Supreme Court: Sale Of Minor's Property By Guardian Can Be Avoided Only By Filing Suit To Set Aside Deed Within Period as mentioned Under Art.60 of Limitation Act

  We may notice one more judgment of this Court

relied on by the learned counsel for the appellants

that is G. Annamalai Pillai vs. District Revenue

Officer and others, (1993) 2 SCC 402. The question

which arose for consideration in the said case has

been noticed in paragraph 1 of the judgment in

following words:

“1. The short question for consideration in

this appeal is whether lease deed in dispute, which

was voidable in terms of Section 8(3) of the Hindu

Minority and Guardianship Act, 1956 (the Act) when

validly avoided, was effective from the date of the

lease deed so as to make the transaction void and

unenforceable from the very inception.” {Para 32}

33. The land in dispute was owned by one Janarthanan.

His father, Purushothaman executed a registered lease

deed in favour of appellant on 12.12.1971 on which

date the owner was minor. The appellant filed

application before Tehsildar to be registered as a

tenant which was contested by Janarthanan.

Janarthanan contended that his father has no right or

title to deal with land and lease by his father is in

contravention of Section 8 of Hindu Minority and

Guardianship Act, 1956. Tehsildar held that there was

no valid lease which order was confirmed by the High

Court against which judgment appeal was filed. In

paragraphs 5 and 6 following has been laid down:

“5. We have heard learned counsel for the

parties. We have been taken through the

orders of the Revenue authorities, judgment

of the learned Single Judge and of the

Division Bench of the High Court in writ

appeal. The Division Bench of the High

Court, in a lucid judgment, answered the

question — posed by us in the beginning —

in the affirmative and against the

appellant-Annamalai Pillai on the following

reasoning:

“We have already seen that clause (3) of

Section 8 of the Hindu Minority and

Guardianship Act, 1956, specifically makes

the transaction voidable. The lease

executed by the guardian in this case is

prohibited and in that sense it was

without any authority. On the legal

efficacy and the distinction between

valid, void and voidable agreements, we

find the following passage in Salmond on

Jurisprudence, Twelfth Edition at page

341:

‘… A valid agreement is one which is

fully operative in accordance with the

intent of the parties. A void agreement

is one which entirely fails to receive

legal recognition or sanction, the

declared will of the parties being

wholly destitute of legal efficacy. A

voidable agreement stands midway

between these two cases. It is not a

nullity, but its operation is

conditional and not absolute. By reason

of some defect in its origin it is

liable to be destroyed or cancelled at

the option of one of the parties to it.

On the exercise of this power the

agreement not only ceases to have any

efficacy, but is deemed to have been

void ab initio. The avoidance of it

relates back to the making of it. The

hypothetical or contingent efficacy

which has hitherto been attributed to

it wholly disappears, as if it had

never existed. In other words, a

voidable agreement is one which is void

or valid at the election of one of the

parties to it.’

This distinction has also been

judicially noticed in the Privy Council

judgment reported in Satgur Prasad v.

Harnarain Das and in the Division Bench

judgment in S.N.R. Sundara Rao and Sons,

Madurai v. CIT. The Division Bench held,

following the said Privy Council judgment as

follows:

‘When a person, who is entitled to

dissent from the alienation, does so, his

dissent is in relation to the transaction

as such and not merely to the possession

of the alienee on the date of such

dissent.

The effect of the evidence is,

therefore, to get rid of the transaction

with the result that in law it is as if

the transaction had never taken place.’

We have, therefore, no doubt that when the

fifth respondent avoided the lease executed

by his father, the fourth respondent, the

lease became void from its inception and no

statutory rights, could, therefore, accrue

in favour of the appellant herein.”

6. We agree with the reasoning and the

conclusions reached by the Division Bench

of the High Court and as such this appeal

has to be dismissed.”

34. Learned counsel for the appellants relying on the

above decision contends that sale by Balaraman when

has been avoided by release deed it became void from

the very beginning. There can be no quarrel to the

proposition laid down in G. Annamalai Pillai vs.

District Revenue Officer and others(supra). In the

present case there having been no repudiation of sale

deed on behalf of minor, the question of voidable

sale deed becoming void does not arise.

35. We are, thus, of the considered opinion that in

the present case it was necessary for the person

claiming through minor to bring an action within a

period of three years from the date of the death of

the minor to get sale deed executed by Balaraman set

aside. We, thus, conclude that the sale deeds

executed by Balaraman were not repudiated or avoided

within the period of limitation as prescribed by law.

Issue No.3 is answered accordingly.

36. In view of the foregoing discussions, we do not

find any merit in this appeal. The appeal is

dismissed accordingly.

REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO.1782 OF 2019

MURUGAN & ORS. Vs. KESAVA GOUNDER (DEAD)

THR. LRS. AND ORS.

Author: ASHOK BHUSHAN, J.

Dated: February 25, 2019.

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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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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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How to ascertain that time was essence of contract in suit for specific performance of contract?

 Another accept is to be considered in the present case is that where time is the essence of the contract, failure to stick to the time disentitles the defaulter to seek specific performance. However, the question whether time is the essence of the contract has to be decided not only with reference to the terms of the contract but also with reference to the conduct of the parties and the facts and circumstances of the case. Thus, where time is the essence of the contract is an inference from proved facts and is therefore a question of law. (Sriram Cotton Pressing Factory v. Narayanasamy, MANU/TN/0270/1965 : AIR 1965 Mad 352). Where a contract relates to sale of an immovable property, it will normally be presumed that time is not the essence of the contract. As held by the Supreme Court in the case of Gomathinayagam Pillai v. Palanisamy Nadar, MANU/SC/0067/1966 : AIR 1967 SC 868, where the fixation of period within which the contract has to be performed does not make a stipulation as to time as the essence of the contract.

whether time is essence of the contract, the said section reads as under:

"55. When a party to a contract promises to do a certain thing at or before a specified time, or certain things at or before specified times, and fails to do any such thing at or before the specified time, the contract, or so much of it as has not been performed, becomes voidable at the option of the promisee, if the intention of the parties was that time should be of essence of the contract.
If it was not the intention of the parties that time should be of the essence of the contract, the contract does not become voidable by the failure to do such thing at or before the specified time; but the promisee is entitled to compensation from the promisor for any loss occasioned to him by such failure.
If, in case of a contract voidable on account of the promisor's failure to perform his promise at the time agreed, the promisee accepts performance of such promise at any time other than agreed, the promisee cannot claim compensation for any loss occasioned by the non-performance of the promise at the time agreed, unless, at the time of such acceptance he gives notice to the promisor of his intention to do so.

71. From perusal of above section, the position which emerges out is that the above section deals with the effect of failure to perform the promise at a fixed time, in contracts in which time is essential. The question whether time is the essence of the contract, with reference to the performance of a contract, what generally may arise for consideration either with reference to the contract as a whole or with reference to a particular term or condition of the contract which is breached. In a contract relating to sale of immovable property if time is specified for payment of the sale price but not in regard to the execution of the sale-deed, time will become the essence only with reference to payment of sale price but not in regard to execution of the sale-deed. Normally in regard to contracts relating to sale of immovable properties, time is not considered to be the essence of the contract unless such an intention can be gathered either from the express terms of the contract or impliedly from the intention of the parties as expressed by the terms of the contract.

72. The legal position on the point in issue is clear from the decision of a Constitution Bench of Hon'ble the Apex Court in the case of Chand Rani v. Kamal Rani, MANU/SC/0285/1993 : (1993) 1 SCC 519, held as under:

"It is a well-accepted principle that in the case of sale of immovable property, time is never regarded as the essence of the contract. In fact, there is a presumption against time being the essence of the contract. This principle is not in any way different from that obtainable in England. Under the law of equity which governs the rights of the parties in the case of specific performance of contract to sell real estate, law looks not at the letter but at the substance of the agreement. It has to be ascertained whether under the terms of the contract the parties named a specific time within which completion was to take place, really and in substance it was intended that it should be completed within a reasonable time. An intention to make time the essence of the contract must be expressed in unequivocal language."

73. Hon'ble the Apex Court in the case of N. Srinivasa v. Kuttukaran Machine Tools Ltd., MANU/SC/0265/2009 : (2009) 5 SCC 182, held that in the contract relating to immovable property, time cannot be the essence of the contract", the appellant put forth the contention that in all contracts relating to sale of immovable property, time stipulated for performance, even if expressed to be the essence, has to be read as not being the essence of the contract and consequently the contract does not become voidable by the failure to perform before the specified time. A careful reading of the said decision would show that the sentence relied on (occurring in para 31) apparently was not the statement of legal position, but a conclusion on facts regarding the contract that was being considered by the Court in that case, with reference to its terms. In fact the legal position is differently stated in para 27 of the said decision:

"In a contract for sale of immovable property, normally it is presumed that time is not the essence of the contract. Even if there is an express stipulation to that effect, the said presumption can be rebutted. It is well settled that to find out whether time was the essence of the contract, it is better to refer to the terms and conditions of the contract itself."

74. Taking into consideration the earlier judgment on the point in issue, Hon'ble the Apex Court in the case of Saradamani Kandappan v. S. Rajalakshmi and others, MANU/SC/0717/2011 : (2011) SCC 18, in para 26 held as under:

"Relying upon the earlier decisions of this Court in Gomathinayagam Pillai v. Palaniswami Nadar, MANU/SC/0067/1966 : AIR 1967 SC 868 and Govind Prasad Chaturvedi v. Hari Dutt Shastri, MANU/SC/0010/1977 : (1977) 2 SCC 539, held that fixation of the period within which the contract has to be performed does not make the stipulation as to time the essence of the contract. Where the contract relates to sale of immovable property, it will normally be presumed that the time is not the essence of the contract. Thereafter, this Court held that even if time is not the essence of the contract, the Court may infer that it is to be performed in a reasonable time: (i) from the express terms of the contract; (ii) from the nature of the property; and (iii) from the surrounding circumstances as, for example, the object of making the contract. The intention to treat time as the essence of the contract may however be evidenced by circumstances which are sufficiently strong to displace the normal presumption that time is not the essence in contract for sale of land."

75. Thus, from the above said facts, that time is presumed not to be of essence of the contract relating to immovable property, but it is of essence in contracts of re-conveyance or renewal of lease. The onus to plead and prove that time was the essence of the contract was on the person alleging it, thus giving an opportunity to the other side to adduce rebuttal evidence that time was not of essence. That when the plaintiff pleads that time was not of essence and the defendant does not deny it by evidence, the Court is bound to accept the plea of the plaintiff. In cases where notice is given making time of the essence, it is duty of the Court to examine the real intention of the party giving such notice by looking at the facts and circumstances of each case. That a vendor has no right to make time of the essence, unless he is ready and willing to proceed to completion and secondly, when the vendor purports to make time of the essence, the purchaser must be guilty of such gross default as to entitle the vendor to rescind the contract.

IN THE HIGH COURT OF ALLAHABAD (LUCKNOW BENCH)

First Appeal No. 39 of 1978

Decided On: 16.04.2014

Syed M.M. Rizvi  Vs. Subhash Singh

Hon'ble Judges/Coram:Anil Kumar, J.

Equivalent Citation: 2014(5)ADJ111, 2014 6 AWC5751All, 2014 124 RD679

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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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Leading Judgment of SC on removal of employee from service on ground of suppression of material information by them

The fraud and misrepresentation vitiates a transaction and in case
employment has been obtained on the basis of forged documents, as observed in
M. Bhaskaran’s case (supra), it has also been observed in the reference order that if
an appointment was procured fraudulently, the incumbent may be terminated
without holding any inquiry, however we add a rider that in case employee is
confirmed, holding a civil post and has protection of Article 311(2), due inquiry
has to be held before terminating the services. The case of obtaining appointment
on the basis of forged documents has the effect on very eligibility of incumbent for
the job in question, however, verification of antecedents is different aspect as to his
fitness otherwise for the post in question. The fraudulently obtained appointment
orders are voidable at the option of employer, however, question has to be
determined in the light of the discussion made in this order on impact of
suppression or submission of false information.
26. No doubt about it that verification of character and antecedents is one of the
important criteria to assess suitability and it is open to employer to adjudge
antecedents of the incumbent, but ultimate action should be based upon objective
criteria on due consideration of all relevant aspects.
27. Suppression of ‘material’ information presupposes that what is suppressed
that ‘matters’ not every technical or trivial matter. The employer has to act on due
consideration of rules/instructions if any in exercise of powers in order to cancel
candidature or for terminating the services of employee. Though a person who has
suppressed the material information cannot claim unfettered right for appointment
or continuity in service but he has a right not to be dealt with arbitrarily and
exercise of power has to be in reasonable manner with objectivity having due
regard to facts of cases.
28. What yardstick is to be applied has to depend upon the nature of post, higher
post would involve more rigorous criteria for all services, not only to uniformed
service. For lower posts which are not sensitive, nature of duties, impact of
suppression on suitability has to be considered by concerned authorities
considering post/nature of duties/services and power has to be exercised on due
consideration of various aspects.
29. The ‘McCarthyism’ is antithesis to constitutional goal, chance of
reformation has to be afforded to young offenders in suitable cases, interplay of
reformative theory cannot be ruled out in toto nor can be generally applied but is
one of the factors to be taken into consideration while exercising the power for
cancelling candidature or discharging an employee from service.
30. We have noticed various decisions and tried to explain and reconcile them as
far as possible. In view of aforesaid discussion, we summarize our conclusion thus:
(1) Information given to the employer by a candidate as to conviction,
acquittal or arrest, or pendency of a criminal case, whether before or after
entering into service must be true and there should be no suppression or
false mention of required information.
(2) While passing order of termination of services or cancellation of
candidature for giving false information, the employer may take notice of
special circumstances of the case, if any, while giving such information.
(3) The employer shall take into consideration the Government
orders/instructions/rules, applicable to the employee, at the time of taking
the decision.
(4) In case there is suppression or false information of involvement in a
criminal case where conviction or acquittal had already been recorded
before filling of the application/verification form and such fact later
comes to knowledge of employer, any of the following recourse
appropriate to the case may be adopted : -
(a) In a case trivial in nature in which conviction had been
recorded, such as shouting slogans at young age or for a petty
offence which if disclosed would not have rendered an
incumbent unfit for post in question, the employer may, in its
discretion, ignore such suppression of fact or false information
by condoning the lapse.
(b) Where conviction has been recorded in case which is not trivial
in nature, employer may cancel candidature or terminate
services of the employee. 
(c) If acquittal had already been recorded in a case involving moral
turpitude or offence of heinous/serious nature, on technical
ground and it is not a case of clean acquittal, or benefit of
reasonable doubt has been given, the employer may consider all
relevant facts available as to antecedents, and may take
appropriate decision as to the continuance of the employee.
(5) In a case where the employee has made declaration truthfully of a
concluded criminal case, the employer still has the right to consider
antecedents, and cannot be compelled to appoint the candidate.
(6) In case when fact has been truthfully declared in character verification
form regarding pendency of a criminal case of trivial nature, employer, in
facts and circumstances of the case, in its discretion may appoint the
candidate subject to decision of such case.
(7) In a case of deliberate suppression of fact with respect to multiple
pending cases such false information by itself will assume significance
and an employer may pass appropriate order cancelling candidature or
terminating services as appointment of a person against whom multiple
criminal cases were pending may not be proper.
(8) If criminal case was pending but not known to the candidate at the time
of filling the form, still it may have adverse impact and the appointing
authority would take decision after considering the seriousness of the
crime.
(9) In case the employee is confirmed in service, holding Departmental
enquiry would be necessary before passing order of termination/removal
or dismissal on the ground of suppression or submitting false information
in verification form.
(10) For determining suppression or false information attestation/verification
form has to be specific, not vague. Only such information which was
required to be specifically mentioned has to be disclosed. If information
not asked for but is relevant comes to knowledge of the employer the
same can be considered in an objective manner while addressing the
question of fitness. However, in such cases action cannot be taken on
basis of suppression or submitting false information as to a fact which
was not even asked for.
(11) Before a person is held guilty of suppressio veri or suggestio falsi,
knowledge of the fact must be attributable to him.
Reportable
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
SPECIAL LEAVE PETITIOIN [C] NO.20525/2011
Avtar Singh … Petitioner
Vs.
Union of India & Ors. … Respondents
[With SLP [C] Nos.4757/2014 and 24320/2014]
Dated:July 21, 2016.
ARUN MISHRA, J.

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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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Whether insurance companies can withhold admitted claim amount till insured gives receipt of full and final settlement?

The insurance companies cannot deny the payment of the
admitted claim amount to the insured unless a complete discharge is
given by the insured. The insistence of the insurance company to sign
a discharge voucher of full and final settlement before release of
admitted claim amounts to coercion and undue influence as defined in
Sections 15 and 16 of the Contract Act and such contracts are 
voidable under Section 19 and 19A of the Contract Act.
The withholding of the admitted amount by the insurance
companies unless complete discharge is given, amounts to deficiency
in service within the meaning of Section 2(1)(g) of the Consumer
Protection Act, 1986 as the insurance companies are not expected to
withhold the admitted claim amount till the insured gives the receipt
of full and final settlement.
IN THE HIGH COURT OF DELHI AT NEW DELHI
ARB.P. 459/2015
Date of Decision: 11th December, 2015
WORLDFA EXPORTS PVT.LTD

v
UNITED INDIA INSURANCE CO. LTD

CORAM:
HON'BLE MR. JUSTICE J.R. MIDHA
Dated;DECEMBER 11, 2015.

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If time is essence of contract, then non-performance within stipulated time makes contract as voidable at option of promisee

Equivalent Citation: AIR1995Ori207, 1995(I)OLR453

IN THE HIGH COURT OF ORISSA

First Appeal No. 60 of 1991

Decided On: 30.01.1995

Appellants: State of Orissa and Ors.
Vs.
Respondent: Durga Enterprisers, Jagatsingpur

Hon'ble Judges/Coram:
S.K. Mohanty, J.

Contract - Extension of Time - Subordinate Judge held that time was not essence of contract and thus, decreed Plaintiff's suit and directed Executive Engineer to receive shutters from Plaintiff on payment of price - Hence, this Appeal - Whether, time was essence of contract between Plaintiff and Executive Engineer - Held, it was cleared from purchase orders Exts. 1 to 5 that Executive Engineer was accepted Plaintiff's quotation and called upon him to supply shutters within 15 days and if failing offer of this order would automatically be treated as cancelled - Thus, it would be cleared that time was essence of contract for supply of shutters - However, merely sending of letters as in Exts. 6 and 7 by Plaintiff for extension of time would not be construed that time was in fact extended - Even, when Executive Engineer did not send any reply to Plaintiff before expiry of stipulated period - Therefore, without any further document of extension of time, it would not be held that time for performance of contract be extended - Hence, decree passed by Subordinate Judge was set aside - Appeal allowed. 

"If time is essence of contract, then non-performancewithin stipulated time makes contract as voidable at option of promisee."

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Disposal of minor's property for legal necessity by natural guardian whether voidable?

Hindu Minority and Guardianship Act, 1956 - Sections 6 and 8-The necessity for a natural guardian to obtain permission or sanction from the Court before alienating the minor's property will not be attracted so far as the minor's undivided interest in the joint family property is concerned.

Section 8(3) of the Act lays down that any disposal of immovable property by a natural guardian, in contravention of sub-section (1) or sub-section (2) is voidable at the instance of the minor or any person claiming under him. When Section 8 does not take within its ambit the minors undivided interest in the joint family property, Section 8(3) would not be applicable.

The recitals of legal necessity in a deed do not by themselves prove legal necessity. The recitals are, however, admissible in evidence, their value varying according to the circumstances in which the transaction was entered into. The recitals may be used to corroborate other evidence of the existence of legal necessity. The weight to be attached to the recitals varies according to the circumstance.

What the alienee is required to establish is legal necessity for the transaction and it is not necessary for him to show that every bit of the consideration which he advanced was actually applied for meeting family necessity. The reason is that the alienee can rarely have the means of controlling and directing the actual application of the money paid or advanced by him unless he enters into the management himself.

The natural guardian of a minor has the necessary competence to deal with even the separate property of the minor. Nonetheless the natural guardian remains a guardian of the minor in other senses also. Natural guardian who has a share in the property along with the minors' undivided interest in the property is legally competent to alienate the property as a whole, either in the capacity of the minor's guardian or as a Manager.

Karnataka High Court

A. Chidananda (Deceased) By L.Rs. ... vs Smt. Lalitha V. Naik And Ors. on 19 January, 2006

Equivalent citations: AIR 2006 Kant 128, 2006 (2) KarLJ 67,2006(3)KCCR1403

Bench: H G Ramesh

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What is distinction between void and voidable documents?

Having considered the submissions of the learned Counsel for the appellants, before deciding whether the suit, as framed, was barred by section 331of the U.P.Z.A. and L.R. Act, it would be useful to first examine the law with regards to the bar of section 331 on a suit relating to cancellation of an instrument. Ordinarily, cancellation of an instrument is sought by claiming it either to be void or voidable. In the case of Dhurandhar Prasad Singh v. Jai Prakash University MANU/SC/0381/2001 : 2001 (44) ALR 579 (SC), the Apex Court had the occasion to elucidate the expressions "void" and "voidable". In paragraph 22 of the report, it was observed by the Apex Court as follows: "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. 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 proceeding the transaction becomes void from the very beginning. Another type of void act may be which is not a nullity but for avoiding the same, a declaration has to be made. 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 and/or forged and fabricated, it is voidable as the apparent state of affairs is the real state of affairs and a party who alleges otherwise is obliged 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 a 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."
ALLAHAAD HIGH COURT
Case :- FIRST APPEAL FROM ORDER No. - 1461 of 2014 

 Ganga Prasad V Ram Das Alias Pappu 
Citation: 2014(6)ADJ677, 2014(4) ALJ 492., 2014 (105) ALR 429, 2014 5 AWC4508All, 2014 124 RD701
Order Date :- 14.5.2014 
Hon'ble Manoj Misra, J. 

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Distinction between lack of inherent jurisdiction and objection to territorial jurisdiction and pecuniary jurisdiction.

What is relevant in this context is the legal effect of the so-called finding in O.S. No. 4 of 1972 that the decree in O.S. No. 61 of 1971 was passed by a court which had no pecuniary jurisdiction to pass that decree. The Code of Civil Procedure has made a distinction between lack of inherent jurisdiction and objection to territorial jurisdiction and pecuniary jurisdiction. Whereas, an inherent lack of jurisdiction may make a decree passed by that court one without jurisdiction or void in law, a decree passed by a court lacking territorial jurisdiction or pecuniary jurisdiction does not automatically become void. At best it is voidable in the sense that it could be challenged in appeal therefrom provided the conditions of Section 21 of the Code of Civil Procedure are satisfied. It may be noted that Section 21 provided that no objection as to place the suing can be allowed by even an appellate or revisional court unless such objection was taken in the court of first instance at the earliest possible opportunity and unless there has been a consequent failure of justice. In 1976, the existing Section was numbered as sub- Section (1) and sub-Section (2) was added relating to pecuniary jurisdiction by providing that no objection as to competence of a court with reference to the pecuniary limits of its jurisdiction shall be allowed by any appellate or revisional court unless such objection had been taken in the first instance at the earliest possible opportunity and unless there had been a consequent failure of justice. Section 21A also was introduced in 1976 with effect from 1.2.1977 creating a bar to the institution of any suit challenging the validity of a decree passed in a former suit between the same parties on any ground based on an objection as to the place of suing.

Supreme Court of India

Subhash Mahadevasa Habib vs Nemasa Ambasa Dharmadas (D)By ... on 19 March, 2007

Bench: S.B. Sinha, P.K. Balasubramanyan

Citation;(2007)13 SCC 650,2007(4) ALLMR 324 SC, AIR 2007 SC 1828

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