VERDICTUM.

IN

IN THE HIGH COURT OF KARNATAKA AT BENGALURU

DATED THIS THE 19TH DAY OF APRIL, 2024 R

BEFORE

THE HON'BLE MR. JUSTICE H.P. SANDESH

R.S.A. NO.738/2007 (DEC/INJ)

BETWEEN:

SRI DUGGATTI MATADA NAGARAJ

S/O SHANTAVEERAIAH
AGED ABOUT 48 YEARS
R/O. HALEMIGALAGERI
SHIKARIPURA TALUK
SHIMOGA DISTRICT-577 427.
… APPELLANT

(BY SRI M.V.HIREMATH, ADVOCATE)

AND:

1. SRI DANAPPA
S/O LATE SRI SIDDAPPA
AGED ABOUT 40 YEARS
R/O. HALEGONDAKAPPA
SHIKARIPURA TALUK
SHIVAMOGGA -27

SMT. NEELAMMA
W/O LATE SRI MALLANAGOWDA
SINCE DECEASED BY HER LR

2. SIDDALINGAPPA
ADOPTED S/O MALLANAGOWDA
 VERDICTUM.IN

AGED ABOUT 45 YEARS

R/O. MADAGAHARANAHALLI
SHIKARIPURA TALUK
SHIVAMOGGA -577 427.

3. SMT. NEELAMMA
W/O LATE SIDDAPPA
AGED ABOUT 78 YEARS
R/O. HALEGODDANAKOPPA
SHIKARIPURA TALUK
SHIMOGA DISTRICT-577 427.

(R3 DIED LEAVING R1 AS THE SOLE LR OF R3

AS PER COURT ORDER DATED 26.02.2024)

… RESPONDENTS

(BY SRI R.V.JAYAPRAKASH, ADVOCATE FOR R1;

R2 SERVED, BUT UNREPRESENTED
VIDE ORDER DATD 26.02.2024,
R1 IS THE LR OF DECEASED R3)

THIS R.S.A. IS FILED UNDER SECTION 100 OF CPC

AGAINST THE JUDGEMENT AND DECREE DATED 12.12.2006

PASSED IN R.A.NO.23/1993 ON THE FILE OF THE PRESIDING

OFFICER, FTC-I, SHIMOGA AND ETC.

THIS R.S.A. HAVING BEEN HEARD AND RESERVED FOR

JUDGMENT ON 28.03.2024 THIS DAY, THE COURT

PRONOUNCED THE FOLLOWING:

 VERDICTUM.IN

JUDGMENT

This regular second appeal is filed by appellant/defendant

No.4 challenging the judgment and decree dated 12.12.2006

passed in R.A.No.23/1993 by the Fast Track Court-I,

Shivamoaga.

2. Heard the learned counsel appearing for the

respective parties. The parties are referred to as per their

original rankings before the Trial Court to avoid confusion and

for the convenience of the Court.

3. It is the case of the plaintiff before the Trial Court

while seeking the relief of declaration that deed of cancellation

dated 14.04.1971, canceling the deed of settlement dated

08.05.1969 is void and ineffective and for further declaration

that the sale deeds 14.04.1971, 24.05.1971, 15.05.1978 and

28.04.1973 are void and to declare that the sale deed dated

25.04.1972 is not only void but also not binding on the plaintiff

and for possession of the schedule item Nos.1 to 4 of the

properties and consequential relief of permanent injunction.

 VERDICTUM.IN

4. The main contention of the plaintiff before the Trial

Court that he is the son of defendant No.2-Siddappa who is the

son of Basappa. The suit schedule properties were of Smt.

Mannamma W/o Basappa who died somewhere in 1959. After

her death, Basappa and Siddappa were continued to enjoy the

suit schedule properties till 1969. In 1969, Basappa and

Siddappa executed a settlement deed on 08.05.1969, under

which, they gifted all the suit schedule properties to the plaintiff.

Gift was accepted on behalf of minor son (plaintiff) by his mother

and the natural guardian Smt.Neelamma. Subsequent to 1969,

Neelamma continued to manage the properties of his minor

son/plaintiff. By 1971, Basappa was infirm not only due to his

old age but also due to Asthma and his son Siddappa was in

vicious character. Taking advantage of the same, by practicing

undue influence, fraud and misrepresentation, Mallanagowda

i.e., the younger brother of Basappa and husband of defendant

No.1 got executed a deed of cancellation dated 14.04.1971

canceling the above said settlement deed. On the same day, by

playing fraud, got executed the sale deed in his favour in respect

of suit schedule properties except item Nos.3 and 4. There was

 VERDICTUM.IN

no necessity, reason or cause for Basappa either to cancel the

deed or to sell the properties in favour of Mallanagowda.

Basappa, in fact, had no intention of depriving the suit schedule

properties in favour of the plaintiff at any point of time. Hence,

contended that the deed of cancellation is void and ineffective

and also illegal. It is also contended that no consideration

passed from Mallanagowda to Basappa. Mallanagowda sold

schedule item No.1 to defendant No.3 on 24.05.1971 and sold

item No.2 to defendant No.4 on 15.05.1978. Thus, those sales

are void and ineffective since the said Mallanagowda had no

saleable interest. But possession remained with the plaintiff’s

mother and Basappa till 1976.

5. The present appeal is filed by defendant No.4.

hence, this Court has to take note the defence which had been

raised by defendant No.4 though other regular second appeal

was filed against the said judgment and decree and the same

was compromised and disposed of.

6. The contentions urged by defendant No.4 in the

written statement is that the settlement deed dated 08.05.1969

 VERDICTUM.IN

in respect of schedule item No.2 and also in respect of other

properties is only nominal deed. On the date of settlement deed,

the plaintiff was a minor. Neither the plaintiff nor his mother has

accepted the possession of properties covered under the deed.

Basappa and Siddappa did not act upon the settlement deed.

Even after execution of settlement deed, it was Basappa himself

continued to be the owner in possession of the schedule item

No.2 and other items and started cultivation. Since Basappa,

defendant No.2 and his wife Neelamma and the plaintiff were

residing in joint family, it was Basappa himself was the Manager

of the family. Till Basappa died, he was in sound state of mind

and he was physically fit. Mallanagowda was assisting financially

to his elder brother Basappa. Since Basappa continued as owner

in possession of those properties and since the settlement deed

was not acted upon, Basappa without influence by any one,

voluntarily got cancelled the settlement deed on 14.04.1971. On

that day, Mallanagowda after paying full consideration amount

has purchased schedule item No.2 and other lands by executing

a regular sale deed. Defendant No.4 on 15.05.1978 after paying

consideration amount, purchased schedule item No.2 and got

 VERDICTUM.IN

executed a registered sale deed in which defendant No.2 is also

one of the executants of schedule item No.2 as owner and has

invested amount for improvement. Hence, there are no grounds

to decree the suit.

7. The Trial Court having considered the pleadings of

the parties, framed the several issues. The Issue Nos.2 to 7 and

Additional Issue are the relevant Issues for consideration of this

second appeal since in the second appeal, the scope is very

limited in respect of contention of defendant No.4, which read

thus:

2. Whether plaintiff proves that 2nd defendant and

his father executed settlement deed dated
08.05.1969 and gifted the plaint schedule
properties to plaintiff and delivered possession
to plaintiff?

3. Whether plaintiff proves that the husband of 1st

defendant by exercising fraud, undue influence
and by misrepresentation on Basappa got
executed deed of cancellation dated 14.04.1971
canceling the deed of settlement dated
08.05.1969?
 VERDICTUM.IN

4. Whether plaintiff further proves that by exercising

fraud and undue influence on Basappa, the
husband of defendant No.1 obtained sale deed
of suit properties in his favour and that the said
sale deed is void?

5. Whether plaintiff proves that the cancellation

deed dated 14.04.1971 executed by Basappa is
void, ineffective and illegal?

6. Whether plaintiff proves that the sale deeds

dated 24.05.1971 executed by husband of
defendant No.1 in favour of defendant No.3 and
dated 15.05.1978 in favour of defendant No.4
are void and ineffective?

7. Whether plaintiff proves that his mother and

Basappa were in possession of suit schedule
properties till 1976 and that in 1976-77
defendants 3 and 4 forcibly took possession of
property mentioned in item Nos.1 and 2 of the
plaint schedule?
Additional Issue:

Whether defendants 3 and 4 prove that they are

bonafide purchasers of items 1 and 2 of plaint
schedule property respectively for value, without
notice of the right of the plaintiff, if any?
 VERDICTUM.IN

8. The plaintiff in order to prove his case examined

himself as PW1 and also examined two witnesses as PW2 and

PW3 and got marked the documents at Ex.P1 to P31. On the

other hand, defendants also examined three witnesses as DW1

to DW3 and got marked the documents at Ex.D1 to D12. The

Trial Court having considered both oral and documentary

evidence placed on record answered Issues No.2 to 7 as

negative and Additional Issue as affirmative in coming to the

conclusion that defendant Nos.3 and 4 are the bonafide

purchasers of item Nos.1 and 2 of the suit schedule property.

Being aggrieved by the said judgment and decree of the Trial

Court, an appeal was preferred by the plaintiff in

R.A.No.23/1993. The First Appellate Court considering the

grounds urged in the appeal, formulated the points which read

as follows:

1. Whether the Trial Court committed an error in

holding that the suit is barred by limitation?

2. Whether the Trial Court committed an error in

coming to the conclusion that Ex.P3-Settlement
Deed is only a nominal document?
 VERDICTUM.IN

10

3. Whether the Trial Court committed an error in

holding that P4 - cancellation of settlement deed
is correct?

4. Whether the judgment and decree of the Trial

Court requires interference?

9. The First Appellate Court after considering both oral

and documentary evidence placed on record answered point

Nos.1 to 3 as negative and point No.4 as affirmative in coming to

the conclusion that the Trial Court committed an error in

dismissing the suit and it requires interference and allowed the

appeal holding that the cancellation of settlement deed is

erroneous and sale deeds dated 14.04.1971, 24.05.1971,

15.05.1978, 28.04.1973, 25.04.1972 ordered to be cancelled

and hold that the plaintiff is entitled for possession of item Nos.1

to 4. Being aggrieved by the said judgment and decree, the

present second appeal is filed before this Court.

10. The main contention of the learned counsel for

appellant that the First Appellate Court committed an error in

coming to the conclusion that cancellation of the settlement deed

 VERDICTUM.IN

11

is erroneous and also the sale deed executed in favour of

defendant No.4 is void since he had purchased the same for

valuable consideration. The very approach of the First Appellate

Court is erroneous and committed an error in proceeded to

frame erroneous points for consideration and answered the same

as negative. The First Appellate Court committed an error in

answering point No.4 as affirmative in coming to the conclusion

that it requires interference.

11. This Court having considered the grounds urged in

the appeal memo, framed the substantial question of law which

reads thus:

Whether the lower Court was justified in answering

Issue No.6 in the negative as the suit is instituted

after 17 years of the sale in favour of the vendor of

defendant No.4?

12. The counsel for the appellant in his arguments would

vehemently contend that the suit is filed for the relief of

declaration, possession and consequential relief of permanent

 VERDICTUM.IN

12

injunction. The Trial Court rightly dismissed the suit considering

both oral and documentary evidence placed on record. The

divergent finding given by the First Appellate Court is erroneous.

The appellant had purchased item No.2 on 15.05.1978 and his

vendor had purchased the said property on 14.04.1971. The

very approach of the First Appellate Court is erroneous. Ex.P3

and P4 are not properly considered by the First Appellate Court

and failed to take note of the fact that the settlement deed was

cancelled and on the same day sale deeds were executed in

favour of his vendor. The First Appellate Court committed an

error in reversing the finding of the Trial Court. The counsel also

would vehemently contend that from the date of the purchase of

the property by his vendor, he was in possession and

subsequent to the purchase in the year 1978 by the appellant,

he is in possession of the property. All these factors have not

been considered by the First Appellate Court. Dislodging the

order of the Trial Court is erroneous since appellant is the

bonafide purchaser and he is in possession from last four

decades. Ex.P3 to P5 are the registered documents and the

witnesses were also examined to prove all those documents.

 VERDICTUM.IN

13

The counsel also would vehemently contend that PW1 in his

cross-examination categorically admitted that defendant No.4 is

cultivating in the said land. The defence of PW2 is also very

clear with regard to the possession of defendant No.4 over the

property and he supports the case of defendant No.4. Defendant

No.4 has been examined himself as DW1 to prove his case. The

Court has to take note of the recitals found in Ex.P3 to P5

wherein reasons are also given for cancellation of settlement

deed and those reasons has not been considered by the First

Appellate Court and committed an error in reversing the finding

of the Trial Court.

13. Per contra, the learned counsel appearing for the

respondents would vehemently contend that the issue is only

with regard to item No.2 is concerned. He also filed synopsis on

the fact that defendant No.4 had purchased the property from

the husband of defendant No.1 and the said fact is not in

dispute. The counsel would vehemently contend that the sale

deed was made in the year 1971 in favour of the husband of

defendant No.1 and on the same day, the settlement deed was
 VERDICTUM.IN

14

cancelled. But the fact that settlement deed was executed by

Basappa and Siddappa and the said fact is also not in dispute.

Hence, Basappa alone cannot unilaterally cancel the same

excluding Siddappa since the document is a registered

document. The counsel would vehemently contend that though

suit was returned to file afresh and the same was presented on

the next day itself and the First Appellate Court also taken note

of the said fact and comes to the conclusion that the suit is

within time. The counsel also would vehemently contend that

the Trial Court ought to have invoked Section 31 of the Specific

Relief Act, 1963 when already there was a registered settlement

deed and the Basappa alone cannot cancelled the same

unilaterally when other executant also is the party to the

settlement deed. The counsel also brought to notice of this

Court to Section 126 of the Transfer of Property Act wherein it is

clear that only they can seek for cancellation of the document

with the consent of the parties to the said document and there

cannot be any unilaterally cancellation or rejection. It is not

open to the Basappa to cancel the document unilaterally. The

very contention of the appellant that the said settlement deed is

 VERDICTUM.IN

15

only a nominal document and the said contention cannot be

accepted. The counsel would vehemently contend that whatever

it may be, the same has to be cancelled in accordance with law

and ought to have filed the suit seeking the relief of cancellation

and the settlement deed but the same has not been done. The

counsel would vehemently contend that the First Appellate Court

thoroughly discussed with regard to the unilateral cancellation

which is impermissible under law.

14. The counsel in support of his arguments relied upon

the judgment reported in 1969(1) MYS. L. J. 183 in the case of

V S MANGARAJA SHETTY AND ANOTHER vs C K SUBBAIAH

AND OTHERS and brought to notice of this Court to the

discussions made in paragraphs 8 to 10 of the said judgment

wherein discussed with regard to the limitation is concerned. It

is held that considering Order VII Rule 10(2) of CPC, it is

incumbent on the judge passing the order under clause (1) of

the same provisions to endorse on the plaint the date of the

presentation, return of the plaint, the name of the party

presenting it and the reasons for returning it. It is seen from a

 VERDICTUM.IN

16

perusal of the two plaints that there is no endorsement made by

the learned Judge as provided under Order VII Rule 10(2) CPC.

It cannot be said that under the circumstances the plaintiffs

were negligent and that the plaintiffs were not entitled to deduct

the time between 04.06.1955 and 29.06.1955 under Section 14

of the Limitation Act. Even without deducting this period of 25

days, the suits would be in time if the period between the dates

of presentation of the plaints and 04.06.1955 is taken into

account.

15. The counsel also relied upon the other judgment of

the Apex Court reported in (2010) 15 SCC 207 in the case of

THOTA GANGA LAXMI AND ANOTHER vs GOVERNMENT OF

ANDHRA PRADESH AND OTHERS and brought to notice of this

Court paragraphs 3 to 5 wherein an observation is made that it

is only when a sale deed is cancelled by a competent Court that

the cancellation deed can be registered and that too after notice

to the parties concerned. In this case, neither is there any

declaration by a competent Court nor was there any notice to

the parties. Hence, this Rule also makes it clear that both the
 VERDICTUM.IN

17

cancellation deed as well as registration thereof were wholly void

and non est and meaningless transactions.

16. The counsel also relies upon the judgment reported

in (2019) 7 SCC 641 in the case of GURNAM SINGH (DEAD)

BY LEGAL REPRESENTATIVES AND OTHERS vs LEHNA

SINGH (DEAD) BY LEGAL REPRESENTATIVES. The counsel

having relied upon this judgment brought to notice of this Court

paragraphs 13 and 13.1 wherein discussed with regard to the

scope of Section 100 of CPC. It is held that the High Court

cannot substitute its own opinion for that of the first appellate

Court, unless it finds that the conclusions drawn by the lower

Court were erroneous being contrary to the mandatory

provisions of the applicable law or contrary to the law as

pronounced by the Supreme Court or based on inadmissible

evidence or no evidence. It is further observed in the said

judgment that if the First Appellate Court has exercised its

discretion in a judicial manner, its decision cannot be recorded

as suffering from an error either of law or of procedure requiring

interference in second appeal. The counsel also brought to

 VERDICTUM.IN

18

notice of this Court paragraph 15 wherein also an observation is

that while passing the impugned judgment and order, the High

Court has exceeded in its jurisdiction while deciding the second

appeal under Section 100 of CPC. The counsel also brought to

notice of this Court to paragraphs 16 and 17 with regard to

exercising the powers under Section 100 of CPC while allowing

the second appeal. The counsel referring paragraph 19 would

vehemently contend that an observation is made that it is not

permissible for the High Court to reappreciate the evidence on

record and interfere with the findings recorded by the Courts

below and/or the First Appellate Court and if the First Appellate

Court has exercised its discretion in a judicial manner, its

decision cannot be recorded as suffering from an error either of

law or of procedure requiring interference in second appeal.

17. The counsel also relied upon the judgment of this

Court reported in ILR 2008 KAR 2245 in the case of BINNY

MILL LABOUR WELFARE HOUSE BUILDING CO-OPERATIVE

SOCIETY LIMITED vs D R MRUTHYUNJAYA ARADHYA and

brought to notice of this Court to the discussion made in

 VERDICTUM.IN

19

paragraph 36 of the judgment wherein it is held that it is

permissible for them to execute one more document to annul or

cancel the earlier deed. Only if an approach is made to the

Court, normally what can be done by a Court can be done by the

parties to an instrument by mutual consent. Unilaterally he

cannot execute what is styled as a deed of cancellation, because

on the date of execution and registration of the deed of

cancellation, the said person has no right or interest in that

property. The purchaser would not get title to the property as

the vendor could convey only that title which he has in the

property on the date of execution and registration of the sale

deed and further observed that even by consent or agreement

between the purchaser and the vendor, said sale deed cannot be

annulled. If the purchaser wants to give back the property, it has

to be by another deed of conveyance and discussion was made

with regard to Section 31 of the Specific Relief Act. Therefore,

the power to cancel a deed vests with a Court and it cannot be

exercised by the vendor of a property. The counsel also brought

to notice of this Court paragraph 37 of the said judgment

wherein it is held that the law provides for cancellation of such

 VERDICTUM.IN

20

instruments which are also non est, but which are in existence

as a fact physically to get over the effect of such instrument.

Once such an instrument is registered, the said registration has

the effect of informing and giving notice to the World at large

that such a document has been executed. Registration of a

document is a notice to all the subsequent purchasers or

encumbrances of the same property.

18. Having heard the learned counsel appearing for the

respective parties and in keeping the grounds urged in this

appeal as well as the contentions raised by both the parties and

also the judgment of the Trial Court as well as the First Appellate

Court and so also the substantial question of law framed by this

Court, this Court has to examine the material available on record

within the purview of Section 100 of CPC. Having perused the

substantial question of law framed by this Court, it has to be

noted that the Trial Court while dealing with Issue No.6 along

with other Issues, discussed with regard to the material available

on record. In paragraph 35 of the judgment, the Trial Court held

that defendant No.4 is the bonafide purchaser of for valuable

 VERDICTUM.IN

21

consideration and the Trial Court taken note of the records which

are standing in the name of the subsequent purchasers and an

observation is made that no notice had been issued to them that

not to purchase the property prior to selling the property to

defendant No.4 by the husband of defendant No.1. Even an

observation is made that mother of the plaintiff did not object

while purchasing the said property as well as at the time of

cultivation.

19. Having considered the material available on record,

it is not in dispute that originally the property belongs to one

Basappa. It is also not in dispute that the said Basappa and his

son Siddappa have executed the settlement deed on

08.05.1969. The execution of the said settlement deed is not in

dispute. It is also not in dispute that the said settlement deed

was canceled by Basappa unilaterally on 14.04.1971. It is

important to note that defendant No.4 had purchased the item

No.2 property from one Mallanagowda on the very same day. It

is also not in dispute with regard to the cancellation of

settlement deed and execution of the sale deed in favour of said

 VERDICTUM.IN

22

Mallanagowda came into existence on the very same day. The

allegation of the plaintiff is that by playing fraud, the said

Mallanagowda had obtained the sale deed in his favour by

canceling the settlement deed. The fact that unilaterally the said

settlement deed was cancelled only by Basappa and the said fact

is also not in dispute. It is also not in dispute that the said

Basappa had executed the sale deed in favour of his brother

Mallanagowda conveying all the suit schedule property as per

Ex.P5. With regard to execution of Ex.P3 to P5, there is no

dispute. The fact is that the appellant had purchased the

property on 15.05.1978 in terms of Ex.P7 and Ex.D1 is his

vendor’s sale deed and the same is also not in dispute. It is the

contention of the plaintiff that he had attained majority on

31.08.1981 and he was born on 31.08.1963 and to that effect,

birth certificate is also produced at Ex.P1.

20. It is also important to note that suit was filed on

11.04.1983 before the Munsiff Court, Shikaripura. It is not in

dispute that it was ordered to present before the proper Court

having jurisdiction on 13.06.1988. It is also important to note

 VERDICTUM.IN

23

that the plaint was returned to the plaintiff for presentation

before proper Court on 21.06.1988 and the same was presented

before the Court of Civil Judge, Sagar on 22.06.1988 that is very

next date and both the places are different places. The counsel

also relied upon the judgment in the case of V S MANGARAJA

SHETTY (referred supra) wherein discussed with regard to the

proviso under Order VII Rule 10(2) of CPC for returning of plaint

and presentation. In the said judgment it is discussed with

regard to Section 14 of the Limitation Act. The said judgment is

aptly applicable to the case on hand since there is no delay in

filing the suit since only the next date, in different taluk the suit

was presented.

21. Now, with regard to consideration of the legal

question involved in the matter is concerned, I have already

pointed out that no dispute with regard to the documents at

Ex.P3 to Ex.P5 and so also Ex.P7 and Ex.D1. The title flows in

favour of Basappa, thereafter, in favour of Mallanagowda who in

turn sold the property in favour of defendant No.4/appellant

herein. But the fact is that the Basappa and his son Siddappa
 VERDICTUM.IN

24

have executed the settlement deed on 08.05.1969 and the said

fact is not in dispute. But the cancellation is made by only

Basappa and the same cannot be done by him when two persons

have executed the said document. Apart from that it is only a

unilateral cancellation of settlement deed. The counsel for the

respondents also relied upon the judgment of the Apex Court in

the case of THOTA GANGA LAXMI (referred supra) wherein

also it is very clear with regard to registration of the document.

An observation is made that Rule does not permit to cancel the

document and the cancellation must be through a registered

document that too after notice to the concerned parties of the

said document. In the case on hand, while canceling the

settlement deed, no notice was given to the plaintiff’s father in

whose favour the settlement deed was executed. The First

Appellate Court has taken note that under what circumstances,

the document at Ex.P4-cancellation came into existence and so

also Ex.P5-sale deed came into existence on the very same day

in favour of Mallanagowda. The First Appellate Court in detail

discussed with regard to playing of fraud on Basappa by his

brother Mallanagowda. It is also held in THOTA GANGA

 VERDICTUM.IN

25

LAXMI’s case (referred supra) that in the absence of notice to

the concerned parties, both the cancellation deed as well as

registration thereof were wholly void and non est and

meaningless transaction.

22. This Court also in the case of BINNY MILL LABOUR

WELFARE HOUSE BUILDING CO-OPERATIVE SOCIETY

LIMITED referred supra in detail discussed while answering

Point Nos.3 and 4 that when the owner of the property sells or

conveys the property to the purchaser under a written document

and get the same registered, the right and the title to the said

property is transferred from the owner to the purchaser on

registration of the said documents. After such registration, the

owner of the property ceases to have any interest and all his

rights in the property gets extinguished. He would not have nay

right to meddle with the property thereafter. The purchaser

would not get title to the property as the vendor could convey

only that title which he has in the property on the date of

execution and registration of the sale deed. it is also observed

that unilaterally he cannot execute what is styled as a deed of

 VERDICTUM.IN

26

cancellation, because on the date of execution and registration

of the deed of cancellation, the said person has no right or

interest in that property. It is also important to note that if he

really intends to cancel the document, he cannot cancel the

same unilaterally but he can approach the appropriate Court

seeking cancellation of the same. It is only the Court which can

cancel the deed duly executed under the circumstances

mentioned in Section 31 and other provisions of the Specific

Relief Act. The coordinate Bench also discussed Section 31 of

the Specific Relief Act extracting the same in the judgment and

held that such a person has the discretion to approach the

competent Civil Court for adjudging the said instrument to be

delivered up and cancelled. It is further observed that even

though in law a void instrument is unenforceable, has no value

in the eye of law, void ab initio, the very physical existence of

such a document may cause a cloud on the title of the party or

cause injury or one can play mischief. Therefore, the law

provides for cancellation of such instruments which are also non

est, but which are in existence as a fact physically to get over

the effect of such instrument.

 VERDICTUM.IN

27

23. Having considered the principles laid down in the

aforesaid judgment of the coordinate Bench and also considering

Section 31 of the Specific Relief Act and the judgments referred

supra, the only course open to seek for the relief of cancellation

is through the Court, not by himself unilaterally. Hence, very

cancellation of the settlement deed is not permissible and by

canceling the settlement deed, the said sale deed was executed

but the said sale deed does not convey any title to any person

since the same is a defective title in respect of both i.e., the

husband of defendant No.1 as well as defendant No.4 who is the

appellant herein. Hence, the judgments which have been relied

upon by the counsel for the respondents are aptly applicable to

the facts of the case on hand. The case of the respondents is

very clear that immediately after attaining the age of majority

that means he has attained the age of majority in the year 1981

and within a span of three years, he has filed the suit that is in

the year 1983. Hence, the suit is not barred by limitation as well

as presented the plaint in time in view of the judgment referred

supra of in the case of V S MANGARAJA SHETTY.

 VERDICTUM.IN

28

24. The other observation of the Trial Court while dealing

with the Issue No.6 that the appellant is a bonafide purchaser

also cannot be accepted since his title is defective title as

observed above. Hence, the Trial Court committed an error in

dismissing the suit of the plaintiff and the First Appellate Court

has rightly reversed the finding of the Trial Court applying

judicious mind in allowing the suit of the plaintiff. Hence, I do

not find any merits in the appeal to come to other conclusion.

Thus, the suit is belated one cannot be accepted and the

reasoning of the Trial Court is not correct and First Appellate

Court rightly reanalyzed both oral and documentary evidence

placed on record as well as the question of law. The Section 31

of the Specific Relief Act is very clear that the person has the

discretion to approach the competent Civil Court for adjudicating

the said instrument to be cancelled even though in law a void

instrument is unenforceable, has no value in the eye of law, void

ab initio. The law provides for cancellation of such instrument

and the same cannot be cancelled unilaterally and the very

cancellation of settlement deed is without any right and the

same cannot convey any title and execution of the sale deed in
 VERDICTUM.IN

29

favour of Mallanagowda also does not convey any title and claim

that he is the bonafide purchaser cannot be accepted, the Trial

Court finding is erroneous and the First Appellate Court rightly

reversed the same. Hence, I answer this substantial question of

law accordingly.

25. In view of the discussions made above, I pass the

following:

ORDER

The regular second appeal is dismissed.

Sd/-
JUDGE

SN