Banerji, J.:— The court below has dismissed the suit of the plaintiff appellant on the ground that it is barred by limitation, under article 91 of the second schedule to the Limit-ation Act. The only question for determination in this appeal is whether that article governs the suit. The plaintiff's case was that he and his nephew Ramdeo executed a sale deed of certain zamindari property in favour of the defendant Musammat Phuljhari, on the 27th of June, 1899; that the sale was a fictitious transaction and was never given effect to; that it was agreed that Musammat Phuljhari should execute a deed of relinquishment; that a deed was drawn up and signed by her, but she refused to have it registered, and that an application for the registration of the deed, made by the plaintiff to the District Registrar, was refused. The plaintiff, accordingly brought the present suit for a decree directing the registration of the deed of relinquishment. This part of the claim was subsequently withdrawn. He further prayed that it may be declared that the sale of the 27th of June, 1899, is a fictitious transaction and without consideration. In the alternative, he prayed that if the sale transaction was held to be genuine Rs. 800, the amount of consideration mentioned in the sale deed, should be awarded to him against the defendant. The court of first instance held that the sale was a fictitious transaction and dismissed the claim. On appeal, the learned Judge came to the conclusion that the suit was time-barred, having been brought after three years from the date of its execution. This view of the learned Judge appears to us to be erroneous. The claim was not to set aside the sale deed, but for a declaration that from its very inception, it was a sham transaction. If this was so, there was no necessity for the plaintiff to have the deed set aside, and therefore article 91 of the second schedule to the Limitation Act had no application. This was so held by the Calcutta High Court in Sham Lall Mitra v. Amarendro Nath Bose(1). We may also refer to the recent ruling of their Lordships of the Privy Council in the case of T.P Petherpermal Chetty v. R. Muniandy Servai(2). If article 91 was applicable, the learned Judge should also have determined when the facts entitling the plaintiff to have the instrument cancelled or set aside became known to him. This he has not done. As the suit was dismissed on a preliminary ground, and in our opinion, that ground is untenable, we allow the appeal, set aside the decree of the court below, and remand the case to that court under section 562 of the Code of Civil Procedure, with directions to re-admit it under its original number in the register, and dispose of it according to law on the merits. The appellant will have his costs of this appeal. Other costs will follow the event.
2. Appeal decreed.