Summary
The Supreme Court held that a co-owner's suit for injunction or joint possession, attacking a 1973 sale deed she was found never to have executed and for which no consideration was shown to have been paid, was governed by Article 65 (12 years) and not Article 59 (3 years) of the Limitation Act, 1963, because such a deed is void and need not be cancelled. The suit filed about 11 years after the deed was within time; the High Court erred in applying Article 59 but its conclusion was correct, so the appeal was dismissed.
Issues
- Whether the plaintiff's suit, filed in 1984 in respect of a sale deed of 1973, was barred by limitation.
- Whether Article 59 or Article 65 of the Schedule to the Limitation Act, 1963 governs a suit for possession where the sale deed is alleged and found to be fraudulent because the plaintiff never executed it.
- Whether a plaintiff who is not a party to an instrument must seek its cancellation or an express declaration that it does not bind her.
Provisions considered
- Schedule, Article 59, Limitation Act, 1963Three years from knowledge, for a suit to cancel or set aside an instrument. Following Prem Singh v. Birbal, the Court held it applies only to voidable instruments that are prima facie valid (such as fraud as to contents), not to void instruments; it was therefore inapplicable to a sale deed the plaintiff never executed and for which no consideration was proved. (¶¶ 25, 29, 31, 38, 40)
- Schedule, Article 65, Limitation Act, 1963Twelve years from when the defendant's possession becomes adverse, for possession of immovable property based on title. Since the deed was void, the plaintiff could sue for possession on title, and the suit filed about 11 years after the 1973 deed was within time even reckoning from the date of the deed. (¶¶ 25, 28, 33, 39, 40)
- Section 54, Transfer of Property Act, 1882Relying on Kewal Krishnan v. Rajesh Kumar, the Court noted that a sale requires a price paid or promised; a sale deed executed without payment or promise of price is void. As the defendant proved no payment of consideration to the plaintiff, the deed was void on this ground as well. (¶¶ 34, 35, 36, 37, 38)
Held
- Article 59 covers only voidable transactions, where the instrument is prima facie valid; a void instrument is non est and need not be set aside. Fraudulent misrepresentation as to the character of a document makes it void, while fraud as to its contents makes it voidable. (¶¶ 29, 31)
- Where the concurrent finding is that the plaintiff never executed the sale deed because the thumb impression was not hers, the fraud goes to the character of the document and renders it void; the plaintiff need not seek its cancellation and Article 59 does not apply. The defendant's failure to produce the original deed reinforced this. (¶ 31)
- A plaintiff not party to an instrument need not sue for its cancellation; the requirement of a declaration that it does not bind her can be gathered from a holistic reading of the plaint, and is implicitly met where the plaint assails the deed as fraudulent, sham or bogus. (¶¶ 30, 32)
- Including a prayer to declare a void deed a nullity does not change the limitation period; a suit for possession based on title remains governed by Article 65. (¶¶ 28, 33)
- A sale deed without payment or promise of price is not a sale under Section 54 of the Transfer of Property Act and is void. Where the vendee's husband, who allegedly paid part of the price before the Sub-Registrar, did not testify, the only surviving attesting witness was the vendee's brother, and no proof of the earlier payment was led, the plaintiff's plea of non-receipt of consideration stood unrebutted, making the deed void on this ground too. (¶¶ 34, 35, 36, 37, 38)
- The High Court erred in holding that Article 59 applied, but since the suit was within time under either Article, its conclusion that the suit was not time-barred was correct. (¶¶ 39, 40)
Result
Appeal dismissed; the law on the applicable Article clarified, and the decree in favour of the plaintiffs affirmed.