Baljinder Singh vs Rattan Singh

Article 109 of the Limitation Act, 1963 (in short the `Limitation

Act') within 12 years from the date when alienee takes

possession of the property alienated. Since Jamabandi for the

year 1973-74, (Exhibit D-8) Jamabandi for the year 1978-79

(Exhibit D-9), Jamabandi for the year 1983-84 (Exhibit D-10)

record Jaspal Singh as a person in possession, the Court

returned a finding that Jaspal Singh came into possession

more than 12 years before the filing of the suit and thus, the

suit is beyond the period of limitation.

Shiv Dev Singh also executed two separate sale deeds on

25.2.1980 and 27.3.1980 in respect of land measuring 73

kanals 11 marlas in favour of Pritam Kaur, widow of Thakur

Singh, who happened to be sister of Iqbal Singh, wife of Shiv

Dev Singh. After the death of Pritam Kaur on 1.4.1990, the

same devolved upon defendant Baljinder Singh, minor son of

Jaspal Singh i.e. grandson Shiv Dev Singh by virtue of will

dated 30.1.1984. The said sale deeds were disputed by Lt.Col.

Rattan Singh in Civil Suit No.171 of 6.9.1994. Regular Second

4 Appeal No.2549 of 2000 before the High Court arose out of

said suit.

In the said suit, the challenge is to the sale deeds dated

25.2.1980 and 27.3.1980 whereby Shiv Dev Singh has sold

the land in favour of Pritam Kaur, his sister-in-law through

his attorney Jaspal Singh. In the said suit it was alleged that

the suit land was ancestral having been inherited from his

forefathers and that the sale deeds were without legal

necessity and thus null and void. It was alleged that the

defendant, son of Jaspal Singh is in illegal and unauthorized

possession of the suit land without any legal right for the last

four years. The plaintiff alleged that the cause of action

accrued in the year 1993 when the share of compensation

amount in respect of the land acquired by the Improvement

Trust was not allowed to be withdrawn by the plaintiff at the

instance of Iqbal Kaur, second wife of Shiv Dev Singh. The

defendant in written statement pleaded that the sales in

question are not in any way illegal, without consideration

and/or void. Shiv Dev Singh was the sole owner of the suit

5 land. The suit land remained in possession of Smt. Pritam

Kaur as owner ever since the sale in her favour. It was alleged

that cause of action, if any, arose to the plaintiff to challenge

the alienation on the date of execution of the sale deeds. The

learned trial Court dismissed the suit holding that the suit is

barred by limitation governed by Article 109 of the Limitation

Act as revenue record since Jamabandi 1983-84 (Exhibit D-5)

records the name of Pritam Kaur in the column of ownership

and cultivation. The said Jamabandi entry was recorded after

mutation in favour of Pritam Kaur and was sanctioned in the

year 1980.

Shiv Dev Singh also executed a registered will dated

1.8.1969 in favour of his wife Iqbal Kaur. At the time of death

of Shiv Dev Singh on 9.6.1988 he was owner of land

measuring 107 kanals 13 Marlas. Lt. Col. Rattan Singh and

his four sisters filed suit for declaration to claim = share of

the said land on the basis of natural succession and for joint

possession in Civil Suit No.170 of 3.9.1994. Regular Second

6 Appeal No.2548 of 2000 before the High Court arose out of the

said suit.

The said suit was for declaration and in the alternative

for joint possession filed, inter alia, on the ground that they

are owners of = share of the land. It was averred that Shiv

Dev Singh son of Sahib Singh was owner of 107 kanals 13

marlas of land which was inherited from his forefathers and it

was ancestral. Shiv Dev Singh died on 9.6.1988 leaving

behind plaintiffs and defendants Nos. 1 and 4 to 6 and Smt.

Lakhwinder Kaur as his legal heirs. Lakhwinder Kaur died on

18.6.1993 leaving behind defendants Nos. 2 and 3 as her legal

heirs. It was averred that defendant no.1 has claimed a will in

her favour. The deceased Shiv Dev Singh has not executed

any valid will in favour of defendant No.1 and the alleged will

is false and fabricated. It was further alleged that the plaintiffs

have succeeded to the estate of Shiv Dev Singh to the extent of

= share and the defendants succeeded to the remaining =

share of his estate. Defendant No.1 relied upon will dated

1.8.1969 and claimed that she has become the exclusive

7 owner in possession of the suit land. In evidence, the

defendants produced son of the scribe and one of the attesting

witnesses of the will. The trial Court held that the said will is

proved to have been executed and is not surrounded by

suspicious circumstances. One of the reasons for coming to

such view by the trial Court was that Lt. Col. Rattan Singh

has got 8 acres of land earlier and thus, the plaintiffs cannot

make any grievance.

3. However, in three separate appeals, the first Appellate

Court reversed the findings recorded by the trial Court. The

first Appellate Court held that Civil Suit No.171 and 172 of

1994 are within the period of limitation as cause of action

arose to them when they were excluded from the Joint Hindu

Family property in the year 1992. However, in respect of the

will, the first Appellate Court held that it is surrounded by

suspicious circumstances and consequently decreed the suit

holding that the estate of Shiv Dev Singh will vest on the

coparceners Rattan Singh, Jaspal Singh and Iqbal Kaur wife of

Rattan Singh in equal shares and thus plaintiff Lt. Col. Rattan

8 Singh would have 1/3rd share and the defendants Jaspal

Singh and Iqbal Kaur would have 2/3rd share.

4. Aggrieved by the findings recorded by the learned First

Appellate Court, Second Appeals were filed.

5. The plaintiffs also filed cross objections in each of the

appeals claiming that the judgment and decree of the first

Appellate Court granting 1/3rd share to Rattan Singh is

incorrect as a matter of fact plaintiff Rattan Singh has =

share.

6. In Second Appeals the findings of the Courts below that

the land is joint Hindu Family coparcenary property was not

disputed. This fact was not disputed even before the learned

trial Court. It was also not disputed that the sale deeds were

executed without legal necessity and Shiv Dev Singh was not

competent to gift the property. However, what was disputed is

that the suit challenging alienation by way of gift in the year

1962 and sale deeds in the year 1980 by way of suit filed in

9 the year 1994 were clearly beyond the period of limitation as

prescribed under Article 109 of the Indian Limitation Act,

1963 (in short the `Limitation Act'). The first Appellate Court

had recorded a finding that the plaintiffs acquired knowledge

of alienation by way of gift and sale in the year 1992 after Lt.

Col. Rattan Singh retired from army. Learned counsel for the

appellants before the High Court disputed such finding as one

based upon perversity. It was that it is impossible to believe

that the gift deed executed in the year 1962 mutation of which

was recorded in the year 1967 came to the notice of the

plaintiffs only in the year 1992 since plaintiff Lt. Col. Rattan

Singh was visiting the village every year during his annual

leave. However, since the first Appellate Court has believed

the statement of the plaintiff to record a finding that he

acquired the knowledge of alienation of the year 1992, it

would a finding of fact. High Court was of the view that even if

a different view was possible to be taken it would not entitle

the High Court to take a different view in Second Appeal. The

finding recorded by the first Appellate Court was held to have

been arrived at after discussing the relevant oral and

10 documentary evidence. Therefore, the High Court proceeded

on the assumption that plaintiff Lt. Col. Rattan Singh came to

know about the alienation in the year 1992.

7. The High Court formulated following substantial

questions of law for consideration:

1. Whether the gift deed executed by Shiv Dev Singh

in favour of son Jaspal Singh on 19.12.1962 is void

or voidable?

2. Whether the sale deeds dated 25.2.1980 and

27.3.1980 executed by Shiv Dev Singh in favour of

Pritam Kaur, his sister in law, is void or voidable?

3. Whether the suit for possession is within the period

of limitation or such suit is barred by limitation in

terms of Article 109 of the Limitation Act, 1963?

4. Whether Will dated 1.8.1969 executed by deceased

Shiv Dev Singh in favour of his wife Iqbal Kaur is

proved to be duly executed and is not surrounded

by suspicious circumstances?

11 5. What will be the share of the plaintiffs in the suit

property consequent to the decision on the above

questions of law?

8. The genealogy as given below indicating the relationship

between the parties was taken note of by the High Court.

Shivdev Singh ! ! !

Harbans Kaur - Wife Iqbal Kaur (wife) Pritam Kaur (Sister of Iqbal) ____________________________________________________ _______________________________________________ ! ! ! ! ! ! ! ! ! Rattan Gurbachan Manjit Kuldip Balwinder Jaspal Lakhwinder Sukhwinder Baljit Singh Kaur Kaur Kaur Kaur Singh Kaur Kaur Kaur (R-1 in (R-2 in (R-2 in (R-2 in (R-2 in (App.No (since (App.no.5 (App.No. All C.A.No. C.A.No. C.A. C.A.No. 1 in C.A. deceased) in C.A. No. 6 in C.A. Appeals ) 605 and 605 and 605 & 605 and No.605 605 and No. 605 and 601 of 601 of 601 of 601 of and App. App.No.4 App.No.5 in 2005) 2005) 2005) 2005) No.6 in in C.A. C.A.601 of C.A.601 601 of 2005) Of 2005) 2005)

___________________________ ! ! Baljinder Singh Gurtej Singh (App. In C.A. (App.No.2 in No.598/2005) in C.A.605 and App.No.1 in C.A No.601 of 2005)

9. After analyzing the legal position and the applicable

Hindu Law the High Court inter alia came to the following

conclusions:

12

"In the judgment and decree passed by the learned first Appellate Court holding that Rattan Singh plaintiff will have 1/3rd share is not sustainable as the share of Shiv Dev Singh was excluded for the reason that Shiv Dev Singh during his life time sold 50-60 acres of land and, thus he ceased to have any share in the suit land. The said reasoning is not sustainable in law. The sale effected by Shiv Dev Singh during his life time will diminish the joint property of all the coparceners. Such sale is not disputed and, therefore, such sale is for the benefit of coparcenary body and, thus, it cannot be said that such sale was out of the share of Shiv Dev Singh alone. In terms of Explanation 1 to Section 6 of the Hindu Succession Act, 1956, the notional partition is to be presumed immediately before the death of Shiv Dev Singh. Therefore, Shiv Dev Singh will have equal share within Rattan Singh, Jaspal Singh and Iqbal Kaur.

Immediately before the death of Shiv Dev Singh, the coparceners were Shiv Dev Singh himself, Rattan Singh plaintiff, Iqbal Kaur (wife of Shiv Dev Singh), and Jaspal Singh. The married daughters from the first wife Harbans Kaur or from the second wife Iqbal Kaur were not coparceners and, thus not entitled to any share. Thus, Shiv Dev Singh, Rattan Singh, Jaspal Singh and Iqbal Kaur shall have 1/4th share each as coparcener. One fourth share of Shiv Dev Singh will fall equally to the share of one son and four daughters from his first wife Harbans Kaur one son and three daughters from the second wife Iqbal Kaur and Iqbal Kaur herself i.e. 1/4th share to each of the

13 legal heirs of Shiv Dev Singh at the time of his death".

10. It was inter alia held that the deed of gift purported to

have been executed by Shivdev Singh in favour of Jaspal

Singh was surrounded by mysterious circumstances and was

not a genuine document. So far as the sale deeds in favour of

Pritam Kaur are concerned it was held that Article 65 of the

Limitation Act was applicable. While the challenge in the first

suit relating to the sale deeds was filed on 1.9.1994, the other

suits challenging the gift purported to have been made on

19.12.1962 and the will purported to have been executed on

1.8.1969 were filed on 3.9.1994.

11. In the present appeals, challenge to the High Court's

judgment was on various grounds. We shall deal with them

separately.

14

12. So far as the appeal relating to the effect of the sale deed

is concerned, it was submitted that the High Court had made

out a new case about applicability of Article 65 of the

Limitation Act, while the trial Court and the first Appellate

Court had proceeded on the basis that Article 109 was

applicable. Similarly, the basic issue was whether the sale

deed was void or voidable. So far as the appeal relating to

validity of the gift made by Shivdev Singh is concerned,

according to learned counsel, the relevant issue is whether he

made the gift and if the answer to the question is in the

affirmative, to what extent could he had made the gift. Here

again the question was whether the gift was void or voidable.

So far as the appeal relating to the validity of the Will is

concerned, it was submitted that the Courts below failed to

notice that there was nothing suspicious about execution of

the Will and the evidence on record clearly established that

the Will had been executed out of free will and was not tainted

in any way.

15

13. In response, learned counsel for the respondent

submitted that the High Court has analysed the legal and the

factual position in great detail and has rightly dismissed the

appeals.

14. The first issue in the appeals relates to the validity of the

sale deeds. Articles 65 and 109 operate in different fields. The

trial Court categorically found that Article 65 was not

applicable and Article 109 was applicable to the facts of the

case. The first Appellate Court in essence accepted that Article

109 was applicable, which provided for a period of 12 years to

set aside the alienation effected by a father from the date

when the alienee was in possession of the property. Though

the first Appellate court accepted that Article 109 was

applicable, yet it was held that the spirit of Article 109 is that

by taking over the possession of the land which is subject

matter of the suit the alienee inter alia gives a notice to the

persons governed by Mitakashara School of Law to agitate

their rights, if any. Otherwise, their remedy would become

barred by limitation. It was held that the starting point of

16 limitation would be somewhere in the year 1992 when he

came to know of the alienation made by the father.

Consequently, the cause of action accrued in the year 1992

when he gained knowledge about the existence and execution

of the sale deeds. Therefore, the period of 12 years as laid

down in Article 109 was to be reckoned from the year 1992

and since the suit had been filed in 1994 it is within the

period of limitation.

15. A bare perusal of the High Court's order it is seen that

the High Court proceeded on the basis that the applicable

Article is Article 65 and not Article 109. It is to be noted that

there was no issue framed about applicability of Article 65. On

the contrary, the issue framed related to the applicability of

Article 109. There was no pleading by the plaintiff about

applicability of Article 65. Even in the counter affidavit filed

before this Court in the concerned Civil Appeal, the categorical

stand is Article 110 is applicable. In para 8 of the counter

affidavit filed in Civil Appeal No.598 of 2005 it has been stated

that the suit of the respondent (plaintiff) is within time under

17 Article 110 and counting from the date of knowledge, the suit

filed is clearly within the period of limitation. The effect of

Exhibit D-11 and the deed on which the appellants placed

strong reliance has not been considered by the first Appellate

Court and it reversed the findings of the trial Court. On the

question of position relating to applicability of Article 109

there is practically no discussion by the learned counsel.

16. It is, therefore, crystal clear that the High Court

proceeded to decide the issue relating to period of limitation

by making out a new case for which there was no pleading

and even no question of law was framed.

17. The question whether the sale deed was void or voidable

has to be adjudicated in the light of principles set out by this

Court in several decisions. We shall deal with this aspect in

detail while considering the appeal relating to the gift.

18

18. In Thamma Venkata Subbamma (dead) by Lrs. V.

Thamma Rattamma and Others (1987 (3) SCC 294) it was

observed as follows:

"12. There is a long catena of decisions holding that a gift by a coparcener of his undivided interest in the coparcenary property is void. It is not necessary to refer to all these decisions Instead, we may refer to the following statement of law in Mayne's Hindu Law, eleventh Edn., Article 382:

"It is now equally well settled in all the Provinces that a gift or devise by a coparcener in a Mitakshara family of his undivided interest is wholly invalid....A coparcener cannot make a gift of his undivided interest in the family property, movable or immovable, either to a stranger or to a relative except for purposes warranted by special texts.

13. We may also refer to a passage from Mulla's Hindu Law, fifteenth edn., Article 258, which is as follows:

Gift of undivided interest. - (1) According to the Mitakshara law as

19 applied in all the States, no coparcener can dispose of his undivided interest in coparcenary property by gift. Such transaction being void altogether there is no estoppel or other kind of personal bar which precludes the donor from asserting his right to recover the transferred property. He may, however, make a gift of his interest with the consent of the other coparceners.

14. It is submitted by Mr. P. P. Rao, learned counsel appearing on behalf of the respondents, that no reason has been given in any of the above decisions why a coparcener is not entitled to alienate his undivided interest in the coparcenary property by way of gift. The reason is, however, obvious. It has been already stated that an individual member of the joint Hindu family has no definite share in the coparcenary property. By an alienation of his undivided interest in the coparcenary property, a coparcener cannot deprive the other coparceners of their right to the property. The object of this strict rule against alienation by way of gift is to maintain the jointness of ownership and possession of the coparcenary property. It is true that there is no specific textual authority prohibiting an alienation by gift and the law in this regard has developed gradually, but that is for the purpose of preventing a joint Hindu family from being disintegrated.

17. It is, however, a settled law that a coparcenary can make a gift of his undivided

20 interest in the coparcenary property to another coparcener or to a stranger with the prior consent of all other coparceners. Such a gift would be quite legal and valid".

19. We may also refer to a passage from Mulla's Hindu Law,

Seventeenth Edn., (Article 258), which is as follows:

"Gift of undivided interest- (1)According to Mitakshara law as applied in all the States, no coparcener can dispose of his undivided interest in coparenary property by gift. Such transaction being void altogether there is no estoppel or other kind of personal bar which precludes the donor from asserting his right to recover the transferred property. He may, however, make a gift of his interest with the consent of the other coparcener".

20. In Mayne's Hindu Law, XIV Edn. It has been noted as

follows:

"Gifts of affection- The father's power to make gifts through affection within reasonable limits of ancestral movable property has been fully recognized. In Ramalinga v Narayana (1922 (49) IA 168) the Privy Council held that "the father has undoubtedly the power under the

21 Hindu Law of making within reasonable limits, gifts of movable property to a daughter".

By Will- But such gifts through affection of joint family property when they are by will, are invalid, because the right of the coparceners vests by survivorship at the moment of the testator's death, and there is accordingly nothing upon which the will can operate. In Subbarami v. Ramamma ((1920 (43) Mad 824) the Madras High Court held that a will made by a Hindu father bequeathing certain family properties for the maintenance of his wife was invalid as against his infant son through it would have been a proper provision if made by him, during his lifetime. This may be in a sense right. There is however no compelling logic in not regarding wills "as gifts to take effect upon death at least as to the property which they can transfer and the persons to whom it can be transferred". Convenience would seem rather to point to the extension to the sphere of Hindu Law of the general principle of jurisprudence that what a man can give by act inter vivos, he can give by will".

21. In view of the decision in Venkata Subbamma's case

(supra), the decision of the High Court so far the gift is

concerned, does not warrant any interference.

22

22. So far as the question whether the gift is void or voidable

much depends on the factual scenario. The distinction

between void or voidable is summarized as follows:

"De Smith, Woolf and Jowell in their treatise

Judicial Review of Administrative Action, 5th,

para 5-044, have summarized the concept of

void and voidable as follows:

"Behind the simple dichotomy of void and voidable acts (invalid and valid until declared to be invalid) lurk terminological and conceptual problems of excruciating complexity. The problems arose from the premise that if an act, order or decision is ultra vires in the sense of outside jurisdiction, it was said to be invalid, or null and void. If it is intra vires it was, of course, valid. If it is flawed by an error perpetrated within the area of authority or jurisdiction, it was usually said to be voidable; that is, valid till set aside on appeal or in the past quashed by certiorari for error of law on the face of the record."

23 Clive Lewis in his work Judicial Remedies in

Public Law at p.131 has explained the

expressions "void and voidable" as follows:

"A challenge to the validity of an act may be by direct action or by way of collateral or indirect challenge. A direct action is one where the principal purpose of the action is to establish the invalidity. This will usually be by way of an application for judicial review or by use of any statutory mechanism for appeal or review. Collateral challenges arise when the invalidity is raised in the course of some other proceedings, the purpose of which is not to establish invalidity but where questions of validity become relevant."

23. In Sunil Kumar and Anr. v. Ram Parkash and Ors. (AIR

1988 SC 576) it was noted in paras 23 and 24 as follows:

23. The managing member or karta has not only the power to manage but also power to alienate joint family property. The alienation may be either for family necessity or for the benefit of the estate. Such alienation would bind the interests of all the undivided

24 members of the family whether they are adults or minors. The oft quoted decision in this aspect, is that of the Privy Council in Hanuman Parshad v. Mt. Babooee, [1856] 6 M.I.A. 393. There it was observed at p. 423: (1) "The power of the manager for an infant heir to charge an estate not his own is, under the Hindu law, a limited and qualified power. It can only be exercised rightly in case of need, or for the benefit of the estate." This case was that of a mother, managing as guardian for an infant heir. A father who happens to be the manager of an undivided Hindu family certainly has greater powers to which I will refer a little later. Any other manager however, is not having anything less than those stated in the said case. Therefore, it has been repeatedly held that the principles laid down in that case apply equally to a father or. other coparcener who manages the joint family estate.

Remedies against alienations:

24. Although the power of disposition of joint family property has been conceded to the manager of joint Hindu family for the reasons aforesaid, the law raises no presumption as to the validity of his transactions. His acts could be questioned in the Court of law. The other members of the family have a right to have the transaction declared void, if not justified. When an alienation is challenged as being unjustified or illegal it would be for the alienee to prove that there was legal necessity in fact or that he made proper and bona fide enquiry as to the existence of such necessity. It would

25 be for the alienee to prove that he did all that was reasonable to satisfy himself as to the existence of such necessity. If the alienation is found to be unjustified, then it would be declared void. Such alienations would be void except to the extent of manager's share in Madras, Bombay and Central Provinces. The purchaser could get only the manager's share. But in other provinces, the purchaser would not get even that much. The entire alienation would be void. [Mayne's Hindu Law 11th ed. para 396].

24. In Sadasivam v. K. Doraisamy (AIR 1996 SC 1724) it was

found that when the father has executed sale deed in favour of

a near relative and the intention to repay debt or legal

necessity has not been proved as a sham transaction.

25. In Words and Phrases by Justice R.P. Sethi the

expression `void' and `'voidable' read as under:

"Void- Black's Law Dictionary gives the meaning of the word "void" as having different nuances in different connotations. One of them is of course "null or having no legal force or binding effect". And the other is "unable in law, to support the purpose for which it was intended". After referring to the nuances between void and voidable the lexicographer

26 pointed out the following: "The word `void' in its strictest sense, means that which has no force and effect, is without legal efficacy, is incapable of being enforced by law, or has no legal or binding force, but frequently the word is used and construed as having the more liberal meaning of `voidable'. The word `void' is used in statute in the sense of utterly void so as to be incapable of ratification, and also in the sense of voidable and resort must be had to the rules of construction in many cases to determine in which sense the legislature intended to use it. An act or contract neither wrong in itself nor against public policy, which has been declared void by statute for the protection or benefit of a certain party, or class of parties, is voidable only". (Pankan Mehra and Anr. v. State of Maharashtra and Ors. (2000 (2) SCC 756).

Per Fazal Ali, J- The meaning of the word "void" is stated in Black's Law Dictionary (3rd Edn.) to be as follows:

"Null and void; ineffectual;

nugatory; having no legal force or binding effect; unable in law to support the purpose for which it was intended; nugatory and ineffectual so that nothing can cure it; not valid". Keshavan Madhava Menon v. State of Bombay (1951 SCR 228).

The expression "void" has several facets. One type of void acts, transactions, decrees are those which are wholly without

27 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. Judicial Review of Administration Action, 5th Edn., para 5-044 (See also Judicial Remedies in Public Law at page 131; Dhurandhar Prasad Singh v. Jai Prakash University and Ors. (2001 (6) SCC 534)

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 preceding the transaction becomes void from the very beginning. Another type of void act may be one, which is not a nullity, but for avoiding the same, a declaration has to be made. (See Government of Orissa v Ashok Transport Agency and Ors (2002 (9) SCC 28)

The meaning to be given to the word "void" in Article 13 of the Constitution is no longer res integra, for the matter stands concluded by the majority decision of the Court in Keshavan Madhava Menon v. The State of Bombay (1951) SCR 228. We have to apply the ratio decidendi in that case to the facts of the present case. The impugned Act was a existing law at the time when the Constitution came into force. That existing law imposed on the exercise of the right guaranteed in the citizens of the India by Article 19(1)(g) restrictions which could not be justified as reasonable under clause (6) as it then stood and consequently under Article 13

28 (1) that existing Law became void "to the extent of such inconsistency". As explained in Keshavan Madhava Menon's case (supra) the Law became void in toto or for all purposes or for all times or for all persons but only "to the extent of such inconsistency", that is to say, to the extent it became inconsistent with the provisions of Part III which conferred the fundamental rights on the citizens. It did not become void independently of the existence of the rights guaranteed by Part III. (See Bhikaji Narain Dhakras and Ors. v. The State of Madhya Pradesh and Anr. (1955 (2) SCR 589).

The word "void" has a relative rather than an absolute meaning. It only conveys the idea that the order is invalid or illegal. In Halsbury's Laws of England, 4th Edn. (Re- issue) Vol. 1(1) in para 26, p.31 it is stated thus: "If an act of decision, or an order or other instrument is invalid, it should, in principle, be null and void for all purposes; and it has been said that there are no degrees of nullity. Even though such an act is wrong and lacking in jurisdiction, however, it subsists and remains fully effective unless and until it is set aside by a court of competent jurisdiction. Until its validity is challenged, its legality is preserved". (See State of Kerala v.

M.K. Kunhikannan Nambiar Manjeri Manikoth, Naduvil (dead) and ors. (1996 (1) SCC 435).

"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, it is voidable as the apparent state of affairs is the real state of affairs and a party who alleges otherwise is oblige to prove it. If it is proved

29 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 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. Government of Orissa v. Ashok Transport Agency and Ors. (2002 (9) SCC 28)".

26. So far as the appeal relating to Will is concerned, it is to

be noted that the Courts below including the High Court have

come to the conclusion that its execution is surrounded by

suspicious circumstances.

27. The defendants have relied upon will dated 1.8.1969

executed by Shiv Dev Singh in favour of his wife Iqbal Kaur.

Will Ex.D-1 is sought to be proved by DW-1 Sham Lal son of

Jitender Nath scribe of the Will and DW-2 Surinder Nath

Vohra, the attesting witness DW-1 Sham Lal has identified the

handwriting of his father and deposed that his father died in

30 the year 1993. DW-2 Surinder Nath Vohra has deposed that

the Will was executed by Shiv Dev Singh at Kharar in his

presence. At that time, Shiv Dev Singh was in sound disposing

mind. It has come on record that Dharam Singh, husband of

Lakhwinder Kaur daughter of Shiv Dev Singh was residing at

Chandigarh. Shiv Dev Singh used to stay with Dharam Singh

when he used to visit Chandigarh in connection with

litigation. However, the Will was not executed and registered

at Chandigarh but at Kharar. Surinder Nath Vohra is not

known to the testator but attested the Will at the asking of

Dharam Singh. Still further, in Will Exhibit D-1 there is no

reference about Rattan Singh who is none else but real son of

the testator. The first Appellate Court found that the

reasoning given by the learned trial Court that Shiv Dev Singh

gave 8 acres of land to Rattan Singh and, therefore, it was not

necessary for him to assign any reason was found to be

incorrect because the said land measuring 8 acres came to

him from his grand father as he was born after 4 daughters.

The first Appellate Court found that even if Shiv Dev Singh

had been given 8 acres, there is no reason as to why such

31 mention was not made in the Will. Consequently, the first

Appellate Court returned a finding that the execution of the

Will Exhibit D-1 is not proved and its execution is surrounded

by suspicious circumstances.

28. The finding recorded about the genuineness of the Will is

essentially factual. The Courts below have analysed the

factual position in great detail. Nothing infirm in the

conclusions could be shown by learned counsel for the

appellant.

29. In view of the aforesaid circumstances it would be proper

for the High Court to re-hear the appeal relating to

applicability of Article 129 of the Limitation Act

and to

decide the matter taking note of the factual position.

30. The other appeals are dismissed. The appeals are

accordingly disposed of.

32 ...............................J. (Dr. ARIJIT PASAYAT)

................................J. (TARUN CHATTERJEE) New Delhi, August 5, 2008

33