# Rajeev Gupta & Ors v. Prashant Garg & Ors

- **Citation:** 2025 INSC 552
- **Court:** Supreme Court of India
- **Decided:** 2025-04-23
- **Case number:** Civil Appeal No. 11061 of 2024
- **Bench:** Dipankar Dutta, Prashant Kumar Mishra
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/rajeev-gupta-ors-v-prashant-garg-ors-38419
- **Pages:** 33

## Headnote

Issue arose whether the suit was barred by limitation; whether the
sale deeds were void documents; whether the Will stood admitted
in the previous suits and was no longer required to be proved;
whether the First Appellate Court was right in decreeing the suit
without the plaintiffs seeking relief of declaration/cancellation.
Headnotes†
Limitation Act, 1963 - Arts.58, 59 and 65 - Transfer of Property
Act, 1882 - ss.54, 41 - Suit for cancellation of sale deed and
recovery of possession - Limitation period - Will allegedly
executed by the common ancestor of the parties, bequeathing
suit property in favour of his two sons-I and Dr.K, and third
son was bequeathed business of pharmacy - Thereafter, a
family settlement in 1956, the names of wife of I and the third
son mutated in respect of the suit property, with remaining
properties being allotted to Dr.K - Rounds of litigation between
the family members qua ownership of the suit property -
Ultimately, Dr.K's absolute right over the eastern portion of
the suit property was accepted, third son was permitted to
remain in possession thereof - Two sale deeds duly registered
(qua the eastern and southern portions of the suit property)
executed by the third son in favour of the appellants in 1992 -
Thereafter, suit filed by Dr.K and his son (plaintiffs) against
the appellants seeking cancellation of the sale deeds and
possession of the suit property - Subsequently, the plaint
amended whereby new relief added to the effect that the suit
is based on title, and recovery of possession is sought on
the basis of title and by way of abundant precaution plaintiff
seeks relief of cancellation - Trial Court dismissed the suit -
First Appellate court allowed the suit and granted the reliefs
* Author
[2025] 4 S.C.R.
2365
Rajeev Gupta & Ors. v. Prashant Garg & Ors.
sought for - High Court dismissed the second appeal filed
by the appellants - Appeal before this Court, wherein issue
arose whether the suit was barred by limitation; whether the
sale deeds were void documents; whether the Will stood
admitted in the previous suits and was no longer required
to be proved; and whether the First Appellate Court right
in decreeing the suit without the plaintiffs seeking relief of
declaration/cancellation:
Held: Subject suit of the plaintiffs could not have succeeded -
Trial court, was right in dismissing the suit - Impugned second
appellate judgment and decree of the High Court and the first
appellate judgment and decree of the first appellate court, both
set aside and that of the trial court restored, dismissing the subject
suit - As regards limitation, the limitation period would have to be
adjudged from the primary relief of cancellation which is 3 (three)
years, and not the ancillary relief of possession which is 12 (twelve)
years - Limitation period prescribed for suits seeking cancellation
of documents being 3 (three) years, despite the cause of action
having arisen in 1992, the plaintiffs chose to institute the suit 11
(eleven) years later, the suit of the plaintiffs having been instituted in
2003, was hopelessly barred by limitation and s.3 of the Limitation
Act essentially entails its dismissal - Appellants had been put in
possession of the suit property in furtherance of the sale deeds
executed by and between third son and the former after the same
were registered - Hence, suit seeking declaration of status or right
simplicitor would not have sufficed for the plaintiffs since admittedly,
they were required to seek further relief - Composite suit seeking
cancellation, recovery of possession and injunction is what was
required to be instituted, as distinguished from a suit seeking only
recovery of possession - Thus, cancellation was the primary relief
in the circumstances with recovery of possession being the ancillary
relief - Plaintiffs did have knowledge-constructive as well as actual
during the pendency of the second suit or soon thereafter of transfer
of the suit property in favour of the appellan

## Text

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[2025] 4 S.C.R. 2364 : 2025 INSC 552
Rajeev Gupta & Ors.
v.
Prashant Garg & Ors.
(Civil Appeal No. 11061 of 2024)
23 April 2025
[Dipankar Dutta* and Prashant Kumar Mishra, JJ.]
Issue for Consideration
Issue arose whether the suit was barred by limitation; whether the
sale deeds were void documents; whether the Will stood admitted
in the previous suits and was no longer required to be proved;
whether the First Appellate Court was right in decreeing the suit
without the plaintiffs seeking relief of declaration/cancellation.
Headnotes†
Limitation Act, 1963 - Arts.58, 59 and 65 - Transfer of Property
Act, 1882 - ss.54, 41 - Suit for cancellation of sale deed and
recovery of possession - Limitation period - Will allegedly
executed by the common ancestor of the parties, bequeathing
suit property in favour of his two sons-I and Dr.K, and third
son was bequeathed business of pharmacy - Thereafter, a
family settlement in 1956, the names of wife of I and the third
son mutated in respect of the suit property, with remaining
properties being allotted to Dr.K - Rounds of litigation between
the family members qua ownership of the suit property -
Ultimately, Dr.K's absolute right over the eastern portion of
the suit property was accepted, third son was permitted to
remain in possession thereof - Two sale deeds duly registered
(qua the eastern and southern portions of the suit property)
executed by the third son in favour of the appellants in 1992 -
Thereafter, suit filed by Dr.K and his son (plaintiffs) against
the appellants seeking cancellation of the sale deeds and
possession of the suit property - Subsequently, the plaint
amended whereby new relief added to the effect that the suit
is based on title, and recovery of possession is sought on
the basis of title and by way of abundant precaution plaintiff
seeks relief of cancellation - Trial Court dismissed the suit -
First Appellate court allowed the suit and granted the reliefs
* Author
[2025] 4 S.C.R.
2365
Rajeev Gupta & Ors. v. Prashant Garg & Ors.
sought for - High Court dismissed the second appeal filed
by the appellants - Appeal before this Court, wherein issue
arose whether the suit was barred by limitation; whether the
sale deeds were void documents; whether the Will stood
admitted in the previous suits and was no longer required
to be proved; and whether the First Appellate Court right
in decreeing the suit without the plaintiffs seeking relief of
declaration/cancellation:
Held: Subject suit of the plaintiffs could not have succeeded -
Trial court, was right in dismissing the suit - Impugned second
appellate judgment and decree of the High Court and the first
appellate judgment and decree of the first appellate court, both
set aside and that of the trial court restored, dismissing the subject
suit - As regards limitation, the limitation period would have to be
adjudged from the primary relief of cancellation which is 3 (three)
years, and not the ancillary relief of possession which is 12 (twelve)
years - Limitation period prescribed for suits seeking cancellation
of documents being 3 (three) years, despite the cause of action
having arisen in 1992, the plaintiffs chose to institute the suit 11
(eleven) years later, the suit of the plaintiffs having been instituted in
2003, was hopelessly barred by limitation and s.3 of the Limitation
Act essentially entails its dismissal - Appellants had been put in
possession of the suit property in furtherance of the sale deeds
executed by and between third son and the former after the same
were registered - Hence, suit seeking declaration of status or right
simplicitor would not have sufficed for the plaintiffs since admittedly,
they were required to seek further relief - Composite suit seeking
cancellation, recovery of possession and injunction is what was
required to be instituted, as distinguished from a suit seeking only
recovery of possession - Thus, cancellation was the primary relief
in the circumstances with recovery of possession being the ancillary
relief - Plaintiffs did have knowledge-constructive as well as actual
during the pendency of the second suit or soon thereafter of transfer
of the suit property in favour of the appellants effected by the third
son by way of execution of the sale deeds - It is from such date of
knowledge in June, 1992 that the said transfer effectively did invade
or jeopardize the plaintiffs' interest in respect of the suit property -
As regards sale deeds being void documents, submission of the
plaintiffs that the third son had no right in the property, and being
devoid of any ownership rights, was in no position to transfer title
of the same to the appellants, and the sale deeds having been
2366
[2025] 4 S.C.R.
Supreme Court Reports
executed when an ad-interim injunction order was in operation,
the bar in s.52 of the ToP Act would render the sale deeds void ab
initio, cannot be accepted - Appellants submission that third son
having been portrayed to the world at large as owner, the plaintiffs
could not emerge from out of the woodwork to claim a secret title
accepted - High Court's finding that the sale deeds would be
rendered void solely on account of the operation of an injunction
order has necessarily to be set aside - s.52 of the ToP Act does
not ipso facto render a sale transaction as inoperative, it merely
subjects it to the outcome of the pending proceedings - Transfer,
subject to the result of the suit, could remain valid - There being
no proof that the appellants had knowledge of this injunction order,
the transaction could not have been declared void ab initio - Thus,
the appellants would have be held to be bona fide purchaser for
value and, thus, entitled to the benefit of s.41 of the ToP Act -
As regards whether the Will stood admitted in the previous suits
and was no longer required to be proved, the requirement of
proof of a Will in accordance with s.68 is not done away with,
even if the Will is not disputed by the opposite party - In light
of the vague descriptions about the WILL, it is difficult to accept
that there was deemed admission due to non-denial in the first
place - Plaintiffs were specifically put on notice by the appellants
that they were disputing the WILL - Burden was on the plaintiffs
to prove the WILL - List of documents sought to be relied on by
the plaintiffs included certified copy of the registered Will of the
father but there was no pleading in the plaint as to whether the
WILL was lost or misplaced - Certified copy was only sought to be
produced - First appellate court proceeded on the basis that the
WILL was accepted by the parties to the first and the second suit
and, thus, res judicata applied without, however, realising that the
appellants were not parties to any of those two suits and neither
was there any occasion for them to be bound by any admission
or acceptance of the WILL by their predecessor-in-interest nor did
the appellants ever make any such admission - Thus, the plaintiffs'
title to the suit property could not have been traced to the WILL
of the testator - As regards whether the First Appellate Court was
right in decreeing the suit without the plaintiffs seeking relief of
declaration/cancellation, the first appellate court acted illegally in
the exercise of its jurisdiction in granting relief to the plaintiffs by
passing a decree for recovery of possession without there being
any decree for declaration of rights/cancellation of deeds - At the
stage of exercise of jurisdiction by the appellate court u/s.96 CPC,
[2025] 4 S.C.R.
2367
Rajeev Gupta & Ors. v. Prashant Garg & Ors.
the plaint in the form it was there before such court was incurably
defective and no relief could have been granted to the plaintiffs.
[Paras 32-69]
Limitation Act, 1963 - Art.58 and 59 - Meaning of the word
"first" under the column 'Time from which period begins
to run' in Articles 58 and 59 - Interpretation - Explained.
[Paras 30-31]
Case Law Cited
Khatri Hotels (P) Ltd. v. Union of India [2011] 15 SCR 299 : (2011)
9 SCC 126; G.T. Girish v. Y. Subba Raju [2022] 8 SCR 991 : (2022)
12 SCC 321; Anathula Sudhakar v. P. Buchi Reddy [2008] 5 SCR
331 : (2008) 4 SCC 594; Rukhmabai v. Lala Laxminarayan [1960]
2 SCR 253 : AIR 1960 SC 335; Shakti Bhog Food Industries
Ltd. v. Central Bank of India [2020] 6 SCR 538 : (2020) 17 SCC
260; Union of India v. West Coast Paper Mills Ltd. [2004] 2 SCR
145 : (2004) 2 SCC 247; Madhukar Vishwanath v. Madhao (1999)
9 SCC 446; L.C. Hanumanthappa v. H.B. Shivakumar [2015] 9
SCR 651 : (2016) 1 SCC 332; Rajpal Singh v. Saroj [2022] 19
SCR 202 : (2022) 15 SCC 260; Ramesh Verma v. Lajesh Saxena
[2016] 11 SCR 210 : (2017) 1 SCC 257; Benga Behera v. Braja
Kishore Nanda [2007] 6 SCR 853 : (2007) 9 SCC 728; Jagmail
Singh v. Karamjit Singh [2020] 4 SCR 1163 : (2020) 5 SCC 178;
Sopanrao v. Syed Mehmood [2019] 9 SCR 37 : (2019) 7 SCC
76 - referred to.
List of Acts
Evidence Act, 1882; Limitation Act, 1963; Transfer of Property Act,
1882; Code of Civil Procedure, 1908.
List of Keywords
Will; Sale deeds duly registered; Cancellation of the sale deeds;
Limitation; Composite suit; Barred by limitation; Right to sue first
accrues; Bona fide purchaser for value; Requirement of proof of
a Will; Declaration of title and consequential relief of injunction;
Relief of declaration/cancellation; Suit for cancellation of sale deed
and recovery of possession; Limitation period; Sale deeds, void
document; Meaning of the word "first" under the column 'Time
from which period begins to run' in Arts.58 and 59 of the Limitation
Act, 1963.
2368
[2025] 4 S.C.R.
Supreme Court Reports
Case Arising From
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 11061
of 2024
From the Judgment and Order dated 21.09.2021 of the High Court
of Judicature at Allahabad in SA No. 426 of 2017
Appearances for Parties
Advs. for the Appellants:
Kavin Gulati, Sr. Adv., Rohit Amit Sthalekar, Pramod Dayal, Nikunj
Dayal, Rakesh Kumar.
Advs. for the Respondents:
Santosh Kumar, Ms. Dharitry Phookan, Ms. Sangeeta Vazirani,
Ms. Lanutula K.
Judgment / Order of the Supreme Court
Judgment
Dipankar Dutta, J.
The Appeal
1.
This appeal, by special leave, is at the instance of the second to
fifth defendants1 in a suit for cancellation of sale deeds, recovery of
possession and injunction. The appellants mount a challenge to the
judgment and decree dated 21st September, 2021 of the High Court
of Judicature at Allahabad2, dismissing their second appeal under
Section 100 of the Code of Civil Procedure, 19083. In such appeal,
the first appellate judgment and decree was under challenge which
reversed the decree of the trial court of dismissal of the civil suit
instituted by the respondent 1.
Resume of Facts
2.
The factual conspectus of the case, to the extent relevant for
adjudication of the present lis, is set out below:
1
appellants, hereafter
2
High Court, hereafter
3
CPC, hereafter
[2025] 4 S.C.R.
2369
Rajeev Gupta & Ors. v. Prashant Garg & Ors.
i)
The common ancestor of the parties, Dr. Babu Ram Garg,
allegedly executed a will dated 17th October, 19514, bequeathing
House No. 49/1, Nai Mandi, Muzaffarnagar5 in favour of his
two sons - Ishwar Chand and Dr. Karam Chand. The third son,
i.e., Ramesh Chand was not given a share in the suit property;
instead, he was bequeathed the business of a pharmacy and
a sum of Rs 5,000/- (Rupees five thousand only). The suit
property was a two storeyed building, with shops being run in
part / portion of the ground floor.
ii)
The genealogical chart of the family is reproduced below for
the sake of convenience:
iii)
In the year 1956, a family settlement was entered into by the
parties concerned in terms whereof the names of Leelawati and
Ramesh Chand were mutated in respect of the suit property,
with the remaining properties being allotted to Dr. Karam Chand.
iv)
After the death of Ishwar Chand in 1984, a civil suit6 was filed
by his wife Leelawati against Ramesh Chand, praying that she
be declared the owner of the western portion of the suit property
admeasuring 48 ft x 83 ft 6 inches, leaving the eastern portion of
the house, admeasuring 96 ft 6 inches x 48 ft for Ramesh Chand.
The said suit stood decreed on 30th May, 1987 by compromise.
v)
Litigation inter se the family members did not end with the
first suit being decreed on compromise. The same continued
with Dr. Karam Chand instituting a suit7 against his brother
Ramesh Chand as well as the heirs of late Ishwar Chand,
4
WILL, hereafter
5
suit property, hereafter
6
Original Suit No. 307/1987, referred to as the "first suit" hereafter
7
Original Suit No. 458/1992, referred to as the "second suit" hereafter
2370
[2025] 4 S.C.R.
Supreme Court Reports
whereby permanent injunction was sought restraining them from
alienating the suit property. An ex-parte ad-interim injunction
was granted vide order dated 15th June, 1992 as regards the
suit property. Such order does not seem to have been served
upon Ramesh Chand or Ishwar Chand's heirs.
vi)
During the pendency of the second suit, on 16th June, 1992 and
29th June, 1992 to be precise, two sale deeds were executed qua
the southern and eastern portion of the suit property by Ramesh
Chand, in favour of the appellants for a total consideration of
Rs 80,000/- (Rupees Eighty thousand only). The deeds were
duly registered, and entered in the relevant book (Book No.1)
on 17th June, 1992 and 30th June, 1992, respectively. It is
material to note that the appellants were not wholly unknown
to the family; they resided in the building immediately to the
south of the suit property.
vii) During the pendency of the second suit instituted by Dr. Karam
Chand, again a compromise was arrived at between Dr. Karam
Chand and Ishwar Chand's heirs on 28th September, 1992. In
terms thereof, Dr. Karam Chand relinquished his rights in respect
of the western portion of the house which had continuously
been in the possession of Ishwar Chand's family.
viii) In yet another seemingly filial turn of events, the second suit was
finally compromised between Dr. Karam Chand and Ramesh
Chand. Dr. Karam Chand's absolute rights over the eastern
portion of the suit property having been accepted, Ramesh
Chand was permitted to remain in possession thereof. In view
of the latter's unemployment, he was allowed to use part of the
rental receipts from the shops to support his family, with the
remainder being given to Dr. Karam Chand. Lastly, the revenue
records were to be mutated to insert Dr. Karam Chand's name.
ix)
It is the appellants' claim that this compromise was never
acted upon, which is evinced by the fact that as agreed upon
in the compromise, mutation in the revenue entries was never
carried out.
x)
In 1997, however, a mutation did occur in the revenue records.
This was carried out in favour of the appellants.
xi)
Ramesh Chand left for his heavenly abode in 2002.
[2025] 4 S.C.R.
2371
Rajeev Gupta & Ors. v. Prashant Garg & Ors.
3.
This factual background set the stage for the commencement of
the third round of legal proceedings, out of which this civil appeal
has arisen.
4.
As late as on 25th February, 2003, Dr. Karam Chand (since deceased)
along with his son8 instituted a suit9 against the appellants, their
mother (the first defendant) (since deceased), the other heirs of Dr.
Karam Chand, and the heirs of Ramesh Chand seeking, inter alia,
the following relief:
"A. That the sale deed dated 16.06.1992 executed by
Shri Ramesh Chand favoring Smt. Meena Kumari etc.
at Rs.80,000/- whose registry has been done on date
17.06.1992 in Book No.1 Section 440 at Page No.347/360
at Serial No.4215 and dated 29.06.1992 executed by
Shri Ramesh Chand favoring Smt. Meena Kumari etc.
at Rs.80,000/- the registry of which has been done in
Book No.1 at Section 3317/3485 at Page No.350/408 at
Serial No.5179 on date 30.06.1992 and whose details
have been given at the end of the plaint and which are
in respect of House No.49B, Nai Mandi, Muzaffarnagar,
should be cancelled and possession be given to Plaintiff
No.2 from the Defendant No.1 to 5 and the intimation of
cancellation of the sale deeds be sent to the office of SubRegistrar, Registry, Muzaffarnagar. In case the Hon'ble
Court considers that the relief cannot be granted only in
favour of the Plaintiff No.2 then the relief may be granted
in favour of the Plaintiff No.2 and Defendant No.8 and 9.
B. That the Defendants should be restrained by way of
injunction order that the property built in A B C D as shown
in map plaint in which on the ground floor Defendant No.
6 and 7 are in possession over some portion should not
execute the sale deed in favour of Defendant No.1 to 5
or in favour of any other person or in any other manner
should not put the Defendant No.1 to 5 or any other person
into the possession over the property of occupancy by
oneself or on any other portion.
8
plaintiffs, hereafter
9
Original Suit No. 117/2003, referred to as the "subject suit" hereafter
2372
[2025] 4 S.C.R.
Supreme Court Reports
C. That the total cost of the suit be directed to be paid by
the defendants to the Plaintiff No. 2.
D. That any other or further order which this Hon'ble Court
may deem fit and proper in the facts and circumstances
of the case may be passed in favour of the Plaintiff No.2
and against the Defendants."
5.
The plaintiffs had applied for amendment of the plaint by filing an
application under Order 6 Rule 17, CPC. They intended to insert
paragraph 13A, after paragraph 13, reading as follows:
"13A: - That the suit is based on title and the suit has
been filed for recovery of possession based on title and
the ground in the plaint is that through the two sale deeds
dated 16.06.1992 and 29.06.1992 which are executed
by Ramesh Chand Garg in favour of Defendant No. 1 to
5 no title has been transferred to Defendant No. 1 to 5
or any one of them. Ramesh Chand Garg had no title in
the said property to which those two sale deeds relate.
Plaintiff by way of abundant precaution also seeks the
relief of cancellation of sale deeds in the suit but which is
not required under the law. Dr. Karam Chand Garg is not
a party in both the sale deeds and Ramesh Chand Garg
had no title in the property."
6.
The order passed on such prayer for amendment by the trial court
is reproduced hereunder:
"From the proposed amendment in the Plaint the nature
of the suit is not changed and nor any irreparable loss is
to be caused to the Defendants at all. The condonation of
delay may be compensated through the costs. Hence the
amendment application is liable to be accepted with costs."
7.
The amendment, though innocuous, was applied with a definite
purpose in mind, which will unfold as the discussion goes ahead.
8.
In the subject suit, a compromise was eventually arrived at between
the plaintiffs and Ramesh Chand's legal heirs on 28th January, 2008.
The latter accepted execution of the WILL by the common ancestor,
thus, consequently accepting that they had no right or title in the
suit property. It was accepted that Ramesh Chand was merely in
[2025] 4 S.C.R.
2373
Rajeev Gupta & Ors. v. Prashant Garg & Ors.
permissive possession and, thus, did not have the right to execute
sale deeds qua the suit property in favour of the appellants.
Verdicts of the Trial Court, the First Appellate Court and the
High Court
9.
On 25th January, 2015, the subject suit was dismissed by the trial
court on the following grounds:
i)
That the plaintiffs failed to prove execution of the WILL in view
of Section 68 of the Indian Evidence Act, 187210 and Section
90A thereof as amended by the State of Uttar Pradesh. It was
held that the presumption of valid execution of documents older
than 30 (thirty) years would not be attracted to those documents
which formed the basis of the subject suit. The plaintiffs' claim
having arisen from the WILL, they failed to prove its execution
inasmuch as only a certified copy of the WILL was produced
before the trial court. Further, the plaint was found to be bereft
of the date of the execution of the WILL, nor was there any
description of the witnesses to the WILL or whether they were
alive at the time.
ii)
Reliance was placed on Section 41 of the Transfer of Property
Act, 188211 to observe that ever since the death of the common
ancestor, the plaintiffs had allowed Ramesh Chand to reside
in the suit property, allowed his name to be mutated in the
revenue records and collected rent from the shopkeepers, thus,
effectively portraying Ramesh Chand as the owner. In such
circumstances, the plaintiffs could not appear out of the blue as
the actual owners so as to challenge the sale deeds by which
the appellants derived title to the suit property.
iii)
With respect to the contention that the sale deeds were barred by
the doctrine of lis pendens, the trial court held that the doctrine
excepted from its ambit suits that are collusive in nature, which
the second suit was found to be. Furthermore, no objection had
been taken by the plaintiffs during the pendency of the second
suit with respect to the strangers taking possession.
10
Evidence Act, hereafter
11
ToP Act, hereafter
2374
[2025] 4 S.C.R.
Supreme Court Reports
iv)
The amendment applied for by the plaintiffs, referred to above,
was ostensibly made with the purpose of getting over the bar of
limitation. If it were a suit seeking only recovery of possession,
the prescribed period of limitation would be 12 (twelve) years,
whereas for cancellation, it would be 3 (three) years. However,
the trial court did not confine itself to what the plaintiffs averred
in paragraph 13A (inserted by way of amendment) and looking
at the nature of relief claimed, placed reliance on Article 59 of
the Limitation Act, 196312 providing only a three-year limitation
period for cancellation of documents. The subject suit was
instituted only in 2003 qua sale deeds which had been executed
11 (eleven) years prior in 1992. Thus, the suit was held to be
barred by limitation.
v)
Additionally, it was held that the plaintiffs had been unable to
prove their ownership of the suit property and, thus, were not
entitled to the consequential reliefs sought for.
10. Aggrieved, the plaintiffs filed a first appeal before the District Judge13.
During the pendency of this appeal, the second plaintiff had also filed
an interlocutory application, again seeking an amendment. On this
occasion, he sought to introduce in the plaint the relief of declaration
with respect to the disputed sale deeds. Given the stand taken in
paragraph 13A of the plaint that cancellation of the sale deeds had
been prayed for only as and by way of abundant caution, a completely
new relief of declaration that the sale deeds dated 16th June, 1992
and 29th June, 1992 do not affect the title of the plaintiffs to the suit
property and are not binding on them was sought by the second
plaintiff which effectively turned his said stand on its face. Surprisingly,
this application was allowed by the first appellate court vide order
dated 18th October, 2016. However, on an application made by the
appellants under Article 227 of the Constitution, the High Court set
aside the same vide its order dated 06th December, 2016.
11. The first appellate court thereafter, vide judgment dated 04th March,
2017, allowed the appeal and decreed the suit of the plaintiffs on
the following grounds:
12
Limitation Act, hereafter
13
first appellate court, hereafter
[2025] 4 S.C.R.
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Rajeev Gupta & Ors. v. Prashant Garg & Ors.
i)
In the first suit, Ms. Leelawati relied upon the WILL which was
not contested by Ramesh Chand, thus, proving the veracity
of the WILL. Furthermore, the appellants being strangers to
the family could not question the validity of the WILL, more so
when none of the family members themselves had laid such
a challenge.
ii)
The appellants traced their interest in the suit property from
Ramesh Chand, who himself had never claimed ownership of
the suit property either on the basis of the WILL or a family
settlement. Their case being that Ramesh Chand acquired
ownership through the latter, the burden to prove the same
rested on the appellants.
iii)
Since Ramesh Chand was never the owner, the sale deeds
executed by him in favour of the appellants were void and,
thus, it could not affect the plaintiffs' right to the suit property,
hence obviating the necessity to seek a declaration qua such
sale deeds. Consequently, Article 59 of the 1963 Act would not
apply, the deeds having been executed by a person who had
no right to execute them, with the plaintiffs not being a party
thereto.
iv)
The sale deeds were held to be hit by the doctrine of lis pendens,
having been executed during the pendency of the second suit.
The trial court's finding of the second suit being collusive was
set aside on the ground that the compromise arrived at in the
said suit benefitted only Ramesh Chand, and not the plaintiffs.
12. The second appeal carried by the appellants before the High Court
resulted in the judgment and decree impugned in this civil appeal.
It was held by the High Court as follows:
i)
The sale deeds being void, having been hit by lis pendens,
the plaintiffs were not obliged to seek the relief of cancellation.
Further, it was Article 65 of the 1963 Act which would govern
the suit proceedings and the relief of possession having been
sought, the period of limitation prescribed therefor being 12
(twelve) years.
ii)
The plaints of both the first and the second suits were examined.
In the first suit, Ms. Leelawati claimed title to the suit property
through the WILL, which suit was eventually compromised.
2376
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In the second suit too, it was categorically averred that the
WILL executed did not give any share in the suit property to
Ramesh Chand. This suit too was decreed on compromise, with
both parties admitting execution of the WILL. The execution
of the WILL having, thus, been proved by admission of both
the plaintiffs and the predecessor-in-interest of the appellants,
there thus arose no need to prove the WILL in the present
proceedings, the issue being barred by res-judicata.
iii)
The subject suit was held to be instituted within limitation,
Article 65 of the 1963 Act being applicable since the plaintiffs
sought possession not on the basis of the cancellation of void
documents, but on the basis of title. Though there was a prayer
seeking cancellation of the documents, the benefit of the outer
limitation period of 12 (twelve) years for recovery of possession
would still accrue in favour of the plaintiffs.
iv)
The compromise decree in the first suit would not bind the
plaintiffs since they were not parties to the suit. Hence, the
subject suit being decreed by the first appellate court was
confirmed.
Arguments
13. Mr. Gulati, learned senior counsel on behalf of the appellants, assailed
the impugned judgment on the following grounds:
(i)
First, though the plaintiffs' claim to title rested entirely on the
WILL, the plaint was woefully bereft of pertinent particulars with
respect to execution of the document, such as the date of its
execution, who were the attesting witnesses and whether the
WILL was registered or not. Furthermore, the original of the
WILL had not been produced before any forum in the present
proceedings, and only a certified copy of the WILL was produced,
that too 5 (five) years after the subject suit was instituted.
There was no pleading in the plaint that the original WILL had
been misplaced or lost. Thus, the courts below could not have
accepted the WILL without the plaintiffs first having proved the
loss of the original.
(ii)
Secondly, though the plaint originally contained a prayer for
cancellation of the sale deeds, the same was later given up
on the premise that it was wholly unnecessary and had only
[2025] 4 S.C.R.
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Rajeev Gupta & Ors. v. Prashant Garg & Ors.
been made by way of abundant caution. Once such prayer
stood removed, the only prayer remaining in the suit was that
of seeking possession. However, where there lay a cloud over
the title, such a suit for bare relief of possession could not lie
and succeed.
(iii) Thirdly, the first and the second suits, which were decreed by
way of compromise, were evidently collusive suits and, thus,
constituted an exception to the doctrine of lis pendens. Further,
the validity of the execution of the WILL was not an issue that
was determined in either of the two suits, so as to constitute
res judicata in the present proceedings. Even in the subject
suit, Ramesh Chand's daughter, i.e., the seventh defendant
had admitted in her evidence that she was paid money by the
plaintiffs to settle the subject suit, though she was also a witness
to both the sale deeds executed by her father.
(iv) Fourthly, the compromise in the second suit was recorded
only on 13th October, 1992, by which time Ramesh Chand had
already executed the two sale deeds. Having sold his share in
the subject property anterior to the compromise, Ramesh Chand
no longer had any locus to enter into the said compromise,
having transferred the entirety of his rights, title and interest
in the suit property to the appellants. Reliance was placed on
Section 18 of the Evidence Act to urge that an admission by a
person would be binding only if the person still had an interest
in the matter at the time the admission was made.
(v)
Fifthly, the interim order of injunction dated 05th June, 1992 in
the second suit was never communicated to the appellants.
Though the plaint contains a bare averment with respect to such
order being within the knowledge of the appellants, no details
of the same were ever given. Furthermore, this interim order
was not produced before the trial court and was only produced
for the first time at the first appellate stage.
(vi) Sixthly, Section 41 of the ToP Act would apply to the present
proceedings, as rightly held by the trial court, since the plaintiffs
had allowed Ramesh Chand to act as the owner for all intents and
purposes to the world at large. This is evinced by the factum of
Ramesh Chand's name being mutated in the municipal records
in respect of the eastern portion of the suit property all the way
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back in 1956, and that he was allowed to collect rent from the
tenants in possession of part of the suit property.
(vii) Seventhly, the second plaintiff in his cross-examination admitted
that within 10 (ten) days of purchase of the suit property, in 1992
itself, the appellants had taken possession of the suit property.
Despite the cause of action having arisen in 1992, the plaintiffs
chose to institute the suit 11 (eleven) years later in 2003. The
limitation period prescribed for suits seeking cancellation of
documents being 3 (three) years, as laid down in Article 59 of
the 1963 Act, the plaintiffs' suit was evidently barred by limitation.
14. Mr. Gulati, resting on the aforesaid contentions, appealed that it was
a fit and proper case where the impugned second appellate judgment
and decree ought to be reversed and that of the trial court restored.
15. Mr. Kumar, learned counsel for the plaintiffs, assiduously argued
in favour of upholding of the impugned second appellate judgment
and decree, asserting that it was in accordance with law and did not
deserve interference, on the following grounds:
(a) First, the WILL of Dr. Babu Ram Garg gave all the three sons
shares of the testator's properties, leaving none behind. As per
the document, Ramesh Chand only inherited the pharmacy
business and Rs 5000. Thus, Ramesh Chand (the vendor of
the appellants) not having been bequeathed any interest in the
suit property by his father, he could not have transferred any
portion thereof to the appellants. The plaintiffs had duly produced
a certified copy of the registered WILL on 26th February, 2003
and a certified copy was also exhibited on 06th February, 2008.
At no point in the proceedings did the appellants raise any
additional issue with respect to the WILL or non-production of
the original thereof. Thus, the issue could not be agitated for
the first time before this Court.
(b) Secondly, the WILL stood admitted by all heirs of Dr. Babu Ram
Garg with none of the legal heirs contesting the same. In view
thereof, the appellants could not have raised a challenge to
the WILL when the party through whom they traced their title,
i.e., Ramesh Chand, never contested the WILL. It was argued
that any defence that could not have been taken by the person
from whom a transferee derives his title could not be taken by
such transferee.
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Rajeev Gupta & Ors. v. Prashant Garg & Ors.
(c)
Thirdly, the sale deeds executed by Ramesh Chand in favour
of the appellants were executed in violation of the ad-interim
stay order dated 05th June, 1992 passed in the second suit
and hence, were void.
(d) Fourthly, the plaint duly prayed for cancellation of sale deeds,
by way of abundant caution. The issue was duly contested by
the appellants and, thus, they cannot today claim that such
prayer was never made.
(e)
Fifthly, the appellants would not get the benefit of Section 41 of
the ToP Act in the absence of any pleadings to such effect. It
was argued that there is no whisper of the alleged ostensible
ownership of Ramesh Chand in either the written statement, the
grounds of the second appeal or the present special leave petition.
The appellants could not be held entitled to the benefit of such
provision since no case was specifically made out for the same.
(f)
Sixthly, without prejudice to the submission that no challenge
could have been laid to such compromise without filing an
application under Order XXIII Rule 3, CPC, it was contended
that no issue was framed in the subject suit/proceedings with
respect to the compromise decrees passed in the earlier suits
being collusive. Further, no questions or suggestions in this
regard were put to the plaintiffs' witnesses. The compromise
decree in the second suit was, thus, valid and binding on the
appellants.
(g) Lastly, it was submitted that the main relief sought in the subject
suit was recovery of possession, the limitation period for which
is 12 (twelve) years, as prescribed in Article 65 of the Limitation
Act. The dispossession of the plaintiffs having occurred in
1992, institution of the subject suit in 2003 was well within
the period of limitation. The relief of cancellation of void sale
deeds was merely an ancillary relief, and would not disentitle
the plaintiffs to the primary relief for which the limitation period
is 12 (twelve) years.
Analysis and Reasons
16. The present proceedings involve determination of multiple legal
issues of some complexity. We would endeavour to deal with them
sequentially.
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I.
Whether the suit was barred by limitation
17. A coordinate Bench of this Court, in its decision of Khatri Hotels
(P) Ltd. v. Union of India14, examined the position under Article
120 of the Limitation Act, 1908 vis-à-vis Article 58 of the Limitation
Act to observe that the right to sue would accrue when there was a
clear and unequivocal threat of infringement of the plaintiff's right.
However, while the former provision simply stated that the period of
limitation commenced when the right to sue accrues, in a marked
linguistic departure, the latter provision stated that the limitation would
commence when the right to sue "first" accrued. Having observed
so, this Court held that:
"30. While enacting Article 58 of the 1963 Act, the legisla
ture has designedly made a departure from the language
of Article 120 of the 1908 Act. The word 'first' has been
used between the words 'sue' and 'accrued'. This would
mean that if a suit is based on multiple causes of action,
the period of limitation will begin to run from the date when
the right to sue first accrues. To put it differently, succes
sive violation of the right will not give rise to fresh cause
and the suit will be liable to be dismissed if it is beyond
the period of limitation counted from the day when the
right to sue first accrued."
(emphasis supplied)
18. Khatri Hotels (P) Ltd. (supra) noticed the decision of a three-Judge
Bench in Rukhmabai v. Lala Laxminarayan15 wherein the legal
position was stated thus:
"34. The legal position may be briefly stated thus : The right
to sue under Article 120 of the Limitation Act accrues when
the defendant has clearly and unequivocally threatened to
infringe the right asserted by the plaintiff in the suit. Every
threat by a party to such a right, however ineffective and
innocuous it may be, cannot be considered to be a clear
and unequivocal threat so as to compel him to file a suit.
Whether a particular threat gives rise to a compulsory
14
(2011) 9 SCC 126
15
AIR 1960 SC 335
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2381
Rajeev Gupta & Ors. v. Prashant Garg & Ors.
cause of action depends upon the question whether that
threat effectively invades or jeopardizes the said right."
(emphasis supplied)
19. Khatri Hotels Pvt. Ltd. (supra) was noticed and applied by a bench
of three-Judges in Shakti Bhog Food Industries Ltd. v. Central
Bank of India16, although in the context of Order VII Rule 11, CPC.
It was held thus:
"17. The expression used in Article 113 of the 1963 Act is
'when the right to sue accrues', which is markedly distinct
from the expression used in other Articles in First Division
of the Schedule dealing with suits, which unambiguously
refer to the happening of a specified event. Whereas,
Article 113 being a residuary clause and which has been
invoked by all the three courts in this case, does not specify
happening of particular event as such, but merely refers
to the accrual of cause of action on the basis of which the
right to sue would accrue.
18. Concededly, the expression used in Article 113 is
distinct from the expressions used in other Articles in the
First Division dealing with suits such as Article 58 (when
the right to sue 'first' accrues), Article 59 (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) and Article 104 (when the plaintiff is
'first' refused the enjoyment of the right). The view taken by
the trial court, which commended to the first appellate court
and the High Court in the second appeal, would inevitably
entail in reading the expression in Article 113 as - when
the right to sue (first) accrues. This would be rewriting of
that provision and doing violence to the legislative intent.
We must assume that Parliament was conscious of the
distinction between the provisions referred to above and
had advisedly used generic expression 'when the right to
sue accrues' in Article 113 of the 1963 Act. Inasmuch as,
it would also cover cases falling under Section 22 of the
1963 Act, to wit, continuing breaches and torts."
16
(2020) 17 SCC 260
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20. Shakti Bhog Food Industries Ltd. (supra) also noticed the earlier
three-Judge bench decision in Union of India v. West Coast Paper
Mills Ltd.17. There, the distinction between Article 58 and Article 113
of the Limitation Act was noticed and delineated as under:
"21. A distinction furthermore, which is required to be
noticed is that whereas in terms of Article 58 the period
of three years is to be counted from the date when 'the
right to sue first accrues', in terms of Article 113 thereof,
the period of limitation would be counted from the date
'when the right to sue accrues'. The distinction between
Article 58 and Article 113 is, thus, apparent inasmuch as
the right to sue may accrue to a suitor in a given case
at different points of time and, thus, whereas in terms of
Article 58 the period of limitation would be reckoned from
the date on which the cause of action arose first, in the
latter the period of limitation would be differently computed
depending upon the last day when the cause of action
therefor arose."
21. One other three-Judge bench decision of this Court is Madhukar
Vishwanath v.