MOHAMMAD NAZIR Vs. MTZULAIKHA

JUDGEMENT

(1.) THIS is a defendants appeal arising out of 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 thereto. The document purported to be a sale-deed for consideration executed by the plaintiff in favour of the defendants. The plaintiff's allegation was that it was a wholly fictitious document never intended to pass title in the lifetime of the plaintiff, and that no consideration had in fact passed, and that the document was void ab initio. Both, the Courts below have decreed the claim.

(2.) THE only question of law, which was raised in the Court below and which is raised before us again, is the question off limitation. THE defendants pleaded that the suit was governed by Art. 91, Lim. Act, and ought to have been brought within three years of the date when the plaintiff had knowledge of the facts. THE Court below has held that the article applicable is the general article, namely, Art. 120, Lim. Act, as the suit was really a suit for declaration of title. THE learned Judge has relied on the case of Jagardeo Singh V/s. Phuljhari [1908] 30 All. 375, though he has stated that he is not able to appreciate the difference between the deeds which are void and the deeds which are voidable. THE difference is patent and has been explained in numerous cases. Where a deed is null and void there is no necessity for the party to come to Court promptly and have the deed actually cancelled or set aside. Where, however, a deed is good but is voidable and can be avoided at the option of the party aggrieved, he must come to Court within three years be have it set aside. As pointed out by this Court in the case referred to above, a suit for a declaration that a transaction embodied in a particular deed was from its very inception a sham transaction is to be distinguished from a suit for cancellation of the, deed. THE former kind of suit does not fall within the purview of Art. 91, Schedule 2, to the Lim. Act. This view has been consistently accepted by all the High Courts and by their Lordships of the Privy Council. We may refer to the case of Sangawa V/s. Huchangowda A.I.R. 1924 Bom. 174 and the case of Petherpermal Chetty V/s. Muniandy Servan [1908] 35 Cal. 551. THE appeal has, in our opinion, no force and is dismissed with costs.