TMI Blog2006 (5) TMI 517X X X X Extracts X X X X X X X X Extracts X X X X ..... had been a fraudulent misrepresentation as regards its contents. There is a presumption that a registered document is validly executed. A registered document, therefore, prima facie would be valid in law. The onus of proof, thus, would be on a person who leads evidence to rebut the presumption. In the instant case, Respondent No.1 has not been able to rebut the said presumption. If a deed was executed by the plaintiff when he was a minor and it was void, he had two options to file a suit to get the property purportedly conveyed thereunder. He could either file the suit within 12 years of the deed or within 3 years of attaining majority. Here, the plaintiff did not either sue within 12 years of the deed or within 3 years of attaining majority. Therefore, the suit was rightly held to be barred by limitation by the trial court. Since the lower Appellate Court and the High Court were not right in law in holding that the suit was not barred by limitation, the judgments and decrees of the lower Appellate Court and that of the High Court are liable to be set aside and dismissal of the suit by the trial court on the ground that it is barred by limitation is liable to be restored. Hence, w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. 4. 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 int ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... very suit instituted, appeal preferred and every application made after the prescribed period shall be dismissed. Article 59 of the Limitation Act applies specially when a relief is claimed on the ground of fraud or mistake. It only encompasses within its fold fraudulent transactions which are voidable transactions. 7. A suit for cancellation of instrument is based on the provisions of Section 31 of the Specific Relief Act, which reads as under: 31. When cancellation may be ordered. (1) Any person against whom a written instrument is void or voidable, and who has reasonable apprehension that such instrument, if left outstanding may cause him serious injury, may sue to have it adjudged void or voidable; and the court may, in its discretion, so adjudge it and order it to be delivered up and cancelled. (2) If the instrument has been registered under the Indian Registration Act, 1908, the court shall also send a copy of its decree to the officer in whose office the instrument has been so registered; and such officer shall note on the copy of the instrument contained in his books the fact of its cancellation. Section 31 of the Specific Relief Act, 1963 thus, refers to both void and void ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e to the former, it has been held that the transaction is void, while in the case of the latter, it is merely voidable In that case, a fraud was found to have been played and it was held that as the suit was instituted within a few days after the Appellant therein came to know of the fraud practiced on her, the same was void. It was, however, held: Article 91 of the Indian Limitation Act provides that a suit to set aside an instrument not otherwise provided for (and no other provision of the Act applies to the circumstances of the case) shall be subject to a three year's limitation which begins to run when the facts entitling the plaintiff to have the instrument cancelled or set aside are known to him. In the present case, the trial court has found, upon examination of the evidence, that at the very time of the execution of the gift deed, Ex. 45 the appellant knew that her husband prevailed upon her to convey survey Plots Nos. 407/1 and 409/1 of Tadavalga village to him by undue influence. The finding of the trial court is based upon the admission of the appellant herself in the course of her evidence. In view of this finding of the trial court it is manifest that the suit of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ill of Rose Maud Gallie, Deceased) vs. Anglia Building Society [1971] 1 AC 1004} 12. In Balvant N. Viswamitra Ors. vs. Yadav Sadashiv Mule (Dead) Through LRS. Ors. [(2004) 8 SCC 706], this Court opined that a void decree can be challenged even in execution or a collateral proceeding holding: The main question which arises for our consideration is whether the decree passed by the trial court can be said to be null and void . In our opinion, the law on the point is well settled. The distinction between a decree which is void and a decree which is wrong, incorrect, irregular or not in accordance with law cannot be overlooked or ignored. Where a court lacks inherent jurisdiction in passing a decree or making an order, a decree or order passed by such court would be without jurisdiction, non est and void ab initio. A defect of jurisdiction of the court goes to the root of the matter and strikes at the very authority of the court to pass a decree or make an order. Such defect has always been treated as basic and fundamental and a decree or order passed by a court or an authority having no jurisdiction is a nullity. Validity of such decree or order can be challenged at any stage, even in ..... X X X X Extracts X X X X X X X X Extracts X X X X
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