REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 598 OF 2005
Baljinder Singh ....
Appellant
Versus
Rattan Singh .....Respondent
(With C.A. Nos. 605/2005 and 601/2005)
JUDGMENT
Dr. ARIJIT PASAYAT, J.
1. These appeals are directed against a common judgment
of a learned Single Judge of the Punjab and Haryana High
Court disposing of three Second Appeals filed under Section
100 of the Code of Civil Procedure, 1908 (in short `CPC'). All
the three appeals and the cross objections filed related to
certain acts of one Shivdev Singh. All the appeals and cross
objections were dismissed except with certain modifications.
2. The background facts in a nutshell are as follows:
Shiv Dev Singh was allotted land measuring 811 kanal
14 marlas out of which he effected sale of 440 kanals earlier.
The said sale is not disputed in the present proceedings. Shiv
Dev Singh earlier married Harbans Kaur and from the said
wedlock one son i.e. plaintiff Lt. Col. Rattan Singh, and four
daughters who are also plaintiffs along with Lt. Col. Rattan
Singh in Civil Suit No.172 of 3.9.1994 were born. Smt.
Harbans Kaur died in the year 1986. Shiv Dev Singh
thereafter married Iqbal Kaur and from wedlock of Shiv Dev
Singh with Iqbal Kaur, Jaspal Singh, Lakhwinder Kaur,
Sukhjinder Kaur and Baljinder Singh and Balwinder Singh
were born. The dispute in these appeals is in respect of the
land measuring 337 kanals 10 marlas. Shiv Dev Singh
2
executed a gift deed on 19.12.1962 in favour of Jaspal Singh,
one of the sons of Shiv Dev Singh in respect of land measuring
10 kanals 5 marlas. The said gift deed was disputed by his
another son Lt. Col. Rattan Singh and four daughters in Civil
Suit No172 of 3.9.1994. Regular Second Appeal No.2550 of
2000 before the High Court arose out of the said suit.
The said suit was for declaration to the effect that they
are co owners in joint possesson to the extent of = share, and
that the property in the hands of Shiv Dev Singh was
ancestral. In the written statement, the defendant denied that
the land was ancestral. It was asserted that same was self
acquired property of Shiv Dev Singh. It was pleaded that since
19.12.1962 when Shiv Dev Singh gifted the land in his favour,
possession was delivered to him and ever since he is
continuing in possession as owner of the suit land. Jaspal
Singh, the donee, was minor at the time of execution of gift
deed. The learned trial Court recorded a finding that the suit
land was ancestral in the hands of Shiv Dev Singh and that
alienation of ancestral property effected by father of a Hindu
3
governed by Mitakshara law could be challenged in terms of
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
