Allahabad High Court
Ganga Prasad vs Munna Lal & Others on 21 December, 2017
Equivalent citations: AIR 2018 (NOC) 619 (ALL), 2018 (3) ALJ 259
Author: Ritu Raj Awasthi
Bench: Ritu Raj Awasthi
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH RESERVED AFR Case :- SECOND APPEAL No. - 451 of 2000 Appellant :- Ganga Prasad Respondent :- Munna Lal & Others Counsel for Appellant :- Mohammad Aslam Khan,Mukesh Kumar Sharma Counsel for Respondent :- N.N.Jaiswal,Daya Shanker Tripathi,Umajeet Gupta Hon'ble Ritu Raj Awasthi, J.
Heard Mohd.Arif Khan, learned Senior Advocate assisted by Mohd. Aslam Khan, learned counsel for the appellant and Mr. Daya Shanker Tripathi, learned counsel for the respondents.
The second appeal has been filed under Section 100 C.P.C. against the judgment and decree dated 23.9.2000 passed in Civil Appeal No.110 of 1995; Ganga Prasad Vs. Munna Lal & others arising out of the judgment and decree dated 7.10.1995 passed in Civil Suit No.259 of 1990; Smt. Sahodara Vs. Munna Lal & others, whereby the suit for cancellation of a Will Deed dated 7.1.1987 filed by the appellant/plaintiff was dismissed and the appeal preferred by the appellant/plaintiff was also dismissed.
As per the facts of the case as borne out from the records, Smt. Sahodara (predecessor in interest) of present appellant Ganga Prasad had filed the suit for cancellation of Will Deed dated 7.1.1987 basically on the ground that the said Will Deed is based on fraud, forgery and deceit. There was no reason for execution of the alleged Will Deed in favour of respondent no.1 by Smt. Nand Rani, the mother of the appellant/plaintiff.
As per the pedigree given in the plaint, Thakur Prasad was the original owner of the property in question. The wife of Thakur Prasad was Smt. Nand Rani. After the death of Thakur Prasad his movable and immovable property was inherited by his widow Smt.Nand Rani. Thakur Prasad had two daughters only and no son. The names of the daughters were Smt.Sahodara (Plaintiff) and Smt.Sundara. Munna Lal, defendant/respondent no.1 was the son of Smt.Sundara. In fact, Smt.Sundara had three children; namely, Maiku Lal, Munna Lal and Brij Mohan. As per the plaintiff, Munna Lal was a very cunning person and in order to deprive the plaintiff from her property he by setting up an imposter got a Will Deed executed in his favour by Smt. Nand Rani. On the basis of the said Will Deed no right will accrue in his favour as both the daughters; namely Smt.Sahodara and Smt.Sundara are in possession over the property in question. The descriptions of the property as given in the plaint, it consisted of the land at Plot No.1381 measuring 01 bigha 09 biswa, Plot No.1392 measuring 14 biswa 08 biswansi, Plot No.1393 measuring 01 bhigha 10 biswa, Plot No.1394 measuring 01 bhigha 04 biswa, Plot No. 1541 measuring 01 bhigha 02 biswa, Plot No.1233 measuring 01 biswa 10 biswansi, Plot No. 1355 measuring 06 biswa 10 biswansi, Plot No.1312 measuring 08 biswa and Plot No.1354 measuring 11 biswa, situated in village Khawajamipur Pargana Sikandarpur Tehsil and District Unnao.
It is alleged that after the death of Thakur Prasad, plaintiff and defendant no.4, Smt. Sundara had executed a sale deed in favour of Shiv Mandir about which defendant no.1 Munna Lal had full knowledge but he did not raise any objection. It is also alleged that after the death of Smt. Nand Rani the names of plaintiff and defendant no.4 were mutated which was also in the knowledge of the defendants, but since the defendant no.1 was claiming his right on the basis of the alleged Will Deed, as such necessity arose to file the suit for cancellation of the Will Deed.
The suit was contested by the defendants/respondent nos. 1 to 4. It was pleaded by the defendants/respondents that the plaintiff had got complete knowledge of the Will Deed dated 7.1.1987 on 15.10.1987 on which date the plaintiff had filed objection in the mutation case denying the alleged Will Deed. The suit is barred by limitation. The defendant no.1 since his birth was living with Smt.Nand Rani till her death and she being his grand mother was pleased with the services rendered by him, executed the said Will Deed in his favour and he is in possession over the entire property bequeathed. It was also pleaded that the suit is barred by Section 49 of U.P. Consolidation of Holdings Act.
On the basis of the pleadings of the parties, the trial court framed certain issues, the english translation of the same is as under:-
"1. Whether there is deficiency in valuation of suit and insufficient court fee has been paid?
2. Whether the Will Deed dated 7.1.1987 is liable to be cancelled upon the grounds mentioned in Para 7 of the plaint?
3. Whether the suit is barred by Section 49 of U.P.Consolidation of Holdings Act?
4. Whether the suit is barred by limitation?
5. Relief"
The issue no.2 was framed to the effect as to whether the Will Deed dated 7.1.1987 is liable to be cancelled in view of the averments made in Para 7 of the plaint. The issue no.4 was whether the suit is barred by limitation. The plaintiff Smt. Sahodara examined herself as PW-1, Shiv Charan as PW-2, Rajendra Prasad as PW-3; whereas Munna Lal was examined as DW-1, Ganga Prasad as DW-2 and S.P.Ghosh, a Hand Writing Expert as DW-3.
The trial court on consideration of the entire facts and circumstances of the case as well as the evidence on record dismissed the suit. While considering the issue with respect to the suit being barred by limitation, the trial court has concluded that the suit has not been filed within the period of limitation of 03 years from the date of knowledge. In the Court of Tehsildar the plaintiff had filed objection along with an application pleading therein that the Will Deed claimed by defendant/respondent no.1 Munna Lal is fake. The plaintiff Smt.Sahodara had complete knowledge about the alleged Will Deed on 15.10.1987. The suit had been filed on 21.11.1990. As such the suit filed by the plaintiff is barred by 01 month 06 days. As such, the suit is beyond the period of limitation under Section 59 of Limitation Act and is time barred. The issue no. 4 was decided positively.
While deciding the issue no.2, the trial court came to the conclusion that the alleged Will Deed dated 7.1.1987 does not appear to be genuine. It appears to have been obtained by playing fraud, forgery, fraudulence and with deceitful intention.
The issue nos. 1,3 and 5 were decided negatively.
The lower appellate court while deciding the appeal filed under Section 96 C.P.C. by the appellant/plaintiff had considered in detail the findings recorded by the trial court and had opined that there was only one point of determination in the appeal i.e. as to whether the suit is time barred. The first appellate court has upheld the findings of the trial court on issue no.4 and has come to the conclusion that the suit is barred by time. The appellate court has opined that the contention of the appellant/plaintiff that since the alleged Will Deed was obtained by fraud, as such it will not be barred by time, cannot be accepted. It can be possible that the plaintiff could not know the execution of the said Will Deed or had come to know about it, it may not have the complete details of the fraud played by the other side, however when the plaintiff had come to know about the alleged fraud and knowledge of the Will Deed, she should have filed the suit within time. The limitation period will be counted from the date of knowledge. The plaintiff had gathered complete knowledge about the Will Deed on 15.10.1987. The plaintiff Sahodara PW-1 in her statement had said that when she had filed the objection in the mutation case, she had knowledge of the alleged Will Deed. The plaintiff, as such, had full knowledge of the Will Deed on the date when she had filed the objection in the mutation case i.e. on 15.10.1987.
The lower appellate court has noted that the contention of learned counsel for the appellant that the alleged Will was a void document being based on fraud, as such the period of limitation would not be applicable, is not acceptable. In case any person files a suit for cancellation of any document he has to file the said suit within the period of limitation from the date of knowledge of the said document. The lower appellate court has observed that if the alleged Will is a void document then what was the necessity for the appellant/plaintiff to have filed the suit for cancellation of the said document. The lower appellate court has upheld the findings of the trial court in this regard.
While admitting the instant appeal, this Court has framed the following substantial questions of law:
"1. Whether in view of the definition of the term instrument as defined under the Transfer of Property Act can a will be termed as an instrument as mentioned in Article 59 of the Limitation Act?
2. Whether in view of the specific finding recorded by the learned trial court that the will in question was a forged and fraudulent document meaning thereby neither the plaintiff nor her predecessor was a party to the document and the said will was a void document the question for consideration is that can such a document be treated to be an instrument within the meaning and scope of Article 59 of the Limitation Act so as to attract its application on the facts of the present case.
3. Whether the provisions of Article 59 of the Limitation Act would be applicable in a suit for cancellation of a will which is void abinitio which necessarily did not require its cancellation because the said suit amount to a suit for declaring the will to be void?"
Learned counsel for the appellant contended that the trial court has held that the disputed signature on the Will Deed dated 7.1.1987 do not tally with the admitted signature. Merely on the basis of the registration, it could not be held that the Will is genuine, rather in suspicious circumstance that the Will is surrounded an explanation has to be furnished. As such the burden lies on the person and he has to discharge that burden who is benefited by the Will. It was also held that an explanation was furnished by the defendant no. 1 Munna Lal that since his grand mother Smt. Nand Rani got him married and he was residing with her, hence the Will was executed in his favour, is not a satisfactory explanation; rather it is suspicious circumstance that if Nand Rani did not want to give anything to Smt. Sahodara (plaintiff), then why she had not given any share of her property to the sons of Smt. Sahodara.
It was also held that Smt.Sundara, defendant/respondent no.4 along with defendant no.2/Brij Mohan had entered into a compromise with Smt. Sahodara (plaintiff), which is paper no. 45-ka. In this compromise. Smt. Sundara, mother of the defendant no. 1 had admitted that her son Munna Lal defendant no. 1 had got a forged Will executed from Smt. Nand Rani. The trial court has also taken note of the fact that Smt. Nand Rani, the grand mother of the defendant no.1 was aged about 80 years and the mental condition of a person of about 80 years old could not be said to be sound and further it was unnatural that in case Smt. Nand Rani along with Ganga Prasad Awasthi came to the Court to execute the Will of such a big property why other witnesses met her and Munna Lal/defendant no.1 left the place when the Will Deed was executed in his favour.
In view of the aforesaid circumstances the trial court opined that the alleged Will Deed appears to be fake and appears to have been obtained by fraud and misrepresentation.
Learned counsel for the appellant vehemently contended that in case the Will is proved to have been obtained by fraud and misrepresentation, then it would be a void document and in the case of void documents Article 59 of the Limitation Act under which 03 years limitation is prescribed from the date of knowledge of the instrument, would not be attracted. It is also contended that the Will Deed cannot be treated to be an instrument under the definition of term ''instrument'. as defined under the Transfer of Property Act. In this regard the appellant has relied on the judgment in the case of Sanat Kumar Mitra Vs. Hem Chandra Dey and others1.
It is also contended that the lower appellate court did not frame the points of determinations. It considered only issue no.4 and even without considering the entire facts and circumstances of the case endorsed the findings recorded by the trial court and held that the suit is barred by limitation. The lower appellate court did not even touch the findings recorded by the trial court on issue no.2. Thus the findings of the trial court on issue no.2 attained finality. The suspicious circumstances in which the Will was executed as well as the signature on the Will do not tally with the admitted signature and further the Will was surrounded by suspicious circumstances as well as the burden lies on the person who is benefited by the said Will, are all such findings of the trial court which have not been reversed by the lower appellate court and stand affirmed.
It is contended that once the courts below have come to the conclusion that the alleged Will Deed was obtained by fraud, the suit for cancellation of the Will Deed could not have been dismissed on the ground of limitation and was liable to be allowed.
It is submitted that from bare perusal of the impugned judgment it is revealed that mandatory provisions of Order 41 Rule 31 of C.P.C. have not been complied, hence the impugned judgment is liable to be set aside. In this regard the appellant has relied on the judgment in the case of Kuldeep Saxena Vs. Smt. Archana Saxena & 6 others2.
It is argued that in view of the law laid by the Apex Court in the case of Madhukar and others Vs. Sangram and others3, relying on the judgment of Santosh Hazari Vs. Purushottam Tiwari4, laying that the appellate court has jurisdiction to reverse or affirm the findings of the trial court. First appeal is a valuable right of the parties and unless restricted by law, the whole case is therein open for rehearing both on questions of fact and law. The judgment of the first appellate court must, therefore, reflect its conscious application of mind and record findings supported by reasons, on all the issues arising along with the contentions put forth and pressed by the parties for decision of the appellate court.
It is also contended that the impugned judgment of the first appellate court is totally silent on various evidences; oral as well as documentary led by the parties before the trial court which were noticed and appreciated by the trial court. Sitting as a court of first appeal, it is the duty to deal with all the issues and evidences led by the parties before recording its findings. The appellate court failed to discharge the obligation vested on it. The judgment under appeal is cryptic and the relevant aspects of the case have not been noticed.
The appellant's counsel submits that in the case of Sanat Kumar Mitra (Supra), applicability of Article 91(old) equal to Article 59 (new) of Limitation Act, 1963 came up for consideration and it was held that Article 91 does not apply if the instrument is void abinitio and applies only if it is voidable and requires to be set aside. Moreover, this article applies only when the plaintiff is a party to the instrument. Admittedly, the plaintiff was not a party to the alleged Will Deed dated 7.1.1987, as such the alleged Will Deed is a void document and Article 59 of Limitation Act would not be applicable.
In the case of Mohd.Nazir and others Vs. Mst. Zulaikha5, in a suit for declaration and transactions embodied in a particular deed was from the very inception a sham transaction. It is to be distinguished from a suit for cancellation of the deed. The former kind of suit does not fall within the purview of Article 91 (old) wherein the deed is null and void. It is not necessary to come to the Court pre-emptly to get the Deed cancelled or set aside.
In the case of Rankanidhi Sahu Vs. Nanda Kishore Sahu6, Article 59 of Limitation Act applies when a suit is filed for cancellation or setting aside a document which is not void ab initio. If a document is void ab initio and is an illegal document from very inception it is not required either to cancel or to set aside by filing a suit because according to law such a document does not exist. Same view was reiterated in the case of Smt. Sanghiran Vs. D.D.C.Meerut and others7, it has been held that if the sale deed is void the question of relief for getting the sale deed cancelled would not be involved. Article 59 of Limitation Act, may therefore, applies where a document is prima facie valid. It would not apply to the instruments which are pre-emptly invalid. Thus, if the plaintiff is in possession over the property on which her name was mutated in revenue records and she along with her sister was in possession, she may file a suit for declaration that the deed is not binding upon her but if he/she is not in possession thereto, even under a void transaction right, right by way of adverse possession can be claimed.
Thus, the provisions of Limitation Act would have no application at all in the event the transaction is held to be void.
Learned counsel for the defendants/respondents on the other hand strongly contended that there is no infirmity or illegality in the judgments passed by two courts below. There are concurrent findings of the courts below which do not require any interference.
It is submitted that the alleged Will Deed dated 7.1.1987 is a genuine document. It was a registered document. It was executed by Smt. Nand Rani with her free will and with full consciousness and awareness. It was executed in favour of defendant no.1 Munna Lal who is her grand child being the son of her daughter Smt. Sundara. Munna Lal lived with Smt. Nand Rani since his birth and till her death. She loved him a lot. It is contended that the Will Deed was examined before the trial court. The attesting witnesses of the Will had verified the said document and had duly proved the execution of the Will Deed. The trial court had no occasion to disbelieve the marginal witnesses of the Will Deed merely on the ground that Ganga Prasad, a marginal witness was a friend of defendant no.1/Munna Lal and out of the friendship he could have become a witness in the said Will Deed. The other marginal witness Ram Krishna is the maternal brother of the wife of Munna Lal and as such he was an interested witness and could not be believed It is submitted that once the marginal witnesses had duly verified the execution of the said Will Deed there was no occasion for the trial court to have given its opinion otherwise. It is further submitted that the Hand Writing Expert Mr. S.P.Ghosh was examined before the trial court and it was stated by him that since in the registered documents at the time of registration thumb impression of left thumb is taken and in other documents thumb impression of right thumb is taken, as such it cannot be said as to whether the admitted thumb signature of Nand Rani is of left thumb or right thumb and therefore no definite opinion can be given.
The contention is that the finding of the trial court on issue no.2 is based on presumptions and without any cogent evidence. Moreover, the said findings has no consequence once the trial court has dismissed the suit itself on the ground of limitation and has given its findings on issue no. 4 that the suit is barred by time.
So far as the question that the Will Deed dated 7.1.1987 was a void document as claimed by the plaintiff/appellant is concerned, learned counsel for the respondents submits that as per own case of the plaintiff/appellant the alleged Will Deed was obtained by fraud and misrepresentation, as such in the given facts and circumstances it will at the most can be treated to be a voidable document and cannot be held to be a void document.
It is contended that the Apex Court in the case of State of A.P. Vs. S. Rayappa and others8 has observed that testimony of a witness otherwise inspiring confidence cannot be discarded on the ground that he being a relation of the deceased is an interested witness. The said proposition has been held in the case of Madhusudan Das Vs. Smt. Narayanibai (deceased by L.Rs.) & others9.
Contention of the other side that the Will is witnessed by suspicious circumstances is also incorrect because while executing the Will in question Smt. Nand Rani, the executor of the Will had clearly mentioned the reason as to why she is depriving Smt.Sahodara from her property and why she has given all her property to defendant no.1 Munna Lal. The Will Deed in question is a valid document. It was duly registered and legally enforceable in all aspects.
Learned counsel for the respondents further submitted that the Will Deed is an instrument even in case where Article 59 of Limitation Act is not applicable. The limitation period is to be counted on the basis of the residuary article i.e.. Article 113 of Limitation Act, 1963 and as per the Article 113 of Limitation Act, the period of three years would be applicable from the date the right to sue accrues.
In the case of Firoz and others Vs. Sultan Surkhru10, their Lordships had observed that in case of Will Article 120 (old) instead of Article 91 (old) of Limitation Act would be applicable. Article 120 corresponds with Article 113 of the new Act.
Thus in the present case the trial court has rightly dismissed the suit being filed beyond time.
Submission is that even if for argument sake if it is accepted that Article 59 of Limitation Act was not applicable then as per Article 113 of the Limitation Act, 1963 the period of limitation would be three years, same as provided under Article 59. As such the suit of the plaintiff was time barred as held by the concurrent findings of both the courts below.
Mr. Daya Shanker Tripathi, learned counsel for the respondents submits that the Will Deed is an instrument within the meaning of Article 59 of Indian Limitation Act, 1963. If the Will Deed is not an instrument then a suit for cancellation of a Will Deed or suit for declaration of Will as void also could not be filed in any court of law because Section 31 of the Specific Relief Act is the only provision under the law which enumerates a right to any person to get the relief of cancellation of instrument being void or voidable and who has reasonable apprehension that such an instrument if left outstanding may cause him serious injury. The term "written instrument" has been used in Section 31 of Specific Relief Act 1963 and according to the definition provided therein only a "written instrument" could be adjudged by a Court as void and voidable or cancelled. Submission is that if the Will is not an instrument then under what provision of law other than Section 31 of the Specific Relief Act, 1963, the plaintiff could have filed her suit for cancellation of Will Deed.
Learned counsel for the defendants/respondents in this regard relied on the following judgments.
1. Mathai Samuel & others Vs. Eapen (dead) by L.Rs. and others11 (Paras 12 and 13).
2. Sudha Sharma Vs. Shashi Bala12 (Para 12)
3. Jagjiwan Rai and others Vs. Hari Kunwar & others13 (Para 13) It is contended that a void document under the Indian Contract Act would mean "An agreement not enforceable by law" whereas under the term voidable means "agreement which is enforceable by law at the option of one or more of the parties thereto, but not at the option of other or others".
Submission is that Section 19 of the Indian Contract Act provides that "when consent to an agreement is caused by coercion, fraud or misrepresentation, the agreement is a contract voidable at the option of the party whose consent was so caused....."
Thus, it is clear that when fraud is pleaded in a suit then the document alleged to have been obtained by fraud or by misrepresentation would be voidable document and not void.
In the case of Prem Singh and others Vs. Birbal and others14, the Supreme Court has held that Article 59 of the Limitation Act would be attracted when coercion, undue influence, misappropriation or fraud is required to be proved. It has been held that if 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. It has been further held that if a deed was executed by the plaintiff when he was a minor and it was void and he did not file suit within the limitation period prescribed, then the suit was barred by limitation.
It is further contended that in the case of M/s. Craft Centre Vs. Koncherry Coir Factories, Cherthala15, it has been held that Section 3 of the Limitation Act is mandatory and absolute. If the suit is barred by time Court is duty bound to dismiss the same even at the appellate stage though the issue of limitation may not have been raised.
In the case of Utha Moidu Haji Vs. Kuningarath Kunhabdulla and others16, it has been held that even in case of void documents law of limitation would apply and it will be counted from the date of knowledge of the Deed.
In the case of Hamida Begum alias Alo Bibi Vs. Umran Bibi & others17, it has been held that there is no dispute that the suit was filed by virtue of the right created under Section 31 of the Specific Relief Act, 1963. The period of limitation of filing such suit is 03 years according to Article 59 of the Limitation Act. The time runs when the facts entitling the plaintiffs to have the instrument cancelled or set aside first become known to them.
In the case of Kamlesh Babu and others Vs. Lajpat Rai Sharma and others18, the Apex Court has held that it was the duty of the first appellate Court and also of the High Court to go into the question of limitation and decide the same before reversing the judgment of the trial court on various issues framed in the suit. The issues so decided the same were of no avail since the suit continued to remain barred under Article 59 of the Limitation Act, 1963.
In the case of Mohd. Noorul Hoda Vs. Bibi Rafiunnisa and others19, it was held that Article 59 of the Limitation Act is a general provision. In a suit to set aside or cancel an instrument, a contract or a decree on the ground of fraud Article 59 is attracted. The starting point of limitation is the date of knowledge of the alleged fraud.
Contention is that the limitation is the root question of maintainability in a suit and when a suit is found to be time barred, nothing could be adjudicated in such a suit. From the perusal of the judgments of the courts below, it is very much clear that the suit was dismissed on the ground of barred by time, as such in view of the above facts, none of the substantial question of law could be decided in favour of the appellant/plaintiff and the second appeal is liable to be dismissed.
I have considered the submissions made by the parties' counsel and gone through the records.
As per the definition of the term "instrument" as given under Section 3, Transfer of Property Act, 1882, "Instrument" means a non-testamentary instrument. Section 3 of Transfer of Property Act, 1882 reads as under:-
"3. Interpretation clause.--In this Act, unless there is something repugnant in the subject or context,--
"immovable property".- "immovable property" does not include standing timber, growing crops or grass;
''''instrument",-"instrument" means a non-testamentary instrument;
["attested", in relation to an instrument, means and shall be deemed always to have meant attested by two or more witnesses each of whom has seen the executant sign or affix his mark to the instrument, or has seen some other person sign the instrument in the presence and by the direction of the executant, or has received from the executant a personal acknowledgement of his signature or mark, or of the signature of such other person, and each of whom has signed the instrument in the presence of the executant; but it shall not be necessary that more than one of such witnesses shall have been present at the same time, and no particular form of attestation shall be necessary;] "registered",- "registered" means registered in 2[3[any part of the territories] to which this Act extends] under the law for the time being in force regulating the registration of documents;
"attached to the earth". - "attached to the earth" means--
(a) rooted in the earth, as in the case of trees and shrubs;
(b) imbedded in the earth, as in the case of walls or buildings; or
(c) attached to what is so imbedded for the permanent beneficial enjoyment of that to which it is attached;
["actionable claim" means a claim to any debt, other than a debt secured by mortgage of immoveable property or by hypothecation or pledge of moveable property, or to any beneficial interest in moveable property not in the possession, either actual or constructive, of the claimant, which the Civil Courts recognise as affording grounds for relief, whether such debt or beneficial interest be existent, accruing, conditional or contingent;] ["a person is said to have notice" of a fact when he actually knows that fact, or when, but for wilful abstention from an enquiry or search which he ought to have made, or gross negligence, he would have known it.
Explanation I.--Where any transaction relating to immoveable property is required by law to be and has been effected by a registered instrument, any person acquiring such property or any part of, or share or interest in, such property shall be deemed to have notice of such instrument as from the date of registration or, where the property is not all situated in one sub-district, or where the registered instrument has been registered under sub-section (2) of section 30 of the Indian Registration Act, 1908 (16 of 1908), from the earliest date on which any memorandum of such registered instrument has been filed by any Sub-Registrar within whose sub-district any part of the property which is being acquired, or of the property wherein a share or interest is being acquired, is situated:] Provided that--
(1) the instrument has been registered and its registration completed in the manner prescribed by the Indian Registration Act, 1908 (16 of 1908), and the rules made thereunder, (2) the instrument or memorandum has been duly entered or filed, as the case may be, in books kept under section 51 of that Act, and (3) the particulars regarding the transaction to which the instrument relates have been correctly entered in the indexes kept under section 55 of that Act.
Explanation II.--Any person acquiring any immovable property or any share or interest in any such property shall be deemed to have notice of the title, if any, of any person who is for the time being in actual possession thereof.
Explanation III.--A person shall be deemed to have had notice of any fact if his agent acquires notice thereof whilst acting on his behalf in the course of business to which that fact is material:
Provided that, if the agent fraudulently conceals the fact, the principal shall not be charged with notice thereof as against any person who was a party to or otherwise cognizant of the fraud."
Under the Limitation Act, 1963, the schedule provides the period of limitation. Under Article 59 which is under Part IV-Suits relating to decrees and instruments three years period has been provided for the purpose of filing of a suit to cancel or set aside an instrument or decree or for the rescission of a contract. It provides the time from which begins to run when the facts entitling the plaintiff to have the instrument or decree cancelled or set aside or the contract rescinded first become known to him.
Learned counsel for the appellant has contended before the Court that since the trial court has come to the conclusion that the Will Deed appears to have been obtained by fraud, therefore it would be a void document and as such in this regard Article 59 of Limitation Act would not be attracted.
It is also contended that the Will Deed cannot be termed to be an instrument to be governed by Article 59 of the Limitation Act.
It is the case of the plaintiff/appellant that the defendant no. 1 Munna Lal by putting an imposter had got the Will Deed executed in his favour and Smt. Nand Rani had not executed the alleged Will Deed dated 7.1.1987. The said Will Deed is based on fraud. The defendants have contested the suit by filing the written statements and denying the alleged allegations. It was contended that the Will Deed dated 7.1.1987 is a genuine document and it was duly registered. It was executed by Smt. Nand Rani with her free will and with full consciousness and awareness. It was executed in favour of defendant no.1 Munna Lal who is her grand child. The attesting witnesses of the Will had verified the attestation of the Will and had duly proved the execution of the Will Deed. The trial court had no occasion to disbelieve the marginal witnesses of the Will Deed who were examined before the Court.
The contention is that the findings of the trial court on Issue no. 2 are purely based on presumptions and without any cogent evidence.
Section 31 of the Specific Relief Act, 1963 is the provision under law which enumerates right to any person to get the relief of cancellation of instruments being void or voidable and who has reasonable apprehension that such instrument, if left outstanding may cause him serious injury. The term "written instrument" has been used in Section 31 of Specific Relief Act, 1963 and according to the definition provided therein only a "written instrument" could be adjudged by the Court as void and voidable or cancelled.
Section 31 of Specific Relief Act, 1963, for convenience is reproduced below:-
"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 (16 of 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."
For the purpose of Section 31 of Specific Relief Act, 1963, the Will Deed has to be treated as an instrument otherwise if the Will is not an instrument then there is no provision of law other than Section 31 of Specific Relief Act, 1963 under which the plaintiff could have filed her suit for cancellation of Will Deed.
In view of above, I am of the considered view that the Will Deed cannot be termed to be an "non-instrument" otherwise a person would be deprived of any legal remedy and cannot file a suit for cancellation of Will Deed.
So far as the question as to whether in the given facts of this case the Will Deed dated 7.1.1987 could be a void or voidable document, the definition of void and voidable document is required to be seen. Under Section 2(g) of Indian Contract Act void document would mean "an agreement not enforceable by law is said to be void" whereas term "voidable" has been defined under Section 2(i) of the Indian Contract Act as "an agreement which is enforceable by law at the option of one or more of the parties thereto, but not at the option of the other or others, is a voidable contract".
Section 19 of the Indian Contract Act, 1872 defines that "when consent to an agreement is caused by coercion, fraud or misrepresentation, the agreement is a contract voidable at the option of the party whose consent was so caused........." Thus, it is clear that when fraud is pleaded for cancellation in a suit then it is voidable not void document and the document alleged to have been obtained by fraud or by misrepresentation, would be a voidable and not a void document.
In the case of Mathai Samuel & others (Supra), it has been held that Will is an instrument whereunder a person makes a disposition of his properties to take effect after his death and which is in its own nature ambulatory and revocable during his life. Paragraphs 12 and 13 of the judgment are reproduced below:-
"12.Will is an instrument whereunder a person makes a disposition of his properties to take effect after his death and which is in its own nature ambulatory and revocable during his lifetime. It has three essentials:
(1) It must be a legal declaration of the testator's intention;
(2) That declaration must be with respect to his property; and (3)The desire of the testator that the said declaration should be effectuated after his death.
13. The essential quality of a testamentary disposition is ambulatoriness of revocability during the executants' lifetime. Such a document is dependent upon executants' death for its vigour and effect."
In the case of Smt. Sudha Sharma (Supra), the Division Bench of this Court has considered the definition of term "instrument" under Section 3 of Transfer of Property Act for the purpose of court fee to be payable according to the Section 7 (iv-A) of Court Fee Act and has held that Will is an instrument securing money or other property having such value, therefore the plaintiff is required to pay ad-valorem court fee on the reliefs claimed by her in the suit. Paragraphs 5,7,10, 11 and 12 are reproduced below:-
"5. The learned counsel for the plaintiff has argued that Section 2(h) of Indian Succession Act, 1925 defines 'will' as "declaration of the intention of testator with respect to his property which he desires to be carried into effect after his death." Thus, a 'will' is the legal instrument that permits a person, the testator, to make decisions as to how his estate will be managed or distributed after his death. Learned counsel for the appellant has referred to Section 3 of Transfer of Property Act, where an 'instrument' has been defined as a "non-testamentary instrument". He has tried to convince us that a will is not an instrument as contemplated under section 7(iv-A) of the Court Fees Act and thus fixed court fee would be paid according to the provisions of Schedule-II Article 17 (iii) of the Act and there is no deficiency in payment of court-fee. Contra learned counsel for the respondent refuting the above argument has submitted that the 'will' is an instrument securing money or other property having such value, therefore, the plaintiff is required to pay ad valorem court fee on the reliefs claimed by her in the suit.
7. As word 'instrument' has been used in Section 7 (iv-A) of the Court Fees Act, the learned counsel for the appellant has valiantly tried to emphasize that since 'instrument' is a non-testamentary instrument, so it would not cover the will, which is a testamentary instrument. He has further submitted that a 'will' does not secure any property and may not even specify any property and as such the market value thereof may not be ascertained and as such no court fee may be fixed on market value and it is only the fixed court fee for declaration which is liable to be paid and as such the order passed by the learned trial court is absolutely illegal and is liable to be set aside. In support of his argument the learned counsel has placed reliance on the case of Suhrid Singh @ Sardool Singh Vs. Randhir Singh & others 2010(3) J.T. 472. For a moment the argument appeared to be attractive but it is fallacious. Word 'instrument' occurring in aforesaid section cannot be read in isolation. It has been so defined for the purposes of Transfer of Property Act. The proper term for our purpose would be 'an instrument securing money or other property having such value'.
10. The consistent view of this Court has been that in a suit for a declaration that the Will was null and void or non-est, the Will, being an instrument for securing money and other property having a market value, the court fee payable is under Section 7(iv-A) of the Act and not under Article 17 (iii). These observations have been made by a division bench of this Court in the case of Kailash Chand Vs. Vth A.C. Judge, Meerut and others 1999 All LJ 940. In the case of Udai Pratap Gir and another Vs. Shanti Devi and others AIR 1956 All 492 another division bench has held that a will is an instrument securing property within the meaning of Court Fees Act. These observations were approved by Full Bench of this Court in the case of Smt. Bibbi and another Vs. Shugan Chand and others AIR 1968 Allahabad 216. Reference may also be made to yet other recent division bench decisions of this Court. In the case of Shyamal Kumar Ghosh and others Malay Ghosh and others AIR 2009 All 165 and Smt. Rajni Swami Vs. Smt. Shakuntla Sharma 2009 (6) ADJ 63 (DB), wherein on similar set of facts the plaintiffs were directed to pay ad valorem court fees within a period of one month failing which Section 6-A(2) of Court Fees Act will be squarely applicable in the case of the plaintiffs. In the instant suit also the plaintiffs sought relief of declaration to declare the 2004-Will as void document and further declaration to the effect that 1991-Will was validly executed by Smt. Punaya Kirti Sharma out of her own free will and relief of permanent injunction was also sought by the plaintiffs. In this way the plaintiffs not only want declaration of their right, title or interest in the house but they have sought declaration to dis entitle the defendant to have fruits of the 2004-Will in her favour. In this connection observations of this Court in para-14 of the report of Smt. Ranjni Swami (supra) are noteworthy, which are as under:
"14. .......There is a big gap between the declaration simplicitor and relief in the garb of declaration. If a person makes a prayer to declare right, title or interest of a property in his favour then it can be construed as declaration simplicitor but when a plaintiff seeks any declaration to dis entitle others right into a property, such type of circumvent prayer cannot be treated to be declaration simplicitor. In other words, he is not asking any relief for himself but want to prevent his opponent from enjoying fruit of the property. Therefore such type of relief is virtually in the nature of injunction at first with the nomenclature of 'declaration'. Therefore, it is required for the Court to go into the real nature of dispute arising out of the plaint to ascertain the cause and incidental cause which helps it. A will is execution of document of a testator to give his property to a person of his choice. Such will, will be enforceable only after the death of the testator. In some of the States of India, grant of probate by the appropriate Court of law on the will is compulsory and some of the State is optional. In the State of U.P., to obtain probate on the will is optional, therefore, as soon as the testator dies and will comes into light, it operates as a valuable instrument in favour of the person in whose favour property is devolved by such will. If such person seeks a probate before the Court by filing it, no question of ad valorem court-fee will be applicable but it will be paid as soon as Court will grant such probate in his favour. In the present case, the defendant/respondent never approached to the Court to obtain a probate but enjoying the property as successor under a will. Now if such will is declared by the Court as null and void, right of the person in the property or properties under the will, will be extinguished. Therefore, the principle of securing property under the will, will be attracted. Therefore, under, no stretch of imagination we can hold and say that the suit can be entertained on the basis of the fixed Court-fees."
11. Now as regards the argument of learned counsel for the appellant with regard to applicability of Article 17 (iii) Court Fees Act is concerned, it would be useful to quote para-10 of the report of Kailash Chand's case (supra), which is reproduced as under:
10. On a bare perusal of Article 17 (iii), it would appear that this Article shall be applicable in cases where the plaintiff seeks to obtain a declaratory decree without any consequential relief and there is no other provision under the Act for payment of fee relating to relief claimed. The question is whether in case where a decree declaring the will as null and void is sought, there is any provision under the Court Fees Act to cover the question of payment of Court Fees on the relief of such declaration. In case the answer to the question is that there is no other provision under the Act in case of a suit involving cancellation or adjudging/declaring void or voidable a will on the question of payment of court fees, then Article 17 (iii) of Schedule II of the Court Fees Act shall be applicable and if such relief is covered by any other provisions of the Court Fees Act, then provisions of Article 17 (iii) of Schedule II will not be applicable. Careful reading of Section 7 (IVA) makes it abundantly clear that it also covers suits for or involving cancellation or adjudging/declaring null and void decree for money or an instrument securing money or other property having such value. The question, therefore, is whether a will would be treated as an instrument securing money or other property having such value. This question specifically arose before the Full Bench of this Court in the case of Smt. Bishnu Shri v. Smt. Suraj Mukhi and others AIR 1966 All 563 (supra). The Majority view of the Court after considering the provisions of Indian Succession Act and the Court Fees Act was that the word 'instrument' in Section 7 (iv-A) includes formal or legal documents in writing. It is sufficiently broad to include wills also. In para 7 the Court held that :
"The question is whether a will can be regarded as a legal document which makes any property secure or safe. Section 2(h) of the Indian Succession Act define a will as a "legal declaration of the intention of the testator with respect to his property which he desires to be carried into effect after his death. It is well known that during the life-time of the executant, the will Is ambulatory. It could be revoked by him at his will. Accordingly a will does not secure any property during the lifetime of the executant. Section 7 (iv-A) does not require that an instrument should secure money or property having money value from the moment of its birth. It seems to us that whether an Instrument secures money or property having money value within the meaning of Section 7 (iv-A) is to be decided with reference to the date of the institution of the suit. It is to be seen whether particular instrument secures on the date of the institution of the suit money or property having money value. This reference necessarily follows from a collocational reading of this section with Section 39 of the Specific Relief Act. If this is so. we think, then there is little doubt that on the date of the institution of the suit in this case the will did secure property."
'The Court further held that :
"the word "securing" is the present participle from of verb "to secure". It has got various meanings (Words and Phrases) (Permanent Edition), Vol. 38 page 45-8) "Secures" as used in a contract whereby a vendor agrees to execute a conveyance thereof as soon as the vendee secures the payment of purchase money, means not a payment in money but the giving by the vendees of something by means whereof payment at some future time can be procured or compelled (Ibid), Webster defines "secures" to mean "to make certain" "to put beyond hazard". To secure" is to make safe, to put beyond hazard of losing or of not receiving, as to secure a debt by a mortgage ; it also means to get safely in possession, to obtain to acquire certainly, as to secure an inheritance or a price [Ibid 459)."
12. In the instant case both the wills mentioned by the plaintiffs (one in their favour and the other for the defendant) in the plaint were allegedly executed by Smt. Punaya Kirti Sharma, who has died on 11.12.2004. After the death of parties' mother Smt. Punaya Kirti Sharma the will executed by her becomes operative, therefore, in view of the above legal position, the will is an instrument securing property having money value, so court fee would be payable according to S. 7 (iv-A) and not under Article 17(iii) of the Court Fees Act."
In the case of Jagjiwan Rai and others Vs. Hari Kunwar Rai & others (Supra), this Court had occasion to consider the definition of term "instrument" for the purpose of applying Article 59 of Limitation Act, whether the decree is an instrument within the meaning of Article 59 (old Article 1991) of Limitation Act. It has been held that document cannot be an instrument unless it affects some right or liability. In other words an "instrument" is a document which defines, prescribes, transfers, recognizes, establishes a right in a party. Paragraphs 6,7,8,10, 13, 14, 15 and 17 of the judgment are relevant and the same are reproduced below:-
"6. In this case a new argument was raised that the compromise decree was not an instrument within the meaning of Article 91 of the Act. It was contended that the word "instrument" could relate to a document of the nature like a document of transfer but not a court decree. In respect of this contention learned Counsel was not able to cite any case law. All that he could refer to was to the Wharton's Law Lexicon which gives the following meaning:
Instrument- To prepare or provide a formal legal writing e.g., record, chapter, deed or transfer or agreement. Instrument does not include a statute.
7. According to the above definition an agreement which results in a formal legal writing is an "instrument". A consent decree is based on an agreement. That agreement is an instrument within the meaning of Article 91. The decree passed upon compromise is based on that agreement. It will, therefore, take the character of an "instrument".
8. In the case of Pulavarthi Venkata Subba Rao v. Valluri Jagannadha Rao their Lordships have laid down that a compromise decree is not a decision by the court. It is the acceptance by the court of something to which the parties had agreed and a compromise decree sets the seal of the court on the agreement of the parties. Consequently, it can be said that not only the compromise but also the decree based upon such a compromise is an "instrument" within the meaning of Article 91 of the Limitation Act, 1908.
10. The word "instrument" finds place in the Stamp Act. In Section 2(14) of the Stamp Act "instrument" is defined as follows:
(14) "instrument" includes every document by which any right or liability is, or purports to be, created, transferred, limited, extended, extinguished or recorded.
13. The word "instrument" has not been defined in the Court Fees Act. But the definition given in the Stamp Act has been held to be applicable to interpret the word "instrument" in the Court Fees Act as well. After the death of the testator, his Will becomes an "instrument" securing money or property within the meaning of Section 7(iv-a) (U.P.) of the Court Fees Act. It was held in a case that the Will could not be enforced against the testator so long as he was alive and as such it could not be said to be a document by which any right or liability is, or purports to be, created, transferred, limited, extended, extinguished or recorded during his life time. This view was taken by a learned Single Judge of this Court in Gulab Chand v. Jaswant Singh.
14. It has been held that an award is an "instrument" within the meaning of Article 91 and the Plaintiff cannot challenge the decree incorporating the award unless he can show that a suit to set aside the award was brought within the period prescribed by Article 91 See AIR 1927 Lah 172, The Supreme Court in the case of Parsottam v. V.B. Potiar MANU/SC/0244/1965MANU/SC/0244/1965 : 1966 (2) SCR 353 has held an "award" by an Industrial Tribunal a decree. Their Lordships were considering the provisions of the Payment of Wages Act and the definition of the word "wages" in Section 2(vi) of the Act and in particular their Lordships were construing the meaning of the word "instrument" as appearing in Sub-clause (d) of Section 2(iv). Their Lordships observed:
It is thus clear in construing the word "instrument" we must have regard to the context in which the word occurs No one can suggest that the word "instrument" can always and in every case include an award or an order of adjudication. On the contrary as we have already indicated ordinarily the word "instrument" would refer to a document executed by the parties. But if the context clearly indicates that the word "instrument" is used in a much larger sense, that context must be taken into account and the comprehensive interpretation must be placed upon that word. We are, therefore, satisfied that the High Court was in error in coming to the conclusion that the word "instrument" did not include an award....
Construing on the basis of the above principle laid down by their Lordships of the Supreme Court the provisions of Article 91 of the Limitation Act, 1908, cannot be given a narrow meaning because there is nothing to suggest that a narrow meaning be given so as to exclude a compromise decree even. In this context learned Counsel contended that in Article 59 of the Limitation Act, 1963 a provision has been made both for "decree" as well as "instrument". The relevant provision reads as follows: "To cancel or set aside an "instrument" or "decree" or for the rescission of the contract." The word "decree" was not there in Article 91 of the 1908 Act. It was on this basis contended that the word "instrument" in Article 91 of the 1908 Act did not refer to a decree I am unable to agree The reason in adding the word "instrument" in Article 59 of the Limitation Act, 1963 appears to be to clarify the position. It cannot be interpreted to say that an "instrument" did not include a decree earlier and it is only provided for under the 1963 Limitation Act. It has been indicated in the objects and reasons to the Limitation Act, 1963 that Article 59 of the new Act combines existing Articles 91 and 144. Article 91 as indicated above refers to "instrument" and Article 144 refers to the rescission of a contract. It lends support to the view that the word instrument" in Article 91 also embraces within its fold a decree.
15. The word "instrument" also appears in Section 26-A of the Income Tax Act, 1922. It came in for interpretation in ILR 65 Bom 610. It has been held that an "instrument" means a document of a legal nature by which any right or liability is, or is purported to be created, transferred, limited, extended, extinguished or recorded. The document must be executed by the parties. This interpretation is on the same par as in the Stamp Act. It would, therefore, not be incorrect to give the word "instrument" the same meaning as is generally to be found in various other enactments.
17. It is, therefore, clear that a document cannot be an "instrument" unless it affects some right or liability. In other words an "Instrument" is a document which defines, prescribes, transfers, recognises, establishes a right in a party. Judged from this aspect a compromise decree either gives a right to a party or recognises his rights, vis-a-vis, a property. The compromise decree is a document of title. It affects rights as well. It, therefore, fulfils all the requirements of an instrument. I am, therefore, of the opinion that a "decree" is an "instrument" within the meaning of Article 91 of the Act."
Judging from this aspect a Will Deed gives a right to a party or recognizes the rights vis-a-vis a property, as such it shall be treated to be covered under the term "instrument" for the purpose of applicability of Article 59 of the Limitation Act.
Learned counsel for the appellant has relied on the judgment of Calcutta High Court in the case of Sanat Kumar Mitra Vs. Hem Chandra Dey and others (Supra). It has been held in the said judgment that the period of limitation would not be applicable when the instrument is void ab initio but applies only if it is voidable and is requires to be set aside.
In the present case the trial court has already dealt with the above case law and the provisions of Indian Contract Act and has given specific findings that the aforesaid case laws would not apply in the present case as the document in question is a voidable document.
I am of the considered view that the view taken by the trial court is correct. In case the suit for cancellation of Will Deed was filed on the plea that the alleged Will Deed was obtained by fraud and misrepresentation by putting an imposter then it can be at the most a voidable document and not a void document.
In the case of Mohd.Nazir and others Vs. Mst. Zulaikha (Supra), it has been held that in a suit for declaration that a transaction embodied in a particular deed was from the very inception a sham transaction, is to be distinguished from a suit for cancellation of the deed. Such kind of suit does not fall within the purview of Article 59. When a deed is null and void, there is no necessity for the party to come to the Court pre-emptly and to get the deed cancelled or set aside.
Since in the present case, this Court has come to the conclusion that the Will in question at the most can be termed as a voidable document and it was not a document void ab initio, as such the judgment cited by learned counsel for the appellant is not of much help to him.
In the case of Rankanidhi Sahu Vs. Nanda Kishore Sahu (Supra), relied by learned counsel for the appellant, it has been held that Article 59 of the Limitation Act applies when a suit is filed for cancellation or setting aside a document which is void ab initio. If a document is void ab initio and is an illegal document from very inception it is not required to cancel or set aside by filing a suit because according to law such a document does not exist. Same view was reiterated in the case of Smt. Sanghiran Vs. D.D.C.Meerut and others (Supra), that if the sale deed is void, question of getting it cancelled does not arise and no question of relief for getting the sale deed cancelled would be involved. There is no quarrel to the aforesaid proposition that Article 59 of Limitation Act may apply where the document is prima facie valid or is voidable. It would not apply to the instruments which are pre-emptly invalid or void ab initio.
In the present case, since the Will in question has been held to be a voidable document, the judgment cited above is of no help to the appellant.
So far as the contention of learned counsel for the appellant that the trial court has given specific finding that the Will in question is a fake and fraudulent document and therefore void, is concerned, it is to be noted that the learned trial court has drawn presumption regarding genuineness of the Will. It is not in dispute that the said Will Deed was a registered document and has been proved in accordance with law as per Section 68 of Indian Evidence Act before the trial court as well as before the Court of Tehsildar where the properties were got recorded in the name of defendant no. 1 Munna Lal on the basis of the said Will Deed.
The plaintiff/appellant has tried to put force on the point that the attesting witnesses have been disbelieved by the trial court as they were either friend or relatives of the beneficiary of the Will. The Supreme Court in the case of State of A.P. Vs. S. Rayappa and others (Supra) has held that testimony of a witness otherwise inspiring confidence cannot be discarded on the ground that he being a relation of the deceased is an interested witness. The same proposition has been held in Paragraph 18 of Madhusudan Das Vs. Smt. Narayanibai (deceased by L.Rs.) & others (Supra). Paragraph 18 of the judgment is reproduced below:-
"18. The High Court disagreed with the trial court and held that the adoption had not been established. In doing so, it adopted an approach which, to our mind, is plainly erroneous. It proceeded to judge the credibility of the witnesses mainly with reference to their relationship with the parties without placing adequate weight on the nature of the evidence and the probability of its truth in the context of the surrounding circumstances. It rejected the testimony of the appellant's witnesses substantially on the ground that they were related to the appellant or out of favour with Narsinghdas. This consideration, in our opinion, cannot by itself constitute a sufficient basis for discrediting the witnesses. We think the proper rule to be that when a witness holds a position of relationship favouring the party producing him or of possible prejudice against the contesting party, it is incumbent on the court to exercise appropriate caution when appraising his evidence and to examine its probative value with reference to the entire mosaic of facts appearing from the record. It is not open to the court to reject the evidence without anything more on the mere ground of relationship or favour or possible prejudice. The judgment under appeal indicates that the High Court commenced with that mistaken approach, and we see its influence working throughout its appraisal of the testimony of the several witnesses. It is only logical that with its approach so oriented even the most 862 significant material adduced by the appellant should, in the eyes of the High Court, take on a negative hue. The High Court should also have reminded itself that these same witnesses had given their evidence before the trial court,which had the opportunity of seeing their demeanour in the witness box, and the appreciation of their evidence by the trial court should have been given due consideration in the light of that fact."
In the case of Prem Singh and others Vs. Birbal and others (Supra), it has been held that Article 59 of the Limitation Act would be attracted when coercion, undue influence, misappropriation or fraud is required to be proved. It has been observed that if 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. It has been held that if a deed was executed by the plaintiff when he was minor and it was void and he did not file the suit within the limitation period prescribed, then the suit was barred by limitation. Relevant Paragraphs 12, 13, 18, 28 and 29 are reproduced below:-
"12. 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.
13. 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.
18. 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.
28. 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.
29. 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."
In the case of Utha Moidu Haji Vs. Kuningarath Kunhabdulla and others (Supra), it has been held that even in case of void documents law of limitation applies and it will be counted from the date of knowledge of the deed. Relevant Paragraphs 13 and 14 of the judgment are produced below:-
"13.The learned Trial Judge had not arrived at any finding that the plaintiff came to know of the execution of the said deed of sale or about 4.3.1981. If that be so, the plaintiff would be deemed to have knowledge about the execution of the sale deed on his attaining majority, as soon as he pleaded any proved that his case comes within the purview of the exception contained in the provisions of the Limitation Act. As Indicated hereinbefore, the applicability of the said limitation is not in issue in the suit. The learned Single Judge of the High Court had in fact held that the period of limitation would be either 3 years from the date of attaining majority by the plaintiff or 12 years from the date execution of the deed of sale. To the same effect is the decision of this Court in Prem Singh and Ors. v. Birbal and Ors., [2006] 5 SCC 353, wherein this Court compared the provisions of Article 91 of the old Limitation Act vis-a-vis Articles 59 & 60 of the new Limitation Act so as to hold:
"17. 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.
18. 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 v. Kunchi Amma, (ILR) 1891 14 Mad. 26 and Sheo Shanker Gir v. Ram Shewak Chowdhri, ILR (1897) 24 Cal 77.]
19. It is not in dispute that by reason of Article 59 of the Limitation Act, the scope has been enlarged from the old Article 91 of the 1908 Act. By reason of Article 59, the provisions contained in Article 91 and 114 of the 1908 Act had been combined.
20. 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."
It was further held:
"28. 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. A grandfather from the mother's side, under the Mohammadan Law, is not a co-owner of a property. Moosa Haji as a predecessor in interest of the said property also thus did not become the co-owner of the plaintiff. The expression co-owner presupposes ownership. If the contention of the plaintiff-respondent that Moosa Haji did not acquire any interest in the property so far as plaintiff is concerned is correct, the question of his becoming co-owner of the property by reason of the said deed of sale or otherwise would not arise. When a person enters into possession of a land under a void or voidable transaction, his possession becomes adverse from the date he comes in possession. His possession would be exclusive, it will be a repetition to state or not, in the capacity of a co-owner. The concept of co-owner, therefore, in our opinion, has not been correctly applied in the peculiar facts and circumstances of this case. Reliance has been placed by Mr. Vishwanatha Iyer on a decision of the Division Bench of the Calcutta High Court in Jagannath Marwari and Ors. v. Mst. Chandni Bibi and Anr. AIR (1921) Cal. 647. Therein the parties were co-sharers and a question was raised as to whether a co-sharer becomes entitled to claim indefeasible title by starting possession of the property adverse to the interest of the plaintiff who was a minor at that point of time. The Calcutta High Court opined that the question of adverse possession as against the minor to his knowledge would arise only from the date of his attaining majority and not prior thereto. We also agree with Mr. Ramamoorthy that it was also not a case where the vendor held the property in suit in trust for the plaintiff. As noticed hereinbefore, we are not concerned with such a situation in the present case as the only question which fell for consideration before the learned Trial Judge was that whether the provisions of Article 60 of the Schedule appended to the Limitation Act would be attracted in the facts and circumstances of the case."
In the case of Hamida Begum alias Alo Bibi Vs. Umran Bibi & others (Supra), the Apex Court has held that there is no dispute that the suit was filed by virtue of the right created under Section 31 of the Specific Relief Act, 1963. The period of limitation of filing such suit is 03 years according to Article 59 of the Limitation Act. The time runs when the facts entitling the plaintiffs to have the instrument cancelled or set aside first become known to them. It has also held that if a party admits execution of a deed of transfer is vitiated by fraud either as to the contents or as to the nature of transaction, he is under obligation to file a suit under Section 31 of the Act for avoiding such transaction within the period of limitation provided in Article 59 of the Limitation Act. The Apex Court has also held that if a suit is not covered by any of the specific articles prescribing a period of limitation it must fall within the residuary article. Article 113 (corresponding to Article 120 of the Act of 1908) is a residuary article for cases not covered by any other provisions of the Act. It prescribes a period of three years when the right to sue accrues. Paragraphs 13, 19, 20, 26 and 27 of the judgment are relevant, which read as under:-
"13. There is no dispute that the said suit was filed by virtue of the right created under Section 31 of the Specific Relief Act, 1963 and the period of limitation for filing such suit is 3 years according to Article 59 of the Limitation Act. The time runs when the facts entitling the plaintiffs to have the instrument cancelled or set aside first become known to them.
19. At this stage, it will be relevant to refer to Section 31 of the Specific Relief Act and the same is quoted below:
"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 (16 of 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."
20. A combined reading of Sections 31 of the Specific Relief Act and Section 27 of the Limitation Act makes it abundantly clear that if a party admits execution of a deed of transfer in favour of another but claims that the said transaction is vitiated by fraud either as to the contents or as to the nature of the transaction, he is under obligation to file a suit under Section 31 of the Act for avoiding such transaction within the period of limitation provided in Article 59 of the Limitation Act and the period is 3 years and the time starts running when the facts entitling the plaintiff to cancel or set aside the instrument first become known to him. If the remedy becomes time barred, his right to resist a claim over the said property based on such deed will automatically be barred because of the provisions contained in Section 27 of the Limitation Act even if he remains in possession of the property unless he asserts adverse possession and claims to have perfected his title by such adverse possession after the execution of the deed.
26. In this connection, we may profitably refer to a three Judges Bench decision of the Supreme Court in the case of State of Punjab vs. Gurdev Singh reported in AIR 1991 SC2219 where the question was whether for avoiding an ultra vires order of dismissal, an employee is required to approach a Court within a specified time prescribed by the law of limitation. The argument was based on the principle that for challenging a void order, there is no period of limitation and the aggrieved person can approach the Court at any time. In that context, the Apex Court held as follows:-
"First of all, to say that the suit is not governed by the law of limitation runs afoul of our Limitation Act. The Statute of Limitation was intended to provide a time limit for all suits conceivable. Section 3 of the Limitation Act provides that a suit, appeal or application instituted after the prescribed "period of limitation" must subject to the provisions of Sections 4 to 24 be dismissed although limitation has not been set up as a defence. Section 2(J) defines the expression "period of limitation" to mean the period of limitation prescribed in the Schedule for suit, appeal or application. Section 2(J) also defines, "prescribed period" to mean the period of limitation computed in accordance with the provisions of the Act. The Court's function on the presentation of plaint is simply to examine whether, on the assumed facts, the plaintiff is within time. The Court has to find out when the "right to sue" accrued to the plaintiff. If a suit is not covered by any of the specific articles prescribing a period of limitation, it must fall within the residuary article. The purpose of the residuary article is to provide for cases which could not be covered by any other provision in the Limitation Act. The residuary article is applicable to every variety of suits not otherwise provided for. Article 113 (corresponding to Article 120 of the Act of 1908) is a residuary article for cases not covered by any other provisions in the Act. It prescribes a period of three years when the right to sue accrues. Under Article 120 it was six years which has been reduced to three years under Article 113. According to the third column in Article 113, time commences to run when the right to sue accrues. The words "right to sue" ordinarily mean the right to seek relief by means of legal proceedings. Generally, the right to sue accrues only when the cause of action arises, that is, the right to prosecute to obtain relief by legal means. The suit must be instituted when the right asserted in the suit is infringed or when there is a clear and unequivocal threat to infringe that right by the defendant against whom the suit is instituted (See: (i) Mt. Bole v. Mt. Koklam, AIR 1930 PC 270 and (ii) Gannon Dunkerley and Co. v. -Union of India, AIR 1970 SC 1433).
In the instant cases, the respondents were dismissed from service. May be illegally. The order of dismissal has clearly infringed their right to continue in the service and indeed they were precluded from attending the office from the date of their dismissal. They have not been paid their salary from that date. They came forward to the Court with a grievance that their dismissal from service was no dismissal in law. According to them the order of dismissal was illegal, inoperative and not binding on the. They wanted the Court to declare that their dismissal was void and inoperative and not binding on them and they continue to be in service. For the purpose of these cases, we may assume that the order of dismissal was void, inoperative and ultra vires, and not voidable. If an Act is void or ultra vires it is enough for the Court to declare it so and it collapses automatically. It need not be set aside. The aggrieved party can simply seek a declaration that it is void and not binding upon him. A declaration merely declares the existing state of affairs and does not 'quash' so as to produce a new state of affairs. But none the less the impugned dismissal order has at least a de facto operation unless and until it is declared to be void or nullity by a competent body or Court. In Smith v. East Elloe Rural District Council, (1956) AC 736 at p. 769 Lord Redcliffe observed:
"An order even if not made in good faith is still an act capable of legal consequences. It bears no brand of invalidity upon its forehead. Unless the necessary proceedings are taken at law to establish the cause of invalidity and to get it quashed or otherwise upset, it will remain as effective for its ostensible purpose as the most impeccable of orders."
Apropos to this principle, Prof. Wade states: the principle must be equally true even where the 'brand of invalidity' is plainly visible: for there also the order can effectively be resisted in law only by obtaining the decision of the Court (see : Administrative Law 6th Ed. p. 352). Prof. Wade sums up these principles:
"The truth of the matter is that the Court ,will invalidate an order only If the right remedy is sought by the right person in the right proceedings and circumstances. The order may be hypothetically a nullity, but the Court may refuse to quash it because of the plaintiff's lack of standing, because he does not deserve a discretionary remedy, because he has waived his rights, or for some other legal reason. In any such case the 'void' order remains effective and is in reality valid. It follows that an order may be void for one purpose and valid for another, and that it may be void against one person but valid against another." (Ibid p. 352) It will be clear from these principles, the party aggrieved by the invalidity of the order has to approach the Court for relief of declaration that the order against him is inoperative and not binding upon him. He must approach the Court within the prescribed period of limitation. If the statutory time limit expires the Court cannot give the declaration sought for."
27. The aforesaid principle equally applies to a void transaction and in view of Section 31 of the Specific Relief Act, we are of the view that even void ab initio transaction must also be avoided by filing a suit within the period of limitation, otherwise, by virtue of an even void transaction, the title of the party would be lost."
In the case of Mohd. Noorul Hoda Vs. Bibi Rafiunnisa and others20, the Apex Court has held that Article 59 of the Limitation Act is a general provision. In a suit to set aside or cancel an instrument, a contract or a decree on the ground of fraud, Article 59 is attracted. The starting point of limitation is the date of knowledge of the alleged fraud. Paragraph 06 of the judgment is reproduced below:-
"6. The question, therefore is as to whether Article 59 or Article 113 of the Schedule to the Act is applicable to the facts in this case. Article 59 of the Schedule to the Limitation Act, 1908 had provided inter alia for suits to set aside decree obtained by fraud. There was no specific article to set aside a decree on any other ground. In such a case, the residuary Article 120 in Schedule III was attracted. The present Article 59 of the Schedule to the Act will govern any suit to set aside a decree either on fraud or any other ground. Therefore, Article 59would be applicable to any suit to set aside a decree either on fraud or any other ground. It is true that Article 59 would be applicable if a person affected is a party to a decree or an instrument or a contract. There is no dispute that Article 59 would apply to set aside the instrument, decree or contract between the inter se parties. The question is whether in case of person claiming title through the party to the decree or instrument or having knowledge of the instrument or decree or contract and seeking to avoid the decree by s specific declaration whether Article 59 gets attracted? As stated earlier, Article 59 is a general provision. In a suit to set aside or cancel an instrument a contract or a decree on the ground of fraud, Article 59 is attracted. The starting point of limitation is the date of knowledge of the alleged fraud. When the plaintiff seeks to establish his title to the property which cannot be established without avoiding the decree or an instrument that stands as an insurmountable obstacle in his way which otherwise binds him, though not a party, the plaintiff necessarily has to seek a declaration and have that decree, instrument or contract cancelled or set aside or rescinded. Section 31 of the Specific Relief Act, 1963 regulates suits for cancellation of an instrument which lays down that any person against whom a written instrument is void or voidable and who has a reasonable apprehension that such instrument, if left outstanding, may cause him serious injury, can sue to have it adjudged void or voidable and the court may in its discretion so adjudge it and order it to be delivered or cancelled. It would thus be clear that the word ''person' in Section 31 of the Specific Relief Act is wide enough to encompass a person seeking derivative title from his seller. It would, therefore, be clear that if he seeks avoidance of the instrument, decree or contract and seeks a declaration to have the decrees set aside or cancelled he is necessarily bound to lay the suit within three years from the date when the facts entitling the plaintiff to have the decree set aside, first became known to him."
From the above legal proposition, it is clear that the Will is an instrument within the meaning of Article 59 of the Limitation Act and in case of plea of fraud and fraudulence having been taken to challenge the Will Deed, the period of limitation has to be counted from the date of knowledge of such fraud.
It is to be noted that the suit for cancellation of Will Deed filed by the plaintiff/appellant was dismissed by the trial court on the ground of limitation being time barred. The first appellate court has upheld the findings of the trial court in this regard and has dismissed the appeal filed by the plaintiff/appellant.
As per the facts borne out from the records, which have been proved beyond doubt that the suit for cancellation of the Will Deed dated 7.1.1987 was filed on 21.11.1990. The trial court has taken into consideration the document 19Ga/2, objections filed before the Court of Tehsildar in the mutation proceedings by the plaintiff Smt. Sahodara and as per the said documents plaintiff Smt. Sahodara had got full knowledge of the Will Deed on 15.10.1987. The trial court has held that in view of above, the suit filed by the plaintiff/Smt. Sahodara was beyond time by 01 month 06 days. The lower appellate court has considered the statement of PW-1 Smt. Sahodara who had herself accepted that she got the knowledge of the Willl when she filed her objection on 15.10.1987 and later on she also stated that she had knowledge of the Will since the month of February. The lower appellate court has given specific findings that she had complete knowledge of the Will Deed on the date of filing of the objection i.e. on 15.10.1987.
The learned lower appellate Court, as such has upheld the findings of the trial court and dismissed the appeal filed by the plaintiff/appellant holding that the suit was barred by the period of limitation.
This Court has come to the conclusion that Article 59 of Limitation Act was attracted for the purpose of determining the period of limitation to file the suit for cancellation of Will Deed dated 7.1.1987 by the plaintiff and as per Article 59 of the Limitation Act, 03 years period was to be counted from the date of knowledge of the said Will Deed.
The trial court as well as the appellate court have rightly come to the conclusion that the suit filed by the plaintiff/appellant was barred by time and and as such have dismissed the suit as well as the appeal filed thereafter.
In the case of M/s. Craft Centre and others Vs. The Koncherry Coir Factories, Cherthala (Supra), it has been held by the Kerala High Court that application of Section 3 of Limitation Act is mandatory and absolute. If a suit is barred by time, Court is duty bound to dismiss the same even at the appellate stage though issue of limitation may not have been raised. Para 04 of the judgment is reproduced below:-
"4. What S.3 of the Limitation Act says is that every suit instituted after the prescribed period shall be dismissed, although limitation has not been set up as a defence. It is the duty of the plaintiff to convince the Court that his suit is within time. If it is out of time and the plaintiff relies on any acknowledgement or acknowledgements in order to save limitation, he must plead them or prove, if denied. An acknowledgment not pleaded in the plaint, at least by way of amendment, cannot be relied on. The plaint must appear on the fact of it to be within time. If not, the Court can reject it on the ground of limitation even without issuing summons to the defendant and waiting for his plea of limitation. In this case, the only acknowledgment pleaded is Ext. A1 dated 23.10.1978. If the Court finds that the acknowledgment was only on 213.10.1976, the suit filed beyond three years, on 20.3.1981, could be dismissed on that ground itself. The provision in S.3 is absolute and mandatory. The court can claim no choice except to obey it in full. It is the duty of the Court to dismiss a suit which on the face of it is barred by time even at the appellate stage despite the fact that the issue was not at all raised."
In the case of Kamlesh Babu and others Vs. Lajpat Rai Sharma and others (Supra), the Apex Court has held that it was the duty of the first appellate Court and also of the High Court to go into the question of limitation and decide the same before reversing the judgment of the trial court on various issues framed in the suit. Even though the various issues were decided in favour of the plaintiff both by the First Appellate Court and the High Court, the same were of no avail since the suit continued to remain barred under Article 59 of the Limitation Act, 1963. The relevant paragraphs 17 and 18 of the judgment are reproduced below:
"17. It is well settled that Section 3(1) of the Limitation Act casts a duty upon the court to dismiss a suit or an appeal or an application, if made after the prescribed period, although, limitation is not set up as a defence.
18. In the instant case, such a defence has been set up in the written statement though no issue was framed in that regard. However, when the Trial Court had in terms of the mandate of Section 3(1) come to a finding that the suit was barred by limitation, it was the duty of the First Appellate Court and also of the High Court to go into the said question and to decide the same before reversing the judgment of the Trial Court on the various issues framed in the suit. Even though the various issues were decided in favour of the plaintiff both by the First Appellate Court and the High Court, the same were of no avail since the suit continued to remain barred under Article 59 of the Limitation Act, 1963."
This Court has come to the conclusion that the suit filed by the plaintiff/appellant was barred by limitation as it was filed beyond the period of limitation prescribed under Section 59 of Limitation Act.
In view of above, even if the trial court had decided the Issue no. 2 in favour of the plaintiff/appellant and had opined that the Will Deed dated 7.1.1987 was obtained by fraud, the said findings were of no avail since the suit continued to remain barred under Article 59 of the Limitation Act, 1963.
So far as the contention of learned counsel for the appellant that the lower appellate court has committed illegality in not making compliance of Order 41 Rule 31 C.P.C. while deciding the first appeal preferred by the plaintiff/appellant and it has led to non sustainability of the impugned judgment is concerned, it is to be noted that the lower appellate court in its judgment has mentioned the point of determination involved in the appeal. The lower appellate court has observed that the only one point of determination which arises for consideration is whether the suit was time barred. The lower appellate court has decided this point of determination by upholding the findings recorded by the learned trial court and coming to the conclusion that the suit filed by the plaintiff/appellant was filed after expiry of period of three years from the date of knowledge and, as such, was barred by time.
As such, the contention of learned counsel for the appellant that the learned lower appellate court has committed any illegality in not framing the points of determination in deciding the appeal filed by the appellant/plaintiff has no force. The case law relied in this regard has no applicability to the given facts of the case.
The substantial questions of law formulated in the appeal are answered accordingly. In view of the legal proposition as discussed above and the reasons given in this judgment, the appeal is liable to be dismissed. There are concurrent findings of two courts below which are well reasoned and based on evidence on record.
The Second Appeal is dismissed.
Order Date :- 21.12.2017 Arjun/-
[Ritu Raj Awasthi, J.]