iqbal  Kaur,  second wife of  Shiv Dev Singh. The

defendant  in  written  statement  pleaded  that  the  sales  in

question  are  not  in  any  way  illegal,  without  consideration

and/or void. Shiv Dev Singh was the sole owner of the suit

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land.  The  suit  land remained  in  possession  of  Smt.  Pritam

Kaur as owner ever since the sale in her favour. It was alleged

that cause of action, if any, arose to the plaintiff to challenge

the alienation on the date of execution of the sale deeds. The

learned trial Court dismissed the suit holding that the suit is

barred by limitation governed by Article 109 of the Limitation

Act as revenue record since Jamabandi 1983-84 (Exhibit D-5)

records the name of Pritam Kaur in the column of ownership

and cultivation. The said Jamabandi entry was recorded after

mutation in favour of Pritam Kaur and was sanctioned in the

year 1980.

Shiv  Dev  Singh  also  executed  a  registered  will  dated

1.8.1969 in favour of his wife Iqbal Kaur. At the time of death

of  Shiv  Dev  Singh  on  9.6.1988  he  was  owner  of  land

measuring 107 kanals 13 Marlas. Lt. Col. Rattan Singh and

his four sisters filed suit for declaration to claim ½ share of

the said land on the basis of natural succession and for joint

possession in Civil Suit No.170 of 3.9.1994. Regular Second

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Appeal No.2548 of 2000 before the High Court arose out of the

said suit.

The said suit was for declaration and in the alternative

for joint possession filed, inter alia, on the ground that they

are owners of ½ share of the land. It was averred that Shiv

Dev Singh son of Sahib Singh was owner of 107 kanals 13

marlas of land which was inherited from his forefathers and it

was  ancestral.  Shiv  Dev  Singh  died  on  9.6.1988  leaving

behind plaintiffs and defendants Nos. 1 and 4 to 6 and Smt.

Lakhwinder Kaur as his legal heirs. Lakhwinder Kaur died on

18.6.1993 leaving behind defendants Nos. 2 and 3 as her legal

heirs. It was averred that defendant no.1 has claimed a will in

her favour.  The  deceased  Shiv  Dev Singh has not executed

any valid will in favour of defendant No.1 and the alleged will

is false and fabricated. It was further alleged that the plaintiffs

have succeeded to the estate of Shiv Dev Singh to the extent of

½ share and the defendants succeeded  to the remaining ½

share  of  his  estate.  Defendant  No.1  relied  upon  will  dated

1.8.1969  and  claimed  that  she  has  become  the  exclusive

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owner  in  possession  of  the  suit  land.  In  evidence,  the

defendants produced son of the scribe and one of the attesting

witnesses of the will. The trial Court held that the said will is

proved  to  have  been  executed  and  is  not  surrounded  by

suspicious circumstances. One of the reasons for coming to

such view by the trial Court was that Lt. Col. Rattan Singh

has got 8 acres of land earlier and thus, the plaintiffs cannot

make any grievance.

3. However,  in three  separate  appeals,  the  first  Appellate

Court reversed the findings recorded by the trial Court.  The

first Appellate Court held that Civil  Suit No.171 and 172 of

1994  are  within the  period  of  limitation as  cause  of  action

arose to them when they were excluded from the Joint Hindu

Family property in the year 1992. However, in respect of the

will,  the first  Appellate  Court  held that it  is surrounded by

suspicious circumstances and consequently decreed the suit

holding  that  the  estate  of  Shiv  Dev  Singh will  vest  on  the

coparceners Rattan Singh, Jaspal Singh and Iqbal Kaur wife of

Rattan Singh in equal shares and thus plaintiff Lt. Col. Rattan

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Singh  would  have  1/3rd share  and  the  defendants  Jaspal

Singh and Iqbal Kaur would have 2/3rd share.

4. Aggrieved by the findings recorded by the learned First

Appellate Court, Second Appeals were filed.

5. The plaintiffs also  filed cross objections in each of the

appeals  claiming  that  the  judgment  and  decree  of  the  first

Appellate  Court  granting  1/3rd share  to  Rattan  Singh  is

incorrect  as  a  matter  of  fact  plaintiff  Rattan  Singh  has  ½

share.

6. In Second Appeals the findings of the Courts below that

the land is joint Hindu Family coparcenary property was not

disputed. This fact was not disputed even before the learned

trial Court. It was also not disputed that the sale deeds were

executed without legal necessity and Shiv Dev Singh was not

competent to gift the property. However, what was disputed is

that the suit challenging alienation by way of gift in the year

1962 and sale deeds in the year 1980 by way of suit filed in

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the year 1994 were clearly beyond the period of limitation as

prescribed  under  Article  109  of  the  Indian  Limitation  Act,

1963 (in short the ‘Limitation Act’). The first Appellate Court

had recorded a finding that the plaintiffs acquired knowledge

of alienation by way of gift and sale in the year 1992 after Lt.

Col. Rattan Singh retired from army. Learned counsel for the

appellants before the High Court disputed such finding as one

based upon perversity. It was that it is impossible to believe

that the gift deed executed in the year 1962 mutation of which

was  recorded  in  the  year  1967  came  to  the  notice  of  the

plaintiffs only in the year 1992 since plaintiff Lt. Col. Rattan

Singh was visiting  the  village  every  year  during  his  annual

leave.  However,  since  the  first  Appellate  Court  has believed

the  statement  of  the  plaintiff  to  record  a  finding  that  he

acquired  the  knowledge  of  alienation  of  the  year  1992,  it

would a finding of fact. High Court was of the view that even if

a different view was possible to be taken it would not entitle

the High Court to take a different view in Second Appeal. The

finding recorded by the first Appellate Court was held to have

been  arrived  at  after  discussing  the  relevant  oral  and

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documentary evidence.  Therefore,  the High Court  proceeded

on the assumption that plaintiff Lt. Col. Rattan Singh came to

know about the alienation in the year 1992.

7. The  High  Court  formulated  following  substantial

questions of law for consideration:

1. Whether the gift deed executed by Shiv Dev Singh

in favour of son Jaspal Singh on 19.12.1962 is void

or voidable?

2. Whether  the  sale  deeds  dated  25.2.1980  and

27.3.1980 executed by Shiv Dev Singh in favour of

Pritam Kaur, his sister in law, is void or voidable?

3. Whether the suit for possession is within the period

of limitation or such suit is barred by limitation in

terms of Article 109 of the Limitation Act, 1963?

4. Whether Will dated 1.8.1969 executed by deceased

Shiv Dev Singh in favour of his wife Iqbal Kaur is

proved to be duly executed and is not surrounded

by suspicious circumstances?

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5. What will be the share of the plaintiffs in the suit

property consequent  to the decision on the above

questions of law?  

8. The genealogy as given below indicating the relationship

between the parties was taken note of by the High Court.

Shivdev Singh ! ! !

Harbans Kaur - Wife Iqbal Kaur (wife)  →Pritam Kaur ↓ ↓      (Sister of Iqbal)  

____________________________________________________ _______________________________________________  !         !                    !             !                      !                                !                       !                       !                        ! Rattan      Gurbachan      Manjit   Kuldip     Balwinder                              Jaspal        Lakhwinder     Sukhwinder    Baljit Singh   Kaur            Kaur      Kaur        Kaur Singh      Kaur                Kaur                Kaur (R-1 in     (R-2 in          (R-2 in     (R-2 in    (R-2 in (App.No    (since              (App.no.5     (App.No. All           C.A.No.        C.A.No.    C.A.       C.A.No. 1 in C.A.    deceased)       in C.A. No.    6 in C.A. Appeals ) 605 and        605 and     605 &    605 and No.605  605 and      No. 605 and

601 of        601 of        601 of    601 of and App.     App.No.4    App.No.5 in 2005)            2005)         2005)    2005) No.6 in in C.A.       C.A.601 of

C.A.601 601 of       2005) Of 2005)               2005)          ↓

                                                                                                ___________________________ !                                       !

           Baljinder Singh    Gurtej Singh (App. In C.A.     (App.No.2 in  No.598/2005)    in C.A.605 and

     App.No.1 in C.A            No.601 of 2005)

9. After  analyzing  the  legal  position  and  the  applicable

Hindu Law the  High Court  inter  alia  came to  the  following

conclusions:

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“In  the  judgment  and  decree  passed  by  the learned  first  Appellate  Court  holding  that Rattan Singh plaintiff will have 1/3rd share is not sustainable as the share of Shiv Dev Singh was  excluded  for  the  reason  that  Shiv  Dev Singh during his life time sold 50-60 acres of land and, thus he ceased to have any share in the  suit  land.  The  said  reasoning  is  not sustainable  in law. The sale effected by Shiv Dev Singh during his life time will diminish the joint property of all the coparceners. Such sale is not disputed and, therefore, such sale is for the benefit of coparcenary body and, thus, it cannot be said that such sale was out of the share  of  Shiv  Dev  Singh  alone.  In  terms  of Explanation  1  to  Section  6  of  the  Hindu Succession Act, 1956, the notional partition is to be presumed immediately before the death of Shiv Dev Singh. Therefore, Shiv Dev Singh will  have  equal  share  within  Rattan  Singh, Jaspal Singh and Iqbal Kaur.

Immediately before the death of Shiv Dev Singh,  the  coparceners  were  Shiv  Dev  Singh himself, Rattan Singh plaintiff, Iqbal Kaur (wife of  Shiv  Dev  Singh),  and  Jaspal  Singh.  The married daughters from the first wife Harbans Kaur or from the second wife Iqbal Kaur were not coparceners and, thus not entitled to any share.  Thus,  Shiv  Dev  Singh,  Rattan  Singh, Jaspal Singh and Iqbal Kaur shall have 1/4th share each as coparcener. One fourth share of Shiv Dev Singh will fall equally to the share of one son and four daughters from his first wife Harbans  Kaur  one  son  and  three  daughters from  the  second  wife  Iqbal  Kaur  and  Iqbal Kaur  herself  i.e.  1/4th share  to  each  of  the

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legal heirs of Shiv Dev Singh at the time of his death”.    

10. It was inter alia held that the deed of gift purported to

have  been  executed  by  Shivdev  Singh  in  favour  of  Jaspal

Singh was surrounded by mysterious circumstances and was

not a genuine document. So far as the sale deeds in favour of

Pritam Kaur are concerned it was held that Article 65 of the

Limitation Act was applicable. While the challenge in the first

suit relating to the sale deeds was filed on 1.9.1994, the other

suits  challenging  the  gift  purported  to  have  been  made  on

19.12.1962 and the will purported to have been executed on

1.8.1969 were filed on 3.9.1994.

11. In  the  present  appeals,  challenge  to  the  High  Court’s

judgment was on various grounds.   We shall deal with them

separately.

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12. So far as the appeal relating to the effect of the sale deed

is concerned, it was submitted that the High Court had made

out  a  new  case  about  applicability  of  Article  65  of  the

Limitation Act,  while  the  trial  Court  and the  first  Appellate

Court  had  proceeded  on  the  basis  that  Article  109  was

applicable.  Similarly,  the  basic  issue  was  whether  the  sale

deed  was void  or  voidable.  So far  as the  appeal  relating to

validity  of  the  gift  made  by  Shivdev  Singh  is  concerned,

according to learned counsel, the relevant issue is whether he

made  the  gift  and  if  the  answer  to  the  question  is  in  the

affirmative, to what extent could he had made the gift. Here

again the question was whether the gift was void or voidable.

So  far  as  the  appeal  relating  to  the  validity  of  the  Will  is

concerned,  it was submitted that the Courts below failed to

notice that there was nothing suspicious about execution of

the Will  and the evidence on record clearly established that

the Will had been executed out of free will and was not tainted

in any way.  

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13. In  response,  learned  counsel  for  the  respondent

submitted that the High Court has analysed the legal and the

factual position in great detail and has rightly dismissed the

appeals.  

14. The first issue in the appeals relates to the validity of the

sale deeds. Articles 65 and 109 operate in different fields. The

trial  Court  categorically  found  that  Article  65  was  not

applicable and Article 109 was applicable to the facts of the

case. The first Appellate Court in essence accepted that Article

109 was applicable, which provided for a period of 12 years to

set  aside  the  alienation  effected  by  a  father  from  the  date

when the alienee was in possession of the property. Though

the  first  Appellate  court  accepted  that  Article  109  was

applicable, yet it was held that the spirit of Article 109 is that

by  taking  over  the  possession  of  the  land which is  subject

matter of the suit the alienee inter alia gives a notice to the

persons  governed  by  Mitakashara  School  of  Law  to  agitate

their  rights,  if  any.  Otherwise,  their  remedy  would  become

barred  by  limitation.  It  was  held  that  the  starting  point  of

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limitation  would  be  somewhere  in  the  year  1992  when  he

came  to  know  of  the  alienation  made  by  the  father.

Consequently, the cause of action accrued in the year 1992

when he gained knowledge about the existence and execution

of  the  sale  deeds.  Therefore,  the period  of  12 years  as laid

down in Article 109 was to be reckoned from the year 1992

and  since  the  suit  had  been  filed  in  1994  it  is  within  the

period of limitation.  

15. A bare perusal of the High Court’s order it is seen that

the  High  Court  proceeded  on  the  basis  that  the  applicable

Article is Article 65 and not Article 109. It is to be noted that

there was no issue framed about applicability of Article 65. On

the contrary, the issue framed related to the applicability of

Article  109.  There  was  no  pleading  by  the  plaintiff  about

applicability of Article 65. Even in the counter affidavit filed

before this Court in the concerned Civil Appeal, the categorical

stand is Article  110 is applicable.  In  para 8 of  the counter

affidavit filed in Civil Appeal No.598 of 2005 it has been stated

that the suit of the respondent (plaintiff) is within time under

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Article 110 and counting from the date of knowledge, the suit

filed  is  clearly  within  the  period  of  limitation.  The  effect  of

Exhibit  D-11 and the  deed  on which the  appellants  placed

strong reliance has not been considered by the first Appellate

Court and it reversed the findings of the trial Court. On the

question  of  position  relating  to  applicability  of  Article  109

there is practically no discussion by the learned counsel.  

16. It  is,  therefore,  crystal  clear  that  the  High  Court

proceeded to decide the issue relating to period of limitation

by making out a new case for which there was no pleading

and even no question of law was framed.  

17. The question whether the sale deed was void or voidable

has to be adjudicated in the light of principles set out by this

Court in several decisions. We shall deal with this aspect in

detail while considering the appeal relating to the gift.  

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18. In  Thamma  Venkata  Subbamma  (dead)  by  Lrs. V.

Thamma Rattamma and Others (1987  (3)  SCC 294)  it  was

observed as follows:

“12. There  is  a  long  catena  of  decisions holding  that  a  gift  by  a  coparcener  of  his undivided interest in the coparcenary property is void. It is not necessary to refer to all these decisions  Instead,  we  may  refer  to  the following statement  of  law in Mayne’s  Hindu Law, eleventh Edn., Article 382:

“It  is  now equally  well  settled in  all  the  Provinces  that  a  gift  or devise  by  a  coparcener  in  a Mitakshara family of  his undivided interest  is  wholly  invalid….A coparcener cannot make a gift of his undivided  interest  in  the  family property,  movable  or  immovable, either to a stranger or to a relative except  for  purposes  warranted  by special texts.  

13.  We  may  also  refer  to  a  passage  from Mulla's Hindu Law, fifteenth edn., Article 258, which is as follows:  

Gift  of  undivided  interest.  -  (1) According to the Mitakshara law as

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applied  in  all  the  States,  no coparcener  can  dispose  of  his undivided  interest  in  coparcenary property by gift.  Such transaction being  void  altogether  there  is  no estoppel or other kind of personal bar  which  precludes  the  donor from asserting his right to recover the transferred property.  He may, however, make a gift of his interest with  the  consent  of  the  other coparceners.  

14. It  is submitted by Mr. P. P. Rao, learned counsel  appearing  on  behalf  of  the respondents, that no reason has been given in any of the above decisions why a coparcener is not entitled to alienate his undivided interest in the coparcenary property by way of gift. The reason  is,  however,  obvious.  It  has  been already  stated  that  an  individual  member  of the joint Hindu family has no definite share in the coparcenary property. By an alienation of his  undivided  interest  in  the  coparcenary property,  a  coparcener  cannot  deprive  the other  coparceners  of  their  right  to  the property. The object of this strict rule against alienation  by  way  of  gift  is  to  maintain  the jointness of ownership and possession of the coparcenary property.  It  is  true that there  is no  specific  textual  authority  prohibiting  an alienation by  gift  and the  law in this  regard has  developed  gradually,  but  that  is  for  the purpose  of  preventing  a  joint  Hindu  family from being disintegrated.  

17.  It  is,  however,  a  settled  law  that  a coparcenary can make a gift of his undivided

20

interest in the coparcenary property to another coparcener  or  to  a  stranger  with  the  prior consent of  all  other coparceners.  Such a gift would be quite legal and valid”.  

19. We may also refer to a passage from Mulla’s Hindu Law,

Seventeenth Edn., (Article 258), which is as follows:

“Gift  of  undivided  interest-  (1)According  to Mitakshara law as applied in all the States, no coparcener  can  dispose  of  his  undivided interest  in coparenary property by gift.  Such transaction  being void  altogether  there  is  no estoppel  or other kind of personal bar which precludes the donor from asserting his right to recover  the  transferred  property.  He  may, however,  make a gift of  his interest with the consent of the other coparcener”.

20. In Mayne’s Hindu Law, XIV Edn.  It has been noted as

follows:

“Gifts of affection- The father’s power to make gifts through affection within reasonable limits of  ancestral  movable  property  has been fully recognized.  In  Ramalinga  v  Narayana  (1922 (49) IA  168)  the Privy Council  held that “the father has undoubtedly  the power  under the

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Hindu Law of making within reasonable limits, gifts of movable property to a daughter”.

By  Will-  But  such  gifts  through  affection  of joint family property when they are by will, are invalid,  because  the right of  the coparceners vests  by  survivorship  at  the  moment  of  the testator’s  death,  and  there  is  accordingly nothing  upon which the  will  can operate.  In Subbarami v. Ramamma ((1920 (43) Mad 824) the Madras High Court held that a will made by a Hindu father bequeathing certain family properties for the maintenance of his wife was invalid  as  against  his  infant  son  through  it would have been a proper provision if made by him,  during  his  lifetime.  This  may  be  in  a sense  right.  There  is  however  no  compelling logic  in  not  regarding  wills  “as  gifts  to  take effect  upon death at least as to the property which  they  can  transfer  and  the  persons  to whom  it  can  be  transferred”.  Convenience would seem rather to point to the extension to the  sphere  of  Hindu  Law  of  the  general principle  of  jurisprudence  that  what  a  man can give by act inter vivos, he can give by will”.

21. In  view  of  the  decision  in  Venkata  Subbamma’s case

(supra),  the  decision  of  the  High  Court  so  far  the  gift  is

concerned, does not warrant any interference.  

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22. So far as the question whether the gift is void or voidable

much  depends  on  the  factual  scenario.  The  distinction

between void or voidable is summarized as follows:

“De Smith, Woolf  and Jowell  in their treatise

Judicial Review of Administrative Action, 5th,

para 5-044, have summarized the concept of

void and voidable as follows:

“Behind  the  simple  dichotomy  of void and voidable  acts (invalid and valid  until  declared  to  be  invalid) lurk  terminological  and  conceptual problems  of  excruciating complexity.  The  problems  arose from  the  premise  that  if  an  act, order or decision is ultra vires in the sense of outside jurisdiction, it was said to be invalid, or null and void. If it is intra vires it was, of course, valid.  If  it  is  flawed  by  an  error perpetrated  within  the  area  of authority  or  jurisdiction,  it  was usually said to be voidable; that is, valid  till  set  aside  on appeal  or  in the  past  quashed  by  certiorari  for error  of  law  on  the  face  of  the record.”   

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Clive Lewis in his work Judicial Remedies in

Public  Law  at  p.131  has  explained  the

expressions “void and voidable” as follows:

“A challenge to the validity of an act may be by direct action or by way of collateral  or  indirect  challenge.  A direct  action  is  one  where  the principal purpose of the action is to establish  the  invalidity.  This  will usually be by way of an application for judicial review or by use of any statutory  mechanism for  appeal  or review.  Collateral  challenges  arise when the invalidity is raised in the course  of  some  other  proceedings, the  purpose  of  which  is  not  to establish  invalidity  but  where questions  of  validity  become relevant.”  

23. In Sunil Kumar and Anr. v. Ram Parkash and Ors. (AIR

1988 SC 576) it was noted in paras 23 and 24 as follows:

23.  The  managing  member  or  karta  has not only the power to manage but also power  to alienate  joint  family  property.  The  alienation may be  either for  family necessity  or  for  the benefit  of  the  estate.  Such  alienation  would bind  the  interests  of  all  the  undivided

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members of the family whether they are adults or  minors.  The  oft  quoted  decision  in  this aspect,  is  that  of  the  Privy  Council  in Hanuman  Parshad  v.  Mt.  Babooee,  [1856]  6 M.I.A. 393. There it was observed at p. 423: (1) "The power of the manager for an infant heir to charge  an  estate  not  his  own  is,  under  the Hindu  law,  a  limited  and qualified  power.  It can only be exercised rightly in case of need, or for the benefit of the estate." This case was that of a mother, managing as guardian for an infant  heir.  A  father who happens  to  be  the manager  of  an  undivided  Hindu  family certainly  has  greater  powers  to  which  I  will refer a little later. Any other manager however, is not having anything less than those stated in  the  said  case.  Therefore,  it  has  been repeatedly held that the principles laid down in that case apply equally to a father or. other coparcener  who  manages  the  joint  family estate.

Remedies against alienations:

24. Although the power of disposition of joint family  property  has  been  conceded  to  the manager of joint Hindu family for the reasons aforesaid, the law raises no presumption as to the validity of his transactions. His acts could be questioned in the Court of law. The other members of the family have a right to have the transaction  declared  void,  if  not  justified. When  an  alienation  is  challenged  as  being unjustified or illegal it would be for the alienee to prove that there was legal necessity in fact or that he made proper and bona fide enquiry as to the existence of such necessity. It would

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be for the alienee to prove that he did all that was  reasonable  to  satisfy  himself  as  to  the existence of such necessity. If the alienation is found  to  be  unjustified,  then  it  would  be declared void. Such alienations would be void except  to  the  extent  of  manager's  share  in Madras,  Bombay and Central  Provinces.  The purchaser could get only the manager's share. But in other provinces,  the purchaser  would not get even that much. The entire alienation would be void. [Mayne's Hindu Law 11th ed. para 396].

24. In Sadasivam v. K. Doraisamy (AIR 1996 SC 1724) it was

found that when the father has executed sale deed in favour of

a  near  relative  and  the  intention  to  repay  debt  or  legal

necessity has not been proved as a sham transaction.        

25. In  Words  and  Phrases  by  Justice  R.P.  Sethi  the

expression ‘void’ and ‘’voidable’ read as under:

“Void-  Black’s  Law  Dictionary  gives  the meaning of the word “void” as having different nuances  in  different  connotations.  One  of them is of course “null or having no legal force or binding effect”. And the other is “unable in law, to support the purpose for which it was intended”.  After  referring  to  the  nuances between  void  and  voidable  the  lexicographer

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pointed out the following: “The word ‘void’  in its strictest  sense,  means that which has no force  and  effect,  is  without  legal  efficacy,  is incapable of being enforced by law, or has no legal or binding force, but frequently the word is  used  and  construed  as  having  the  more liberal meaning of ‘voidable’. The word ‘void’ is used in statute in the sense of utterly void so as to be incapable of ratification, and also in the sense of voidable and resort must be had to the rules of construction in many cases to determine  in  which  sense  the  legislature intended to use it. An act or contract neither wrong in itself nor against public policy, which has  been  declared  void  by  statute  for  the protection or benefit of a certain party, or class of  parties,  is  voidable  only”.  (Pankan  Mehra and  Anr.  v.  State  of  Maharashtra  and  Ors. (2000 (2) SCC 756).

Per  Fazal  Ali,  J-  The  meaning  of  the  word “void” is stated in Black’s Law Dictionary (3rd Edn.) to be as follows:

“Null  and  void;  ineffectual; nugatory;  having  no  legal  force  or binding  effect;  unable  in  law  to support  the  purpose  for  which  it was  intended;  nugatory  and ineffectual so that nothing can cure it;  not  valid”.  Keshavan  Madhava Menon  v.  State  of  Bombay  (1951 SCR 228).  

The expression “void” has several facets. One  type  of  void  acts,  transactions,  decrees are  those  which  are  wholly  without

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jurisdiction, ab initio void and for avoiding the same no declaration is necessary, law does not take  any  notice  of  the  same  and  it  can  be disregarded  in  collateral  proceeding  or otherwise.  Judicial  Review  of  Administration Action, 5th Edn., para 5-044 (See also Judicial Remedies  in  Public  Law  at  page  131; Dhurandhar  Prasad  Singh  v.  Jai  Prakash University and Ors. (2001 (6) SCC 534)

The  other  type  of  void  act,  e.g.  may be transaction  against  a  minor  without  being represented  by  a  next  friend.  Such  a transaction is a good transaction against the whole world. So far as the minor is concerned, if he decides to avoid the same and succeeds in avoiding it by taking recourse to appropriate preceding the transaction becomes  void  from the  very  beginning.  Another  type  of  void  act may  be  one,  which  is  not  a  nullity,  but  for avoiding  the  same,  a  declaration  has  to  be made.  (See  Government  of  Orissa  v  Ashok Transport Agency and Ors (2002 (9) SCC 28)

The  meaning  to  be  given  to  the  word “void”  in Article  13 of the Constitution is  no longer  res  integra,  for  the  matter  stands concluded  by  the  majority  decision  of  the Court  in  Keshavan  Madhava  Menon  v.  The State of Bombay (1951) SCR 228. We have to apply the ratio  decidendi  in that case to the facts  of  the  present  case.  The  impugned Act was  a  existing  law  at  the  time  when  the Constitution came into force. That existing law imposed  on  the  exercise  of  the  right guaranteed  in  the  citizens  of  the  India  by Article 19(1)(g) restrictions which could not be justified as reasonable  under clause (6)  as it then stood and consequently under Article 13

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(1)  that  existing  Law  became  void  “to  the extent of such inconsistency”. As explained in Keshavan Madhava Menon’s case (supra)  the Law became void in toto or for all purposes or for all times or for all persons but only “to the extent of such inconsistency”, that is to say, to the  extent  it  became  inconsistent  with  the provisions  of  Part  III  which  conferred  the fundamental rights on the citizens. It did not become void independently of the existence of the rights guaranteed by Part III. (See Bhikaji Narain  Dhakras  and  Ors.  v.  The  State  of Madhya Pradesh and Anr. (1955 (2) SCR 589).

The word “void” has a relative rather than an absolute meaning. It only conveys the idea that  the  order  is  invalid  or  illegal.  In Halsbury’s  Laws  of  England,  4th Edn.  (Re- issue)  Vol.  1(1)  in  para 26,  p.31 it  is  stated thus:  “If  an  act  of  decision,  or  an  order  or other  instrument  is  invalid,  it  should,  in principle,  be  null  and  void  for  all  purposes; and it has been said that there are no degrees of nullity. Even though such an act is wrong and  lacking  in  jurisdiction,  however,  it subsists and remains fully effective unless and until  it  is  set  aside  by a court  of  competent jurisdiction. Until its validity is challenged, its legality  is  preserved”.  (See  State  of  Kerala  v. M.K.  Kunhikannan  Nambiar  Manjeri Manikoth,  Naduvil  (dead)  and  ors.  (1996  (1) SCC 435).     “Voidable  act”  is  that  which  is  a  good  act unless  avoided,  e.g.  if  a  suit  is  filed  for  a declaration that a document is fraudulent, it is voidable as the apparent state of affairs is the real  state  of  affairs  and a  party  who alleges otherwise is oblige to prove it.  If  it is proved

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that  the  document  is  forged  and  fabricated and  a  declaration  to  that  effect  is  given,  a transaction  becomes  void  from  the  very beginning.  There may be voidable transaction which is required to be set aside and the same is avoided from the day it is so set aside and not any day prior to it.  In cases, where legal effect  of  a  document  cannot  be  taken  away without setting aside  the same,  it  cannot be treated  to  be  void  but  would  be  obviously voidable.   Government  of  Orissa v.  Ashok Transport Agency and Ors. (2002 (9) SCC 28)”.

26. So far as the appeal relating to Will is concerned, it is to

be noted that the Courts below including the High Court have

come to the conclusion that its execution is  surrounded by

suspicious circumstances.

27. The  defendants  have  relied  upon  will  dated  1.8.1969

executed by Shiv Dev Singh in favour of his wife Iqbal Kaur.

Will Ex.D-1 is sought to be proved by DW-1 Sham Lal son of

Jitender  Nath  scribe  of  the  Will  and  DW-2  Surinder  Nath

Vohra, the attesting witness DW-1 Sham Lal has identified the

handwriting of his father and deposed that his father died in

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the year 1993. DW-2 Surinder Nath Vohra has deposed that

the  Will  was  executed  by  Shiv  Dev  Singh at  Kharar  in  his

presence. At that time, Shiv Dev Singh was in sound disposing

mind. It has come on record that Dharam Singh, husband of

Lakhwinder Kaur daughter of Shiv Dev Singh was residing at

Chandigarh. Shiv Dev Singh used to stay with Dharam Singh

when  he  used  to  visit  Chandigarh  in  connection  with

litigation. However, the Will was not executed and registered

at  Chandigarh  but  at  Kharar.  Surinder  Nath  Vohra  is  not

known to the testator but attested the Will  at the asking of

Dharam Singh. Still  further, in Will  Exhibit  D-1 there is no

reference about Rattan Singh who is none else but real son of

the  testator.  The  first  Appellate  Court  found  that  the

reasoning given by the learned trial Court that Shiv Dev Singh

gave 8 acres of land to Rattan Singh and, therefore, it was not

necessary  for  him  to  assign  any  reason  was  found  to  be

incorrect because  the said land measuring 8 acres came to

him from his grand father as he was born after 4 daughters.

The first Appellate  Court found that even if  Shiv Dev Singh

had been given 8 acres,  there  is no reason as to why such

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mention  was  not  made  in  the  Will.  Consequently,  the  first

Appellate Court returned a finding that the execution of the

Will Exhibit D-1 is not proved and its execution is surrounded

by suspicious circumstances.   

28. The finding recorded about the genuineness of the Will is

essentially  factual.  The  Courts  below  have  analysed  the

factual  position  in  great  detail.  Nothing  infirm  in  the

conclusions  could  be  shown  by  learned  counsel  for  the

appellant.  

29. In view of the aforesaid circumstances it would be proper

for  the  High  Court  to  re-hear  the  appeal  relating  to

applicability   of   Article  129  of  the   Limitation  Act

and   to  

decide the   matter   taking   note   of   the   factual    position.  

30. The  other  appeals  are  dismissed.   The  appeals  are

accordingly disposed of.  

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...............................J. (Dr. ARIJIT PASAYAT)

................................J. (TARUN CHATTERJEE)

New Delhi, August 5, 2008    

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