http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 6  

CASE NO.: Appeal (civil)  2412 of 2006

PETITIONER: Prem Singh & Ors.

RESPONDENT: Birbal & Ors.

DATE OF JUDGMENT: 02/05/2006

BENCH: S.B. Sinha & P.K. Balasubramanyan

JUDGMENT: J U D G E M E N T (Arising out of SLP (C) No.11/2003)

S.B. SINHA, J.

Leave granted.

Whether the provision of Article 59 of the Limitation Act  would be attracted in a suit filed for setting aside a Deed of Sale, is in  question in this appeal which arises out of a judgment and order dated  2.9.2002 passed by the High Court of Madhya Pradesh at Jabalpur  Civil Second Appeal No.8 of 1998.   

Respondent No.1 herein filed a suit for declaration and partition  of the land consisting of 19 bighas and 12 biswas claiming himself to  be a co-sharer with the defendant.  One Mihilal was the owner of the  suit land comprising of different khasra numbers, situate in Village  Akhoda, in the District of Bhind.  The said suit was filed by the  plaintiff-Respondent No.1 alleging that his father Chhedilal had a  share therein in addition to owner of another land in khasra No.516,  measuring 6 biswas.  Chhedilal died in the year 1950.  His wife also  died soon thereafter.  At the time of the death of his father, the  plaintiff-Respondent No.1 was a minor.  He started living with  Appellant No.4-Lal Bihari.  He, allegedly, executed a deed of sale on  1.1.1961 in respect of khasra No.516 measuring 6 biswas to Babu  Singh and Tek Singh for a consideration of Rs.7,000/-.  His age in the  Sale Deed was shown to be 26 years.  Only on 17.8.1979, he,  allegedly, gathered the information that the land under khasra No.516  was purported to have been sold by him to the aforementioned  persons.  He, thereafter, filed the suit on 24.9.1979.  The Appellant  herein pleaded that the suit was barred by limitation.   The said suit of  the Respondent No.1 was dismissed by the trial court by a judgment  and decree dated 29.4.1995 holding that the suit was barred by  limitation.  An appeal was preferred thereagainst by the plaintiff.  The  1st Appellate Court by judgment and decree dated 11.12.1997, held  that the said Deed of Sale was got executed by playing fraud on the  plaintiff who was a minor at the relevant point of time and the said  Deed of Sale, thus, being void ab intio, the limitation of three years  from the date of attaining of majority, as is provided for in Article 59  of the Limitation Act, 1963, would not be applicable in the instant  case.   A second appeal preferred by the Appellants herein was  dismissed by the impugned judgment dated 2.9.2002.

Mr. S.K. Gambhir, learned Senior Counsel appearing on behalf  of the Appellants, in support of this appeal, contended that:

i)      Having regard to the fact that Respondent No.1 herein  filed a suit on 24.9.1979 for setting aside the Deed of Sale dated

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 6  

1.12.1961, the same was clearly barred by limitation;   

ii)     The period of limitation for setting aside the said Deed of  Sale, as contended by the plaintiff, did not start running from  22.8.1979, but from the date he attained majority;  iii)    Even assuming that the findings of the learned Appellate  Court were correct that the Respondent No.1 was aged about 12 years  in 1961 and he attained majority in the year 1969, he was required to  file the suit within three years thereafter.   

(iv)    The Appellate Court as also the High Court failed to take  into consideration the documentary evidence which clearly  established that Respondent No.1 was a major on the date of  execution of the said Deed of sale.

Mr. Naresh Kaushik, learned counsel appearing on behalf of the  Respondents, on the other hand, submitted that  

i)      On the date of execution of the said deed of sale,  Respondent No.1 being a minor, Article 59 of the Limitation Act  would have no application;

ii)     When a transaction is void, as a suit can be filed at any  time, the provisions of  the Limitation Act are not attracted.

Strong reliance in this behalf has been placed on Balvant N.  Viswamitra & Ors. vs. Yadav Sadashiv Mule (Dead) through LRs.  & Ors. [(2004) 8 SCC 706].

The trial court, in view of the pleadings of the parties framed  several issues.  Issue No.4 framed by the trial court reads as under:

"4.     Whether suit is within the period of  Limitation?"

The learned trial court found that on 1.12.1961, when the deed  of sale was executed, Respondent No.1 was aged about 12 years.   However, the trial court opined that the plaintiff-Respondent No.1  failed to prove that he acquired knowledge of the said purported  fraudulent execution of the Deed of Sale only on 22.8.1979.  On the  basis of the said finding the suit was held to be barred by limitation.   

The learned First Appellate Court, on the other hand, opined  that the suit was not barred by limitation.  

The High Court also, as noticed hereinbefore, by reason of the  impugned judgment, upheld the judgment of the First Appellate  Court.

Limitation is a statute of repose.  It ordinarily bars a remedy,  but, does not extinguish a right.  The only exception to the said rule is  to be found in Section 27 of the Limitation Act, 1963 which provides  that at the determination of the period prescribed thereby, limited to  any person for instituting a suit for possession of any property, his  right to such property shall be extinguished.  

An extinction of right, as contemplated by the provisions of the  Limitation Act, prima facie would be attracted in all types of suits.   The Schedule appended to the Limitation Act, as prescribed by the  Articles, provides that upon lapse of the prescribed period, the  institution of a suit will be barred.  Section 3 of the Limitation Act  provides that irrespective of the fact as to whether any defence is set  out is raised by the defendant or not, in the event a suit is found to be  barred by limitation, every suit instituted, appeal preferred and every

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 6  

application made after the prescribed period shall be dismissed.   Article 59 of the Limitation Act applies specially when a relief  is claimed on the ground of fraud or mistake.  It only encompasses  within its fold fraudulent transactions which are voidable transactions.       A suit for cancellation of instrument is based on the provisions  of Section 31 of the Specific Relief Act, which reads as under:

"31. When cancellation may be ordered.--(1) Any  person against whom a written instrument is void  or voidable, and who has reasonable apprehension  that such instrument, if left outstanding may cause  him serious injury, may sue to have it adjudged  void or voidable; and the court may, in its  discretion, so adjudge it and order it to be  delivered up and cancelled.

(2) If the instrument has been registered under the  Indian Registration Act, 1908, the court shall also  send a copy of its decree to the officer in whose  office the instrument has been so registered; and  such officer shall note on the copy of the  instrument contained in his books the fact of its  cancellation."

Section 31 of the Specific Relief Act, 1963 thus, refers to both  void and voidable document.  It provides for a discretionary relief.

When a document is valid, no question arises of its  cancellation.  When a document is void ab initio, a decree for setting  aside the same would not be necessary as the same is non-est in the  eye of law, as it would be a nullity.   

       Once, however, a suit is filed by a plaintiff for cancellation of a  transaction, it would be governed by Article 59.  Even if Article 59 is  not attracted, the residuary Article would be.

       Article 59 would be attracted when coercion, undue influence,  misappropriation or fraud which the plaintiff asserts is required to be  proved.  Article 59 would apply to the case of such instruments.  It  would, therefore, apply where a document is prima facie valid.  It  would not apply only to instruments which are presumptively invalid.  [See  Unni & Anr. vs. Kunchi Amma & Ors. (1891) ILR XIV Mad.  26) and Sheo Shankar Gir vs. Ram Shewak Chowdhri & Ors.     [(1897) ILR XXIV Cal. 77].

       It is not in dispute that by reason of Article 59 of the Limitation  Act, the scope has been enlarged from old Article 91 of 1908 Act.  By  reason of Article 59, the provisions contained in Articles 91 and 114  of 1908 Act had been combined.

       If the plaintiff is in possession of a property, he may file a suit  for declaration that the deed is not binding upon him but if he is not in  possession thereof, even under a void transaction, the right by way of  adverse possession may be claimed.  Thus, it is not correct to contend  that the provisions of the Limitation Act would have no application at  all in the event the transaction is held to be void.

       Respondent No.1 has not alleged that fraudulent  misrepresentation was made to him as regards the character of the  document.  According to him, there had been a fraudulent  misrepresentation as regards its contents.

       In Ningawwa vs. Byrappa Shiddappa Hireknrabnar & Ors

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 6  

[AIR 1968 SC 956], this Court held that the fraudulent  misrepresentation as regards character of a document is void but  fraudulent misrepresentation as regards contents of a document is  voidable stating:

"The legal position will be different if there  is a fraudulent misrepresentation not merely  as to the contents of the document but as to  its character. The authorities make a clear  distinction between fraudulent  misrepresentation as to the character of the  document and fraudulent misrepresentation  as to the contents thereof. With reference to  the former, it has been held that the  transaction is void, while in the case of the  latter, it is merely voidable\005"  

       In that case, a fraud was found to have been played and it was  held that as the suit was instituted within a few days after the  Appellant therein came to know of the fraud practiced on her, the  same was void.  It was, however, held:

"\005Article 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 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 Article 91 of the  Limitation Act so far as Plots Nos. 407/1 and  409/1 of Tadavalga village are concerned\005"

       In Ponnamma Pillai Indira Pillai vs. Padmanabhan  Channar Kesavan Channar & Ors. [1968 K.L.T. 673 : AIR 1969  Kerala 163], a full Bench of the Kerala High Court, while considering  the effect of Sections 6 and 8 of the Limitation Act, 1908 observed:

"When the law confers the capacity on one  in a group to give a valid discharge without the  concurrence of the others of an obligation owing to  them jointly (in this case to restore the properties  trespassed upon), there is no longer any reason for  treating the case differently from the case where all  the members of a group have ceased to be under  disability, without any one of them acquiring the  capacity to give a discharge without the  concurrence of the others, except that in the former  case the disability of the group to give a discharge  ceases, when one in the group acquires the  capacity to give it without the concurrence of the  others; whereas in the latter the disability of the  group to give a discharge ceases only when the last  of the persons under disability ceases to be under

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 5 of 6  

it.  As we have said, if in the latter case the suit  must be filed within three years of the last of them  ceasing to be under disability, we perceive no  reason why in the former, the suit need not be filed  within the same period, for, in both cases the real  disability is the incapacity of the group to give a  discharge of an obligation owing to them jointly,  though that arises from the minority, idiocy or  insanity of all or some in the group; and in the one  case the disability ceases when one in the group  acquires the capacity to give a discharge without  the concurrence of the others, and in the other  when all in the group acquire the capacity to give  the discharge jointly.  The soul of law is reason  and if there is no reason for marking the distinction  between the two cases, a strict adherence to the  ambit of the expression "cessation of the  disability" in Section 8 as confined to the disability  mentioned in Section 6, may not be the best means  to understand the aim and purpose of the  legislature."   

       Yet again in P.C.K. Muthia Chettiar & Ors. vs. V.E.S.  Shanmugham Chettiar (dead) & Anr. [AIR 1969 SC 552], it was  held that the Limitation Act would also apply in case of fraud.   

{See also Sounder (Executrix of the Will of Rose Maud  Gallie, Deceased) vs. Anglia Building Society [1971] 1 AC 1004}

       In Balvant N. Viswamitra & Ors. vs. Yadav Sadashiv Mule  (Dead) Through LRS. & Ors. [(2004) 8 SCC 706], this Court opined  that a void decree can be challenged even in execution or a collateral  proceeding holding:

"The main question which arises for our  consideration is whether the decree passed by the  trial court can be said to be "null" and "void". In  our opinion, the law on the point is well settled.  The distinction between a decree which is void and  a decree which is wrong, incorrect, irregular or not  in accordance with law cannot be overlooked or  ignored. Where a court lacks inherent jurisdiction  in passing a decree or making an order, a decree or  order passed by such court would be without  jurisdiction, non est and void ab initio. A defect of  jurisdiction of the court goes to the root of the  matter and strikes at the very authority of the court  to pass a decree or make an order. Such defect has  always been treated as basic and fundamental and  a decree or order passed by a court or an authority  having no jurisdiction is a nullity. Validity of such  decree or order can be challenged at any stage,  even in execution or collateral proceedings."

       There is another aspect of the matter.

       There is a presumption that a registered document is validly  executed.  A registered document, therefore, prima facie would be  valid in law.  The onus of proof, thus, would be on a person who leads  evidence to rebut the presumption.  In the instant case, Respondent  No.1 has not been able to rebut the said presumption.

If a deed was executed by the plaintiff when he was a minor  and it was void, he had two options to file a suit to get the property

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 6 of 6  

purportedly conveyed thereunder.  He could either file the suit within  12 years of the deed or within 3 years of attaining majority.  Here, the  plaintiff did not either sue within 12 years of the deed or within 3  years of attaining majority.  Therefore, the suit was rightly held to be  barred by limitation by the trial court.

Since the lower Appellate Court and the High Court were not  right in law in holding that the suit was not barred by limitation, the  judgments and decrees of the lower Appellate Court and that of the  High Court are liable to be set aside and dismissal of the suit by the  trial court on the ground that it is barred by limitation is liable to be  restored.  Hence, we allow this appeal, setting aside the judgments and  decrees of the High Court and that of the lower Appellate Court and  restore the judgment and decree of the trial court.  The parties are  directed to bear their respective costs in all the courts.