2025 INSC 1105 REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 11795 OF 2025
(@SLP(C) No. 24821/2018)

SHANTI DEVI (SINCE DECEASED) …..APPELLANT(S)

THROUGH LRS. GORAN

VERSUS

JAGAN DEVI & ORS. ..RESPONDENT(S)

JUDGMENT

Signature Not Verified

Digitally signed by
VISHAL ANAND
Date: 2025.09.12
16:31:06 IST
Reason:
J.B. PARDIWALA, J.

1. Leave granted.

2. This appeal arises from the judgment and order passed by the High

Court of Punjab & Haryana dated 22.02.2018 in the Regular Second

Appeal No. 2930 of 1996 by which the second appeal filed by the

appellant-herein (original defendant) against the judgment and decree

dated 07.10.1996 arising from Civil Appeal No. 149 of 1991 passed by

the First Appellate court, came to be dismissed.

FACTUAL MATRIX

3. The facts giving rise to this appeal may be summarized as under.

4. For the sake of convenience, the appellant-herein shall be referred to

as the original defendant and the respondents-herein shall be referred

to as the original plaintiffs.

5. The plaintiffs instituted Civil Suit No. 782 of 1984 in the court of

Senior Sub Judge, Gurgaon for permanent injunction restraining the

defendant from interfering with their peaceful possession to the extent

of one-third share in the agricultural land admeasuring 31 kanals 4

marlas situated within the revenue estate of village Bisar Akbarpur,

Special Leave Petition (C) No. 24821 of 2018 Page 1 of 35

 Tehsil Nuh, District Gurgaon. In the alternative, the plaintiffs prayed

that they be put in joint possession along with the defendant and the

sale deed dated 14.06.1973 purported to have been executed by Ram

Saran s/o Bhambar and the plaintiff in favor of the defendant be

declared as fraudulent, concocted and thereby, void insofar as the

share of the plaintiff is concerned.

6. The plaint of Civil Suit No. 782 of 1984 reads thus:

“1. That the plaintiff is the lawful owner and in possession to the
extent of 1/3rd share in agricultural land bearing Rect. No.40
Killa No. 1/2 (2-0), 9/2 (2-12), 10 (8-0), 11 (8-0), 12/1 (2-12) 20
(8-0), total measuring 31 Kanals 4 marlas, besides other lands
situated in the revenue estate of Village Bisar Akbarpur Tehsil
Nuh, Distt. Gurgaon. The fard jamabandi for the years 1973-74
and 1978-79 are attached herein.

2. That the defendant wrongly claims herself to be the purchaser

of the suit land referred to above from one Ram Saran s/o
Bhambar on the basis of a fraudulent and concocted sale deed
alleged to have been executed on 14.06.1973. The alleged sale
deed dated 14.6.73 is total fraudulent, illegal and void and
cannot defeat the legal rights and share of the plaintiff in the
suit land on the following grounds:-

(a) That the plaintiff never executed on registered sale

deed dated 14.6. 73 or of any other date in favor of the
defendant and she is still the co-owner in possession to
the extent of her share in the land.

(b) That it seems that the defendant must have got

executed and registered the alleged sale deed in her favor
by making some impersonation in collusion with the other
vendor and witnesses and must have played a fraud on

Special Leave Petition (C) No. 24821 of 2018 Page 2 of 35

 the Sub-Registrar to derive wrongful gain for her personal
benefit.

(c) That the plaintiff never got any sale consideration of the
alleged sale deed and she came to know about this
fraudulent transaction only when he came to the village
mourn the death of Ram Saran and heard that her land is
going to be sold by the defendant without any right in it.

(d) That the alleged sale deed if made by any other person
by making impersonation or otherwise, the same does not
effect the rights of the plaintiff in the land in suit.

3. That the plaintiff is owner in possession her 1/3rd share in

the land and is entitled to file suit for permanent injunction
against the defendant restraining her from interfering with the
possession and ownership of the plaintiff in the suit land in any
manner. In the alternative, if it is found and held that that
defendant is in possession of the whole land then the plaintiff is
entitled to a decree for joint possession to the extent of 1/3rd
share in the land in suit.

4. That the cause of action for the suit arose on or about 4.2.1984
when the plaintiff came to know about the fraudulent
transaction and the defendant attempted to sell away to the
property of the plaintiff and denied to admit the claim of the
plaintiff. Hence this suit.

5. That the suit property is situated within the territorial

jurisdiction of this Hon'ble Court, hence this Hon'ble Court has
got jurisdiction to try this suit.

6. That the value of the suit for the purpose of court fees and
jurisdiction is assessed at Rs.200/- and for relief of possession
is also Rs. 100/-. A court fees of Rs.25/- is paid.

7. That the plaintiff, therefore, prays that a decree for permanent

injunction be passed in favor of the plaintiff and against the
defendant to the effect that the plaintiff is co-owner in
possession to the extent of 1/2 share (sic) (1/3 rd share) in the
land in suit described in para no.1 of the plaint restraining the

Special Leave Petition (C) No. 24821 of 2018 Page 3 of 35

 defendant from interfering or dealing with it in any manner. In
the alternative a decree for joint possession be passed in favor
of the plaintiff and against the defendant in respect of suit land
mentioned in para 1 of the plaint declaring the alleged sale deed
dated 14.6.73 to be fraudulent and void qua the share of the
plaintiff. The costs of the suit be also awarded. Any such other
relief which the Ld. Court may deem just and proper be also
granted to the plaintiff.”
(Emphasis supplied)

7. The written statement filed on behalf of the defendant reads thus:

“Pre Objections
1. That the suit is not maintainable in the present form. The
plaintiff has got no right, interest or title in the land in dispute or
any part of it.

2. That the plaintiff has got no locus standi nor any cause of
action to file the present suit.

3. That the suit for permanent injunction in the alternative for

joint possession is not maintainable. It is mandatory to seek
declaration

4. That the plaintiff is estopped from filing the present suit by

acts, conduct, omission, acquiescence, latches and admission.

5. That the suit is barred by time.

On Merits

1. That Para no.1 of the plaint is wrong and denied. It is wrong

and denied that the plaintiff is owner or in possession of the suit
land to the extent of 1/3rd share or she has got any right,
interest or title in the land in dispute or any part of it.

2. That para no.2 of the plaint alongwith its sub-paras 2(a.) to

(d) are wrong and denied. The plaintiff alongwith the brother
Ram Saran sold the land in dispute in favour of the defendant

Special Leave Petition (C) No. 24821 of 2018 Page 4 of 35

 vide sale deed dated 14.6.1973 for sale consideration of
Rs.15000/-. The contents of the sale deed were read over and
explained to the plaintiff. She had appeared before the Sub
Registrar and had admitted and acknowledged the contents of
the sale deed. She was identified by Sehdev Sarpanch of village
Kawari. It is wrong and denied that the sale deed dated
14.6.1973 is totally fraudulent, illegal and ineffective, the rights
of the plaintiff in the suit land on the grounds mentioned in sub-
para 2(a) to 2(d) of the plaint or on another grounds.

2(a) Para 2(a) of the plaint is wrong and denied. It is wrong and
denied that the sale deed dated 14.6.1973 was not executed by
the plaintiff in favour of the defendant. It is wrong and denied
that she is still owner of the land in dispute or any part of it.
Mutation on the basis of sale deed dated 14.6.1973 was also
got sanctioned by the plaintiff in favour of the defendant.

2(b) Para 2(b) of the plaint is wrong and denied. It is wrong and
denied that the sale deed was got registered by false
impersonation in collusion with Ram Saran, brother of the
plaintiff or any other person. It is wrong and denied that any
fraud was played on the Sub Registrar to derive wrongful gain
for personal benefit. All these allegations are false to the positive
knowledge of the plaintiff.

2(c) Para no.2(c) of the plaint is wrong and denied. It is wrong

and denied that the plaintiff did not execute the sale deed or she
did not receive the sale consideration. It is further wrong and
denied that the sale deed was fraudulent transaction or she
came to know about the same on the death of Ram Saran. All
these allegations are false. It is unthinkable that her brother
Ram Saran did not know the plaintiff.

2(d) Para no.2(d) of the plaint is wrong and denied. It is wrong

and denied that the sale deed was not executed by the plaintiff
or somebody else falsely impersonated in her place. It is wrong
and denied that the plaintiff is owner or in possession of the land
in dispute as alleged.

3. That para no.3 of the plaint is wrong and denied. It is wrong

and denied that the plaintiff has got any right, interest or title in

Special Leave Petition (C) No. 24821 of 2018 Page 5 of 35

 the suit land or she is owner or in possession of the same or any
part of it. It is further wrong and denied that she is entitled to
sue for possession in the alternative.

4. That para no.4 of the plaint is wrong and denied. No cause of

action ever accrued to the plaintiff. Cause of action if any is
bogus, fictitious and imaginary one.
5&6. Paras no.5 and 6 of the plaint are legal.

7. That para no.7 of the plaint is wrong and denied. It is,

therefore, humbly prayed that the suit of the plaintiff may kindly
be dismissed with costs. Since the suit of the plaint is false,
frivolous and vexatious, therefore, the plaintiff be burdened with
special costs U/s 35-A C.P.C.”

8. The Trial Court framed the following issues:

“1. Whether the sale deed dated 14.6.1973 is illegal, fraudulent

and ineffective on the grounds mentioned in the para no.2 of the
plaint? OPP
2. Whether the plaintiff is in joint possession of the suit
property? OPP.
3. Whether the suit is not maintainable? OPD
4. Whether the plaintiff has no locus standi and cause of action
to file the suit? OPD
5. Whether the plaintiff is estopped from filing the present suit
by her own act and conduct? OPD.
6. Whether the suit is time barred? OPD
7. Relief.”

9. All the above referred issues framed by the Trial Court came to be

answered against the plaintiffs. The suit ultimately came to be

dismissed vide the judgement and decree dated 14.10.1991.

Special Leave Petition (C) No. 24821 of 2018 Page 6 of 35

10. The plaintiffs being dissatisfied with the judgment and decree passed

by the Trial Court preferred First Appeal before the district court. The

First Appeal came to be registered as Civil Appeal No. 149 of 1991.

The First Appeal came to be allowed. The suit of the plaintiffs came to

be decreed. On the question of limitation, the First Appellate Court

observed as thus:

“Lastly the question of limitation has been raised in the present

proceedings. As per the defendant the present suit should have
been filed within three years of the sanction of mutation. He
mainly reliance on 1996 (1) PLR 482 The State of Punjab Vs.
Babu Singh which lays down that illegal or void order have to be
got set aside from the court of competent jurisdiction and
limitation for the same is three years from the date of passing of
the order. On the other hand, the counsel for plaintiff-appellant
has relied upon Article 65 in order to assert that the period of
limitation shall be 12 years for getting the relief of possession
from the date when the possession of the defendant would be
deemed to be adverse to that of the plaintiff. Accordingly he
argued that even if it is presumed that the defendant came into
adverse possession from the date of execution of the present sale
deed even then the plaintiff was entitled to get the relief of
possession within the period of 12 years and the suit was filed
within that period. Merely because it was filed after about 11
years cannot deprive the plaintiff of the relief. The said
arguments of the plaintiff appellant is convincing. She has
claimed relief of joint possession. It has already been held that
the transaction in question was void and Risali had never
executed the sale deed in question. So under these
circumstances the plaintiff could have maintained action to
obtain possession of the property within the period of 12 years
from the date of knowledge. So even if the knowledge party is
ignored still the suit has been filed within 12 years from the date
of sale and the same is maintainable.”
(Emphasis supplied)

Special Leave Petition (C) No. 24821 of 2018 Page 7 of 35

11. The defendants being dissatisfied with the judgment and decree

passed by the First Appellate court preferred Second Appeal No. 2930

of 1996 in the High Court.

12. The High Court vide its impugned judgment and order dismissed the

appeal thereby affirming the judgment and order passed by the First

Appellate court decreeing the suit in favour of the plaintiffs. However,

insofar as the issue of limitation was concerned, the High Court

differed with the First Appellate Court and came to the conclusion

that it is Article 59 of the Limitation Act, 1963 and not Article 63 that

would be applicable to the facts of the matter.

13. The High court while dismissing the Second Appeal held as under:

“I have heard the learned counsel for the parties, appraised the
judgments and decrees as well as record of both the Courts
below and of the view that there is no force and merit in the
submissions of Mr. Keshav Pratap Singh.
In my view, limitation would not come in the way of the plaintiff-
respondents, for, the suit can be filed from the date of the
knowledge as per the provisions of Article 59 of the Limitation
Act, which reads thus:-
59. To cancel or Three When the facts
set aside an years entitling the
instrument or plaintiff to have
decree or for the instrument
the rescission or decree
of a contract cancelled or set
aside or the
contract

Special Leave Petition (C) No. 24821 of 2018 Page 8 of 35

 rescinded first
becomes
known to him.

The defendant for the best known reasons has not examined any
expert in his evidence to counter and rebut the testimony of PW4.
Appellant-defendant Shanti Devi (since deceased) represented
through legal representatives made a statement that she was
present at the time of execution and registration of the sale deed
and one Rasali was also present to whom she knew very well.
Rasali had also put her thumb impressions on the sale deed in
her presence but in cross-examination, she stated that she was
not in a position to identify Rasali Devi. If at all, Rasali was
known to Shanti Devi, she could have been very bold to identify
Rasali. Endorsement made by Sub-Registrar showed that her
husband Bagdawat had appeared on her behalf before the Sub
Registrar and the aforementioned document did not carry the
thumb impression/signatures of Shanti Devi. The other witness
to the sale deed, i.e., Budhu, an attesting witness of the
document was none else but the real brother of Shanti Devi,
obviously he was expected to make a favourable deposition. He
also admitted that sale deed was thumb marked by Shanti Devi,
whereas, as noticed above, it was not Bagdawat, husband of
Shanti Devi, for the reasons best known had not stepped into
witness box. The second witness, Sahdev, Sarpanch had died
before the statement of Budhu could be recorded. Shanti Devi
admitted that Sahdev was well acquainted with his brother
Budhu. Thus, defendant failed to prove that there was any
impartial witness. Things do not end here. The plaintiffs had
moved an application for directing the defendant to produce the
original sale deed and answer was that the original had been
misplaced. Defendant had admitted that prior to sale deed, there
was an agreement to sell but the same has also not seen the light
of day. On the contrary, expert compared the disputed thumb
impressions found on the Special Power of Attorney Ex.P2 and
thumb impressions put by Rasali on her statement recorded by
the Court on 20.03.1984. Special Power of Attorney Ex.P2 had
been proved through the testimony of PW3, who stated that
executant had put her thumb impressions on the said document
after it was read over and explained. The defendant failed to put

Special Leave Petition (C) No. 24821 of 2018 Page 9 of 35

 any cross-examination to the aforementioned witness. It is
settled law that in case, statement made in examination-in-chief
is not subjected to cross-examination, the same would be
admitted.
The defendant in the evidence did not dispute that Rasali
had not appeared before the Court on 20.03.1984. The
handwriting expert also compared the thumb impressions on two
affidavits executed by Rasali, i.e., on 27.02.1984 and
28.02.1984. Both the affidavits were duly attested by Oath
Commissioner and identified by K.S. Jain, Advocate. The expert
also examined the thumb impressions on the plaint and
vakalantnama to form an opinion that they were not of the same
person, therefore, there was no occasion for the Lower Appellate
Court to discard the report of expert. In my view, evidence
brought on record by the plaintiffs un-clinchly proved that Rasali
had never executed disputed sale deed.
There is another aspect of the matter, mutation Ex.DE was
affected on the basis of the sale deed which also carried a
presumption of truth under Section 44 of Punjab Land Revenue
Act, unless the same is rebutted. No evidence has been led to
rebut the same. Even from perusal of Ex.D3, it was not proved
that Rasali at the time of attestation and sanction was there.
Defendant miserably failed to prove that document actually
executed by Rasali. There is no force in the submission of Mr.
Keshav Pratap Singh that improvement made by the defendant
was in the knowledge of the plaintiffs, and therefore, suit was
barred by law of limitation but fact of the matter is that no such
improvement had been proved, therefore, the pleading was
beyond evidence. The suit could not be said to be barred by law
of limitation as relief of declaration qua joint possession was
sought as every owner is owner of each and every inch of land
until the same is partitioned.
As an upshot of my findings, I do not find any illegality and
perversity in the findings under challenge which are based upon
the appreciation of oral and documentary evidence, much less no
substantial question of law arises for adjudication of the present
appeal.

Special Leave Petition (C) No. 24821 of 2018 Page 10 of 35

 No other argument has been raised. Resultantly, the appeal
stands dismissed.”
(Emphasis supplied)

14. In such circumstances referred to above, the legal heirs of the original

defendant are here before us with the present appeal.

15. Upon a perusal of the facts of the case in hand, this Court vide order

dated 03.02.2025, confined itself to the question whether the

plaintiff’s suit was time-barred or not.

SUBMISSIONS ON BEHALF OF THE APPELLANT/ ORIGINAL

DEFENDANT

16. The learned counsel appearing for the appellant vehemently

submitted that the High court committed a serious error in dismissing

the second appeal thereby affirming the judgment and decree passed

by the First Appellate court in favor of the plaintiffs. The counsel

would submit that the suit itself was barred by limitation as the same

had been filed on 28.02.1984 i.e., after a delay of more than 11 years

from the date of the execution of the sale deed dated 14.06.1973.

Special Leave Petition (C) No. 24821 of 2018 Page 11 of 35

17. It was argued that the Trial Court rightly dismissed the suit being

barred by limitation. The First Appellate court wrongly invoked Article

65 of the Limitation Act, 1963 to bring the suit within the period of

limitation. According to the learned counsel, it is Article 56 of the

Limitation Act, 1963 that governs the period of limitation in the

present case. It was also argued that the original plaintiff, namely,

Rasali failed to enter the witness box in the presence of the defendant.

Moreover, Sibba s/o Lal Singh, in whose favour the plaintiff had

executed a power of attorney to pursue the case, never entered the

witness box.

18. In the last, the learned counsel appearing for the defendant submitted

that heavy burden of proof is cast upon a person impugning the

transaction to show that the same is sham or fraudulent one.

According to the learned counsel a distinction should be borne in

mind in regard to the nominal nature of the transaction which is no

transaction in the eye of law at all and the nature and character of a

transaction as reflected in a deed of conveyance. In other words,

according to the learned counsel appearing for the defendant, the

initial burden of proving the transaction as bogus or sham was on the

plaintiffs and they could be said to have miserably failed to lead any

Special Leave Petition (C) No. 24821 of 2018 Page 12 of 35

 evidence in that regard. In such circumstances, the onus could not be

said to have shifted upon the defendant to establish or prove the valid

execution of the sale deed. The registered document and the

registration of the sale deed reinforced the valid execution of the sale

deed. He would submit that a registered document carries with it a

presumption that it was validly executed. It is for the party challenging

the genuineness of the transaction to rebut such presumption.

19. In such circumstances referred to above, the learned counsel prayed

that there being merit in his appeal, the same may be allowed and the

impugned judgment and order passed by the High Court be set aside

and the impugned judgment and order passed by the Trial Court

dismissing the suit, be affirmed.

SUBMISSIONS ON BEHALF OF THE RESPONDENTS/ORIGINAL

PLAINTIFFS

20. On the other hand, the learned counsel appearing for the

respondents-herein submitted that no error not to speak of any error

of law could be said to have been committed by the High Court in

passing the impugned judgment and order. It was argued that there

are concurrent findings recorded by the First Appellate court and the

Special Leave Petition (C) No. 24821 of 2018 Page 13 of 35

 High Court respectively that the plaintiff was not a party to the sale

deed of 1973 i.e., the sale deed in question. In other words, the

plaintiff had not put her thumb impression on the sale deed.

21. It was argued that it is settled law that when an instrument of sale of

an immovable property is not executed by the owner, then such a sale

deed is void ab initio and is considered a nullity qua the owner. In

such a case, the owner is not required to seek cancellation of such an

instrument or seek a declaration that such an instrument is void. This

is the reason why the plaintiff had not sought the cancellation of the

sale deed dated 14.06.1973 in the present case and therefore, there

arises no question of application of Article 59 of the Schedule to the

Limitation Act, 1963. The counsel has placed reliance on several

decisions to emphasize that when the instrument is void/void ab initio

and not voidable, it would be Article 65 which would apply to a suit

for possession based on title filed by the plaintiffs.

22. In the last, it was argued that since the alleged possession of the

defendant over the suit property can at best be considered to have

been adverse to the plaintiff from the date of execution of the sale deed

dated 14.06.1973, the suit having been filed on 28.02.1984, i.e.,

Special Leave Petition (C) No. 24821 of 2018 Page 14 of 35

 within 12 years of the execution of the impugned sale deed, cannot be

said to be barred by limitation as per Article 65.

23. In such circumstances referred to above, the learned counsel prayed

that there being no merit in this appeal the same may be dismissed.

ANALYSIS

24. Having heard the learned counsel appearing for the parties and having

gone through the materials on record, the only question that falls for

our consideration is whether the High Court committed any error in

passing the impugned judgment and order?

25. The crux of the issue seems to be whether it is Article 65 or Article 59

of the Schedule to the Limitation Act, 1963, which would apply to the

present facts in hand. The aforesaid Articles are reproduced as under:

59. To cancel or set aside Three When the facts

an instrument or years entitling the plaintiff
decree or for the to have the
recission of a instrument or decree
contract cancelled or set
aside or the contract
rescinded first
become known to
him.
65. For possession of Twelve When the possession
immovable property years of the defendant
or any interest becomes adverse to
therein based on title the plaintiff.

Special Leave Petition (C) No. 24821 of 2018 Page 15 of 35

26. The counsel for the plaintiff would submit that it is Article 65 which

must be applied to the present suit for possession since the sale deed

dated 14.06.1973 was found to be fraudulent and therefore, void.

Insofar as the question whether the aforesaid sale deed was void, the

First Appellate Court observed as thus:

“[…] In my view, the evidence led by the plaintiff leaves no room

for doubt that Smt. Rasali never executed the disputed sale
deed. According the finding on issue no. 1 given by the trial court
was incorrect and is reversed.
-xxx-
[…] But here, the said mutation was based on void transaction,
as Smt. Risali had never executed the sale deed in question. So
the question of estoppels against the plaintiff does not arise in
the present proceedings.”

27. The High Court has also expressed its agreement with the aforesaid

finding of the First Appellate Court and observed that:

“In my view, evidence brought on record by the plaintiffs un-

clinchly proved that Rasali had never executed the disputed
sale deed.”

28. In State of Maharashtra v. Pravin Jethalal Kamdar reported in

2000 SCC OnLine SC 522, this Court held that as far as void and

non-est documents are concerned, it would be enough for the plaintiff

to file a simpliciter suit for possession to which Article 65 of the

Limitation Act, 1963 would apply. Therein, Section 27(1) of the Urban

Special Leave Petition (C) No. 24821 of 2018 Page 16 of 35

 Land (Ceiling and Regulation) Act, 1976 which came into force w.e.f.

17.02.1976 imposed a restriction on the transfer of any urban or

urbanisable land with a building or part of such building, which was

within the ceiling limit. In other words, Section 27(1) sought to affect

the right of a person to dispose of his urban property within the ceiling

limit. Under the Act, the competent authority of the State of

Maharashtra had to grant permission if such a person wanted to sell

the property to a prospective purchaser. However, when such a

permission was asked for in the facts of the aforesaid case, the same

was denied by the competent authority and it instead exercised the

option to buy the same on behalf of the State vide its order dated

26.05.1976. Pursuant to such order, a sale deed dated 23.08.1976

was executed between the plaintiff and the State for the same sale

consideration that would have been paid by the prospective

purchaser. Subsequently, the decision of this Court in Bhim Singhji

v. Union of India reported in (1981) 1 SCC 186 held Section 27(1),

insofar as the restriction it placed as mentioned above, to be invalid.

In this background, it was opined as follows:

i. First, the contention of the State that it is Article 58 of the

Limitation Act, 1963 that would apply, was rejected. It was held

that the suit is primarily one for possession of property based

Special Leave Petition (C) No. 24821 of 2018 Page 17 of 35

 upon title. It was observed that owing to the decision in Bhim

Singhji (supra), the order dated 26.05.1976 along with the sale

deed dated 23.08.1976 became void ab intio and without

jurisdiction. Therefore, it was not necessary for the plaintiff to

claim any separate declaration that they are void. The plea

about their invalidity could be raised in the course of any

proceedings. Therefore, it is Article 65, which deals with a suit

for possession based on title, that would apply from the date on

the which the possession of the defendant State became

adverse to the plaintiff.

ii. Secondly, though the plaintiff sought a declaration that the

order dated 26.05.1976 and the sale deed dated 23.08.1976

were void, yet it was held that the same would be of no

consequence insofar as the question of limitation is concerned.

The fact would still remain that the possession of the property

was taken by the defendants via void documents. Therefore,

such documents could be ignored and a suit for possession

simpliciter for which the period of limitation prescribed under

Article 65, i.e., 12 years, could be filed. In the course of such

proceedings, it could be contended by the plaintiff that the

documents are a nullity.

Special Leave Petition (C) No. 24821 of 2018 Page 18 of 35

 The relevant observations are reproduced hereinbelow:

“4. Article 58 of the Limitation Act, 1963, prescribes limitation of

three years from the date when the right to sue first accrues to
obtain a declaration. Under Article 65, the period of limitation
prescribed for filing a suit for possession of immovable property
or any interest therein based on title is 12 years from the date
when possession of the defendants becomes adverse to the
plaintiff. The contention urged on behalf of the State Government
was that Article 58 of the Limitation Act was applicable as the
plaintiff had sought declaration about the invalidity of the order
dated 26-5-1976 and sale deed dated 23-8-1976 and that the
period of limitation of three years had to be computed from 26-
5-1976 and, therefore, the suit filed on 22-8-1988 was
hopelessly barred by time. This contention was rejected by the
High Court as also by the trial court. The contention urged on
behalf of the plaintiff and which has been accepted is that the
suit is basically for possession of the property based upon title
and the sale deed dated 23-8-1976 and the order dated 26-5-
1976 being void ab initio and without jurisdiction, a plea about
its invalidity can be raised in any proceedings and it is not
necessary to claim any declaration and thus Article 65 which
deals with suit for possession based on title would be applicable
from the date, the possession of the defendant becomes adverse
to the plaintiff. The High Court held that in view of the order and
the sale deed being null and void and without jurisdiction, the
same have no existence in the eye of the law and the plea about
invalidity of these documents can be raised in any proceedings
and no separate declaration is necessary to be sought. It held
that the suit for possession would be governed by Article 65 of
the Limitation Act, 1963. It was further held that the suit is
within time even from the date when the possession of the suit
property was taken on the execution of the sale deed on 23-8-
1976.

5. As already noticed, in Bhim Singhji case [(1981) 1 SCC 166]

Section 27(1) insofar as it imposes a restriction on transfer of any
urban or urbanisable land with a building or a portion of such
building, which is within the ceiling area, has been held to be
invalid. Thus, it has not been and cannot be disputed that the
order dated 26-5-1976, was without jurisdiction and a nullity.

Special Leave Petition (C) No. 24821 of 2018 Page 19 of 35

 Consequently, the sale deed executed pursuant to the said order
would also be a nullity. It was not necessary to seek a
declaration about the invalidity of the said order and the sale
deed. The fact of the plaintiff having sought such a declaration
is of no consequence. When possession has been taken by the
appellants pursuant to void documents, Article 65 of the
Limitation Act will apply and the limitation to file the suit would
be 12 years. When these documents are null and void, ignoring
them a suit for possession simpliciter could be filed and in the
course of the suit it could be contended that these documents are
a nullity. In Ajudh Raj v. Moti [(1991) 3 SCC 136] this Court said
that if the order has been passed without jurisdiction, the same
can be ignored as a nullity, that is, non-existent in the eye of the
law and it is not necessary to set it aside; and such a suit will
be governed by Article 65 of the Limitation Act. The contention
that the suit was time-barred has no merit. The suit has been
rightly held to have been filed within the period prescribed by
the Limitation Act.”
(Emphasis supplied)

29. This Court in Prem Singh v. Birbal reported in (2006) 5 SCC 353,

discussed the position of law as to when Article 59 of the Limitation

Act, 1963 would apply and opined as follows:

i. First, that Article 59 of the Limitation Act, 1963 would only

encompass within its fold fraudulent transactions which are

‘voidable’ transactions and not those that are ‘void’. In other

words, Article 59 would apply only where an instrument is prima

facie valid and not to those instruments which are

presumptively invalid.

Special Leave Petition (C) No. 24821 of 2018 Page 20 of 35

 ii. Secondly, that when the document in question is void ab

initio/or void, a decree for setting aside the same would not be

necessary since such a transaction would be non-est in the eyes

of law, owing to it being a nullity.

iii. Thirdly, a fine distinction was drawn between fraudulent

misrepresentation as regards the ‘character of the document’

and fraudulent misrepresentation as regards the ‘contents of a

document’. It is only in the former situation that the instrument

would be void and, in the latter, it would remain voidable. To

put it simply, Article 59 would not govern the period of limitation

in respect of a void transaction.

iv. Lastly, that if a deed was executed by the plaintiff when he was

a minor and it was thereby void, he had two options to file a suit

to get the property conveyed thereunder i.e., he could either file

the suit within 12 years of the deed or within 3 years of attaining

majority.

The relevant observations are reproduced as under:

“13. Article 59 of the Limitation Act applies specially when a

relief is claimed on the ground of fraud or mistake. It only
encompasses within its fold fraudulent transactions which
are voidable transactions.

-xxx-

Special Leave Petition (C) No. 24821 of 2018 Page 21 of 35

 16. When a document is valid, no question arises of its
cancellation. When a document is void ab initio, a decree for
setting aside the same would not be necessary as the same is
non est in the eye of the law, as it would be a nullity.

17. Once, however, a suit is filed by a plaintiff for cancellation of

a transaction, it would be governed by Article 59. Even if Article
59 is not attracted, the residuary article would be.

18. Article 59 would be attracted when coercion, undue

influence, misappropriation or fraud which the plaintiff asserts
is required to be proved. Article 59 would apply to the case of
such instruments. It would, therefore, apply where a document
is prima facie valid. It would not apply only to instruments which
are presumptively invalid. (See Unni v. Kunchi Amma [ILR
(1891) 14 Mad 26] and Sheo Shankar Gir v. Ram Shewak
Chowdhri [ILR (1897) 24 Cal 77] .)

-xxx-

21. Respondent 1 has not alleged that fraudulent

misrepresentation was made to him as regards the character of
the document. According to him, there had been a fraudulent
misrepresentation as regards its contents.

22. In Ningawwa v. Byrappa [(1968) 2 SCR 797 : AIR 1968 SC

956] this Court held that the fraudulent misrepresentation as
regards character of a document is void but fraudulent
misrepresentation as regards contents of a document
is voidable stating: (SCR p. 801 C-D)

“The legal position will be different if there is a fraudulent

misrepresentation not merely as to the contents of the
document but as to its character. The authorities make a
clear distinction between fraudulent misrepresentation as
to the character of the document and fraudulent
misrepresentation as to the contents thereof. With
reference to the former, it has been held that the
transaction is void, while in the case of the latter, it is
merely voidable.”

Special Leave Petition (C) No. 24821 of 2018 Page 22 of 35

 In that case, a fraud was found to have been played and it was
held that as the suit was instituted within a few days after the
appellant therein came to know of the fraud practised on her, the
same was void. It was, however, held: (SCR p. 803 B-E)

“Article 91 of the Limitation Act provides that a suit to set

aside an instrument not otherwise provided for (and no
other provision of the Act applies to the circumstances of
the case) shall be subject to a three years' limitation which
begins to run when the facts entitling the plaintiff to have
the instrument cancelled or set aside are known to him. In
the present case, the trial court has found, upon
examination of the evidence, that at the very time of the
execution of the gift deed, Ext. 45 the appellant knew that
her husband prevailed upon her to convey Surveys Plots
Nos. 407/1 and 409/1 of Tadavalga village to him by
undue influence. The finding of the trial court is based
upon the admission of the appellant herself in the course
of her evidence. In view of this finding of the trial court it
is manifest that the suit of the appellant is barred under
Article 91 of the Limitation Act so far as Plots Nos. 407/1
and 409/1 of Tadavalga village are concerned.”

-xxx-

28. If a deed was executed by the plaintiff when he was a minor

and it was void, he had two options to file a suit to get the
property purportedly conveyed thereunder. He could either file
the suit within 12 years of the deed or within 3 years of attaining
majority. Here, the plaintiff did not either sue within 12 years of
the deed or within 3 years of attaining majority. Therefore, the
suit was rightly held to be barred by limitation by the trial court.”

(Emphasis supplied)

30. In the decision of this Court in Hussain Ahmed Choudhury v.

Habibur Rahman reported in 2025 SCC OnLine SC 892, where one

of us, J.B. Pardiwala J., was a member of the Bench, it was reiterated

Special Leave Petition (C) No. 24821 of 2018 Page 23 of 35

 that a person who is not a party to an instrument would not be obliged

in law to seek its cancellation. The reason being that such an

instrument would neither be likely to affect his title nor be binding on

him. However, such a plaintiff must at least seek a declaration that

the said instrument is not binding on him or that is invalid insofar as

he is concerned. The relevant observations are reproduced

hereinbelow:

“30. As observed aforesaid, a plaintiff who is not a party to a

decree or a document, is not obligated to sue for its cancellation.
This is because such an instrument would neither be likely to
affect the title of the plaintiff nor be binding on him. We have to
our advantage two very old erudite judgments of the Madras
High Court and one of the Privy Council on the subject.

31. In Unni v. Kunchi Amma reported in 1890 SCC OnLine Mad

5, the legal position has been thus explained:
“If a person not having authority to execute a deed or
having such authority under certain circumstances which
did not exist, executes a deed, it is not necessary for
persons who are not bound by it, to sue to set it aside for
it cannot be used against them. They may treat it as
nonexistent and sue for their right as if it did not exist.”
(Emphasis supplied in original)

32. The same principle has been distinctly laid down by the
Privy Council in Bijoy Gopal Mukerji v. Krishna Mahishi Debi,
reported in 1907 SCC OnLine PC 1, where the jural basis
underlying such transactions was pointed out. In that case, the
reversioner sued for a declaration that a lease granted by the
widow of the last male owner was not binding on him and also
for khas possession. It was objected that the omission to set
aside the lease by a suit instituted within the time limit
prescribed by Article 91 of the Indian Limitation Act, 1877 was

Special Leave Petition (C) No. 24821 of 2018 Page 24 of 35

 fatal to the suit. The following observations which are equally
applicable to the case at hand, are apposite:
“A Hindu widow is not a tenant for life, but is owner of her
husband's property subject to certain restrictions on
alienation and subject to its devolving upon her husband's
heirs upon her death. But she may alienate it subject to
certain conditions being complied with. Her alienation is
not, therefore, absolutely void, but it is prima facie
voidable at the election of the reversionary heir. He may
think fit to affirm it, or he may at his pleasure treat it as a
nullity without the intervention of any Court, and he shows
his election to do the latter by commencing an action to
recover possession of the property. There is, in fact,
nothing for the Court either to set aside or cancel as a
condition precedent to the right of action of the
reversionary heir. It is true that the appellants prayed by
their plaint for a declaration that the ijara was inoperative
as against them, as leading up to their prayer for delivery
to them of khas possession. But it was not necessary for
them to do so, and they might have merely claimed
possession, leaving it to the defendants to plead and (if
they could) prove the circumstances, which they relied on,
for showing that the ijara of any derivative dealings with
the property were not in fact voidable, but were binding on
the reversionary heirs.”

33. In fact, it is logically impossible for a person who is not a

party to a document or to a decree to ask for its cancellation. This
is clearly explained by Wadsworth, J., in the decision rendered
in Vellayya Konar (Died) v. Ramaswami Konar, reported
in 1939 SCC OnLine Mad 149, thus:
“When, the plaintiff seeks to establish a title in himself and
cannot establish that title without removing an insuperable
obstruction such as a decree to which he has been a party
or a deed to which he has been a party, then quite clearly
he must get that decree or deed cancelled or declared void
‘in toto’, and his suit is in substance a suit for the
cancellation of the decree or deed even though it be framed
as a suit for declaration. But when he is seeking to
establish a title and finds himself threatened by a decree
or a transaction between third parties, he Is not in a

Special Leave Petition (C) No. 24821 of 2018 Page 25 of 35

 position to get that decree or that deed cancelled ‘in toto’.
That is a thing which can only be done by parties to the
decree or deed or their representatives. His proper remedy
therefore in order to clear the way with a view to establish
his title, is to get a declaration that the decree or deed is
invalid so far as he himself is concerned and he must
therefore sue for such a declaration and not for the
cancellation of the decree or deed.”
(Emphasis supplied in original)

34. Therefore, filing a suit for cancellation of a sale deed and

seeking a declaration that a particular document is inoperative
as against the plaintiff are two distinct, separate suits. The
plaintiff in the present case, not being the executant of the sale
deed dated 05.05.1997 executed in favour of the respondent no.
1 (original defendant no. 14), was therefore, not obligated to sue
for its cancellation under Section 31 of the Act, 1963.”
(Emphasis supplied)

31. As per the dictum in Prem Singh (supra), this Court, in order to

ascertain whether Article 65 of the Limitation Act, 1963 would apply

to the present factual scenario, has to first determine whether the

fraud was alleged as regards the contents of the sale deed dated

14.06.1973 or the character of such sale deed. Both the First

Appellate Court as well as the High Court have arrived at the finding

that the plaintiff had never executed the said sale deed in the first

place as it was proved that it was not her thumb impression that was

affixed therein. Therefore, this finding goes to the character of the sale

deed and thereby, renders it void/void ab initio. Hence, as per this

decision, there remained no reason for the plaintiff to seek for its

Special Leave Petition (C) No. 24821 of 2018 Page 26 of 35

 cancellation. The original sale deed also was not produced before the

Trial Court by the defendants in order to rebut the doubt cast upon

the veracity of the said sale deed. Consequently, Article 59 of the

Limitation Act, 1963 would find no application to the case in hand.

32. In Hussain Ahmed Choudhury (supra), it was clearly opined that a

plaintiff who is not a party to the instrument in question need not

seek its cancellation. We are not oblivious to the fact that in a

situation where the plaintiff was not a party to the instrument, the

said decision laid down a requirement that a declaration must be

sought to the effect that the said instrument was not binding on the

plaintiff. However, the said decision clarified that whether the plaintiff

has sought such a declaration or not could be culled out from a

holistic reading of the plaint along with the relief(s) sought. In cases

where the character of the sale deed is assailed as being fraudulent,

this requirement is implicitly satisfied since the very averment that

the sale deed was fraudulent or a sham and bogus transaction by

itself indicates that the plaintiff did not intend to be bound by it.

Therefore, this requirement too, could be said to have been satisfied

by the plaintiff in the present case.

Special Leave Petition (C) No. 24821 of 2018 Page 27 of 35

33. Further, as per State of Maharashtra (supra), it would be of no

consequence even the plaintiff in one of his prayers, seeks a

declaration that the sale deed is a nullity or invalid insofar as he is

concerned, since such an instrument would anyway be void owing to

it being fraudulent. Therefore, the period of limitation for a suit for

possession based on title would continue to be governed by Article 65.

In other words, the addition of such a prayer would not influence the

period of limitation within which such a suit must be filed.

34. We may look at the matter from one another angle. Apart from the

aspect of fraud, the decision of this Court in Kewal Krishnan v.

Rajesh Kumar and Others reported in (2022) 18 SCC 489, while

looking into whether the defendants had paid any sale consideration

to the plaintiff while purchasing the plaintiff’s share in the property,

held as follows:

i. First, that the sale of an immovable property would have to be

for a price and such a payment of price is essential, even if it is

payable in the future. If a sale deed is executed without the

payment of price, it is not a sale at all in the eyes of law,

specifically under Section 54 of the Transfer of Property Act,

Special Leave Petition (C) No. 24821 of 2018 Page 28 of 35

 1882. Such a sale without consideration would be void and would

not affect the transfer of the immovable property.

ii. Secondly, that, in the said case, the defendants could not rebut

the allegation of the plaintiff that no sale consideration was paid

as no evidence was adduced to indicate - (a) the actual payment

of the price mentioned in the sale deeds and, (b) that the

defendants had any earning capacity at the time of the

transaction such that the sale consideration could have been

paid. As such the sale deed being void for want of valid

consideration, could not be said to have affected the one-half

share of the plaintiff in the suit properties nor have conferred

any right of title on the defendants. In fact, it was held that the

sale deeds were a sham and must be ignored.

iii. Lastly, it was reiterated that a document that is void need not

be challenged by seeking a declaration as the said pleas can be

set up and proved even in collateral proceedings.

The relevant observations are thus:

“18. Section 54 of the Transfer of Property Act, 1882 (for short

“the TP Act”) reads thus:

“54. “Sale” defined.—“Sale” is a transfer of ownership

in exchange for a price paid or promised or part-paid and
part-promised.

Special Leave Petition (C) No. 24821 of 2018 Page 29 of 35

 Sale how made.—Such transfer, in the case of tangible
immovable property of the value of one hundred rupees
and upwards, or in the case of a reversion or other
intangible thing, can be made only by a registered
instrument.
In the case of tangible immovable property of a value less
than one hundred rupees, such transfer may be made
either by a registered instrument or by delivery of the
property.
Delivery of tangible immovable property takes place when
the seller places the buyer, or such person as he directs,
in possession of the property.
Contract for sale.—A contract for the sale of immovable
property is a contract that a sale of such property shall
take place on terms settled between the parties.
It does not, of itself, create any interest in or charge on
such property.”

Hence, a sale of an immovable property has to be for a price. The

price may be payable in future. It may be partly paid and the
remaining part can be made payable in future. The payment of
price is an essential part of a sale covered by Section 54 of the
TP Act. If a sale deed in respect of an immovable property is
executed without payment of price and if it does not provide for
the payment of price at a future date, it is not a sale at all in the
eye of the law. It is of no legal effect. Therefore, such a sale will
be void. It will not effect the transfer of the immovable property.

19. Now, coming back to the case in hand, both the sale deeds
record that the consideration has been paid. That is the specific
case of the respondents. It is the specific case made out in the
plaints as originally filed that the sale deeds are void as the
same are without consideration. It is pleaded that the same are
sham as the purchasers who were minor sons and wife of
Sudarshan Kumar had no earning capacity. No evidence was
adduced by Sudarshan Kumar about the payment of the price
mentioned in the sale deeds as well as the earning capacity at
the relevant time, of his wife and minor sons. Hence, the sale
deeds will have to be held as void being executed without
consideration. Hence, the sale deeds did not affect in any
manner one half-share of the appellant in the suit properties. In

Special Leave Petition (C) No. 24821 of 2018 Page 30 of 35

 fact, such a transaction made by Sudarshan Kumar of selling
the suit properties on the basis of the power of attorney of the
appellant to his own wife and minor sons is a sham transaction.
Thus, the sale deeds of 10-4-1981 will not confer any right, title
and interest on Sudarshan Kumar's wife and children as the
sale deeds will have to be ignored being void. It was not
necessary for the appellant to specifically claim a declaration as
regards the sale deeds by way of amendment to the plaint. The
reason being that there were specific pleadings in the plaints as
originally filed that the sale deeds were void. A document which
is void need not be challenged by claiming a declaration as the
said plea can be set up and proved even in collateral
proceedings.

20. Hence, the issue of bar of limitation of the prayers for

declaration incorporated by way of an amendment does not
arise at all. The additional submissions made by the
respondents on 16-11-2021 have no relevance at all.

21. As no title was transferred under the said sale deeds, the
appellant continues to have undivided half-share in the suit
properties. That is how the District Court passed the decree
holding that the appellant is entitled to joint possession of the
suit properties along with Sudarshan Kumar. Therefore, for the
reasons recorded above, by setting aside the impugned
judgment and order [Rajesh Kumar v. Kewal Krishan, 2015 SCC
OnLine P&H 20782] of the High Court, the decree passed by the
District Court deserves to be restored.”
(Emphasis supplied)

35. As far as the facts of the present matter are concerned, the plaintiff

specifically averred that she never obtained any sale consideration

from the defendant. On this aspect, the plaint reads as follows:

“(c) That the plaintiff never got any sale consideration of the
alleged sale deed and she came to know about this fraudulent
transaction only when she came to the village mourn the death

Special Leave Petition (C) No. 24821 of 2018 Page 31 of 35

 of Ram Saran and heard that her land is going to be sold by the
defendant without any right in it”

36. Admittedly, the sale consideration is Rs. 15,000/- as per the sale

deed. The sale deed indicated that, out of the total sale consideration,

the plaintiff and the other vendor i.e., Ram Saran, had already

allegedly received Rs. 9000/- from the defendant and that the

remaining amount of Rs. 6000/- would be received at the time of the

execution of the sale deed, in front of the Registrar. The relevant

portion of the sale deed reads thus:

“[…] now we with our own sweet will have sold the above land
measuring 31 kanal 4 marla, along with all the rights to Smt. Shanti
wife of Bagdawat son of Harnath, resident of Akbarpur, for Rs. 15000/-
. Possession has been delivered to the vendee. Out of the total sale
consideration, we have already received Rs. 9000/- from the vendee
and remaining amount of Rs. 6000/- will be received in front of the Sub
Registrar. Expenses of the stamp papers have been borne by the
vendee itself […]”

37. The endorsement made by the Sub Registrar at the time of the

execution of the sale deed, reads thus:

“That the contents of the sale deed have been read over and understood
to Ram Saran 2/3rd share, Risali 1/3rd share, and Bhadgawat husband
of vendee. They have verified the same and the vendors have received
Rs. 6000/- from the husband of the vendee in the presence of the sub-
registrar. Both the parties have been identified by Mahadev Singh
Sarpanch, and witness no. 2 Budhu.[…]”

Special Leave Petition (C) No. 24821 of 2018 Page 32 of 35

38. Concurrent findings of both the First Appellate Court and the High

Court indicated that the husband of the defendant i.e., one Bagdawat,

who had allegedly given the remaining sale consideration of Rs.

6,000/- during the time of execution of the sale deed, had not stepped

into the witness box. Furthermore, one of the attesting witnesses to

the execution of the sale deed i.e., the Sarpanch had also died before

his deposition could be recorded. One Budhu, who was the second

attesting witness, was the brother of the defendant and both the

Courts had doubted his testimony as being partial to the defendant.

All in all, there was no witness who could substantiate the case of the

defendant that there was part-payment of the sale consideration, i.e.,

Rs. 6,000/- during the time of execution of the sale deed.

Furthermore, no evidence was adduced by the defendant to prove that

even the initial amount of Rs. 9,000/- which was purportedly paid

before the execution of the sale deed was actually received by the

plaintiff. Therefore, the averment of the plaintiff in the plaint, that she

had not received the sale consideration, had not been otherwise

proven as false. In such circumstances as well, i.e., in the absence of

the sale consideration being tendered, the sale deed would be void and

the plaintiff would not be required to seek its cancellation. Therefore,

Special Leave Petition (C) No. 24821 of 2018 Page 33 of 35

 Article 59 of the Limitation Act, 1963 could not be said to be applicable

to the present facts.

39. The First Appellate Court had rightly observed that the plaintiff had

claimed the relief of joint possession. It had also arrived at the finding

that the transaction in question was void. To put it simply, in the eyes

of the law, the plaintiff could not be said to have executed the sale

deed. Therefore, the plaintiff could indeed have maintained an action

to obtain possession of the property on the basis of her title and filed

the same within the period of 12 years from the date of knowledge that

the possession of the defendant was adverse to that of the plaintiff.

Even if the date of execution of the sale deed, i.e., 14.06.1973 is

considered, the suit having been filed on 28.02.1984, i.e., almost 11

years later, could be said to be well within limitation as stipulated

under Article 65.

40. In the overall view of the matter, we have reached the conclusion that

the High Court could be said to have committed an error insofar as

observing that it is Article 59 and not Article 65 of the Schedule to the

Limitation Act, 1963, which would apply to the case in hand. However,

irrespective of the question of which Article of the Limitation Act, 1963

would be applicable to the suit instituted by the present plaintiff, the

Special Leave Petition (C) No. 24821 of 2018 Page 34 of 35

 suit could be said to have been filed within limitation. Therefore, apart

from clarifying the correct position of law, we find no infirmity in the

ultimate conclusion that the High Court arrived at as far as the

maintainability of the suit on the aspect of limitation is concerned.

41. Therefore, this appeal fails and is hereby, dismissed.

……………………………J.
(J.B. PARDIWALA)

..………………………….J.
(R. MAHADEVAN)

New Delhi
12th September, 2025.

Special Leave Petition (C) No. 24821 of 2018 Page 35 of 35