Baljinder Singh Vs.
Rattan Singh  INSC 1307 (5 August 2008)
IN THE SUPREME COURT
OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO. 598 OF 2005 Baljinder
Rattan Singh .....Respondent (With C.A. Nos. 605/2005 and 601/2005)
Dr. ARIJIT PASAYAT,
appeals are directed against a common judgment of a learned Single Judge of the
Punjab and Haryana HighCourt disposing of three Second Appeals filed under
Section 100 of the Code of Civil Procedure, 1908 (in short `CPC'). All the
three appeals and the cross objections filed related to certain acts of one
Shivdev Singh. All the appeals and cross objections were dismissed except with
background facts in a nutshell are as follows:
Shiv Dev Singh was
allotted land measuring 811 kanal 14 marlas out of which he effected sale of
440 kanals earlier.
The said sale is not
disputed in the present proceedings. Shiv Dev Singh earlier married Harbans
Kaur and from the said wedlock one son i.e. plaintiff Lt. Col. Rattan Singh,
and four daughters who are also plaintiffs along with Lt. Col. Rattan Singh in
Civil Suit No.172 of 3.9.1994 were born. Smt.
Harbans Kaur died in
the year 1986. Shiv Dev Singh thereafter married Iqbal Kaur and from wedlock of
Shiv Dev Singh with Iqbal Kaur, Jaspal Singh, Lakhwinder Kaur, Sukhjinder Kaur
and Baljinder Singh and Balwinder Singh were born. The dispute in these appeals
is in respect of the land measuring 337 kanals 10 marlas. Shiv Dev Singh
2executed a gift deed on 19.12.1962 in favour of Jaspal Singh, one of the sons
of Shiv Dev Singh in respect of land measuring 10 kanals 5 marlas. The said
gift deed was disputed by his another son Lt. Col. Rattan Singh and four
daughters in Civil Suit No172 of 3.9.1994. Regular Second Appeal No.2550 of
2000 before the High Court arose out of the said suit.
The said suit was for
declaration to the effect that they are co owners in joint possesson to the
extent of = share, and that the property in the hands of Shiv Dev Singh was
ancestral. In the written statement, the defendant denied that the land was
ancestral. It was asserted that same was self acquired property of Shiv Dev
Singh. It was pleaded that since 19.12.1962 when Shiv Dev Singh gifted the land
in his favour, possession was delivered to him and ever since he is continuing
in possession as owner of the suit land. Jaspal Singh, the donee, was minor at
the time of execution of gift deed. The learned trial Court recorded a finding
that the suit land was ancestral in the hands of Shiv Dev Singh and that
alienation of ancestral property effected by father of a Hindu 3governed by
Mitakshara law could be challenged in terms of Article 109 of the Limitation
Act, 1963 (in short the `Limitation Act') within 12 years from the date when
alienee takes possession of the property alienated. Since Jamabandi for the
year 1973-74, (Exhibit D-8) Jamabandi for the year 1978-79 (Exhibit D-9),
Jamabandi for the year 1983-84 (Exhibit D-10) record Jaspal Singh as a person
in possession, the Court returned a finding that Jaspal Singh came into
possession more than 12 years before the filing of the suit and thus, the suit
is beyond the period of limitation.
Shiv Dev Singh also
executed two separate sale deeds on 25.2.1980 and 27.3.1980 in respect of land
measuring 73 kanals 11 marlas in favour of Pritam Kaur, widow of Thakur Singh,
who happened to be sister of Iqbal Singh, wife of Shiv Dev Singh. After the
death of Pritam Kaur on 1.4.1990, the same devolved upon defendant Baljinder
Singh, minor son of Jaspal Singh i.e. grandson Shiv Dev Singh by virtue of will
dated 30.1.1984. The said sale deeds were disputed by Lt.Col.
Rattan Singh in Civil
Suit No.171 of 6.9.1994. Regular Second 4Appeal No.2549 of 2000 before the High
Court arose out of said suit.
In the said suit, the
challenge is to the sale deeds dated 25.2.1980 and 27.3.1980 whereby Shiv Dev
Singh has sold the land in favour of Pritam Kaur, his sister-in-law through his
attorney Jaspal Singh. In the said suit it was alleged that the suit land was
ancestral having been inherited from his forefathers and that the sale deeds
were without legal necessity and thus null and void. It was alleged that the
defendant, son of Jaspal Singh is in illegal and unauthorized possession of the
suit land without any legal right for the last four years. The plaintiff
alleged that the cause of action accrued in the year 1993 when the share of
compensation amount in respect of the land acquired by the Improvement Trust
was not allowed to be withdrawn by the plaintiff at the instance of Iqbal Kaur,
second wife of Shiv Dev Singh. The defendant in written statement pleaded that
the sales in question are not in any way illegal, without consideration and/or
void. Shiv Dev Singh was the sole owner of the suit 5land. The suit land
remained in possession of Smt. Pritam Kaur as owner ever since the sale in her
favour. It was alleged that cause of action, if any, arose to the plaintiff to
challenge the alienation on the date of execution of the sale deeds. The
learned trial Court dismissed the suit holding that the suit is barred by
limitation governed by Article 109 of the Limitation Act as revenue record
since Jamabandi 1983-84 (Exhibit D-5) records the name of Pritam Kaur in the
column of ownership and cultivation. The said Jamabandi entry was recorded
after mutation in favour of Pritam Kaur and was sanctioned in the year 1980.
Shiv Dev Singh also
executed a registered will dated 1.8.1969 in favour of his wife Iqbal Kaur. At
the time of death of Shiv Dev Singh on 9.6.1988 he was owner of land measuring
107 kanals 13 Marlas. Lt. Col. Rattan Singh and his four sisters filed suit for
declaration to claim = share of the said land on the basis of natural
succession and for joint possession in Civil Suit No.170 of 3.9.1994. Regular
Second 6Appeal No.2548 of 2000 before the High Court arose out of the said
The said suit was for
declaration and in the alternative for joint possession filed, inter alia, on
the ground that they are owners of = share of the land. It was averred that
Shiv Dev Singh son of Sahib Singh was owner of 107 kanals 13 marlas of land
which was inherited from his forefathers and it was ancestral. Shiv Dev Singh
died on 9.6.1988 leaving behind plaintiffs and defendants Nos. 1 and 4 to 6 and
Lakhwinder Kaur as
his legal heirs. Lakhwinder Kaur died on 18.6.1993 leaving behind defendants
Nos. 2 and 3 as her legal heirs. It was averred that defendant no.1 has claimed
a will in her favour. The deceased Shiv Dev Singh has not executed any valid
will in favour of defendant No.1 and the alleged will is false and fabricated.
It was further alleged that the plaintiffs have succeeded to the estate of Shiv
Dev Singh to the extent of = share and the defendants succeeded to the remaining
= share of his estate. Defendant No.1 relied upon will dated 1.8.1969 and
claimed that she has become the exclusive 7owner in possession of the suit
land. In evidence, the defendants produced son of the scribe and one of the
attesting witnesses of the will. The trial Court held that the said will is
proved to have been executed and is not surrounded by suspicious circumstances.
One of the reasons for coming to such view by the trial Court was that Lt. Col.
Rattan Singh has got 8 acres of land earlier and thus, the plaintiffs cannot
make any grievance.
in three separate appeals, the first Appellate Court reversed the findings
recorded by the trial Court. The first Appellate Court held that Civil Suit
No.171 and 172 of 1994 are within the period of limitation as cause of action
arose to them when they were excluded from the Joint Hindu Family property in
the year 1992. However, in respect of the will, the first Appellate Court held
that it is surrounded by suspicious circumstances and consequently decreed the
suit holding that the estate of Shiv Dev Singh will vest on the coparceners
Rattan Singh, Jaspal Singh and Iqbal Kaur wife of Rattan Singh in equal shares
and thus plaintiff Lt. Col. Rattan 8Singh would have 1/3rd share and the
defendants Jaspal Singh and Iqbal Kaur would have 2/3rd share.
by the findings recorded by the learned First Appellate Court, Second Appeals
plaintiffs also filed cross objections in each of the appeals claiming that the
judgment and decree of the first Appellate Court granting 1/3rd share to Rattan
Singh is incorrect as a matter of fact plaintiff Rattan Singh has = share.
Second Appeals the findings of the Courts below that the land is joint Hindu
Family coparcenary property was not disputed. This fact was not disputed even
before the learned trial Court. It was also not disputed that the sale deeds
were executed without legal necessity and Shiv Dev Singh was not competent to
gift the property. However, what was disputed is that the suit challenging
alienation by way of gift in the year 1962 and sale deeds in the year 1980 by
way of suit filed in 9the year 1994 were clearly beyond the period of
limitation as prescribed under Article 109 of the Indian Limitation Act, 1963
(in short the `Limitation Act'). The first Appellate Court had recorded a
finding that the plaintiffs acquired knowledge of alienation by way of gift and
sale in the year 1992 after Lt. Col. Rattan Singh retired from army. Learned
counsel for the appellants before the High Court disputed such finding as one
based upon perversity. It was that it is impossible to believe that the gift
deed executed in the year 1962 mutation of which was recorded in the year 1967
came to the notice of the plaintiffs only in the year 1992 since plaintiff Lt.
Col. Rattan Singh was visiting the village every year during his annual leave.
However, since the first Appellate Court has believed the statement of the
plaintiff to record a finding that he acquired the knowledge of alienation of
the year 1992, it would a finding of fact. High Court was of the view that even
if a different view was possible to be taken it would not entitle the High
Court to take a different view in Second Appeal. The finding recorded by the
first Appellate Court was held to have been arrived at after discussing the
relevant oral and documentary evidence. Therefore, the High Court proceeded on
the assumption that plaintiff Lt. Col. Rattan Singh came to know about the
alienation in the year 1992.
High Court formulated following substantial questions of law for consideration:
1. Whether the gift
deed executed by Shiv Dev Singh in favour of son Jaspal Singh on 19.12.1962 is
void or voidable?
2. Whether the sale
deeds dated 25.2.1980 and 27.3.1980 executed by Shiv Dev Singh in favour of
Pritam Kaur, his sister in law, is void or voidable?
3. Whether the suit
for possession is within the period of limitation or such suit is barred by
limitation in terms of Article 109 of the Limitation Act, 1963?
4. Whether Will dated
1.8.1969 executed by deceased Shiv Dev Singh in favour of his wife Iqbal Kaur
is proved to be duly executed and is not surrounded by suspicious
5. What will be the
share of the plaintiffs in the suit property consequent to the decision on the
above questions of law?
genealogy as given below indicating the relationship between the parties was
taken note of by the High Court.
Shivdev Singh ! ! !
Harbans Kaur - Wife Iqbal Kaur (wife) Pritam Kaur (Sister of Iqbal)
_______________________________________________ ! ! ! ! ! ! ! ! ! Rattan
Gurbachan Manjit Kuldip Balwinder Jaspal Lakhwinder Sukhwinder Baljit Singh
Kaur Kaur Kaur Kaur Singh Kaur Kaur Kaur (R-1 in (R-2 in (R-2 in (R-2 in (R-2
in (App.No (since (App.no.5 (App.No. All C.A.No. C.A.No. C.A. C.A.No. 1 in C.A.
deceased) in C.A. No. 6 in C.A. Appeals ) 605 and 605 and 605 & 605 and
No.605 605 and No. 605 and 601 of 601 of 601 of 601 of and App. App.No.4 App.No.5
in 2005) 2005) 2005) 2005) No.6 in in C.A. C.A.601 of C.A.601 601 of 2005) Of
2005) 2005) ___________________________ ! ! Baljinder Singh Gurtej Singh (App.
In C.A. (App.No.2 in No.598/2005) in C.A.605 and App.No.1 in C.A No.601 of
analyzing the legal position and the applicable Hindu Law the High Court inter
alia came to the following conclusions:
"In the judgment
and decree passed by the learned first Appellate Court holding that Rattan
Singh plaintiff will have 1/3rd share is not sustainable as the share of Shiv
Dev Singh was excluded for the reason that Shiv Dev Singh during his life time
sold 50-60 acres of land and, thus he ceased to have any share in the suit
land. The said reasoning is not sustainable in law. The sale effected by Shiv
Dev Singh during his life time will diminish the joint property of all the
coparceners. Such sale is not disputed and, therefore, such sale is for the
benefit of coparcenary body and, thus, it cannot be said that such sale was out
of the share of Shiv Dev Singh alone. In terms of Explanation 1 to Section 6 of
the Hindu Succession Act, 1956, the notional partition is to be presumed
immediately before the death of Shiv Dev Singh. Therefore, Shiv Dev Singh will
have equal share within Rattan Singh, Jaspal Singh and Iqbal Kaur.
the death of Shiv Dev Singh, the coparceners were Shiv Dev Singh himself,
Rattan Singh plaintiff, Iqbal Kaur (wife of Shiv Dev Singh), and Jaspal Singh.
The married daughters from the first wife Harbans Kaur or from the second wife
Iqbal Kaur were not coparceners and, thus not entitled to any share. Thus, Shiv
Dev Singh, Rattan Singh, Jaspal Singh and Iqbal Kaur shall have 1/4th share
each as coparcener. One fourth share of Shiv Dev Singh will fall equally to the
share of one son and four daughters from his first wife Harbans Kaur one son
and three daughters from the second wife Iqbal Kaur and Iqbal Kaur herself i.e.
1/4th share to each of the 13 legal heirs of Shiv Dev Singh at the time of his
was inter alia held that the deed of gift purported to have been executed by
Shivdev Singh in favour of Jaspal Singh was surrounded by mysterious
circumstances and was not a genuine document. So far as the sale deeds in
favour of Pritam Kaur are concerned it was held that Article 65 of the
Limitation Act was applicable. While the challenge in the first suit relating
to the sale deeds was filed on 1.9.1994, the other suits challenging the gift
purported to have been made on 19.12.1962 and the will purported to have been
executed on 1.8.1969 were filed on 3.9.1994.
the present appeals, challenge to the High Court's judgment was on various
grounds. We shall deal with them separately.
far as the appeal relating to the effect of the sale deed is concerned, it was
submitted that the High Court had made out a new case about applicability of
Article 65 of the Limitation Act, while the trial Court and the first Appellate
Court had proceeded on the basis that Article 109 was applicable. Similarly,
the basic issue was whether the sale deed was void or voidable. So far as the
appeal relating to validity of the gift made by Shivdev Singh is concerned,
according to learned counsel, the relevant issue is whether he made the gift
and if the answer to the question is in the affirmative, to what extent could
he had made the gift. Here again the question was whether the gift was void or
So far as the appeal
relating to the validity of the Will is concerned, it was submitted that the
Courts below failed to notice that there was nothing suspicious about execution
of the Will and the evidence on record clearly established that the Will had
been executed out of free will and was not tainted in any way.
response, learned counsel for the respondent submitted that the High Court has
analysed the legal and the factual position in great detail and has rightly
dismissed the appeals.
first issue in the appeals relates to the validity of the sale deeds. Articles
65 and 109 operate in different fields. The trial Court categorically found
that Article 65 was not applicable and Article 109 was applicable to the facts
of the case. The first Appellate Court in essence accepted that Article 109 was
applicable, which provided for a period of 12 years to set aside the alienation
effected by a father from the date when the alienee was in possession of the
property. Though the first Appellate court accepted that Article 109 was
applicable, yet it was held that the spirit of Article 109 is that by taking
over the possession of the land which is subject matter of the suit the alienee
inter alia gives a notice to the persons governed by Mitakashara School of Law
to agitate their rights, if any. Otherwise, their remedy would become barred by
limitation. It was held that the starting point of limitation would be
somewhere in the year 1992 when he came to know of the alienation made by the
cause of action accrued in the year 1992 when he gained knowledge about the
existence and execution of the sale deeds. Therefore, the period of 12 years as
laid down in Article 109 was to be reckoned from the year 1992 and since the
suit had been filed in 1994 it is within the period of limitation.
bare perusal of the High Court's order it is seen that the High Court proceeded
on the basis that the applicable Article is Article 65 and not Article 109. It
is to be noted that there was no issue framed about applicability of Article
65. On the contrary, the issue framed related to the applicability of Article
109. There was no pleading by the plaintiff about applicability of Article 65.
Even in the counter affidavit filed before this Court in the concerned Civil
Appeal, the categorical stand is Article 110 is applicable. In para 8 of the
counter affidavit filed in Civil Appeal No.598 of 2005 it has been stated that
the suit of the respondent (plaintiff) is within time under 17 Article 110 and
counting from the date of knowledge, the suit filed is clearly within the
period of limitation. The effect of Exhibit D-11 and the deed on which the
appellants placed strong reliance has not been considered by the first
Appellate Court and it reversed the findings of the trial Court. On the
question of position relating to applicability of Article 109 there is
practically no discussion by the learned counsel.
is, therefore, crystal clear that the High Court proceeded to decide the issue
relating to period of limitation by making out a new case for which there was
no pleading and even no question of law was framed.
question whether the sale deed was void or voidable has to be adjudicated in
the light of principles set out by this Court in several decisions. We shall
deal with this aspect in detail while considering the appeal relating to the
Thamma Venkata Subbamma (dead) by Lrs. V. Thamma Rattamma and Others (1987 (3)
SCC 294) it was observed as follows:
"12. There is a
long catena of decisions holding that a gift by a coparcener of his undivided
interest in the coparcenary property is void. It is not necessary to refer to
all these decisions Instead, we may refer to the following statement of law in
Mayne's Hindu Law, eleventh Edn., Article 382:
"It is now
equally well settled in all the Provinces that a gift or devise by a coparcener
in a Mitakshara family of his undivided interest is wholly invalid....A
coparcener cannot make a gift of his undivided interest in the family property,
movable or immovable, either to a stranger or to a relative except for purposes
warranted by special texts.
13. We may also refer
to a passage from Mulla's Hindu Law, fifteenth edn., Article 258, which is as
Gift of undivided
interest. - (1) According to the Mitakshara law as 19 applied in all the
States, no coparcener can dispose of his undivided interest in coparcenary
property by gift. Such transaction being void altogether there is no estoppel
or other kind of personal bar which precludes the donor from asserting his
right to recover the transferred property. He may, however, make a gift of his
interest with the consent of the other coparceners.
14. It is submitted
by Mr. P. P. Rao, learned counsel appearing on behalf of the respondents, that
no reason has been given in any of the above decisions why a coparcener is not
entitled to alienate his undivided interest in the coparcenary property by way
of gift. The reason is, however, obvious. It has been already stated that an
individual member of the joint Hindu family has no definite share in the
coparcenary property. By an alienation of his undivided interest in the
coparcenary property, a coparcener cannot deprive the other coparceners of
their right to the property. The object of this strict rule against alienation
by way of gift is to maintain the jointness of ownership and possession of the
coparcenary property. It is true that there is no specific textual authority
prohibiting an alienation by gift and the law in this regard has developed
gradually, but that is for the purpose of preventing a joint Hindu family from
17. It is, however, a
settled law that a coparcenary can make a gift of his undivided 20 interest in
the coparcenary property to another coparcener or to a stranger with the prior
consent of all other coparceners. Such a gift would be quite legal and
may also refer to a passage from Mulla's Hindu Law, Seventeenth Edn., (Article
258), which is as follows:
undivided interest- (1)According to Mitakshara law as applied in all the
States, no coparcener can dispose of his undivided interest in coparenary
property by gift. Such transaction being void altogether there is no estoppel
or other kind of personal bar which precludes the donor from asserting his
right to recover the transferred property. He may, however, make a gift of his
interest with the consent of the other coparcener".
Mayne's Hindu Law, XIV Edn. It has been noted as follows:
affection- The father's power to make gifts through affection within reasonable
limits of ancestral movable property has been fully recognized. In Ramalinga v
Narayana (1922 (49) IA 168) the Privy Council held that "the father has
undoubtedly the power under the 21 Hindu Law of making within reasonable
limits, gifts of movable property to a daughter".
By Will- But such
gifts through affection of joint family property when they are by will, are
invalid, because the right of the coparceners vests by survivorship at the
moment of the testator's death, and there is accordingly nothing upon which the
will can operate. In Subbarami v. Ramamma ((1920 (43) Mad 824) the Madras High
Court held that a will made by a Hindu father bequeathing certain family
properties for the maintenance of his wife was invalid as against his infant
son through it would have been a proper provision if made by him, during his
lifetime. This may be in a sense right. There is however no compelling logic in
not regarding wills "as gifts to take effect upon death at least as to the
property which they can transfer and the persons to whom it can be
transferred". Convenience would seem rather to point to the extension to
the sphere of Hindu Law of the general principle of jurisprudence that what a
man can give by act inter vivos, he can give by will".
view of the decision in Venkata Subbamma's case (supra), the decision of the
High Court so far the gift is concerned, does not warrant any interference.
far as the question whether the gift is void or voidable much depends on the
factual scenario. The distinction between void or voidable is summarized as
"De Smith, Woolf
and Jowell in their treatise Judicial Review of Administrative Action, 5th,
para 5-044, have summarized the concept of void and voidable as follows:
simple dichotomy of void and voidable acts (invalid and valid until declared to
be invalid) lurk terminological and conceptual problems of excruciating
complexity. The problems arose from the premise that if an act, order or
decision is ultra vires in the sense of outside jurisdiction, it was said to be
invalid, or null and void.
If it is intra vires
it was, of course, valid. If it is flawed by an error perpetrated within the
area of authority or jurisdiction, it was usually said to be voidable; that is,
valid till set aside on appeal or in the past quashed by certiorari for error
of law on the face of the record."
23 Clive Lewis in
his work Judicial Remedies in Public Law at p.131 has explained the expressions
"void and voidable" as follows:
"A challenge to
the validity of an act may be by direct action or by way of collateral or
indirect challenge. A direct action is one where the principal purpose of the
action is to establish the invalidity. This will usually be by way of an
application for judicial review or by use of any statutory mechanism for appeal
or review. Collateral challenges arise when the invalidity is raised in the
course of some other proceedings, the purpose of which is not to establish
invalidity but where questions of validity become relevant."
Sunil Kumar and Anr. v. Ram Parkash and Ors. (AIR 1988 SC 576) it was noted in
paras 23 and 24 as follows:
23. The managing
member or karta has not only the power to manage but also power to alienate
joint family property. The alienation may be either for family necessity or for
the benefit of the estate. Such alienation would bind the interests of all the
undivided 24 members of the family whether they are adults or minors. The oft
quoted decision in this aspect, is that of the Privy Council in Hanuman Parshad
v. Mt. Babooee,  6 M.I.A. 393. There it was observed at p. 423: (1)
"The power of the manager for an infant heir to charge an estate not his
own is, under the Hindu law, a limited and qualified power. It can only be
exercised rightly in case of need, or for the benefit of the estate." This
case was that of a mother, managing as guardian for an infant heir. A father
who happens to be the manager of an undivided Hindu family certainly has
greater powers to which I will refer a little later. Any other manager however,
is not having anything less than those stated in the said case. Therefore, it
has been repeatedly held that the principles laid down in that case apply
equally to a father or. other coparcener who manages the joint family estate.
the power of disposition of joint family property has been conceded to the
manager of joint Hindu family for the reasons aforesaid, the law raises no
presumption as to the validity of his transactions. His acts could be
questioned in the Court of law. The other members of the family have a right to
have the transaction declared void, if not justified.
When an alienation is
challenged as being unjustified or illegal it would be for the alienee to prove
that there was legal necessity in fact or that he made proper and bona fide
enquiry as to the existence of such necessity. It would 25 be for the alienee
to prove that he did all that was reasonable to satisfy himself as to the
existence of such necessity. If the alienation is found to be unjustified, then
it would be declared void. Such alienations would be void except to the extent
of manager's share in Madras, Bombay and Central Provinces. The purchaser could
get only the manager's share.
But in other
provinces, the purchaser would not get even that much. The entire alienation
would be void. [Mayne's Hindu Law 11th ed. para 396].
24. In Sadasivam v.
K. Doraisamy (AIR 1996 SC 1724) it was found that when the father has executed
sale deed in favour of a near relative and the intention to repay debt or legal
necessity has not been proved as a sham transaction.
Words and Phrases by Justice R.P. Sethi the expression `void' and `'voidable'
read as under:
Law Dictionary gives the meaning of the word "void" as having
different nuances in different connotations. One of them is of course
"null or having no legal force or binding effect". And the other is
"unable in law, to support the purpose for which it was intended".
After referring to the nuances between void and voidable the lexicographer
pointed out the following: "The word `void' in its strictest sense, means
that which has no force and effect, is without legal efficacy, is incapable of
being enforced by law, or has no legal or binding force, but frequently the
word is used and construed as having the more liberal meaning of `voidable'.
The word `void' is used in statute in the sense of utterly void so as to be
incapable of ratification, and also in the sense of voidable and resort must be
had to the rules of construction in many cases to determine in which sense the
legislature intended to use it. An act or contract neither wrong in itself nor
against public policy, which has been declared void by statute for the
protection or benefit of a certain party, or class of parties, is voidable
only". (Pankan Mehra and Anr. v. State of Maharashtra and Ors. (2000 (2)
Per Fazal Ali, J- The
meaning of the word "void" is stated in Black's Law Dictionary (3rd
Edn.) to be as follows:
"Null and void;
nugatory; having no
legal force or binding effect; unable in law to support the purpose for which
it was intended; nugatory and ineffectual so that nothing can cure it; not
valid". Keshavan Madhava Menon v. State of Bombay (1951 SCR 228).
"void" has several facets.
One type of void
acts, transactions, decrees are those which are wholly without jurisdiction, ab
initio void and for avoiding the same no declaration is necessary, law does not
take any notice of the same and it can be disregarded in collateral proceeding
or otherwise. Judicial Review of Administration Action, 5th Edn., para 5-044
(See also Judicial Remedies in Public Law at page 131;
Singh v. Jai Prakash University and Ors. (2001 (6) SCC 534) The other type of
void act, e.g. may be transaction against a minor without being represented by
a next friend. Such a transaction is a good transaction against the whole
world. So far as the minor is concerned, if he decides to avoid the same and
succeeds in avoiding it by taking recourse to appropriate preceding the
transaction becomes void from the very beginning. Another type of void act may
be one, which is not a nullity, but for avoiding the same, a declaration has to
be made. (See Government of Orissa v Ashok Transport Agency and Ors (2002 (9)
SCC 28) The meaning to be given to the word "void" in Article 13 of
the Constitution is no longer res integra, for the matter stands concluded by
the majority decision of the Court in Keshavan Madhava Menon v. The State of
Bombay (1951) SCR 228. We have to apply the ratio decidendi in that case to the
facts of the present case. The impugned Act was a existing law at the time when
the Constitution came into force. That existing law imposed on the exercise of
the right guaranteed in the citizens of the India by Article 19(1)(g)
restrictions which could not be justified as reasonable under clause (6) as it
then stood and consequently under Article 13 (1) that existing Law became void
"to the extent of such inconsistency". As explained in Keshavan
Madhava Menon's case (supra) the Law became void in toto or for all purposes or
for all times or for all persons but only "to the extent of such
inconsistency", that is to say, to the extent it became inconsistent with
the provisions of Part III which conferred the fundamental rights on the
citizens. It did not become void independently of the existence of the rights
guaranteed by Part III. (See Bhikaji Narain Dhakras and Ors. v. The State of
Madhya Pradesh and Anr. (1955 (2) SCR 589).
"void" has a relative rather than an absolute meaning. It only
conveys the idea that the order is invalid or illegal. In Halsbury's Laws of
England, 4th Edn. (Re- issue) Vol. 1(1) in para 26, p.31 it is stated thus:
"If an act of decision, or an order or other instrument is invalid, it
should, in principle, be null and void for all purposes; and it has been said
that there are no degrees of nullity. Even though such an act is wrong and
lacking in jurisdiction, however, it subsists and remains fully effective
unless and until it is set aside by a court of competent jurisdiction. Until
its validity is challenged, its legality is preserved". (See State of
Kerala v. M.K. Kunhikannan Nambiar Manjeri Manikoth, Naduvil (dead) and ors.
(1996 (1) SCC 435).
act" is that which is a good act unless avoided, e.g. if a suit is filed
for a declaration that a document is fraudulent, it is voidable as the apparent
state of affairs is the real state of affairs and a party who alleges otherwise
is oblige to prove it. If it is proved 29 that the document is forged and
fabricated and a declaration to that effect is given, a transaction becomes
void from the very beginning. There may be voidable transaction which is
required to be set aside and the same is avoided from the day it is so set
aside and not any day prior to it. In cases, where legal effect of a document
cannot be taken away without setting aside the same, it cannot be treated to be
void but would be obviously voidable. Government of Orissa v. Ashok Transport
Agency and Ors. (2002 (9) SCC 28)".
far as the appeal relating to Will is concerned, it is to be noted that the
Courts below including the High Court have come to the conclusion that its
execution is surrounded by suspicious circumstances.
defendants have relied upon will dated 1.8.1969 executed by Shiv Dev Singh in
favour of his wife Iqbal Kaur.
Will Ex.D-1 is sought
to be proved by DW-1 Sham Lal son of Jitender Nath scribe of the Will and DW-2
Surinder Nath Vohra, the attesting witness DW-1 Sham Lal has identified the
handwriting of his father and deposed that his father died in the year 1993.
DW-2 Surinder Nath Vohra has deposed that the Will was executed by Shiv Dev
Singh at Kharar in his presence. At that time, Shiv Dev Singh was in sound
disposing mind. It has come on record that Dharam Singh, husband of Lakhwinder
Kaur daughter of Shiv Dev Singh was residing at Chandigarh. Shiv Dev Singh used
to stay with Dharam Singh when he used to visit Chandigarh in connection with
litigation. However, the Will was not executed and registered at Chandigarh but
at Kharar. Surinder Nath Vohra is not known to the testator but attested the
Will at the asking of Dharam Singh. Still further, in Will Exhibit D-1 there is
no reference about Rattan Singh who is none else but real son of the testator.
The first Appellate Court found that the reasoning given by the learned trial
Court that Shiv Dev Singh gave 8 acres of land to Rattan Singh and, therefore,
it was not necessary for him to assign any reason was found to be incorrect
because the said land measuring 8 acres came to him from his grand father as he
was born after 4 daughters.
The first Appellate
Court found that even if Shiv Dev Singh had been given 8 acres, there is no
reason as to why such mention was not made in the Will. Consequently, the first
Appellate Court returned a finding that the execution of the Will Exhibit D-1
is not proved and its execution is surrounded by suspicious circumstances.
finding recorded about the genuineness of the Will is essentially factual. The
Courts below have analysed the factual position in great detail. Nothing infirm
in the conclusions could be shown by learned counsel for the appellant.
view of the aforesaid circumstances it would be proper for the High Court to
re-hear the appeal relating to applicability of Article 129 of the Limitation
Act and to decide the matter taking note of the factual position.
other appeals are dismissed. The appeals are accordingly disposed of.
...............................J. (Dr. ARIJIT PASAYAT)