Gujarat High Court
Chandubhai Dahyabhai Barot vs Mafatbhai Shankarbhai Barot on 27 September, 2018
Author: J.B.Pardiwala
Bench: J.B.Pardiwala
C/SA/327/2018 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SECOND APPEAL NO. 327 of 2018
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CHANDUBHAI DAHYABHAI BAROT
Versus
MAFATBHAI SHANKARBHAI BAROT
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Appearance:
MR KM PARIKH(575) for the PETITIONER(s) No. 1,2,2.1,2.2,3,4,5
for the RESPONDENT(s) No. 1
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CORAM: HONOURABLE MR.JUSTICE J.B.PARDIWALA
Date : 27/09/2018
ORAL ORDER
1. This second appeal under section 100 of the CPC is at the instance of the original plaintiffs and is directed against the judgment and order dated 24th April, 2018 passed by the 2nd Addl. District Judge, Anand in the Regular Civil Appeal No.106 of 2017 arising from the judgment and decree dated 12.05.2016 passed by the 4th (Ad-hoc) Addl. Civil Judge, Petlad in the Regular Civil Suit No.143 of 2003.
2. The case of the plaintiff can be gathered from the facts recorded by the Trial Court in its judgment dated 12th May, 2016. The facts are enumerated as under;
'(1) It is the case of the plaintiff that the property in the year 1985-86 Gram Panchayat Assessment Patrak the vide its property number 423/A and the new number of the said property is 540 anukram number 516 which is situated at Ramol, Taluka Petlad is of the ancestral property of the plaintiff and further it is averred that the plaintiff is the owner of the said property and plaintiff is in the possession of the said property. The description of the property is as under;
Page 1 of 17 C/SA/327/2018 ORDEREast: Next to road property of plaintiff West:House and property of Chotabhai Waghjibhai North: House of Gordhanbhai Motibhai South: House of the plaintiff.
The said property is more particularly mentioned in para 1 of the plaint (hereinafter referred as "suit property").
It is averred by the plaintiff that the said property is situated near the other property i.e., (House) of the plaintiff, which is more particularly mentioned in para 1 of the plaint (herein after referred as "suit property").
2. The plaintiff has come with a case that the suit property which is more particularly mentioned in para 1 of the plaint is ancestral property of the plaintiff and the plaintiff is in possession of the said property and their names have been entered in the revenue records. Therefore no other person has right, title or interest over the suit property. Further it is contended that in Gram Panchayat Assessment Patrak till the year of 1985-86 the suit property was running on the name of plaintiff and the tax of the said property was also paid by the present plaintiff. Further contended that the plaintiffs are in the actual possession of the suit property. But when it came to the knowledge of the plaintiff that some anti people of the plaintiff illegally preparing false documentary evidence and trying to enter their names in the suit property. Therefore, on 29.01.1986 plaintiff has sent notice through R.P.A.D through advocate to the Sarpanch and Talati-cum-Mantri of Ramol Gram Panchayat.
3. Further it is averred that the forefathers of the Defendant manipulated false documents and out of the knowledge of the plaintiff in the year of 1989 entered their names in the Gram Panchayat Ramol. Thereafter to snatch away the property of the plaintiff in absence of the plaintiff the Defendant started to dig the basement being aggrieved from the action of defendant the present plaintiff filed R.C.S. No.83/98 in the Civil Court Petlad, and prayed for injunction. In the present suit the injunction application vide its Exhibit 5 was rejected by the learned Court and at the time of filing the present suit, RCS 83/98 was pending in the Court.
Page 2 of 17 C/SA/327/2018 ORDER4. Further it is averred that Defendant deceitfully manipulated the documents and on 18.09.1989 passed a Resolution No.4 in the meeting whereby the name of plaintiff was removed and the name of Defendant no.1 was entered in the Assessment Patrak record of the Ramol Gram Panchayat.
Further it is contended that being aggrieved from the above Resolution No.4 the present plaintiff preferred the Appeal No.31/1998 which was rejected. Thereafter, the plaintiff filed Appeal in the Court of Learned Additional Commissioner, Gandhinagar which was pending at the time of filing the present suit.
5. Further, it is averred that it come to the knowledge of the present plaintiff that the Defendant by false witnesses and false signature manipulated the false document of dated 04.09.1947. Whereas the father of the plaintiff never signed any documents and never executed any document in favour of the forefather of the Defendant, but with the malafide intention the Defendant manipulated the said document to create the right over the property.
6. Further it is averred that if the said documents was executed in the year 1947 then their name could have been entered at that time itself and the Defendant entered their name after 40 years. Further it is averred that the plaintiff is in possession of the suit property and paying the tax of the property. The father of the plaintiff never sold the property which is of the ownership and possession of the plaintiff and never executed any document in the favour of Defendant.
Cause of Action.
7. The present plaintiff was constrain to file the present suit in the present court being aggrieved from the document of the suit property which was manipulated by the Defendant on 04.09.1947 out of the knowledge of the plaintiff and in the year of 1998 the Defendant tried to dig the basement of the suit property and the name of the Defendant entered in the Assessment Patrak of the suit property.
8. The plaintiff prayed for the perpetual injunction Page 3 of 17 C/SA/327/2018 ORDER restraining the Defendant from disturbing the peaceful enjoyment of the suit property and not to take the possession of the suit property without due process of law and not to transfer the suit property to any person.
The plaintiff further prayed to declare that the documents dated 04.09.1947 is illegal."
3. The case put up by the defendant has also been discussed by the Trial Court in paras-9 to 17 of the judgment. The same reads as under;
"9) On the other hand the defendant appeared and filed his Written statement vide its Exhibit 13 and denied to the averment of the plaint and further contended that the present suit is barred by the principle of Res-judicata and suit is not tenable.
10) Further contended that the suit is barred by the law of limitation and not tenable and it is necessary to frame the preliminary issue and the plaintiff has filed earlier as suit in the Petlad civil court therefore as per section 10 of the Civil Procedure Code, 1908 the present suit deserves to be stayed. It is denied by the defendant that the suit property is ancestral property of the plaintiff and in possession of the plaintiff.
11) Further the plaintiff denied to the averments made in the para 3,4,5,6 and 7.
12) It is contended that the present suit is barred by the law of limitation as per the law of limitation any document is required to be cancelled within a period of 3 years, when it comes to the knowledge, but as per the averment of the plaintiff the plaintiff filed the present suit to cancel the documents and the said document came into knowledge of the plaintiff in the year of 1986 then also the plaintiff did not file any suit within a period of limitation. Thereafter, near about 15 years later the plaintiff filed the present suit which is not tenable.
Therefore, in the present suit preliminary issue to be framed.
13) Further as per the defendant true facts are that on Page 4 of 17 C/SA/327/2018 ORDER 04.09.1947 the suit property was purchased by one Chota bhai Waghajibhai Barot from the father of plaintiff named Dayabhai Mohanbhai Barot andonthe basis of the said sale deed on 27.04.1948 my uncle executed the documents of the suit in the favour of father of defendant named Shankarbhai Waghajibhai Barot.
14) Further it is contended that from that day the said property was in actual possession and in peaceful use of the defendant and at that time defendant was of the young age and he was knowing only that the said property was purchased by the father of defendant by ale deed and when the defendant constructed the rough work in the said property and started to reside in the said property then the plaintiff did not restrain to the defendant therefore the plaintiff is in possession of property and using the property which is also mentioned in the punchnama.
15) Further it is contended that when in the year of 1986 the defendant applied for seeking permission to construct the suit property then it came to the knowledge of the defendant that the said property was not in the name of the defendant therefore on the basis of registered sale deed the defendant filed application to entered his name and as per the order of the Taluka Development Officer the name of the defendant entered in the said property and against the order of the TDO the plaintiff did not file any appeal or revision and neither any suit is pending and the plaintiff was knowing that the suit property was sold by the father of plaintiff to the uncle of defendant and the father of defendant purchased the suit property from the uncle of defendant by registered sale deed but due to the death of father of defendant the ownership could not be transferred and the defendant was minor at that time.
16) Further contended that as per the requirement of the house the defendant made application seeking permission to construct the house over the suit property and on 25.03.1998 vide its Resolution No.25(9) passed in General meeting whereby the permission was granted to the defendant to construct the new house over the suit property since so amny years the tax of the property is paid by the defendant and the plaintiff is aware the defendant purchased the suit property by registered sale Page 5 of 17 C/SA/327/2018 ORDER deed then also filed the present suit on the basis of false evidence.
17) Further contended that the defendant is in possessions of the suit property and plaintiff never restrined from using the said property hence the suit property is of the ownership of the defendant and the plaintiff has no right, title and interest in the said property and since last 49 years, the suit property was in the possession of the father of the defendant and after that in the possession of the defendant and lastly prayed that the present suit to be dismissed by imposing heavy cost over the plaintiff."
4. Having regard to the pleading of the parties, the Trial Court framed the following issues vide Exh.32 and Exh.37;
"1) Whether the plaintiff proves that he is the administrator of the property of plaintiff no.2 to 5?
2) Whether the plaintiff proves that the suit property is ancestral property of the plaintiff and he is in actual possession of the property?
3) Whether the plaintiff proves that the document dated 04.09.1947 is bogs and manipulated by the defendant by duplicate signature?
4) Whether the plaintiff proves that the document dated 04.09.1947 is null and void?
5) Whether the plaintiff proves that the defendant has no right title and interest in the suit property then also without following due process of law the Defendant disturbing the possession of the plaintiff and trying to take the possession of the plaintiff?
6) Whether the plaintiff proves that he was in actual possession of the suit property and in Gram Panchayat Assessment Patrak till the year of 1985-86 the suit property was running on the name of plaintiff and the tax of the said property was also paid by the plaintiff?
7) Whether the plaintiff proves that the Defendants in Page 6 of 17 C/SA/327/2018 ORDER the records of panchayat in assessment Patrak in the year of 1989 deleted the name of plaintiff and entered the name defendant no.1 and the dispute of the same is presently pending before the Joint Development Commissioner, Gandhinagar?
8) Whether the Defendant proves that on 04.09.1947 uncle of the Defendant purchased the suit property from the father of plaintiff by lawful registered sale deed?
9) Whether the Defendant proves that on 27.04.1948 uncle of the plaintiff lawfully executed the registered sale deed of the suit property in favour of the father of defendant?
10) Whether the defendant proves that on the basis of the registered sale deed the defendant is the owner of the suit property and from long time the suit property is in actual possession of the defendant?
11) Whether the Defendant proves that the suit is barred by the principle of Res-judicata?
12) Whether the Defendant proves that the suit is barred by the law of limitation?
13) Whether the plaintiff is entitled to get reliefs as prayed for?
14) What order and decree?"
5. The issues framed by the Trial Court, referred to above, came to be answered as under;
"(1) Negative
(2) Negative
(3) Negative
(4) Negative
(5) Negative
(6) Partly affirmative
(7) Negative
(8) Affirmative
(9) Affirmative
(10) Affirmative
Page 7 of 17
C/SA/327/2018 ORDER
(11) Negative
(12) Affirmative
(13) As per final order."
6. The Trial Court, upon appreciation of the oral as well as the documentary evidence, ultimately, dismissed the suit. The plaintiffs, being dissatisfied with the judgment and decree passed by the Trial Court, dismissing the suit, preferred the Regular Civil Appeal No.106 of 2017 in the court of the 2nd Addl. Sessions Judge at Anand. The lower appellate court, upon re-appreciation of the entire oral as well as the documentary evidence, dismissed the appeal and thereby affirmed the judgment and decree passed by the Trial Court.
7. Being dissatisfied with the judgment and decree passed by the lower appellate court, the original plaintiffs are here before this Court with this second appeal under section 100 of the CPC.
8. The following questions have been formulated as the substantial questions of law in the memorandum of the second appeal.
"(A) Whether, the impugned judgment and order delivered by the Ld. Appellate Court would qualify as a judgment and order, as envisaged and contemplated by the provisions embodied in Order 41 Rule 31 of the Code of Civil Procedure, 1908 for non-compliance thereof, which consequently render them as non-speaking judgment and order?
(B) Whether the impugned judgment and order can be construed as capable of holding the field for non-
consideration of the vital and important document, which evidently establishes the case of the Appellants being Original Plaintiffs, beyond the province of any doubt?
Page 8 of 17 C/SA/327/2018 ORDER(C ) Whether Ld. Appellate Court is right in law in holding that suit of the Appellants was time barred according to the provisions of the Indian Limitation Act?
(D) Whether Ld. Appellate Court is right in law in holding that there is no error committed by Ld. Trial Court?
(E) Whether Ld. Appellate Court right in law in holding that Judgment and decree dated 12.05.2016 passed by Ld. Trial Court, Petlad in R.C.S. No.143/2003 is not perverse or illegal?
(F) Whether Ld. Appellate Court right in law holding that the Appellants have no right, title or interest over the distributed properties and right in law in holding that the Respondents had proved that he is in possession of the suit property?
(G) Whether Ld. Appellate Court is right in law in holding that in the suit of the Original Plaintiffs, title of the suit property is in favour of the Original Defendant, being granting of decree of title and possession in favour of Original Defendant?
(H) Whether Ld. Appellate Court is right in law in travelling beyond the scope of pleadings and reliefs prayed for by Original plaintiffs in R.C.S. No.143/2003 and granting decree of title and possession in favour of Original Defendant?"
9. The principal argument of Mr. Parikh, the learned counsel appearing for the appellants-original plaintiffs is that fraud was played upon way back in the year 1947-48 when the defendant got a registered sale deed executed in their favour with respect to the suit properties through their father. To put it in other words, the case put up by the plaintiffs is that, at no point of time, their father had executed any sale deed with respect to the suit properties. The sale deed produced by the defendant is nothing but an outright fraud. The plaintiffs are Page 9 of 17 C/SA/327/2018 ORDER disputing the very signature of their father on the sale deeds. According to the plaintiffs, since the transaction is void, the suit filed by them in the year 2003 was well within the period of limitation.
10. Both the courts below have taken the view that the suit filed by the plaintiffs is barred by the period of limitation. What has been questioned are the two sale deeds of the years 1947 and 1948 respectively.
11. In the aforesaid context, let me go straight to the findings recorded by the Trial Court in this regard.
"Perusing the law at hand, it seems to this court that the limitation starts from the date of registration of the document till 3 years whereas in the case in hands it is admitted that the document was executed and registered on 04.07.1947 therefore if the plaintiff wants to challenge the said document then suit to be filed within 3 years. Thus, it prima facie appears that the suit is bared by law of limitation. For a minute, if it is presumed that the concept of knowledge comes into picture, then in such circumstances, the plaintiff has to show that he was so much out of the purview of place, that the registration was not in his knowledge. Perusing the evidence, it becomes crystal clear that there is no such issue involved in the present suit. Also, the plaintiff in his cross-examination admitted that "It is true that the name of Shankarbhai Brahmbhatt had entered in the Ramol Gram Panchayat in the year 1989. I am not aware of the fact that the name of Mafatbhai has been entered vide the resolution of the Gram Panchayat. I am not aware of the fact that Mafatbhai Shankiarbhai is paying the tax of the house in question since 1989. Question:- In respondent to the question that Mafatbhai is paying the tax of the property in question since 1989, the plaintiff stated that when he went to pay the tax, the Talati & Sarpanch denied to accept the same by saying that as I went to the Court and initiated proceedings in this Page 10 of 17 C/SA/327/2018 ORDER regard, they will accept the same after the disposal of the case. It is true that the facts narrated in paras-,2,3 and 4 are true. It is true that a notice dated 29.1.1986 was sent to the opponents by R.P.A.D so that they will not enter their names on the basis of false document. It is true that the facts narrated in para-4 of the suit are true and correct."
Therefore upon perusing the evidence on records it is very much clear that the said facts of the execution and registration of documents dated 04.09.1947 came to the knowledge of the plaintiff in the year of 1986 and as per the provisions of the law of limitation the present suit could have been filed within the period of three years when it come to the knowledge of the plaintiff that the registered document was executed in the year of 1947 and on the basis of the said document the defendant is going to enter his name and deleting the name of plaintiff. Therefore, upon perusing para no.3 and 4 which is admitted by the plaintiff in his cross-examination that the contents of the said para are true and upon perusing the record of the case and appreciating the evidence on record it is clear that the first time the said fact came to the knowledge of the plaintiff in the year of 1986. For the sake of convenience, it is presumed that the execution and registration of the sale deed came to the knowledge of the plaintiff in the year of 1986 then also as per the law of limitation within 3 years i.e. in the year of 1989 the suit could have been filed but as per the records available the present suit filed in the year of 2001. On the contrary for the sake of convenience, if we considers the period of limitation to be counted in RCS No.83 of 1998 which was filed prior to this suit the n also the suit is not within the period of limitation. Therefore, taking into consideration the discussion aforesaid issue no.12 answer in the affirmative as the suit is barred by law of limitation."
12. The findings recorded by the Trial Court with regard to the limitation came to be affirmed by the lower appellate court holding as under;
"8. It was admitted by the appellant before the trial court in the cross examination that name of respondent Page 11 of 17 C/SA/327/2018 ORDER entered into Ramol Gram Panchayat in the year 1989 and in the year 1989 Talati informed him not to pay tax in view of pendency of court proceedings and he have notice dtd. 29.01.1986 by RPAD contending that the name of respondent entered in connection with false document, which means that by admitting such facts the appellant had permitted the trial court to believe that he got knowledge regarding sale deed in the year 1986. Therefore, according to the provision of Limitation Act, after getting knowledge the suit should have been filed within three years. But, appellant did not file the suit within three years i.e. up to the year 1989 and the suit was filed by the appellant in the year 2001. Not only that but, even if we consider that the appellant preferred RCS No.83/1998 and the said year is knowledge regarding sale deed then also the appellant had not preferred suit well within three years from getting knowledge regarding the sale deed. Therefore, suit of the appellant was also time barred suit according to the provision of Indian Limitation Act.
9. Therefore, in the present case the trial court has rightly appreciated the sale deed in favour of the respondent. The trial court has also rightly believed that some revenue entries in favour of appellant do not give any benefit to them. Possession foll9ows the title and title is in favour of the respondent. The appellant has no right, title interest over the disputed property. The appellant was unsuccessful to prove that as an ancestral property the disputed property belongs to him and he is in possession. The respondent had proved that since many years the disputed property has been purchased. Therefore, there is no error committed by the trial court Judgment and decree passed by the trial court is not perverse, it cannot be interfered with. "
13. The issue raised in this second appeal, in my view, is squarely covered by the decision of the Supreme Court in the case of Prem Singh & Ors. vs. Birbal & Ors., 2006 (5) SCC 353, wherein the Supreme Court considered Article 59 of the Limitation Act. I may quote the relevant observations;
"Limitation is a statute of repose. It ordinarily bars a Page 12 of 17 C/SA/327/2018 ORDER 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 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 Page 13 of 17 C/SA/327/2018 ORDER 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 [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 Page 14 of 17 C/SA/327/2018 ORDER 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"
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:
"Article 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"
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 Page 15 of 17 C/SA/327/2018 ORDER 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 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 Page 16 of 17 C/SA/327/2018 ORDER 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 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. "
14. Thus, in view of the above, I have arrived at the conclusion that no substantial question of law is involved in this second appeal. The findings recorded by the two courts below, in my view, cannot be termed as perverse or erroneous, warranting any interference in this second appeal.
15. This second appeal, therefore, fails and is hereby dismissed.
(J.B.PARDIWALA, J) Vahid Page 17 of 17