# Onkar Singh & Anr v. Om Prakash

- **Citation:** (2016) 3 ILRA 736
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2016-01-19
- **Bench:** Pramod Kumar Srivastava
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/onkar-singh-anr-v-om-prakash-43595
- **Pages:** 11

## Text

736 INDIAN LAW REPORTS ALLAHABAD SERIES
marriage they have lived together as husband and wife. The trial court has held that plaintiff
had discharged the burden to prove these issues. The first appellate court had also
appreciated the facts and evidences separately and thereafter gave finding of facts that they
were legally wedded husband and wife. After the death of Laturi Singh his wife plaintiff
Meera Devi is entitled to receive the amount accrued from service including other retiral
benefits. The concurrent finding of fact of the two lower courts are based on acceptable
reasons. On these points their judgments are apparently correct and acceptable. Such
findings cannot be treated as infirm or perverse. So it cannot be interfered by this Court
through re-appreciation of evidences. Therefore this contention of learned counsel for the
appellant is found unacceptable that courts below had overlooked the evidences in deciding
the case between the parties. None of the contentions of learned counsel for the appellant are
sustainable. Accordingly the second substantial question of law is also decided against the
appellant and in favour of plaintiff-respondent.

15. On examination of reasonings recorded by trial court, which are affirmed by the
first appellate court, I am of the view that the judgment of both the lower courts are well
reasoned and are based on proper appreciation of entire evidences on record. No legal or
factual infirmity is found in concurrent finding of fact recorded by both the lower courts.

16. In view of the above, this Second Appeal is dismissed.
---------
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 19.01.2016

BEFORE

THE HON'BLE PRAMOD KUMAR SRIVASTAVA, J.

Second Appeal No. - 1956 of 1991

Onkar Singh & Anr. ...Appellants
Versus
Om Prakash ...Respondent

Counsel for Appellants
R.S. Maurya, J.P.S. Singh, Kunal Ravi Singh, Manjari Singh, Manjoo Singh, Pankaj Kumar Singh,
Pankaj Saxena, R.B. Maurya, R.K. Singh, R.S. Mishra, Ramendra Asthana, S.S. Maurya

Counsel for Respondent
B.D. Mandhyan, H.M. Srivastava, Madan Mohan, Madhav Jain, Ramendra Asthana, S.K. Srivastava,
S.K. Tyagi, Santosh Srivastava, Satish Srivastava, Smt. Karuna Srivastava, Vinod Kumar Agarwal, Y.D.
Saxena, Y.D. Sharma

Udai Ram had three sons namely, Jagannath, Om Prakash (plaintiff of original suit) and Ram Nath.
Onkar Singh-defendant no.-1 and Lokesh-defendant no. 2 are sons of Jagannath, who had died. Ram
Nath had also died without any issue. After the death of their father Udai Ram, the plaintiff Om
Prakash and his two brothers Jagannath and Ram Nath became his legal heirs and each became
owner of 1/3rd share. It is also admitted fact that on 29.05.1981 the Ram Nath had executed a sale-
3 All. Onkar Singh & Anr. Vs Om Prakash
737
deed on his whole 1/3rd share in disputed property in favour of defendant Onkar Singh and Lokesh.
Admittedly the Ram Nath had died after about two years of execution of said sale-deed dated
29.05.1981. After this, on 10.03.1987, the plaintiff Om Prakash filed a suit for cancellation of saledeed dated 29.05.1981.

At the time of hearing of appeal, following substantial question of law were framed:-

i. Whether sale deed having found genuine, can the same be cancelled just on the ground that sale
consideration was not paid and whether in respect of Bhumidhari land, concept of joint Hindu family
applies and brother has got right to file suit for cancellation of the sale deed?

ii. Whether sale deed was void in view of the provisions of Section 54 and 55 of the Transfer of
Property Act and whether under the circumstances of the case sale deed could be cancelled?

Iii. Whether the suit of plaintiff-respondent was barred by limitation?

Since the main relief is declaration of title over the agricultural land, therefore the jurisdiction to
decide relief relating to it for cancellation of sale-deed in question also goes in jurisdiction of revenue
court, therefore the judgment of lower courts are incorrect and illegal on the point of jurisdiction.
Since the jurisdiction to decide the main relief lies revenue court, therefore the second part of the first
substantial question of law is also decided against the plaintiffs-respondents and in favour of
defendants-appellant. The main question for consideration is as to whether the sale-deed would be
valid when its deed recites that the price had been paid but in fact court finds that sale consideration
was not actually paid. Section 54 of Transfer of Property Act, 1882 defines the 'sale' as ""Sale" is a
transfer of ownership in exchange for a price paid or promised or part-paid and part-promised". The
mere fact that a sale-deed recites the payment of consideration which is not true cannot render the
document invalid.

It was held that, if this contention of defendant-respondent is accepted for argument sake that in
present matter payment of sale consideration is not proved, in such a case also, considering free
consent and willingness of seller (Ram Nath) to sell his property to appellant-purchaser, the sale-deed
cannot be treated as illegal or void; therefore it cannot be cancelled. Second substantial question of
law is accordingly decided in favour of defendant-appellant and against plaintiff-respondent.

For the third substantial question of law, on point of limitation the contention of the learned counsel
for the appellant was that since the claim of plaintiff-respondent is on the ground of being heir and
legal representative of Ram Nath, therefore once limitation for cancellation of deed in question arose
in lifetime of Ram Nath then it would run continuously without being stopped or paused even after his
death. So for the deed dated 29.05.1981 executed by Ram Nath, the limitation would start running
from that date and its period elapsed immediately after three years, therefore suit of plaintiff
instituted in year 1988 is barred by time.

The Second Appeal is allowed

(Delivered by Hon'ble Pramod Kumar Srivastava, J.)

1. Heard the arguments of learned counsel for the parties and perused the records.

2. The admitted facts between the parties are that Udai Ram had three sons namely,
Jagannath, Om Prakash (plaintiff of original suit) and Ram Nath. Onkar Singh-defendant
no.-1 and Lokesh-defendant no. 2 are sons of Jagannath, who had died. It is admitted fact
738 INDIAN LAW REPORTS ALLAHABAD SERIES
that Ram Nath had also died without any issue. After the death of their father Udai Ram, the
plaintiff Om Prakash and his two brothers Jagannath and Ram Nath became his legal heirs
and each became owner of 1/3rd share. It is also admitted fact that on 29.05.1981 the Ram
Nath had executed a sale-deed on his whole 1/3rd share in disputed property in favour of
defendant Onkar Singh and Lokesh. Admittedly the Ram Nath had died after about two
years of execution of said sale-deed dated 29.05.1981. After this, on 10.03.1987, the
plaintiff Om Prakash filed a suit for cancellation of sale-deed dated 29.05.1981.

3. The plaint case in original suit no.-115/ 1988 was that Ram Nath was mentally ill
and was like insane, so defendants have manipulated him and has got executed registered
sale-deed dated 29.05.1981 on behalf of Ram Nath, regarding his share in disputed property,
which is liable to be cancelled. The grounds taken in plaint for the cancellation of sale-deed
were that Ram Nath had never executed the sale-deed in question. He had no need to
execute the sale-deed, no consideration was paid to Ram Nath for said sale-deed, which was
not read and explained to him, consideration mentioned in sale-deed is less, the defendant
had no money to purchase the disputed land, and sale-deed was executed for dishonestly
usurping the property. It was further pleaded in the plaint that the defendant came to know
about sale-deed in January, 1987. Since he is legal heir of Ram Nath's property, therefore his
rights would be affected from this sale-deed, therefore he has filed suit for cancellation of
said sale-deed.

4. In original suit the defendant filed joint written-statements by which they have
denied the plaint's averments and grounds mentioned for cancellation of sale-deed, and
pleaded that Ram Nath had himself executed the sale-deed in question for a consideration of
Rs.27,000, which was proper consideration received by him and there is illegality in said
sale-deed. The defendant had capacity to purchase the land in question, Ram Nath had
willingly executed the sale-deed and plaintiff had knowledge of said deed from the date of
it's execution, therefore the suit is time-barred. No cause of action arose to plaintiff. The
defendants are the owner of 2/3rd share in disputed property. By this suit the plaintiff wants
to get the entries of revenue record cancelled and amended. For the relief sought the plaintiff
should file suit in revenue court, and his suit is barred by time under Section 331-A of
U.P.Z.A & L.R Act. The court has no jurisdiction to decide this suit and it is liable to be
dismissed.

5. After affording opportunity of hearing to the parties, learned 3rd Additional Munsif,
Bulandshahr had passed the judgement dated 29.03.1991 by which the plaintiff's suit was
decreed. A perusal of the judgment reveals that the trial court had considered the statements
of defendants' witnesses Parmanand Munshi and Latoor Singh, and held that their
statements are self contradictory. The trial court had also held that there is no evidence that
deceased Ram Nath was ill and how his property was partitioned, therefore it is not clear
that how Ram Nath had given his free consent for the sale-deed. The trial court has also held
that jurisdiction for cancellation of sale-deed is with Civil Court. On these grounds the trial
court had decreed the suit.
3 All. Onkar Singh & Anr. Vs Om Prakash
739

6. Against the judgment of the trial court, the plaintiff of the original suit had preferred
the Civil Appeal No. 70/ 1991 Onkar Singh & Anr. v. Om Prakash, which was dismissed by
the judgement dated 19.11.1991 of the Xth Additional District Judge, Bulandshahr. In this
judgment the first appellate court had appreciated all the seven points for cancellation of
sale-deed mentioned in the plaint, and decided six points in favour of defendant-appellants,
but the appeal was dismissed on the finding of non payment of consideration. The First
Appellate Court had discussed the evidences and held that except the point of nonpayment
of consideration, the other grounds mentioned in plaint are not proved. The first appellate
court had held that there is no evidence to the effect that sale-deed in question was got
executed by presenting any wrong person before the Sub-Registrar. The first appellate court
had also held that it is not proved that sale-deed in question does not contain thumb
impression of Ram Nath. The first appellate court had also held that sale-deed cannot be
cancelled on the ground that executor Ram Nath had no need of money to sell it or its price
was higher than mentioned in the sale-deed or the defendant had no money for payment of
consideration. The first appellate has also held that it is not proved that sale-deed in question
was not read and explained to Ram Nath at the time of its execution, and also that it is not
proved that at the time of execution of sale-deed in question Ram Nath was mentally or
physically weak. The first appellate court had discussed the evidences of defendant's side,
especially of DW-1 Onkar Singh (defendant and purchaser) and DW-2 Latoor Singh
(marginal witness) of sale-deed and held that there are contradiction in their statements on
point of manner of payment of consideration. Therefore the payment of consideration for
sale-deed is not proved, and on this ground alone the first appellate court had dismissed the
appeal.

7. Against the judgment of the trial Court as well as the first appellate court, the present
second appeal has been preferred by the defendants of the original suit.

8. At the time of hearing of appeal, following substantial question of law were framed:-

i. Whether sale deed having found genuine, can the same be cancelled just on
the ground that sale consideration was not paid and whether in respect of Bhumidhari
land, concept of joint Hindu family applies and brother has got right to file suit for
cancellation of the sale deed?

ii. Whether sale deed was void in view of the provisions of Section 54 and 55
of the Transfer of Property Act and whether under the circumstances of the case sale
deed could be cancelled?

iii. Whether the suit of plaintiff-respondent was barred by limitation?

9. A perusal of the lower court record reveals that the judgment of the trial court was
very poor on it's merit and was almost perverse on finding of every issue. Issue no.-1 was
framed that whether on the grounds mentioned in paragraph 4 of the plaint sale-deed in
question is liable to be cancelled or not. There were seven grounds raised in paragraph 4 of
the plaint, and none of the ground was discussed by the trial court. No evidence of plaintiff
was discussed nor any finding was given that plaintiff had proved his plaint's case. The trial
740 INDIAN LAW REPORTS ALLAHABAD SERIES
court had simply mentioned that two persons before whom the sale-deeds were executed, are
Parmanand Munshi and Onkar Singh, and their statements are self-contradictory. It was
nowhere mentioned or discussed as to on what points there was any contradiction or what
they stated, and whether those points were were in support of plaint case or against the
defendants' pleading. Thus on this point judgment of trial was not only non-speaking and
erroneous but was also unreasonable and perverse. The other points raised based by the trial
court was no proof of illness of Ram Nath.

10. Section 101, 102 and 103 of Evicence Act reads as under:

"101. Burden of proof.- "Whoever desires any Court to give judgment as to any
legal right or liability dependent on the existence of facts which he asserts, must prove that
those facts exist. When a person is bound to prove the existence of any fact, it is said that the
burden of proof lies on that person."

102. On whom burden of proof lies.-The burden of proof in a suit or proceeding
lies on that person who would fail if no evidence at all were given on either side.

103. Burden of proof as to particular fact.-The burden of proof as to any
particular fact lies on that person who wishes the Court to believe in its existence, unless it
is provided by any law that the proof of that fact shall lie on any
particular person."

11. In present matter such plea of mental weakness or insanity was never raised by the
defendants, but was raised by the plaintiffs in plaint. In absence of proof of such plea, the
matter should have been decided against the plaintiffs because burden lies on him to prove
this fact, but finding absence of any evidence this point was decided by the trial court
against the defendant. Thus, the trial court has erroneously shifted the burden of proof of
plaintiff over to defendants. The trial court had also given the finding that it is not proved
that as to how disputed property was partitioned. It is not the case of any party that disputed
property was ever partitioned. It is admitted case of parties that disputed property was not
formally partitioned. There is evidence that plaintiff had instituted a suit for partition which
was dismissed for non-prosecution. In this case the un-partitioned share of Ram Nath in
disputed property was sold by the sale-deed in question. Therefore apparently judgment of
trial court on this point was without proper understanding the facts of the case. The trial
court had also held that their appears no knowledge about free-will consent of deceased Ram
Nath. But there is no such specific finding that Ram Nath had executed the sale- deed in
question without his free-will or consent. Thus it is clear that judgement of the trial court
was non-speaking, erroneous and perverse. In this judgement the trial court had shifted the
burden of proof of plaintiffs to defendants and created a new case of partition of property,
and decided the issues to cancel of deed in question erroneously against the defendants.
Before passing its judgment the trial court has nowhere mentioned in it that plaintiff had
proved his case. The trial court had framed other issues on point of limitation and
jurisdiction, and also gave incorrect and erroneous finding on it by an improperly discussed,
illegal and erroneous order. Trial court had not applied its mind to fact that grounds
3 All. Onkar Singh & Anr. Vs Om Prakash
741
mentioned in the plaint for cancellation of sale deed in question were based on alleged facts
that had allegedly happened in absence of plaintiff or its witnesses and they were based on
speculations and hearsay. Thus the judgement of the trial court was based on non- speaking,
erroneous and illegal finding, and without finding of the plaint case being proved, was
perverse and is liable to be set aside. It was one finding of non-payment of consideration of
this trial court's judgment that was confirmed by the first appellate court.

12. The first appellate court had considered the fact, evidences and circumstances and
all the seven points of cancellation of registered sale- deed in question mentioned in
paragraph-4 of the plaint and out of them decided six points in favour of defendantsappellants. The findings of first appellate court are on those six findings (except one finding
of non-payment of consideration) are proper and are found acceptable and correct. So far the
point for cancellation of sale-deed raised in plaint regarding non-payment of consideration is
concerned, the first appellate court had taken erroneous view on it. This point was raised by
the plaintiffs-respondents in plaint. The burden of proving this fact lies on plaintiffsrespondents. If no evidences would have been led then this point should have been decided
against the plaintiffs because it was his assertion and not of defendants-appellants. No
evidence was given on this point by the plaintiff's side. Admittedly neither plaintiff nor his
witnesses were present at the time of execution of sale-deed in question, nor have any
personal knowledge about it. Thus the plaint case was based on hearsay evidences as
plaintiffs had no knowledge of any act done in furtherance of sale-deed in question. In such
case had there being no evidence, suit should have been dismissed because burden to
proving all the facts were on plaintiffs. The evidences adduced by the plaintiff's side were
hearsay and on basis of speculation. No first hand evidence or information was given by the
witnesses of plaintiff, but these facts were not considered by the first appellate court when
the finding about non-payment of consideration was given in first appeal. On one hand the
first appellate court had given specific finding of fact that it is not proved that sale-deed in
question was not read and explained to Ram Nath, neither it is proved that plaintiff was a
person of weak-mind, and it is not proved that plaintiff had not executed willingly the saledeed in question; then finding of first appellate court regarding non-payment of
consideration merely on ground that one witness of defendant had stated that consideration
of Rs.27,000/- was given before the deed-writer and another witness has stated that said
amount was given in Registration Office. There was no finding of the trial court that at the
time of registration of deed in question the deed writer was not present in the Registration
Office and consideration was not given before him. Even in absence of any evidence of
defendants the plaintiff's case was not proved. Thus, the finding of fact of this point for nonproving of consideration by the first appellate court is erroneous and perverse. It is pertinent
to mention that there is specific finding of fact of first appellate court that Ram Nath had
willingly executed the registered sale-deed in question in Sub-Registrar Office without
undue pressure are fraud, so the case of plaintiff was not proved. Apart from it, even in case
of any ambiguity in statements of defendant's witnesses about the payment of consideration,
the case would have been that of execution of a voidable documents on the option of Ram
Nath, and in any case on the discrepancies in evidences of defendants, the suit of plaintiff
cannot be decreed. It is admitted fact that Ram Nath had never challenged the execution of
sale-deed in question nor acceptance of consideration, he had not made any complaint in
742 INDIAN LAW REPORTS ALLAHABAD SERIES
Sub-Registrar Office about the irregularities in payment. The document in question is a
registered document, which contains endorsement of Sub-Registrar that consideration was
accepted by Ram Nath before him. There is legal presumption of genuineness of said
registered sale-deed unless otherwise proved. In fact nothing otherwise was proved by
plaintiff whose case is based on speculation and hearsay informations. Therefore the finding
of first appellate court regarding non-payment of consideration is found erroneous and
perverse, and is hereby set aside. The result of it is that plaintiff-respondent had failed to
prove it's plaint case and the grounds mentioned in the plaint for cancellation of sale-deed.
The first part of the first substantial question of law is decided accordingly in favour of
defendants-appellants and against the plaintiffs-respondents.

13. Admittedly, the basis of the suit was the declaration of rights and title of
agricultural property, the plaint case was that originally the plaintiff was owner of 1/3rd
share of the disputed agricultural land, who had become the owner of it's half share after the
death of his brother because sale-deed is void. On the other hand the defendants-appellants
are accepting only 1/3rd share of plaintiffs-respondents in disputed agricultural land. Thus
the main relief sought in the plaint relates to declaration for title of agricultural property and
the relief of cancellation of sale-deed in fact ancillary relief. Admittedly the Revenue Court
had right to decide the title of agricultural property, but such relief was sought by the
plaintiff-respondents in garb of relief of cancellation of sale-deed.

14. The suit of plaintiff/respondent has been based on claim of his ownership and
bhumidhari rights over disputed agricultural land, for which the plea of bar of suit under
Section 331 of U.P.Z.A. & L.R. Act was taken by defendants in their written statement.
Section- 331 of U.P. Zamindari Abolition & Land Reforms Act, 1950 reads as under:

"331. Cognizance of suits, etc under this Act.- (1) Except as provided by or under
this Act no court other than a court mentioned in Column 4 of Schedule II shall,
notwithstanding an~hing contained in the Civil Procedure Code, 1908, (5 of 1908) take
cognizance of any suit, application or proceedings based on a cause of action in respect of
which any relief could be obtained by means of any such suit or application:

Provided that where a declaration has been made under Section 143 in respect of
any holding or part thereof, the provisions of Schedule II in so far as they relate to suit,
application or proceedings under Chapter VIII shall not apply to such holding or part
thereof;

Explanation- If the cause of action is one in respect of which relief may be
granted by the revenue court, it is immaterial that the relief asked for from the civil court
may not be identical to that which the revenue court would have granted."

15. This section provides that no court other than court mentioned in Column 4 of
Schedule II shall, notwithstanding anything contained in C.P.C., take cognizance of any suit,
application or proceedings, mentioned in Column 3 thereof, or of a suit, application or
proceedings based on cause of action in respect of which any relief could be obtained by
3 All. Onkar Singh & Anr. Vs Om Prakash
743
means of any such suit or application. In Schedule II of this Act at serial number 34 Column
3 deals with 'Suit for declaration of rights'; and in front of it in column 4 name of court of
original jurisdiction is given as 'Assistant Collector, 1st Class'. Present suit of the plaintiffappellants is based on the claim that appellants are owner of disputed land.

16. The present case of plaintiff-appellant is based on claim that they are owner and
bhumidhar of disputed land. Admittedly the name of defendant-respondent are recorded as
bhumidhar on disputed land i.e. agricultural 'land' as defined in UPZA & LR Act. Even the
alleged relief of permanent injunction regarding disputed land is also based on the relief of
declaration of title of disputed agricultural 'land'. Therefore it is explicitly clear that only the
court of Assistant Collector has jurisdiction to grant these reliefs, and Civil Court has no
jurisdiction to decide the suit or other proceeding based on cause of action for declaration of
ownership rights of such agricultural land. Therefore this finding of trial court as well as
first appellate court are erroneous dispute between the parties. That civil court had
jurisdiction to hear real

17. From above discussion, it is clear and proved that main relief sought by plaintiffappellants are based on declaration of their alleged right of bhumidhari over disputed
agricultural land but it cannot be granted to the appellants, and therefore, claim of
plaintiff/respondent is barred by Section 331 of U.P.Z.A. & L.R. Act, so respondent is not
entitled for any relief claimed in the original suit.

18. These facts and legal position were not at all considered by the Lower Courts, who
had apparently and erroneously accepted the relief of cancellation of sale-deed as main relief
of plaintiffs-respondents. Since the main relief is declaration of title over the agricultural
land, therefore the jurisdiction to decide relief relating to it for cancellation of sale-deed in
question also goes in jurisdiction of revenue court, therefore the judgment of lower courts
are incorrect and illegal on the point of jurisdiction. Since the jurisdiction to decide the main
relief lies revenue court, therefore the second part of the first substantial question of law is
also decided against the plaintiffs-respondents and in favour ofdefendants-appellant.

19. The main question for consideration is as to whether the sale-deed would be valid
when its deed recites that the price had been paid but in fact court finds that sale
consideration was not actually paid. Section 54 of Transfer of Property Act, 1882 defines the
'sale' as ""Sale" is a transfer of ownership in exchange for a price paid or promised or partpaid and part-promised". The mere fact that a sale-deed recites the payment of consideration
which is not true cannot render the document invalid. To support a sale it is not necessary
that the whole of the price should be paid. The price may be paid or promised wholly or in
part. If according to the tenor of the document the consideration was not actually paid, but
the document shows that there was an intention to pay, then in that case the document is not
rendered invalid on account of the non-payment of the consideration. If, on the other hand,
the intention was not to pay any consideration, then the document is of no effect. There is a
distinction between a sale where the consideration is intended to be paid and is not paid, and
where the consideration is not intended by both parties to be paid at all. In the former case
the title passes to the purchaser, and in the latter case though the vendor is tricked into going
744 INDIAN LAW REPORTS ALLAHABAD SERIES
through the form of execution and registration of the document, the sale deed is void as a
colourable transaction. To support a sale it is not necessary that the whole of the price
should be paid. The price may be paid or promised wholly or in part.

20. If the vendor has executed the sale-deed with intention of transferring the property
in question, but consideration has not actually passed to him within his knowledge but he
still had intention of transferring the property in question; in such a case the provisions of
Section 55 of Transfer of Property Act, 1882 will be applicable where unpaid amount shall
remain a charge on the property. But the title of the property will be transferred to vendee.

21. The first appellate court, in present case, had given finding of the fact that executant
had willingly executed sale-deed in question without any misunderstanding. Therefore, that
in this case it cannot be said that there was no intention to pay the amount of the
consideration, and in view of this circumstance it seems to us that the title had passed to the
purchaser. It may be that the recital in the document stating payment of the consideration is
not true. But that does not invalidate the document. On basis of this discussion it is hereby
held that, if this contention of defendant-respondent is accepted for argument sake that in
present matter payment of sale consideration is not proved, in such a case also, considering
free consent and willingness of seller (Ram Nath) to sell his property to appellant-purchaser,
the sale-deed cannot be treated as illegal or void; therefore it cannot be cancelled. Second
substantial question of law is accordingly decided in favour of defendant-appellant and
againstplaintiff-respondent.

22. For the third substantial question of law, on point of limitation the contention of the
learned counsel for the appellant was that since the claim of plaintiff-respondent is on the
ground of being heir and legal representative of Ram Nath, therefore once limitation for
cancellation of deed in question arose in lifetime of Ram Nath then it would run
continuously without being stopped or paused even after his death. So for the deed dated
29.05.1981 executed by Ram Nath, the limitation would start running from that date and its
period elapsed immediately after three years, therefore suit of plaintiff instituted in year
1988 is barred by time. This contention was refuted by learned counsel for respondent with
argument that cause of action for the suit arose for the first time in January 1987 when the
plaintiff had first knowledge of said deed therefore suit instituted in year 1988 is within
three years of period of limitation.

23. It is well established that a contract or other transaction induced or tainted by fraud
is not void, but only voidable at the option of the party defrauded. Until it is avoided the
transaction is valid, so that third parties without notice of the fraud may in the meantime
acquire rights and interests in the matter which they may enforce against the party
defrauded.

24. The fact that the contract has been induced by fraud does not make the contract
void or prevent the property from passing, but merely gives the party defrauded a right on
discovering the fraud to elect whether he shall continue to treat the contract as binding or
disaffirm the contract and resume the property. If it can be shown that the 'person
3 All. Onkar Singh & Anr. Vs Om Prakash
745
defrauded' has at any time after knowledge of the fraud either by express words or by
unequivocal acts affirmed the contract, 'his' election is determined for ever. The party
defrauded may keep the question open so long as he doesnothing to affirm the contract.

25. In present case, as per plaint case, the alleged person defrauded was Ram Nath.
Trial court had held that there is no evidence of his mental weakness or mental illness. First
appellate court had given specific finding of fact that it is not proved that sale-deed in
question was not read and explained to Ram Nath, neither it is proved that plaintiff was a
person of weak mind and nor it is proved that plaintiff had not executed the sale- deed in
question willingly. According to first appellate court, except non-payment of consideration
there remained no fact that may be indicate the sale-deed in question as improper. For
alleged non-payment of consideration, no evidence was led by plaintiff-respondent or his
witnesses, as they were not present at the time of its execution, and the expectant Ram Nath
had never told him anything about it. Since this fact was conclusively held by the first
appellate court that executant had willingly executed sale-deed in question without any
misunderstanding, then such sale-deed cannot be treated as void. In extreme case, in absence
of alleged non-payment of consideration before the Sub-Registrar at the time of registration,
it may be voidable at the option of its executant. Therefore so far as to any right to set aside
the deed in question is concerned it is clear that it arose in lifetime of executant (Ram Nath)
immediately after the said deed was executed, who survived for about two years after the
execution of deed in question and had proper knowledge of the same, but had not opted for
challenging it.

26. The claim of plaintiff-respondent is only for his share in disputed property of Ram
Nath after his death. Thus the plaintiff-respondent's claim is on the basis of alleged right as
legal heir of Ram Nath's property. Since cause of action for the cancellation of sale-deed in
question regarding share of Ram Nath arose during his lifetime within his knowledge,
therefore limitation for the same had started running immediately after execution of deed in
question in year 1981.

27. The relevant provisions of Limitation Act, 1963 in this regard are definition of
word "plaintiff" in Section 2(i)(i), Section 9 which is for initiation and running of period of
limitation and Article 59 of Schedule of the Act. They are as under:

"Section 2. Definitions

(i) "plaintiff" includes-

(i); any person from or through whom a plaintiff derives his right to sue;"

"9. Continuous running of time.-Where once time has begun to run, no
subsequent disability or inability to institute a suit or make an application stop it"

"The Schedule

PART IV-Suits Relating To Decrees and Instruments
746 INDIAN LAW REPORTS ALLAHABAD SERIES

59. To cancel or set aside an instrument or decree or for the rescission of a
contract.- Three years - When the facts entitling the plaintiff to have the instrument or
decree cancelled or set aside or the contract rescinded first become known to him."

28. For the computation of limitation to plaintiff-appellant, the word 'plaintiff' has to
be read with the definition in Section 2(i)(i) of the Limitation Act which defines "plaintiff
includes any person from or through whom a plaintiff derives his right to sue". In present
case the claim of plaintiff for the relief claimed arose only after the death of his brother Ram
Nath, when he allegedly became heir, legal representative and owner of half of the property
of Ram Nath. Thus plaint case is that the plaintiff- respondent had derived his right to sue
for the relief claimed from the Ram Nath after his death. As held above the limitation for
cancellation had started to Ram Nath during his lifetime immediately after the execution of
sale deed in question on 29.05.1981. the provisions of section 9 of Limitation Act are
mandatory in nature which makes it explicitly clear that if time of limitation had begun
running, then any subsequent in ability to institute suit cannot stop it. Therefore if it is
accepted for the sake of argument that the plaintiff-respondent had no knowledge of
execution of sale deed in question dated 29.05.1981, in that case also limitation would not
stop running because it had already started during the life-time of Ram Nath. Therefore it is
held that original suit of plaintiff-respondent instituted in year 1988 is time barred. Third
substantial question of law is accordingly decided in affirmative, in favour of appellant and
against plaintiff-respondent.

29. For the reasons discussed above, this Second Appeal is allowed. The judgment
dated 29.03.1991 of the trial court and the judgment dated 19.11.1991 of the first appellate
court are set aside and the original suit no. 115/ 1988 is hereby dismissed with costs of
whole proceedings.
--------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 30.03.2016

BEFORE

THE HON'BLE RAJAN ROY, J.

Service Single No. - 6637 of 2016

Gurupal Singh ...Petitioner
Versus
State Of U.P. & Ors. ...Respondents

Counsel for Petitioner
Ateequzzaman Siddiqui

Counsel for Respondents
C.S.C., C.B. Singh