CASE NO.:

Appeal (civil) 2412 of 2006 PETITIONER:

Prem Singh & Ors.

RESPONDENT:

Birbal & Ors.

DATE OF JUDGMENT: 02/05/2006 BENCH:

S.B. Sinha & P.K. Balasubramanyan JUDGMENT:

J U D G E M E N T (Arising out of SLP (C) No.11/2003)

S.B. SINHA, J. Leave granted.

Whether the provision of Article 59 of the Limitation Act would be attracted in a suit filed for setting aside a Deed of Sale, is in question in this appeal which arises out of a judgment and order dated

2.9.2002 passed by the High Court of Madhya Pradesh at Jabalpur Civil Second Appeal No.8 of 1998.

Respondent No.1 herein filed a suit for declaration and partition of the land consisting of 19 bighas and 12 biswas claiming himself to be a co-sharer with the defendant. One Mihilal was the owner of the suit land comprising of different khasra numbers, situate in Village Akhoda, in the District of Bhind. The said suit was filed by the plaintiff-Respondent No.1 alleging that his father Chhedilal had a share therein in addition to owner of another land in khasra No.516, measuring 6 biswas. Chhedilal died in the year 1950. His wife also died soon thereafter. At the time of the death of his father, the plaintiff-Respondent No.1 was a minor. He started living with Appellant No.4-Lal Bihari. He, allegedly, executed a deed of sale on

1.1.1961 in respect of khasra No.516 measuring 6 biswas to Babu Singh and Tek Singh for a consideration of Rs.7,000/-. His age in the Sale Deed was shown to be 26 years. Only on 17.8.1979, he, allegedly, gathered the information that the land under khasra No.516 was purported to have been sold by him to the aforementioned persons. He, thereafter, filed the suit on 24.9.1979. The Appellant herein pleaded that the suit was barred by limitation. The said suit of the Respondent No.1 was dismissed by the trial court by a judgment and decree dated 29.4.1995 holding that the suit was barred by limitation. An appeal was preferred thereagainst by the plaintiff. The

1st Appellate Court by judgment and decree dated 11.12.1997, held that the said Deed of Sale was got executed by playing fraud on the plaintiff who was a minor at the relevant point of time and the said Deed of Sale, thus, being void ab intio, the limitation of three years from the date of attaining of majority, as is provided for in Article 59 of the Limitation Act, 1963, would not be applicable in the instant case. A second appeal preferred by the Appellants herein was dismissed by the impugned judgment dated 2.9.2002.

Mr. S.K. Gambhir, learned Senior Counsel appearing on behalf of the Appellants, in support of this appeal, contended that: i) Having regard to the fact that Respondent No.1 herein filed a suit on 24.9.1979 for setting aside the Deed of Sale dated

1.12.1961, the same was clearly barred by limitation;

ii) The period of limitation for setting aside the said Deed of Sale, as contended by the plaintiff, did not start running from

22.8.1979, but from the date he attained majority;

iii) Even assuming that the findings of the learned Appellate Court were correct that the Respondent No.1 was aged about 12 years in 1961 and he attained majority in the year 1969, he was required to file the suit within three years thereafter.

(iv) The Appellate Court as also the High Court failed to take into consideration the documentary evidence which clearly established that Respondent No.1 was a major on the date of execution of the said Deed of sale.

Mr. Naresh Kaushik, learned counsel appearing on behalf of the Respondents, on the other hand, submitted that i) On the date of execution of the said deed of sale, Respondent No.1 being a minor, Article 59 of the Limitation Act would have no application;

ii) When a transaction is void, as a suit can be filed at any time, the provisions of the Limitation Act are not attracted.

Strong reliance in this behalf has been placed on Balvant N.

Viswamitra & Ors. vs. Yadav Sadashiv Mule (Dead) through LRs.

& Ors. [(2004) 8 SCC 706].

The trial court, in view of the pleadings of the parties framed