Must the court entertaining a compromise petition examine whether the compromise was void or voidable under the Indian Contract Act?

 

When the amending Act introduced a proviso along with an explanation to Rule 3 of Order 23 saying that where it is alleged by one party and denied by the other that an adjustment or satisfaction has been arrived at, "the Court shall decide the question", the Court before which a petition of compromise is filed and which has recorded such compromise, has to decide the question whether an adjustment or satisfaction had been arrived at on basis of any lawful agreement. To make the enquiry in respect of validity of the agreement or the compromise more comprehensive, the explanation to the proviso says that an agreement or compromise "which is void or voidable under the Indian Contract Act..." shall not be deemed to be lawful within the meaning of the said Rule. In view of the proviso read with the explanation, a Court which had entertained the petition of compromise has to examine whether the compromise was void or voidable under the Indian Contract Act. Even Rule 1(m) of Order 43 has been deleted under which an appeal was maintainable against an order recording a compromise. As such a party challenging a compromise can file a petition under proviso to Rule 3 of Order 23, or an appeal Under Section 96(1) of the Code, in which he can now question the validity of the compromise in view of Rule 1-A of Order 43 of the Code.

 {Para 13}

IN THE SUPREME COURT OF INDIA

Civil Appeal Nos. 2913-2915 of 2018

Prasanta Kumar Sahoo and Ors.  Vs.  Charulata Sahu and Ors.

Hon'ble Judges/Coram:

A.S. Bopanna and J.B. Pardiwala, JJ.

Author: J.B. Pardiwala, J.

Decided On: 29.03.2023

Citation: MANU/SC/0326/2023.

Read full Judgment here: Click here

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Whether stranger to a deed can impeach the deed as void and invalid on all possible grounds?

  Learned Counsel for defendant No. 1 contended that since the plaintiff had filed the suit on the basis of sale deed, executed by defendant No. 2 in his favour and had sought possession over that property from defendant No. 1, it was open to the latter to show that plaintiff had no title to the property in suit and, therefore, the suit was liable to be dismissed. It was contended that in his capacity as a defendant in the suit, it was open to defendant No. 1 to raise all the pleas on the basis of which the suit could be defeated. {Para 18}

19. In Lal Achal Ram v. Raja Kazim Hussain Khan (1905) 32 IA 113, the Privy Council laid down the principle that a stranger to a sale deed cannot dispute payment of consideration or its adequacy. This decision has since been considered by various High Courts and a distinction has been drawn between a deed which was intended to be real or operative between the parties and a deed which is fictitious in character and was never designed as a genuine document to effect transfer of title. In such a situation, it would be open even to a stranger to impeach the deed as void and invalid on all possible grounds. This was also laid down in Kamini Kumar Deb v. Durga Charan Nag and Ors. AIR (1923) Cal. 521 and again in Saradindu Mukherjee v. S.M. Kunja Katnini Roy and Ors. MANU/WB/0159/1942 : AIR1942Cal514 . The Patna High Court in Jugal Kishore Tiwari and Anr. v. Umesh Chandra Tiwari and Ors. MANU/BH/0116/1973 : AIR1973Pat352 and the Orissa High Court in Sanatan Mohapatra and Ors. v. Hakim Mohammad Kazim Mohammad and Ors. MANU/OR/0061/1977 : AIR1977Ori194 have also taken the same view.

20. The above decisions appear to be based on the principle that a person in his capacity as a defendant can raise any legitimate plea available to him under law to defeat the suit of the plaintiff. This would also include the plea that the sale deed by which title to the property was intended to be conveyed to plaintiff was void or fictitious or, for that matter, collusive and not intended to be acted upon. Thus, the whole question would depend upon the pleadings of the parties, the nature of the suit, the nature of the deed, the evidence led by the parties in the suit and other attending circumstances. For example, in a landlord-tenant matter where the landlord is possessed of many properties and cannot possibly seek eviction of his tenant for bona fide need from one of the properties, the landlord may ostensibly transfer that property to a person who is not possessed of any other property so that that person, namely, the transferee, may institute eviction proceedings on the ground of his genuine need and thus evict the tenant who could not have been otherwise evicted. In this situation, the deed by which the property was intended to be transferred, would be a collusive deed representing a sham transaction which was never intended to be acted upon. It would be open to the tenant in his capacity as defendant to assert, plead and prove that the deed was fictitious and collusive in nature. We, therefore, cannot subscribe to the view expressed by the Privy Council in the case of Lal Achal Ram (supra) in the broad terms in which it is expressed but do approve the law laid down by the Calcutta, Patna and Orissa High Courts as pointed out above.

IN THE SUPREME COURT OF INDIA

C.A. No. 1534 of 1999

Decided On: 17.03.1999

Vidhyadhar  Vs.  Manikrao and Ors.

Hon'ble Judges/Coram:

Saiyed Saghir Ahmad and D.P. Wadhwa, JJ.

Author: Saiyed Saghir Ahmad, J.

Citation: AIR 1999 SC 1441,MANU/SC/0172/1999

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When the relief of declaration is not barred by limitation?

  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 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 10th April 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.

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 16th November 2021 have no relevance at all. {Para 16}

Supreme Court

JUSTICE AJAY RASTOGI JUSTICE ABHAY S. OKA

KEWAL KRISHAN Vs. RAJESH KUMAR & ORS. ETC.

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When a party should not seek declaration that sale deed is void?

  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 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 10th April 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.

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 16th November 2021 have no relevance at all. {Para 16}

Supreme Court

JUSTICE AJAY RASTOGI JUSTICE ABHAY S. OKA

KEWAL KRISHAN Vs. RAJESH KUMAR & ORS. ETC.

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Whether third party would be entitled to challenge compromise decree passed in representative suit passed in violation of O 23 R 3-B of CPC?

 The decree is contended to be void for two reasons. Firstly, the compromise entered into in the representative suit without the leave of the court and without due notice and publication as required under Order XXIII Rule 3-B and Order I Rule 8(4) of CPC is void; secondly, in view of the violation of Sections 89 and 139 of the Kerala State Housing Board Act, the decree is void.

9. It is not in dispute that the suit was instituted by the plaintiffs in a representative capacity. The suit was decreed, as prayed for. in the compromise entered into pending appeal, the decree was accepted by the defendant and the plaintiffs gave up their right to recover costs, it is also not in dispute that prior to entering into the compromise, the leave of the court under Order XXIII Rule 3-B CPC was not obtained and the publication as required under Order I Rule 8(4) of CPC was not effected.

10. What is the effect of non-compliance of Order XXIII Rule 3-B and Order I Rule 8(4) of the CPC, on the decree in question? It would be appropriate to refer to Order XXIII Rule 3-B and order I Rule 8(4). The said provisions read thus:-

"3-B. No agreement or compromise to be entered in a representative suit without leave of Court.- (1) No agreement or compromise in a representative suit shall be entered into without the leave of the Court expressly recorded in the proceedings; and any such agreement or compromise entered into without the leave of the Court so recorded shall be void."

"8(4) (4) No part of the claim in any such suit shall be abandoned under sub-rule (1). and no such suit shall be withdrawn under sub-rule (3). of rule 1 of Order XXIII. and no agreement, compromise or satisfaction shall be recorded in any such suit under rule 3 of that Order, unless the Court has given, at the plaintiffs expense, notice to all persons so interested in the manner specified in sub-rule (2)."

A plain reading of the provisions indicate that the provisions regarding leave and notice, are mandatory in character. In Mohammed v. Avarankutty Haji [1996 (1) KLT 474], relying on the judgment of the Apex Court in Charan Lai Sabhu v. Union of India (MANU/SC/0285/1990 : AIR 1990 SC 1480), it was held that, violation of Order XXIII Rule 3-B and Order I Rule 8(4) of the CPC makes the order void.

11. Then the question would be, is the defendant who suffered a decree in terms of the plaint, entitled to take shelter under the said provisions and contend that the decree is void? To whom would such a plea be available?

12. It is to be noticed that the defendant was impleaded in the suit in his individual capacity and it was the plaintiff who filed the suit in a representative capacity. Under Order I Rule 8 CPC, one person may sue or be sued on behalf of numerous persons having the same interest. As per Order I Rule 8(6) CPC, a decree passed in such a suit binds all persons on whose behalf the suit is instituted or on whose behalf the suit is defended, as the case may be.

13. The trial court decreed the suit, as prayed. The decree was literally accepted in the compromise, and no prejudice was caused to the plaintiffs or the numerous persons whose interests they purported to represent in the suit.

14. The very purpose of requiring leave of the court to enter into a compromise and also effecting publication in terms of Order I Rule 8(4) CPC is to ensure that the persons who represent the interests of others, does not enter into a compromise defeating, prejudicing or affecting the interests of the third parties whose interests also they represent. As noticed supra, the decree binds them also. So, if a compromise is entered into and decree passed in violation of Order XXIII Rule 3-B and Order I Rule 8(4), the decree shall be void in so far as they are concerned- They will not be bound by the decree. However the eo-nominee parties to the compromise should be held by the same. The plea that the decree passed on compromise is void for violation of Order XXIII Rule 3-B and Order I Rule 8(4) shall be open only for the persons whose interests were represented by the plaintiff or the defendant in the suit, as the case may be. in other words, the decree on compromise without conforming to the provisions of Order XXIII Rule 3-B and Order I Rule 8(4) will be void only as against persons who interests the plaintiff or the defendant, as the case may be, sought to represent. Such a plea would not be available to the persons who entered into the compromise. The provisions are to be so read and understood. Any other interpretation would entail miscarriage of justice.

17. The construction of the procedural provisions, Order XXIII Rule 3-B and Order I Rule 8(4), as I have adopted, would only advance the cause of justice.

18. In the instant case, as noticed supra, no prejudice whatsoever has been caused to the persons whom the plaintiff represented. The decree would at best be void as against the interests of the persons whom the plaintiff represented and not as against the defendant who had contested and lost. Therefore, I hold that the plea that the decree is void for violation of Order XXIII Rule 3-B and Order I Rule 8(4) is not available to the defendant, on the facts of the case.

IN THE HIGH COURT OF KERALA AT ERNAKULAM

OP(C) No. 2075 of 2018

Decided On: 16.11.2018

Shibu Vs. Pradeep Kumar and Ors.

Hon'ble Judges/Coram:

Sathish Ninan, J.

Citation: AIR 2019(NOC) 98 Ker

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What is limitation for setting aside void sale deed by minor?

 There is a presumption that a registered document is validly executed. A registered document, therefore, prima facie would be valid in law. The onus of proof, thus, would be on a person who leads evidence to rebut the presumption. In the instant case, Respondent No. 1 has not been able to rebut the said presumption.

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.

IN THE SUPREME COURT OF INDIA

Civil Appeal No. 2412 of 2006 

Decided On: 02.05.2006

Prem Singh Vs. Birbal and Ors.

Hon'ble Judges/Coram:

S.B. Sinha and P.K. Balasubramanyan, JJ.

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Whether marriage performed when appeal period for filing appeal against Divorce is not expired is void?

Hindu Marriage Act, 1955-s. 15, scope of--Whether a marriage contracted, in contravention of or in violation of the proviso to s. 15 of the Act is void or merely invalid not affecting the core of marriage and the parties are subject to a binding the of wedlock flowing from the marriage.

An incapacity for second marriage for a certain period does not  have effect of treating the former marriage as subsisting. During the period of incapacity the parties cannot be said to be the spouses within the meaning of cl. (i), sub-s. (1) of s. 5. The 'spouse' has been understood to connote a husband or a wife which term itself postulates a subsisting marriage. The 'spouse' in sub-section (1) of s. 5 cannot be interpreted to mean a former spouse because even after the divorce when a second marriage is contracted if the former spouse is living that would not Prohibit the parties from contracting the marriage within the meaning of (cl) (i), sub-s. (1) of s. 5 by its very context would not include within its meaning the expression 'former spouse'.Undoubtedly, the proviso opens with a prohibition that "It shall  not be lawful" etc. It is not an absolute prohibition violation of which would render the Act a nullity. A person. whose marriage is dissolved by a decree of divorce suffers an incapacity for a period of one year for contracting second marriage. For such a person it shall not be lawful to contract a second marriage within a period of one year from the date of the decree of the Court of first instance. While granting a decree for divorce, the law interdicts and prohibits marriage for a period of one year from the date of the decree of divorce. The inhibition for a period does not indicate that such marriage would be void. While there is a disability for a time suffered by a party from contracting marriage, every such disability does not render the marriage void.

IN THE SUPREME COURT OF INDIA

Civil Appeals Nos. 2585 and 2590 of 1969

Decided On: 04.05.1978

Lila Gupta  Vs. Laxmi Narain and Ors.

Hon'ble Judges/Coram:

Y.V. Chandrachud, C.J., D.A. Desai and R.S. Pathak, JJ.

Equivalent citations: 1978 AIR 1351, 1978 SCR (3) 922

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Whether lease agreement will become void if it is not registered?

 The learned Counsel then submits that the agreement is required to be compulsorily registered by virtue of provisions of Section 55 of the Act. He contends that since the agreement is not registered the tenancy is void. The argument has no force. If the tenancy is created after coming into force of the Act, it will require registration. The Section does not say that tenancy shall become void. Non registration may at the most invite penalty and lease cannot become void.

IN THE HIGH COURT OF BOMBAY (NAGPUR BENCH)

Writ Petition Nos. 4027, 4028 and 4029 of 2008

Decided On: 17.07.2009

 Janabai Govindrao Korche  Vs. Women's Education Society and Ors.

Hon'ble Judges/Coram:

C.L. Pangarkar, J.

Citation: 2009(5) ALLMR 926

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How to ascertain limitation for cancellation of document executed due to force or fraud?

 In law, once documents are alleged by the appellant/plaintiff to be forged and fabricated documents, such a plea would ordinarily include challenge to the documents on the ground that the contents of the documents are not known to the appellant/plaintiff. Once the contents of the documents are not known, then the period of limitation can only start against the appellant/plaintiff to question the documents when the contents of the documents are known to her. This is clarified by the Hon'ble Supreme

Court in the judgment in the case of Prem Singh and Others v. Birbal and Others (2006) 5 SCC 353 that a voidable document is a document which is sought to be cancelled under Article 59 of the Limitation Act whereas a void document need not be cancelled. It has also been held by the Hon'ble Supreme Court in the case of Mohd. Noorul Hoda v. Bibi Raifunnisa and Others (1996) 7 SCC 767 that the starting point of limitation under Article 59 of the Limitation Act is the knowledge of the alleged fraud. The relevant paragraph of this judgment is para 6 and this para 6 reads as under:-
“6. The question, therefore, is as to whether Article 59 or Article 113 of the Schedule to the Act is applicable to the facts in this case. Article 59 of the Schedule to the Limitation Act, 1908 had provided inter alia for suits to set aside decree obtained by fraud. There was no specific article to set aside a decree on any other ground. In such a case, the residuary Article 120 in Schedule III was attracted. The present Article 59 of the Schedule to the Act will govern any suit to set aside a decree either on fraud or any other ground. Therefore, Article 59 would be applicable to any suit to set aside a decree either on fraud or any other ground. It is true that Article 59 would be applicable if a person affected is a party to a decree or an instrument or a contract. There is no dispute that Article 59 would apply to set aside the instrument, decree or contract between the inter se parties. The question is whether in case of person claiming title through the party to the decree or instrument or having knowledge of the instrument or decree or contract and seeking to avoid the decree by a specific declaration, whether Article 59 gets attracted? As stated earlier, Article 59 is a general provision. In a suit to set aside or cancel an instrument, a contract or a decree on the ground of fraud, Article 59 is attracted. The starting point of limitation is the date of knowledge of the alleged fraud. When the plaintiff seeks to establish his title to the property which cannot

be established without avoiding the decree or an instrument that stands as an insurmountable obstacle in his way which otherwise binds him, though not a party, the plaintiff necessarily has to seek a declaration and have that decree, instrument or contract cancelled or set aside or rescinded. Section 31 of the Specific Relief Act, 1963 regulates suits for cancellation of an instrument which lays down that any person against whom a written instrument is void or voidable and who has a reasonable apprehension that such instrument, if left outstanding, may cause him serious injury, can sue to have it adjudged void or voidable and the court may in its discretion so adjudge it and order it to be delivered or cancelled. It would thus be clear that the word „person‟ in Section 31 of the Specific Relief Act is wide enough to encompass a person seeking derivative title from his seller. It would, therefore, be clear that if he seeks avoidance of the instrument, decree or contract and seeks a declaration to have the decrees set aside or cancelled he is necessarily bound to lay the suit within three years from the date when the facts entitling the plaintiff to have the decree set aside, first became known to him.”
 IN THE HIGH COURT OF DELHI AT NEW DELHI
RFA No. 332/2018
Dated: 11th October, 2018 

ANITA RANI MANGLA  Vs BHAGWAT DAYAL 

 CORAM:  MR. JUSTICE VALMIKI J.MEHTA 

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When maintenance tribunal should declare transfer of property void?

The Petitioner is placing implicit reliance on the MOU

which does not have any probative value taking into consideration the

circumstances, in which it was executed.  The Act of 2007 confers on

the   maintenance   tribunal   express   power   to   declare   a   transfer   of

property void at the option of the transferor.  Under section 23 of the

said Act, it is to be presumed  that the intent of the legislature is to

empower the maintenance tribunal to pass effective and meaningful

orders including   consequential directions to give effect to the said

order.  The Act empowers  the tribunal to grant speedy  consequential

relief.  In the present case, although the interim relief was vacated,

the   Petitioner   and   Respondent   No.3   has   continued   to   harass   the

parents   and   therefore,   it   is   necessary   to   evict   the   Petitioner   and

Respondent No. 3 from the said bungalow i.e. i.e.  Girnar Bungalow,

Plot No. 59, Sector No. 27/A, Pradhikaran, Nigadi, District Pune. 

43 It is in these circumstances that the Writ Petition being

sans merits stands dismissed on the following terms:

(i) The Order passed by the Learned Sub­Divisional Officer,

Pune   in   Criminal/SR/2/2015   and   confirmed   by   the   learned

Additional Collector, Pune in Appeal No. 2 of 2016, Pune is

hereby  maintained.

(ii) The   Petitioner   and   the   Respondent   No.   3   to   pay   Rs.

2,000/­ each to the parents/Respondent Nos. 1 and 2 from 1st

August, 2017.  

(iii) The   Petitioner   and   the   Respondent   No.   3   are   further

directed     to   vacate   the   premises   of   bungalow   i.e.     Girnar

Bungalow, Plot No. 59, Sector No. 27/A, Pradhikaran, Nigadi,

District Pune within two weeks from the date of  passing of this

order.  

(iv) In the eventuality  that the Petitioner and Respondent No.

3  do not vacate the premises of above bungalow voluntarily the

Respondent Nos. 1 and 2 are at liberty to seek   police aid to

execute the present order.  

(v) The Petitioner to pay cost   of Rs. 25,000/­ towards the

cost of litigation to the Respondent Nos. 1 and 2 jointly within 2

weeks from today.   The amount to be deposited before the

Tribunal, Pune constituted under the Maintenance and Welfare

of Parents and Senior Citizens Act, 2007, which shall not be

included in the maintenance amount.

(vi) The Tribunal at Pune is hereby directed to implement and

execute   the   Order   dated   20/2/2016   passed   by   the   Sub

Divisional   Officer,   Pune   in   Criminal/SR/2/2015   within   two

weeks from today.

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

CRIMINAL APPELLATE  JURISDICTION

CRIMINAL WRIT PETITION NO. 1791  OF 2016

Shri Santosh Surendra Patil.  V Shri Surendra Narasgopnda Patil & ors. ..

­­­

CORAM :  SMT.SADHANA S. JADHAV,J

     

 PRONOUNCED ON : JUNE 23, 2017

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Whether order passed without jurisdiction will merge with orders passed by higher authority?

 It is required to be noted that the transfer and conversion of land from agricultural to non-agricultural is regulated by the GR dated 08/09/1983. The said GR can be said to be supplemental to the Maharashtra Land Revenue Code and provides the mechanism as to how an application for transfer and conversion of agricultural land is to be dealt with. The said GR postulates that the transfer and conversion can be permitted on the terms and conditions which are mentioned in the GR. One of the conditions mentioned is that the transferee would continue to hold the land as Occupant Class II. The said GR does not envisage the conversion of the Occupancy Class II to Occupancy Class I. Once that be so, any order passed by the authority exercising powers under the Maharashtra Land Revenue Code directing conversion of Occupancy Class II to Occupancy Class I would be in breach and violation of the said GR. This has precisely happened in the instant case as the Secy. & OSD has exceeded his jurisdiction in directing the conversion of land from Occupancy Class II to Occupancy Class I albeit on payment of 25% nazarana. Once the order can be said to have been passed without jurisdiction, even if the said order was to merge in the orders passed by the higher Courts then such an order would be of no avail to the party who seeks to reap its benefit as it is well settled by the judgments of the High Courts that there is no question of merger of the order passed by the original authority which is void on account of infirmity for want of jurisdiction. It has been held that the doctrine of merger has no application in so far as an illegal order is concerned.

IN THE HIGH COURT OF BOMBAY

Writ Petition No. 6747 of 2016

Decided On: 10.01.2017

 Niketan Land and Estate Pvt. Ltd.

Vs.

State of Maharashtra and Ors.

Hon'ble Judges/Coram:

R.M. Savant, J.

Citation: 2017(2) ALLMR 222

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Whether sale in violation of order of court is liable to be set aside?

This Court further held that it is not open either a party to the lis or to any third party to determine at their own that an order passed by a Court is valid or void. A party to the lis or the third party who considers an order passed by a court as voidable or non est, must approach the court of competent jurisdiction to have the said order set- aside on such grounds, as may be available in law. This Court held that the order of the Company Court of Madras High Court was to be complied with and sale held in violation of the said order was to be set aside.

Supreme Court of India

Robust Hotels(P) Ltd.& Ors vs E.I.H Limited & Ors on 7 December, 2016

Bench: Pinaki Chandra Ghose, Ashok Bhushan

Citation:(2017)1 SCC 622

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Whether woman whose marriage is declared as void can claim maintenance under Domestic violence Act?

In the instant case, petitioner alleged physical and mental
torture upon her by opposite party no. 1 during continuation of
their marital relationship. She also alleged that opposite party no.
1 kept her ‘Stridhana’ property with him and she was not provided
maintenance for herself and her child by the opposite party
although the petitioner is unable to maintain herself and her child.
Since her marital relation with opposite party no. 1 has been
declared a nullity with effect from 23.04.2012, her right to claim
maintenance from opposite party no. 1 may not be proper under
Section 125 of the Cr.P.C. But she cannot be debarred from
seeking reliefs against the opposite party no. 1 ventilating her
grievances against opposite party no. 1 who is engaged in legal
profession as an advocate. In my opinion, the P.W.D.V. Act is the
proper enactment for her redress. In this regard the latin maxim,
“Ubi jus ibi remedium” (wherever there is a right there is a
remedy) may be mentioned.
 IN THE HIGH COURT AT CALCUTTA
 CRIMINAL REVISIONAL JURISDICTION
Appellate Side
Present :
THE HON’BLE JUSTICE SANKAR ACHARYYA
 C.R.R. No. 3963 of 2013
 In the matter of :
Priti Dey (Chandra)
Vs.
Subhasish Dey & Anr.

Judgment on : 06.04.2016
Citation: 2016 CRLJ4329

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Leading Judgment on cancellation of deed and declaration that deed is void and voidable

  Section 31 of the Act (corresponding to Sec.39 of the Specific

Relief Act, 1877 - for short, "the old Act") states:



                      "31.    When cancellation may be ordered:-



               (1) Any person against whom a written instrument is

               void   or    voidable,        and       who        has reasonable

               apprehension that such instrument, if left outstanding

               may cause him serious injury, may sue to have it

               adjudged void or voidable; and the court may, in its

               discretion, so adjudge it and order it to be delivered

               up and cancelled.



                      (2)     ...................................."



It is clear from Sub-sec.(1) of Sec.31 of the Act that to enable the appellant get

Ext.B1 cancelled, it must be shown that the said instrument is void or voidable as

against her and the appellant has a reasonable apprehension that if Ext.B1 is

left outstanding, it may cause her serious injury.



        14.    It is said that most part of Sec.39 of the old Act (corresponding to

Sec.31 of the Act) was borrowed from Articles 1906 and 1908 of the Draft New

York Civil Code. The provision for cancellation of a written instrument is based

upon the administration of protective justice for fear that the instrument may be



vexatiously or injuriously used by one against another when the evidence to

challenge such written instrument may be lost or that it may throw a cloud or

suspicion over his title or interest.



      15.     Story, in Equity Jurisprudence (English Edition), 1920 in Article

694 states:



                    "In the first place, then, let us consider in which

             cases, court will direct the delivery up, cancellation or

             rescission of agreements, securities, deeds or other

             instruments. It is obvious that the jurisdiction

             exercised in cases of this sort, is founded upon the

             administration of a protective or preventive justice. If,

             therefore, the instrument was void for matter apparent

             upon the face of it, there was no call to exercise the

             jurisdiction, with the possible exception of instruments

             forming a cloud upon the title to land. The party is

             relieved upon the principle, as it is technically called

             quia timet: that is, for fear that such agreement,

             securities, deeds, or other instruments may be

             vexatiously or injuriously used against him when the

             evidence to impeach them may be lost; or that they

             may now through a cloud or suspicion over his title or

             interest."



      16.     Referring to Chapter V of the Old Act, Whitely Stoks states in

Anglo-Indian Code (Vol.I) at page 934:



                     "Chapter V declares that any person against

              whom a written instrument is void or voidable, who

              has reasonable apprehension that if left outstanding it

              may cause him serious injury, may obtain an

              adjudication that it is void or voidable and an order

              that it be delivered up and cancelled.       The relief

              extends    to a forged instrument, and also to one

              originally valid but which has subsequently forged.

              The Chapter applies to cases not unfrequent in India,

              where a party gets possession of document on which

              he might not indeed be able to found a claim in a

              court of justice but which might give him such prima

              facie right against the other as would expose him to

              vexatious demands and litigation."



      17.     The Bombay High Court, in Jeka Dula v. Bai Jivi and others

(AIR 1938 Bombay         37) laid down the      following three conditions for the

application of Sec.39 of the old Act (Sec.31 of the Act):



                     "i.     The written instrument is either void or

              voidable as against the plaintiff.



                     ii.      The plaintiff may reasonably apprehend

              serious    injury     from  the    instrument  being   left

              outstanding.



                     iii.     In view of all the circumstances of the

              case the court considers it reasonable and proper to

              administer the protective and preventive justice asked

              for."



      18.     A Full Bench of the Madras High Court considered the scope of

Sec.39 of the old Act (Sec.31 of the Act)                 in Muppudathi Pillai v.

Krishnaswami Pillai (AIR 1960 Madras 1) and held at page 4 as under:



                     "........... It stands to reason that the executant

              of the document should be either the plaintiff or a

              person who can in certain circumstances bind him. It

              is only then it could be said that the instrument is

              voidable by or void against him. The second aspect of

              the matter emphasises that principle. For there can

              be no apprehension if a mere third party, asserting a

              hostile title creates a document. Thus relief under

              Sec.39 would be granted only in respect of an

              instrument likely to affect the title of the plaintiff and

              not of an instrument executed by a stranger to that

              title."



The Full Bench       illustrated that when a trespasser purports to convey the

property in his own right and not in the right of the owners, the remedy of

cancellation of such an instrument cannot be granted because such a relief

would not remove the cloud upon his title by the instrument and the proper

remedy is to seek a declaration of the plaintiff's own title or a declaration that the

sale deed is not binding or valid against the plaintiff. Thus, when a document is

not executed by the plaintiff or by a person who can in any circumstance bind

him, that document cannot create a cloud upon the title of the true owner, nor

does it create apprehension that it may be a source of danger to him.



      19.     It is only in the case of instruments which are either executed by a

party or purports to have been executed by a party or by a person who can

under certain circumstances bind him that the relief under Sec.31 of the Act can

be claimed in law because in such cases only, could it be said that "there is a

cloud on his title and an apprehension that if the instrument is left outstanding, it

may be a source of danger."          To illustrate, a party who has executed the

document, or a principal in respect of a document executed by his agent or a

minor in respect of a document executed by his guardian, etc., could under

Sec.31 of the Act request the court to deliver up and cancel the document. A

person who neither has executed the document, nor is bound in any

circumstance by the person who executed the document could not seek relief

under Sec.31 of the Act as the document is neither void nor voidable against him

and as such document even if left outstanding is not capable of causing any


injury to him. The remedy of such person, if he thinks that the document may

create a cloud on his own title is to seek a declaration of his own title or that the

impugned document does not affect his title.
 In the present case appellant is not a party to Ext.B1. Nor is the

appellant bound under any circumstance by the person who has executed

Ext.B1. Exhibit B1 is executed by the 2nd respondent acting as power of attorney

holder of the 3rd respondent.    In the circumstances Ext.B1, assignment deed is

neither void nor is voidable against the appellant and hence she could not seek

relief under Sec.31 of the Act. If the appellant thinks that Ext.B1 might create a

cloud on the title she has claimed, her remedy was to sue for declaration of the

title she claims or that Ext.B1 does not affect the titled she claims.

IN THE HIGH COURT OF KERALA AT ERNAKULAM

                                                        PRESENT:

                           MR.JUSTICE THOMAS P.JOSEPH

                    WEDNESDAY, THE 6TH DAY OF JUNE 2012

                                         RSA.No. 1139 of 2010

   KAMALAKSHI AMMA, 
Vs
 Sangeetha    

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Whether any person can disobey order passed by court on ground that it was void?

The question is whether pending the decision in

respect of objection to the jurisdiction, no person can be

punished for flouting or disobeying the interim/interlocutory

orders while they were in force i.e for violations and

disobedience committed prior to the decision on the question

of jurisdiction ?

Held :- The nature and effect of an alienation made in

violation of an order of injunction was considered in

Tayabbhai M. Bagasarwalla v. Hind Rubber Industries (P)

Ltd.,(1997)3 SCC443 and the following propositions were laid

down:

Section 9-A(1) CPC says that if an objection is

raised to the jurisdiction of the court at the hearing of an

application for grant of, or for vacating, interim relief, the 10

court should determine that issue in the first instance as a

preliminary issue before granting or setting aside the relief

already granted. An application raising objection to the

jurisdiction to the court is directed to be heard with all

expedition. Sub-section (2), however, says that the command

in sub-section (1) does not preclude the court from granting

such interim relief as it may consider necessary pending the

decision on the question of jurisdiction. The provision merely

states the obvious. It makes explicit what is implicit in law.

Just because an objection to the jurisdiction is raised, the

court does not become helpless forthwith-nor does it become

incompetent to grant the interim relief. It can. At the same

time, it should also decide the objection to jurisdiction at the

earliest possible moment. This is the general principle and

this is what Section 9-A reiterates. For ex., the plaintiff asked

for temporary injunction. An ad interim injunction was

granted. Then the defendants came forward objecting to the

grant of injunction and also raising an objection to the

jurisdiction of the court. The court overruled the objection as

to jurisdiction and made the interim injunction absolute. The

defendants filed an appeal against the decision on the

question of jurisdiction. While that appeal was pending,

several other interim orders were passed both by the civil

court as well as by the High Court. Ultimately, no doubt, the

High Court has found that the civil court had no jurisdiction

to entertain the suit but all this took about six years. Can it be

said that orders passed by the civil court and the High Court

during this period of six years were all non est and that it is

open to the defendants to flout them merrily, without fear of 

any consequence. Admittedly, this could not be done until the

High Court's decision on the question of jurisdiction. The

question is whether the said decision of the High Court

means that no person can be punished for flouting or

disobeying the interim/interlocutory orders while they were in

force i.e for violations and disobedience committed prior to

the decision of the High Court on the question of

jurisdiction ? Holding that by virtue of the said decision of the

High Court (on the question of jurisdiction), no one can be

punished thereafter for disobedience or violation of the

interim orders committed prior to the said decision of the

High Court, would indeed be subversive of the rule of law and

would seriously erode the dignity and the authority of the

courts. We must repeat that this is not even a case where a

suit was filed in the wrong court knowingly or only with a

view to snatch an interim order. As pointed out hereinabove,

the suit was filed in the civil court bona fide. We are of the

opinion that in such a case, the defendants cannot escape the

consequences of their disobedience and violation of the

interim injunction committed by them prior to the High

Court's decision on the question of jurisdiction.

 Learned senior counsel for the

respondents, placed reliance on Krishnadevi Malchand Kamathia v. Bombay

Environmental Action Group (2011) 3 SCC 363,

 and placed reliance on the following

conclusions drawn therein:

“16. It is a settled legal proposition that even if an order is void, it

requires to be so declared by a competent forum and it is not

permissible for any person to ignore the same merely because in his

opinion the order is void.

Reportable

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NOS. 6042-6048 OF 2011

Anita International Vs Tungabadra Sugar Works Mazdoor Sangh –

and others 

Dated:July 04, 2016.

Citation:2016 SCC OnLine SC 655,

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When suit for declaration that documents are void will be barred by limitation?

 As far as prayer (f) is concerned, plaintiff seeks declaration that all the

acts of defendant No.1 or the documents executed by him in favour of defendant

Nos.2 and 3 are void, illegal and unlawful.   Prayer   (g) is for an order and

direction against the defendants to deliver the deed of assignment dated 28th

January 2005 and deed of conveyance dated 27th  January 1992 between Mrs

Noel Pereira and Mr Yusuf Ahmed and Conveyance Deed dated 27th  January

2007 executed between Yusuf Ahmed and defendant No.3 to this Court.  Prayer

(h) is for cancellation of those documents under the direction and supervision of

this Court.   For seeking declaration in terms of prayer (f) Article 58 would be

applicable.  All the three documents referred to aforesaid were executed prior to

three years before the date of filing suit.  Prayer (f) for declaration is thus on the

face of  it barred by law of limitation. For delivery of documents sought in prayer

(g), in my view Article 113 would be applicable.  On perusal of oral evidence and

the documentary evidence, it is clear that right to sue accrued to the plaintiff

much prior to three years before filing of this suit.    Plaintiff was fully aware of

these documents.  Both the deeds of conveyance are registered documents which

amounts to constructive notice.  Prayer (g) is thus, barred by law of limitation.

For the reasons recorded in respect of prayer (g),  prayer (h) which is also for

cancellation of documents is also barred by law of limitation.    IN THE HIGH COURT OF JUDICATURE AT BOMBAY

 ORDINARY ORIGINAL CIVIL JURISDICTION 

SUIT NO. 808 OF 2011

Naresh Lachmandas Aswani  

Vs

  Haridas alias Hardas Lachmandas

     

     CORAM : R.D. DHANUKA, J.

    

    Dated : 18th OCTOBER, 2013

Citation: 2016(4) ALLMR 286

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What is distinction between void or voidable?

 The distinction between void or voidable is summarized as follows:

"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:

"Behind the 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."

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."

 In Words and Phrases by Justice R.P. Sethi the expression `void' and `'voidable' read as under:

"Void- Black's 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) SCC 756).

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; ineffectual;

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).

The expression "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;

Dhurandhar Prasad 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.

The word "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).

"Voidable 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  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)". 

REPORTABLE

Supreme Court of India

Baljinder Singh vs Rattan Singh on 5 August, 2008

Bench: Arijit Pasayat, Tarun Chatterjee

    CIVIL APPEAL NO. 598 OF 2005

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