MT AISHA BEGAM Vs. MTKUNDAN JAN

JUDGEMENT

(1.) This appeal has been connected in this Court with First Appeal No. 33 of 1940 Rafiqa Begam V/s. Aisha Begam See in which we have delivered judgment to-day. Suit No. 20 of 1937 out of which the pre-sent second appeal has arisen was filed on 24 July 1937 for cancellation of a mortgage, dated 1 September 1932 for Rs. 3000 executed by the plaintiff in favour of her mother. Plaintiff further claimed a declaration that she was the owner of the entire 18 sihams as the heir to her sister Halimatun Nissa who had died in the year 1928, on the ground that Noor Uddin Ahmad was an illegitimate son of Kundan Jan, defendant 1, and was not the son of Naqi Uddin Ahmad, the father of the plaintiff. It was further pleaded that as Mt. Kundan Jan had been re-converted and had become a Hindu she was also not entitled to inherit any share in the property left by her daughter Halimatun Nissa. The defendant's contention was that when Halimatun Nissa died the plaintiff, her sister, and Noor Uddin her brother, and Mt. Rafiqa Begum alias Kundan Jan her mother were her heirs, and the plaintiff's share was only five sihams but as the other two heirs had sold to her 11 sihams out of the 13 sihams, the plaintiff had become the owner of 16 sihams but the other two sihams still belonged to Noor Uddin Ahmad and Rafiqa Begum. The trial Court held that Noor Uddin Ahmad was illegitimate and therefore had no share in the property. As regards Rafiqa Begum the trial Court was not satisfied that she had been reconverted to Hinduism but held that even if she had been, by reason of the Caste Disabilities Removal Act of 1855 she would not lose her share in the inheritance to her daughter. The lower appellate Court, however, held that Noor Uddin Ahmad was the legitimate son of Naqi Uddin and therefore Noor Uddin Ahmad and Rafiqa Begum were still the owners of the two sihams and refused to give the plaintiff a declaration as regards these two sihams about which the dispute related. We have already held in the first appeal that Noor Uddin Ahmad was the legitimate son of Naqi Uddin. It is not necessary for us to reiterate the same reasons. We need only mention that we agree with the finding of the learned Additional District Judge of Moradabad that there was no definite evidence to prove that Noor Uddin Ahmad was illegitimate and by reason of the acknowledgment of the paternity made by Naqi Uddin and by reason of the admission made by the plaintiff herself, and the other relations there was good prima facie evidence that he was the legitimate son of Naqi Uddin. In view of that finding the plaintiff's claim for declaration as regards these two sihams must fail. As regards the 16 sihams there was no dispute and so the plaintiff had no cause of action to bring a suit for declaration. The other relief claimed by the plaintiff was the declaration that the mortgage-deed dated 1st September 1932 was null and void and ineffectual and that no charge had been created thereunder on the property included in the mortgage. As regards this mortgage the trial Court held as follows: I can arrive at no conclusion but this that the deed of mortgage is wholly farzi and that no consideration passed under it, and that the plaintiff was entirely under the influence and control of her mother, defendant 1. Later on the Court held that the deed was entirely without consideration by reason, however, of the fact that all the facts which entitled the plaintiff to have the mortgage-deed dated 1 September 1932, declared null and void were known to her, even when she executed the mortgage deed. The Court held that Art. 91, Limitation Act, applied and the period within which the suit should have been filed was only three years. On that ground this part of the relief was also refused by the trial Court. As regards the facts the learned District Judge in his judgment has mentioned that the facts found by the trial Court that the mortgage was without consideration and that it was executed under undue influence were not challenged before him. But the learned District Judge also held that the plaintiff knew that she was executing a mortgage deed under the undue influence of her mother and without any consideration even in the year 1932, and the suit, therefore, was barred by Art. 91, Limitation Act, and dismissed the suit.

(2.) In appeal the learned Counsel appearing on behalf of the plaintiff has argued that under Section 25, Contract Act, Act 9 of 1872, an agreement made without consideration is void, and he has argued that Art. 91, Limitation Act, refers only to cases where it is necessary to cancel or set aside an instrument and it does not therefore apply to an agreement which is void in law, and the relief claimed is only a declaration that the document was void and not for the cancellation or the setting aside of the instrument. There is a wide difference between an agreement which is voidable and one which is void. A voidable contract is a good contract so long as lit is not avoided by the person who has the {right to avoid the same, while a void contract is no contract in law, and in the eye of law it does not exist. When a party seeks to avoid a voidable contract and get a certain ancillary relief, it follows that if his claim for avoidance of the contract is barred by limitation he cannot get the ancillary reliefs while if the contract is void it is not necessary to have the contract set aside and the rights of the parties can be determined independently of the deed. So, even if the claim for the cancellation of the deed or for declaration that it is void is barred by limitation, the rights of the parties can still be determined independently of the same. In cases where a suit is brought for possession of property which had been transferred under a void agreement the law is now well settled that the plaintiff is entitled to bring his suit within 12 years, and Art. 91, Limitation Act, has no application. As illustrations in point we may mention the cases in Petherpermal Chetty V/s. Muniandy Servai ( 08) 35 Cal. 551, Sangawa V/s. Huchan Gowda ( 24) 11 A.I.R. 1924 Bom. 174, Shankarbhai Dajibhai V/s. Bai Shiv ( 30) 17 A.I.R. 1930 Bom. 545, Aziz-un-nissa V/s. Siraj Husain ( 34) 21 , Asaram V/s. Ludheshwar ( 38) 25 A.I.R. 1938 Nag. 335 and Izhar Fathima Bibi v. Mt. Ansar Fatima . From a perusal of some of these rulings, it will be clear that when possession is claimed of certain property which had been transferred under a document which is void then even though a relief may be added for the setting aside of the document that relief is merely ancillary to the main relief for possession and it is not necessary to have the document set aside before the plaintiff is entitled to claim possession, and in those circumstances Art. 91, Lim. Act, would have no application to the case.

(3.) On the finding that the mortgage was without consideration it must be held to be void under Section 25, Contract Act. We were doubtful whether a case in which the only relief claimed was a declaration that a document was void and was of no legal effect was governed by Art. 91, Limitation Act. It may be argued that if Art. 91 does not apply to a suit where possession is claimed there is no reason why it should not be applicable to a suit for mere declaration. Provisions of the Limitation Act are not based on logic and arbitrary rules have to be applied if they are applicable to the facts of a particular case. If no possession is transferred under a void document and a suit is brought merely for a declaration that the document was void, the maximum period for such a suit would be six years under Art. 120, Limitation Act, from the date the cause of action arose. Art. 91, Limitation Act, is the residuary article for cancellation and for the setting aside of all instruments not otherwise provided for. It is possible to take the view that Art. 91 applies to all suits that are contemplated by Section 39, Specific Relief Act, Act l of 1877, and the period of limitation is three years from the date when the facts entitling the plaintiff to have the instrument cancelled or set aside became known to him. The matter is, however, no longer res integra, and the point is fully covered by a Division Bench ruling of this Court reported in Muhammad Nazir V/s. Mt. Zulaikha Bibi . That was a suit for a declaration that a sale deed dated 26 August 1918 was null and void and that the defendants had not acquired any right under the said deed. The Court in that case held that a suit, to have adjudicated that a deed was void, was not governed by Art. 91, Limitation Act, but by Art. 120. That case fully covers the case before us and we are bound by the same. Two other cases have been cited before us. The first is the case in Janki Kunwar V/s. Ajit Singh ( 88) 15 Cal. 58 where a suit was brought for the declaration that a deed of sale was obtained by fraud and undue influence. Their Lordships of the Privy Council held that it was a suit where the plaintiff was not entitled to claim possession of the property without having the deed set aside and the facts which were said to constitute the fraud were known to the plaintiff long before three years prior to the suit, and the suit was therefore barred by Article 91, Limitation Act.