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Sanni Bibi v. Siddik Husain Munshi
Factual and Procedural Background
The Plaintiffs, appellants in the present appeal, initiated a suit seeking recovery of possession of a share in certain land along with a declaration of their title. They also sought cancellation of a deed of sale by which they had transferred the property to Defendant No. 1, alleging that the deed was executed under fraudulent representation that it was a jimbanama for their maintenance for three years. Originally, the Plaintiffs claimed fifteen plots, but abandoned claims to Plots Nos. 5, 6, and 7 at trial. It was found that possession of Plots Nos. 3, 9, 11, and 13 had been lost for over twelve years, and these claims were conceded to be barred by limitation. The dispute thus pertains only to Plots Nos. 1, 2, 4, 8, 10, 12, 14, and 15. Both lower courts held the claim barred by limitation, applying Article 91 of the First Schedule of the Indian Limitation Act, reasoning that the Plaintiffs must first obtain cancellation of the deed of sale. The trial court found fraud in the execution of the deed (kobala) and that Plaintiffs executed it believing it to be a jimbanama. The appellate court, however, did not address the fraud issue and held the entire claim barred by limitation.
Legal Issues Presented
- Whether the deed of sale executed by the Plaintiffs is void ab initio due to fraudulent representation, thereby excluding the applicability of Article 91 of the Indian Limitation Act.
- Whether the Plaintiffs’ claim to recovery of possession is barred by limitation if the deed is considered valid and requires cancellation before recovery.
- Whether the principle that a person seeking recovery against an instrument executed by himself must first obtain cancellation of that instrument applies when the execution was induced by fraud amounting to no consent at all.
Arguments of the Parties
Plaintiffs' Arguments
- The deed of sale was executed under fraudulent representation that it was a jimbanama for maintenance, thus it is void ab initio.
- Since the deed is void ab initio, Article 91 of the Indian Limitation Act does not apply and the limitation period should not bar their claim.
- There was no valid consent to the deed as required under contract law, meaning the deed was never validly executed.
Defendant's Arguments
- The principle stated in Harihar Ojha v. Dasamthi Misra applies, requiring cancellation of the deed before recovery can be sought.
- The Plaintiffs’ claim is barred by limitation under Article 91 since the deed was validly executed.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Harihar Ojha v. Dasamthi Misra | Requirement that a person seeking recovery against an instrument executed by himself must first obtain cancellation of that instrument; application of Article 91 of the Indian Limitation Act. | Lower courts applied this principle to hold Plaintiffs’ claim barred by limitation; principle not disputed but its applicability questioned if the deed was void ab initio. |
| Thoroughgood's case | If a deed is falsely read to an illiterate person who executes it relying on the false reading, the act is wholly void. | Supported the Court’s view that where there is no real consent, the deed is void ab initio and Article 91 does not apply. |
| Foster v. Mackinson | Signature obtained by fraud that was not intended for the purported purpose is wholly inoperative. | Reinforced the principle that fraudulent execution negates the validity of the deed. |
| Oriental Bank Corporation v. Fleming | Application of the principle that a deed executed under fraud is void. | Bombay High Court applied the principle supporting the present Court’s reasoning. |
| Dagdu v. Bhana | Application of fraud-related principles to invalidate deeds. | Supported the Court’s application of the principle regarding void deeds due to fraud. |
| Banku Behari Shaha v. Krista Gobinda Joardar | Application of the principle that fraudulent execution renders a deed void. | Applied by this Court to support the principle that fraudulent deeds are void ab initio. |
Court's Reasoning and Analysis
The Court examined whether the deed of sale was void ab initio due to fraudulent misrepresentation that it was a jimbanama. It acknowledged the settled principle that a party seeking recovery against an instrument executed by himself must first obtain cancellation of that instrument, invoking Article 91 of the Indian Limitation Act. However, the Court distinguished the present facts based on the trial court’s finding that the Plaintiffs executed the deed believing it to be a different document. Citing English authorities (Thoroughgood's case and Foster v. Mackinson) and Indian precedents, the Court held that where consent is absent due to fraud, the deed is void ab initio, and thus Article 91 does not apply. The Court did not express an opinion on the correctness of the trial court’s factual finding but held that if the finding is upheld, the Plaintiffs’ contention must prevail. Consequently, the Court remanded the case to the lower Appellate Court to examine the circumstances of the deed’s execution and decide on the limitation issue in light of these principles.
Holding and Implications
The appeal is decreed and the case is remanded to the lower Appellate Court for rehearing.
The lower Appellate Court is directed first to determine the factual circumstances under which the sale deed was signed by the Plaintiffs and then decide whether the Plaintiffs’ claim to the remaining plots is barred by limitation. The decision implies that if the deed is found void ab initio due to fraud, the limitation period under Article 91 of the Indian Limitation Act does not apply. No new precedent is set beyond affirming the application of established principles regarding fraud and limitation.
The Judgment of the Court was as follows:—
The Plaintiffs who are the appellants before us brought the suit out of which this appeal arises for the recovery of possession of a share of certain land on declaration of their title thereto. They also asked for cancellation of a deed of sale by which they had transferred the property in suit to the Defendant No. 1 alleging that they had executed the deed in consequence of a fraudulent representation by this Defendant that the deed was a jimbanama for their maintenance for a term of three years.
The Plaintiffs originally claimed fifteen plots of land. At the trial the claim to Plots Nos. 5, 6 and 7 was abandoned. It has been found that the Plaintiffs have been out of possession of Plots Nos. 3, 9, 11 and 13 for more than twelve years and it is conceded that as regards these plots it cannot be disputed on second appeal that this portion of the claim is barred by limitation. We are now therefore concerned only with Plots Nos. 1, 2, 4, 8, 10, 12, 14 and 15. As regards these plots both the lower Courts have found that the claim is barred by limitation on the ground that the Plaintiffs cannot succeed without first obtaining a cancellation of the deed of sale and consequently Art. 91 of the First Schedule of the Indian Limitation Act applies. The Court of first instance held that the alleged fraud in the execution of the kobala was proved and that the Plaintiffs executed it “knowing and believing it to be the jimbanama.” The lower Appellate Court after holding that the Plaintiffs' whole claim was barred by limitation did not go into the question of fraud.
The only point urged before us is that if the Munsif's finding is correct, the deed is void ab initio and Art. 91 has no application and therefore the case should be remanded to the lower Appellate Court for a finding as to the truth of the Plaintiffs' allegation as to the execution of the document. The principle which has been applied by the lower Courts is that stated by Woodroffe, J., in Harihar Ojha v. Dasamthi Misra . “There can be no doubt that when a person seeks to recover property against an instrument executed by himself or one under whom he claims, he must first obtain cancellation of the instrument and that the three years' rule enacted by Art. 91 applies to any suit brought by such person.” This principle of law is not disputed but it is contended that on the facts found by the Munsif that the Plaintiffs executed the deed of sale believing that they were executing a deed of a different kind, there was in law no execution of the deed by them. The same contention put in another form is that though when consent to an agreement is caused by fraud or misrepresentation the agreement is a contract voidable under sec. 19 of the Contract Act and not void, here there was no consent at all.
In our opinion this contention must prevail. It is based primarily on the authority of the English cases, Thoroughgood's case and Foster v. Mackinson . In the former it was held that if a deed is falsely read over to an illiterate man and he executes the deed relying on the false reading as being the true substance of the transaction, his act is wholly void. In the latter the Defendant had purported to endorse a bill of exchange which he was told was a guaranty. The Plaintiff was a subsequent holder for value and therefore the fact that the Defendants' signature was obtained by fraud would not have protected him in this action. The Court held that his signature not being intended as an endorsement to a bill of exchange was wholly inoperative. The principle established by these decisions has been applied by the Bombay High Court in Oriental Bank Corporation v. Fleming and Dagdu v. Bhana and by this Court in Banku Behari Shaha v. Krista Gobinda Joardar . We therefore have no hesitation in holding that it ought to be applied in the present case if the Munsif's finding on the facts can be upheld. Whether the Munsif's finding is right is a question on which we express no opinion.
We accordingly decree this appeal and remand the case to the lower Appellate Court for a rehearing of the appeal. He will first come to a finding as to the circumstances under which the sale deed in question was signed by the Plaintiffs and then decide in the light of the above remarks whether the claim of the Plaintiffs to the remaining eight plots is barred by limitation.
Costs will abide the result.
N.G
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