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Showing contexts for: voidable document in Arangi Murali Krishna vs State Of Andhra Pradesh Rep. By Its ... on 27 December, 2024Matching Fragments
Instruments which are ab initio void need not be cancelled:
30. Insofar as the ‗character' of the Sale Deed as an instrument which is executed by way of a sham transaction, the Hon'ble Apex Court in Dhurandhar Prasad Singh v Jai Prakash University and others: (2001) 6 SCC 534) in paragraph No.22 has held as under:
"Thus the expressions "void and voidable"
have been the subject-matter of consideration on innumerable occasions by courts. The expression "void" has several facets. One type of void acts, transactions, decrees are those which are wholly without jurisdiction, ab initio void and for avoiding the same no declaration is necessary, law does not take any notice of the same and it can be disregarded in collateral proceeding or otherwise. The other type of void act, e.g., may be transaction against a minor without being represented by a next friend. Such a transaction is a good transaction against the whole world. So far as the minor is concerned, if he decides to avoid the same and succeeds in avoiding it by taking recourse to appropriate proceeding the transaction becomes void from the very beginning. Another type of void act may be which is not a nullity but for avoiding the same a declaration has to be made. Voidable act is that which is a good act unless avoided, e.g., if a suit is filed for a declaration that a document is fraudulent and/or forged and fabricated, it is voidable as the apparent state of affairs is the real state of affairs and a party who alleges otherwise is obliged to prove it. If it is proved that the document is forged and fabricated and a declaration to that effect is given, a transaction becomes void from the very beginning. There may be a voidable transaction which is required to be set aside and the same is avoided from the day it is so set aside and not any day prior to it. In cases where legal effect of a document cannot be taken away without setting aside the same, it cannot be treated to be void but would be obviously voidable."
"16. When a document is valid, no question arises of its cancellation. When a document is void ab initio, a decree for setting aside the same would not be necessary as the same is non-est in the eye of law, as it would be a nullity.
22. In Ningawwa v. Byrappa [(1968) 2 SCR 797 : 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: (SCR p. 801 C-D) "The legal position will be different if there is a fraudulent misrepresentation not merely as to the contents of the document but as to its character. The authorities make a clear distinction between fraudulent misrepresentation as to the character of the document and fraudulent misrepresentation as to the contents thereof. With reference to the former, it has been held that the transaction is void, while in the case of the latter, it is merely voidable."
33. The Hon'ble Apex Court, as recently as in the year 2023, while dealing with an identical situation, held that in respect of a sham transaction, cancellation of Sale Deed would not be necessary. In Ramathal and others v K. Rajamani (Dead) through LRs and another : (2023 SCC Online SC 1022) in paragraph No.21, the Hon'ble Apex Court has held as under:
" In the present case, the defendant respondent had taken a plea which the High Court had given due consideration that the plaintiff appellant had not sought any relief either for declaration of the Power of Attorney as void as also the cancellation of the sale deeds. Law is well settled that where it is alleged that the document of sale is void, then no cancellation would be necessary and such a document can be ignored under law. Cancellation of a sale deed would be necessary only where it is alleged to be voidable on facts. The present case the fraudulent misrepresentation was not only to the contents of the document but also to the character of the document. Thus, the reasoning given by the High Court contrary to the settled legal position cannot be sustained".