UNION OF INDIA
DATE OF JUDGMENT20/10/1994
BHARUCHA S.P. (J)
MUKHERJEE M.K. (J)
1995 SCC (1) 198 JT 1995 (1) 223
1994 SCALE (4)676
1.This appeal by special leave arises against the judgment and decree of the Delhi High Court in RFA No. 59 of 1978 dated 26-2-1979. The plaintiff appellant filed the suit for declaration that she is the absolute owner and is in possession of the house bearing old Municipal No. 5925 and new Municipal No. 4477, Ward No. XI, situated at Plot No. 7/18, Darya Ganj, Delhi. She claimed to have purchased the property from one Kaushalya Devi under a sale deed dated 11- 5-1946 registered on 29-5-1946 and thereby she is said to be the owner. Shri Ratti Ram had no right title or interest to alienate the property by the sale deed dated 29-1-1947 which was said to have been executed to stifle the prosecution intended to be lodged against him. The trial court dismissed the suit. On appeal, the High Court confirmed it.
2.The question is whether the suit is within limitation. In the evidence, it was admitted that she had knowledge of the execution and registration of the sale deed on 29-1-1947. Initially a suit was filed in 1959 but was dismissed as withdrawn with liberty to file fresh suit. Admittedly, the present suit was filed on 30-7-1966. The question, therefore, is whether the suit is within limitation. Article 59 of the Schedule to the Limitation Act, 1963, relied on by the appellant herself, postulates that to cancel or set aside an instrument or decree or for the rescission of a contract, the limitation is three years and it begins to run when the plaintiff entitles to have the instrument or the decree cancelled or set aside or when the contract rescinded first became known to him. As seen, when the appellant had knowledge of it on 29-1-1949 itself the limitation began to run from that date and the three years' limitation has hopelessly been barred on the date when the suit was filed. It is contended by Shri VM. Tarkunde, learned Senior Counsel for the appellant, that the counsel in the trial court was not right in relying upon Article 59. Article 113 is the relevant article. The limitation does not begin to run as the sale deed document is void as it was executed to stifle the prosecution. Since the appellant having been remained in possession, the only declaration that could be sought and obtained is that she is the owner and that the document does not bind the appellant. We are afraid that we cannot agree with the learned counsel. As seen, the recitals of the documents would show that the sale deed was executed for valuable consideration to discharge pre-existing debts and it is a registered document. Apart from the prohibition under Section 92 of the Evidence Act to adduce oral evidence to contradict the terms of the recital therein, no issue in this behalf on the 200
voidity of the sale deed or its binding nature was raised nor a finding recorded that the sale deed is void under Section 23 of the Contract Act. Pleading itself is not sufficient. Since the appellant is seeking to have the document avoided or cancelled, necessarily, a declaration has to be given by the court in that behalf. Until the document is avoided or cancelled by proper declaration, the duly registered document remains valid and binds the parties. So the suit necessarily has to be laid within three years from the date when the cause of action had occurred. Since the cause of action had arisen on 29-1- 1947, the date on which the sale deed was executed and registered and the suit was filed on 30-7-1966, the suit is hopelessly barred by limitation. The courts below, therefore, were right in dismissing the suit. The appeal is accordingly dismissed with costs.