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Report No. 89

Chapter 34

Articles 59-60: Suits Relating to Decrees and Instruments

34.1. Article 59.- Article 59 reads as unde.-

"To cancel or set aside an instrument or decree or for the rescission of a contract.

Three years

When the facts entitling the plaintiff to have the instrument or the contract rescinded first become known to him."

It combines the substance of Articles 91 and 114 of the Act of 1908, which were as follow.-

"91. To cancel or set aside an instrument not otherwise provided for.

Three years

When the facts entitling the plaintiff to have the instrument canceled or set aside become know to him."
114. For the rescission of a contract.

Three years.

When the facts entitling the plaintiff to have the contract rescinded first become known to him".

Article 91 and 114 of the Act of 1877 were in the same terms.

Article 92 and 114 of the Act of 1871 were as under:-

"92. To cancel or set aside and instrument not otherwise provided for.

Three years.

When the instrument is executed.
114. For the rescission of a contract.

Three years.

When the contract is executed by the plaintiff".

Acting on the recommendation of the Law Commission1, Articles 91 and 114 of the Act of 1908 were combined into a single Article 59 in the Act of 1963, and the scope of the article was also enlarged so as to make it applicable to the cancellation to decrees as well.

1. Law Commission of India, 3rd Report (Limitation Act, 1908), para. 139.

34.2. The expression "set aside".- The expression "set aside" in the article under discussion was adversely commented on by a District Judge1, in 1907. He suggested that the words "or to declare the inoperative character of should be added after the words "set aside".

It may be recalled2 that the expression "set aside" was also adversely commented upon by the Privy Council in the context of adoption.-

"It must be confessed that the words of the article are not such as to prevent doubt or difficulty in its construction. The expression "suit to set aside an adoption" is not quite precise as applied to any suit. An adoption may be established, but can hardly be set aside, though an alleged or pretended adoption may be declared to be no adoption at all."

And further:

"It thus appears that the expression "set aside an adoption" is and has been for many years applied in the ordinary language of Indian lawyers to proceedings which bring the validity of an alleged adoption under question, and applied quite indiscriminately to suits for possession of land and to suits of a declaratory nature".

1. Diwan Bahadur S. Gopalachariar Avergal, District Judge, Guntur, Letter No 2/55, dated 30th December, 1907, National Archives File, 1908, Paper No. 11, p. 10.

2. See discussion as to Article 57, supra.

3. Chaodhrani v. Dakhina Mohun Roy Chaodhri, 1886 ILR 13 Cal 308 (320).

34.3. No change needed.- However, Article 59 deals not with adoption as such but with setting aside instruments and decrees, and so does the next following Article 60, dealing with the transfer of property. Consequently, though the wording "setting aside an adoption" may be unhappy, there appears to be no reason why the expression cannot be used in Article 59 as well as Article 60. Hence, no change is needed in the article.

34.4. Article 60.- Article 60 reads as unde.-

"60. To set aside a transfer of property made by the guardian of a word-
(a) by the ward who has attained majority;

Three years.

When the ward attains majority.
(b) by the ward's legal representative-
(i) When the ward dies within three years from the date of attaining majority.

Three years.

When the ward attains majority.
(ii) When the ward dies before attaining majority.

Three years.

When the ward dies."

Article 44 of the Act of 1908 read as under:

"44. By a ward who has attained majority to set aside a transfer of property by his guardian.

Three years.

When the ward attains majority".

Article 44 of the Act of 1877 was as follows:

"44. By a ward who has attained majority to set aside a sale of his guardian.

Three years.

When the ward attains majority".

34.5. De facto guardian.- The courts are sharply divided as to whether the word "guardian" occurring in this article, includes a "de facto" guardian. The Madras High Court,1 the Punjab High Court2, and the Jammu and Kashmir High Courts,3 have held that an article takes care of "de facto guardian". On the other hand, the Patna High Court4 has held that another article (Article 144 of the Act of 19085) would apply to a suit to set aside an alienation made by the de facto guardian of a Hindu minor.

1. (a) Ramachandran v. Rumkangadan, AIR 1975 Mad 60; (b) Sivanmalai Goundan v. Arunchala Goundan, AIR 1938 Mad 822.

2. Aran Nath v. Ba! Kishan, AIR 1959 Punj 313.

3. Lok Nath v. Rohlu Ram, AIR 1951 J&K 25.

4. Kailash Chandra Pradhan v. Rajani Kanta, AIR 1945 Pat 298.

5. Cf. present Article 65.

34.6. Recommendation as to Guardians and Wards Act reiterated.- We should mention in this context that the Law Commission,1 in its Report on the Guardians and Wards Act, 1890 has recommended the addition in section 4(2) of that Act, of a suitable Explanation which would make it clear that a de facto guardian is included within the definition of 'guardian' for the purposes of that Act. We are of the view that if this recommendation is accepted, the controversy should not survive in relation to the law of Limitation also. We reiterate the recommendation made with reference to the Guardians and Wards Act,7 1890.

1. Law Commission of India, 83rd Report (Guardians and Wards Act, 1890), para. 4.13.

2. To be carried out with reference to the Guardians and Wards Act, 1890.



The Limitation Act, 1963 Back




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