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 

Print Page

Whether one coparcener can transfer his share in property by way of gift without consent of other coparcener?

  So far the gift deed is concerned, the defendants claimed
that the gift deed was executed by Laldas in their favour in May, 1971
and then he died in June, 1971. On the contrary, plaintiff’s case is that 
Laldas died in the month of May, 1971. It may be mentioned here that
the defendants have not claimed any counter claim for declaration of
the gift deed as valid. No issue was framed on this question but the
trial court recorded a finding that gift deed is a valid, legal and
genuine document. I have already held above that there had been no
partition between the parties and there is unity of title and possession,
so, the coparcener cannot transfer by way of gift his share without the
consent of other coparcener.
 (26) The Hon’ble Supreme Court in AIR 1987 Supreme
Court 1775 has held that gift by a coparcener of undivided share is a
void transaction. Since there was unity of title and possession between
the parties and there had been no partition, the so called gift deed,
even if executed by Laldas, is a void document and no valid title,
interest and possession will pass on the defendants.

IN THE HIGH COURT OF JUDICATURE AT PATNA
First Appeal No.250 of 1976

Sabitri Devi & Ors. V Sri Lakhan @ Ramjiwan Prasad & Ors.

CORAM:  MR. JUSTICE MUNGESHWAR SAHOO

Date: 06-02-2017
Citation: AIR 2017 Patna 85

Print Page