In The Supreme Court Of India

Civil Appellate Jurisdiction

Civil Appeal No.5167 Of 2010
Khushi Ram & Ors. Vs. Nawal Singh & Ors.
Decided on February 22, 2021.
Judgment
Ashok Bhushan, J.
1. This appeal has been filed by the plaintiffs of Civil Suit challenging the judgment
dated 16.04.2009 of High Court of Punjab & Haryana dismissing the second appeal filed
by the appellant.
2. The brief facts of the case as emerged from the pleadings of the parties are:
2.1 One Badlu, who was the tenure-holder of agricultural land situate in Village
Garhi Bajidpur, Tehsil and District Gurgaon, had two sons Bali Ram and Sher Singh. Sher
Singh died in the year 1953 issueless leaving his widow Smt. Jagno.
2.2 Plaintiffs-appellants are descendants of Bali Ram. After death of Sher Singh, his
widow inherited share of her late husband, i.e., the half of the agricultural property
owned by Badlu. A Civil Suit No.317 of 1991 was filed by Nawal Singh and two others
against Smt. Jagno in the Court of Sub-Judge, Gurgaon claiming decree of declaration as
owners in possession of the agricultural land mentioned in the suit to the extent of half
share situate in Village Garhi Bajidpur. The plaintiffs claim was that Smt. Jagno, who was
sharer of the half share, has in a family settlement settled the land in favour of the
plaintiffs, who were the brother’s sons of Smt. Jagno.
2.3 Smt. Jagno filed a written statement in the suit admitting the claim of the
plaintiffs. Smt. Jagno also made a statement in the suit accepting the claim of plaintiffs,
the trial court vide its judgment and decree dated 19.08.1991 passed the consent
decree in favour of the plaintiffs declaring the plaintiffs owners in possession of the half
share in the land.
2.4 The plaintiffs, who were descendents of brother of husband of Smt. Jagno filed a
Civil Suit No.79 of 1991 in the Court of Senior Sub-Judge Gurgaon praying for declaration
that the decree passed in Civil Suit No.317 of 1991 dated 19.08.1991 is illegal, invalid
and without legal necessity. The plaintiffs also claimed decree of declaration in their
favour declaring them owners in possession of land in question. In Suit No.79 of 1991, a
joint written statement was filed by the defendants. Smt. Jagno was also defendant
No.4 in the civil Suit No.79 of 1991. The defendants supported the decree dated
19.08.1991. The defendants No.1 to 3 claimed land by family settlement out of love and
affection by the defendant No.4, which family settlement was duly affirmed by Civil
Court decree dated 19.08.1991.
2.5 The trial court framed nine issues. Issue No. 5 being “Whether the decree
dated 19.08.1991 passed in civil suit no.317/91 titled Nawal Singh Etc. Vs. Smt. Jagno
passed by Sh. K.B. Aggarwal SJIC, Gurgaon is illegal, invalid without jurisdiction and
against custom, without legal necessity and consideration and a result of fraud and
undue influence and is liable to be set aside?
2.6 Issue Nos. 2 to 5 were answered in favour of defendants. The trial court also
rejected the argument of the plaintiffs that in absence of registration of decree, no right,
or title would pass in favour of the defendants. Trial court held that registration is
required when fresh rights are created for the first time by virtue of decree itself. It was
held that in the case in hand, defendants were having pre-existing right in the suit
property under as in a family settlement defendant No.4 acknowledged them as owner
and surrendered the possession of the suit property in their favour at the time of family
settlement and the decree dated 19.08.1991 merely affirms their preexisting rights and
hence, does not require registration.
2.7 The plaintiffs aggrieved by the judgment filed first appeal before the learned
District Judge, which too was dismissed. The First Appellate Court held that under
Section 14(1) of the Indian Succession Act, a Hindu female becomes full owner of the
property, which she acquires before the commencement of the Act and not as a limited
owner. The First Appellate Court also held that defendants being near relations of
defendant No.4, they cannot be said to be strangers to her. First Appellate Court also
held that decree did not require registration. The findings of the trial court were
affirmed by the First Appellate Court dismissing the appeal. Aggrieved against the
 judgment of the First Appellate Court, the plaintiffs filed R.S.A. No.750 of 2002. Second
appeal was admitted on following question of law:-
“Whether in the absence of any pre-existing right with the defendant-
respondents 1 to 3, a decree ( Exhibit P.2) suffered by Jagno (who is father's
sister of defendant respondent) required registration under Section 17(1) of
the Indian Registration Act, 1908?”
2.8 The High Court answered the above question of law against the plaintiffs and in
favour of the defendants-respondents. The High Court held that judgment and the
decree rendered in Civil Suit No.317 of 1991 dated 19.08.1991 merely recognise the
existing right which was created by the oral family settlement. High Court further held
that apart from relationship of Smt. Jagno with defendants-respondents 1 to 3, she has
developed close affinity, love, and affection for defendant respondent Nos.1 to 3 as per
the findings recorded by the learned Courts below. The High Court dismissed the second
appeal, aggrieved against which judgment, this appeal has been filed.
3. We have heard Shri Ranbir Singh Yadav, learned counsel for the appellant and Shri
Manoj Swarup, learned senior counsel for the respondent.
4. Learned counsel for the appellants, Shri Yadav submits that no family settlement
could have been entered by Smt. Jagno in favour of defendant Nos.1 to 3, they being
strangers to the family. A Hindu widow cannot constitute a Joint Hindu Family with the
descendants of her brother, i.e., her parental side. Family settlement can take place only
between members, who have antecedent title or pre-existing right in the property
proposed to be settled. Smt. Jagno could have transferred her absolute share in favour
of the respondents or to any stranger only in accordance with law by complying with the
provisions of the Transfer of Property Act, 1882, the Indian Registration Act, 1908 and the
Indian Stamp Act, 1899. Learned counsel further contends that registration of
compromise decree was compulsory by virtue of Section 17 of the Indian Registration Act
and the decree dated 19.08.1991 having not been registered, it did not confer any valid
title to the defendant Nos.1 to 3. All the Courts below committed error in upholding the
decree dated 19.08.1991 whereas the decree being an unregistered decree was liable to
be ignored and declared in operative.
5. Shri Manoj Swarup, learned senior counsel for the respondents refuting the
submissions of the learned counsel for the appellant contends that defendant Nos.1 to 3
had pre-existing right in the suit property, which was clear from the pleadings of Civil
Suit No.317 of 1991. In the above suit, it was categorically pleaded that family
settlement/arrangement took place about two years back and since then plaintiffs are
owners in possession of land and defendant No.4 had relinquished all her rights therein.
6. It is submitted that decree passed in the Civil Suit dated 19.08.1991 only declared the
existing rights of the defendant Nos.1 to 3, which was based on the family settlement. It
is submitted that the defendant Nos.1 to 3 being brother’s sons of Smt. Jagno, they were
not strangers to Smt. Jagno and family settlement could have been very well entered by
Smt. Jagno with them. It is submitted that the expression “family” for the purpose of
family settlement is not to be given any narrow meaning; it should be given a wide
meaning to cover the members, who are by any means related. It is further submitted
that the decree dated 19.08.1991 did not require any registration under Section 17 of
the Indian Registration Act, 1908. The decree was passed with regard to subject matter
of the suit property, it was exempted from registration by virtue of Section 17(2)(vi) of
the Indian Registration Act, 1908. Shri Swarup further contends that the family
settlement could have been made out of love and affection with regard to which there
was ample pleading in the Civil Suit No.317 of 1991 and out of love and affection
defendant No.4, Smt. Jagno could have very well settled the properties in favour of
defendant Nos.1 to 3, her nephews being brother’s sons.
7. Learned counsel for the parties have relied on judgments of this Court for their
respective submissions, which shall be referred to while considering the submissions in
detail.
8. The Civil Suit No.79 of 1991, which gives rise to this appeal was a suit where following
reliefs were claimed by plaintiffs-appellants:-
“10.That the plaintiffs, therefore, pray that a decree for declaration to the
effect that the decree in question passed in Civil Suit No.317 of 1991 dated
19.8.1991 is illegal, invalid, without legal necessity and consideration on the
 grounds stated above in the plaint, and the same does not convey any title in
favour of the defendants No.1 to 3 and does not effect any reversionary rights
of the plaintiffs and the plaintiffs are owners in possession of the land in
question, fully detailed and described in para no.3 of the plaint above, with
consequential relief of permanent injunction restraining the defendants further
alienating the land in question to anyone else, may kindly be passed in favour
of the plaintiffs and against the defendants with costs of this suit.
Any other relief which this Hon’ble Court may deems fit and proper may also
be granted to the plaintiffs.”
9. There is no dispute between the parties that Shri Sher Singh, husband of Smt.
Jagno had half share in the agricultural land situate in village Garhi Bajidpur, which was
suit property. Sher Singh died in 1953. Smt. Jagno after enforcement of the Hindu
Succession Act, 1956 by virtue of Section 14 became the absolute owner of the half
share of the suit property. The bone of contention between the parties centres round the
decree dated 19.08.1991 passed by the Sub-Judge in Civil Suit No.317 of 1991 filed by
defendant Nos.1 to 3 against Smt. Jagno seeking declaration that they are owners in
possession of the suit land. In Civil Suit No.317 of 1991, following was pleaded in
paragraphs 2 and 3:-
“2. That the parties are closely related to each other, the plaintiffs are nephews of
the deft and constituted a Joint Hindu Family. The deft Smt. Jagno Devi is the
daughter of Sh. Shib Lal, the grandfather of the plaintiffs.
3. That the defendant is living with the plaintiffs at Village Chakerpur and the
plaintiffs are looking after her in her old age and the deft has no issue. The deft is
very happy with the services of the plaintiff rendered to her and out of love and
affection, the deft had allotted the above-mentioned land to the plaintiffs in equal
share in a family settlement /arrangement, which took place about 2 years back and
since then the plaintiffs are owners in possession of the said land and the deft had
relinquished all rights therein.”
10. In the aforesaid suit, written statement was filed by Smt. Jagno admitting the
claim of the defendants. The trial court in its decree dated 19.08.1991 held following in
paragraph 2:-
“2. The defendant appeared and filed written statement admitting in toto the
claim of the plaintiffs. Statements of the parties were also recorded. In view of the
written statement and statements of parties, a consent decree in favour of the
plaintiffs and against the defendant is passed for declaration as prayed for, leaving
the parties to bear their own costs. Decree sheet be prepared and file be consigned
to the record room.”
11. In this appeal, following two questions arise for consideration:-
(1) Whether the decree dated 19.08.1991 passed in Civil Suit No.317 of 1991
requires registration under Section 17 of the Indian Registration Act, 1908?;
and
(2) Whether the defendant Nos.1 to 3 were strangers to defendant No.4 so as to
disable her to enter into any family arrangement with defendant Nos.1 to 3?

Question No.(1)
12. There is no dispute that in the earlier Civil Suit No.317 of 1991 in which consent
decree was passed on 19.08.1991, the subject matter of suit was the agricultural land
situated in Village Garhi, Bajidpur. Further the suit was decreed on the written statement
filed by Smt. Jagno accepting the claim of plaintiffs that there was family settlement
between the parties in which the half share in the land was given to the plaintiffs of Civil
Suit No.317 of 1991. The question is as to whether the decree passed on 19.08.1991
required registration under Section 17 of the Indian Registration Act, 1908. Sections
17(1) and 17(2)(vi), which are relevant for the present case, are as follows:-
“17. Documents of which registration is compulsory.—(l) The following
documents shall be registered, if the property to which they relate is situate in a district
in which, and if they have been executed on or after the date on which, Act No. XVI of
1864, or the Indian Registration Act, 1866, or the Indian Registration Act, 1871, or the
Indian Registration Act, 1877, or this Act came or comes into force, namely:—
(a) instruments of gift of immovable property;
(b) other non-testamentary instruments which purport or operate to create,
declare, assign, limit or extinguish, whether in present or in future, any right, title, or
interest, whether vested or contingent, of the value of one hundred rupees and
upwards, to or in immovable property;
(c) non-testamentary instruments which acknowledge the receipt or payment of
any consideration on account of the creation, declaration, assignment, limitation, or
extinction of any such right, title or interest; and
(d) leases of immovable property from year to year, or for any term exceeding one
year, or reserving a yearly rent;
(e) non-testamentary instruments transferring or assigning any decree or order of
a Court or any award when such decree or order or award purports or operates to
create, declare, assign, limit or extinguish, whether in present or in future, any right,
title, or interest, whether vested or contingent, of the value of one hundred rupees and
upwards, to or in immovable property:]
Provided that the State Government may, by order published in the Official Gazette,
exempt from the operation of this sub-section any lease executed in any district, or part
of a district, the terms granted by which do not exceed five years and the annual rents
reserved by which do not exceed fifty rupees.
(2) Nothing in clauses (b) and (c) of subsection (l) applies to—
(vi) any decree or order of a Court except a decree or order expressed to be made on a
compromise and comprising immovable property other than that which is the subject-
matter of the suit or proceeding; or”
13. The submission of the learned counsel for the appellant is that there was no
existing right in the plaintiffs of Civil Suit No.317 of 1991, hence the decree dated
19.08.1991 required registration under Section 17(1)(b) since decree created right in
favour of the plaintiffs. In support of his submission, he has placed reliance on judgment
of this Court in Bhoop Singh Vs. Ram Singh Major and Ors., (1995) 5 SCC 709 where this
Court held that decree or order including compromise decree granting new right, title, or
interest in praesenti in immovable property of value of Rs.100 or above is compulsorily
registrable. In paragraphs 17 and 18 of the judgment, following was laid down:-
“17. It would, therefore, be the duty of the court to examine in each case whether the
parties have pre-existing right to the immovable property, or whether under the order
or decree of the court one party having right, title or interest therein agreed or
suffered to extinguish the same and created right, title or interest in praesenti in
immovable property of the value of Rs 100 or upwards in favour of other party for the
first time, either by compromise or pretended consent. If latter be the position, the
document is compulsorily registrable.
18. The legal position qua clause (vi) can, on the basis of the aforesaid discussion, be
summarised as below:
(1) Compromise decree if bonafide, in the sense that the compromise is not a
device to obviate payment of stamp duty and frustrate the law relating to
registration, would not require registration. In a converse situation, it would require
registration.
(2) If the compromise decree were
to create for the first time right, title or interest in immovable property of the value
of Rs 100 or upwards in favour of any party to the suit the decree or order would
require registration.
(3) If the decree were not to attract any of the clauses of subsection (1) of
Section 17, as was the position in the aforesaid Privy Council and this Court's
cases, it is apparent that the decree would not require registration.
(4) If the decree were not to embody the terms of compromise, as was the
position in Lahore case, benefit from the terms of compromise cannot be derived,
even if a suit were to be disposed of because of the compromise in question.
(5) If the property dealt with by the decree be not the “subject matter of the suit
or proceeding,” clause (vi) of sub-section (2) would not operate, because of the
amendment of this clause by Act 21 of 1929, which has its origin in the aforesaid
decision of the Privy Council, according to which the original clause would have
been attracted, even if it were to encompass property not litigated.”
 14. The decree passed in Bhoop Singh’s case (supra) has been quoted in paragraph
2 of the judgment, which clearly proved that declaration was granted that plaintiff will be
the owner in possession from today. In the above case, the suit was decreed on the basis
of compromise though the decree is on the ground that defendant admitted the claim of
the plaintiff in written statement.
15. Learned counsel for the appellant has further placed reliance on another
judgment of this Court in Civil Appeal No.890 of 2008 – Mata Deen Vs. Madan Lal & Ors.,
in which case also, decree was passed on the ground of family settlement in favour of
the plaintiffs-defendants. The decree passed was required to be compulsorily registered
under Section 17(2)(vi) of the Registration Act, which having not been done, the
judgment was set aside and the case was remanded for the consideration of the
question of law. The observation of this Court in the above judgment is to the following
effect:-
“………………………..The second Appellate Court was required to examine this aspect
of the case. As it is a substantial question of law which fell for consideration under
Section 100 CPC, as could be seen, the impugned judgment passed by the High Court is
simply concurred with the finding of fact concurred with by the first Appellate Court in its
judgment in exercise of its appellate jurisdiction and it had not adverted to the
substantial question of law with respect to compulsory registration of a decree in favour
of the first defendant and the consequences for non-registration of a decree under
Section 17(2)(vi) of the Act and the law laid down by this Court in the case of Bhoop
Singh vs. Ram Singh Major & Ors., (1995) 5 SCC 709 is not applied to the case on hand,
which rendered the impugned judgment and decree bad in law. In view of the reasons
stated supra, we set aside the impugned judgment and decree passed by the High Court
and remand the matter to it with a request to reconsider the matter after framing the
substantial questions of law that would arise for consideration and hear the parties and
pass appropriate orders in accordance with law. Since the matter is of 1995 we request
the High Court to dispose of the matter as expeditiously as possible but not later than
six months from the date of receipt of a copy of this Order. The appeal is disposed of
accordingly.”
16. From the above judgment, it is not clear as to whether the decree, which was
passed on the basis of family settlement, relate to the suit property or the property
which was covered in the decree was not part of the suit land. The above fact is crucial
and it is yet to be determined in view of the remand by this Court, hence, the said
judgment cannot be said to be lend any support to the learned counsel for the
appellant.
17. Shri Manoj Swarup, learned counsel for the respondents have on the other hand
placed reliance on judgment of Som Dev and Ors. Vs. Rati Ram and Anr., (2006) 10 SCC
788. The above was a case where decree was based on an admission recognising pre-
existing rights under family arrangement. This court held that in the above case, the
decree did not require registration under Section 17(1)(b).
18. This Court in a subsequent judgment in K. Raghunandan and Ors. Vs. Ali
Hussain Sabir and Ors., (2008) 13 SCC 102, Court had occasion to interpret Section 17
and laid down following in paragraphs 23, 24, 25 and 28:-
“23. Sub-section (2) of Section 17 of the Act, however, carves out an exception
therefrom stating that nothing in clauses (b) and (c) of sub-section (1) of Section 17
would inter alia apply to “any decree or order of a court except a decree or order
expressed to be made on a compromise and comprising immovable property other than
that which is the subject-matter of the suit or proceeding”. Even if the passage was not
the subject-matter of the suit, indisputably, in terms of the Code of Civil Procedure
(Amendment) Act, 1976, a compromise decree was permissible.
24. A plain reading of the said provision clearly shows that a property which is not
the subject-matter of the suit or a proceeding would come within the purview of
exception contained in clause (vi) of sub-section (2) of Section 17 of the Act. If a
compromise is entered into in respect of an immovable property, comprising other than
that which was the subject-matter of the suit or the proceeding, the same would require
registration. The said provision was inserted by Act 21 of 1929.
25. The Code of Civil Procedure (Amendment) Act, 1976 does not and cannot
override the provisions of the Act. The purported passage being not the subject matter
of the suit, if sought to be transferred by the respondent-defendants in favour of the
appellant-plaintiffs or if by reason thereof they have relinquished their own rights and
recognised the rights of the appellant plaintiffs, registration thereof was imperative. The
first appellate court held so. The High Court also accepted the said findings.
28.Bhoop Singh [(1995) 5 SCC 709], inter alia, lays down: (SCC p. 715, para 18)
“18. (1) Compromise decree if bona fide, in the sense that the compromise is not a
device to obviate payment of stamp duty and frustrate the law relating to registration,
would not require registration. In a converse situation, it would require registration.
(2) If the compromise decree were to create for the first time right, title or interest in
immovable property of the value of Rs 100 or upwards in favour of any party to the suit
the decree or order would require registration.”
(emphasis in original)
Thus, indisputably, if the consent terms create a right for the first time as
contradistinguished from recognition of a right, registration thereof would be required, if
the value of the property is Rs 100 and upwards.”
19. In the above judgment, the case of Bhoop Singh was also considered and
distinguished. In a recent judgment delivered by Two Judge Bench of this Court of which
one of us was also member (Ashok Bhushan, J.), the judgment of Bhoop Singh and Som
Dev came to be considered in Mohammade Yusuf & Ors. Vs. Rajkumar & Ors.,
2020(3) SCALE 146. The question arose in the above case was also non-registration of
a decree on the basis of which the Court has refused to admit the decree in evidence in a
subsequent suit. This Court had occasion to interpret Section 17 and had also
considered the Bhoop Singh and Som Dev’s case. In paragraphs 6, 8, 13 and 14 of the
judgment, which are relevant are as follows:-
“6. A compromise decree passed by a Court would ordinarily be covered by Section
17(1)(b) but sub-section (2) of Section 17 provides for an exception for any decree or
order of a court except a decree or order expressed to be made on a compromise and
comprising immovable property other than that which is the subject-matter of the suit
or proceeding. Thus, by virtue of sub-section (2)(vi) of Section 17 any decree or order of
a court does not require registration. In sub-clause (vi) of sub-section (2), one category
is excepted from sub-clause (vi), i.e., a decree or order expressed to be made on a
compromise and comprising immovable property other than that which is the subject-
matter of the suit or proceeding. Thus, by conjointly reading Section 17(1) (b) and
Section 17(2)(vi), it is clear that a compromise decree comprising immovable property
other than which is the subject-matter of the suit or proceeding requires registration,
although any decree or order of a court is exempted from registration by virtue of
Section 17(2) (vi). A copy of the decree passed in Suit No. 250-A of 1984 has been
brought on record as Annexure P-2, which indicates that decree dated 4-10-1985 was
passed by the Court for the property, which was subject-matter of the suit. Thus, the
exclusionary clause in Section 17(2)(vi) is not applicable and the compromise decree
dated 4-10-1985 was not required to be registered on plain reading of Section 17(2)(vi).
The High Court referred to the judgment of this Court in Bhoop Singh Vs. Ram Singh
Major and Others, (1995) 5 SCC 709, in which case, the provision of Section 17(2)(vi) of
the Registration Act came for consideration. This Court in the above case while
considering clause (vi) laid down the following in paras 16, 17 and 18:
“16. We have to view the reach of clause (vi), which is an exception to sub-
section (1), bearing all the aforesaid in mind. We would think that the exception
engrafted is meant to cover that decree or order of a court, including a decree or
order expressed to be made on a compromise, which declares the pre-existing right
and does not by itself create new right, title, or interest in praesenti in immovable
property of the value of Rs 100 or upwards. Any other view would find the mischief
of avoidance of registration, which requires payment of stamp duty, embedded in
the decree or order.
17. It would, therefore, be the duty of the court to examine in each case
whether the parties have pre-existing right to the immovable property, or whether
under the order or decree of the court one party having right, title or interest therein
agreed or suffered to extinguish the same and created right, title or interest in
praesenti in immovable property of the value of Rs 100 or upwards in favour of other
party for the first time, either by compromise or pretended consent. If latter be the
position, the document is compulsorily registrable.
 18. The legal position qua clause(vi) can, on the basis of the aforesaid
discussion, be summarised as below:
(1) Compromise decree if bona fide, in the sense that the compromise is not
a device to obviate payment of stamp duty and frustrate the law relating to
registration, would not require registration. In a converse situation, it would require
registration.
(2) If the compromise decree were to create for the first time right, title or
interest in immovable property of the value of Rs 100 or upwards in favour of any
party to the suit the decree or order would require registration.
(3) If the decree were not to attract any of the clauses of sub-section (1) of
Section 17, as was the position in the aforesaid Privy Council and this Court's cases, it
is apparent that the decree would not require registration.
(4) If the decree were not to embody the terms of compromise, as was the
position in Lahore case, benefit from the terms of compromise cannot be derived,
even if a suit were to be disposed of because of the compromise in question.
(5) If the property dealt with by the decree be not the “subject-matter of
the suit or proceeding,” clause (vi) of subsection (2) would not operate, because of
the amendment of this clause by Act 21 of 1929, which has its origin in the aforesaid
decision of the Privy Council, according to which the original clause would have been
attracted, even if it wereto encompass property not litigated.”
8. Following the above judgment of Bhoop Singh (supra), the High Court held that
since the compromise decree dated 4-101985 did not declare any pre-existing right of
the plaintiff, hence it requires registration. The High Court relied on the judgment of
Gurdwara Sahib Vs. Gram Panchayat Village Sir Thala and another (supra) and made
following observations in paras 11, 12 and 13:
“11. In the present case, in the earlier suit CS No. 250-A/1984 the petitioner had
claimed declaration of title on the plea of adverse possession and the compromise
decree was passed in the suit. The very fact that the suit was based upon the plea of
adverse possession reflects that the petitioner had no pre-existing title in the suit
property. Till the suit was decreed, the petitioner was a mere encroacher, at the most
denying the title of lawful owner.
12. The Supreme Court in the matter of Gurdwara Sahib v. Gram Panchayat
Village Sir Thala reported in (2014) 1 SCC 669 has settled that declaratory decree based
on plea of adverse possession cannot be claimed and adverse possession can be used
only as shield in defence by the defendant. It has been held that:
“7. In the Second Appeal, the relief of ownership by adverse possession is again
denied holding that such a suit is not maintainable. There cannot be any quarrel to this
extent the judgments of the courts below are correct and without any blemish. Even if
the plaintiff is found to be in adverse possession, it cannot seek a declaration to the
effect that such adverse possession has matured into ownership. Only if proceedings
filed against the appellant and appellant is arrayed as the defendant that it can use this
adverse possession as a shield/defence.”
13. The plea of the petitioner based upon Section 27 of the Limitation Act is found to
be devoid of any merit since it relates to the extinction of the right of the lawful owner
after expiry of the Limitation Act, but in view of the judgment of the Supreme Court in
Gurdwara Sahib (supra), the petitioner cannot claim himself to be the owner
automatically after the expiry of the said limitation.”
13. This Court in Som Dev v. Rati Ram and Another, (2006) 10 SCC 788 while
explaining Section 17(2)(vi) and Sections 17(1)(b) and (c) held that all decrees and
orders of the Court including compromise decree subject to the exception as referred
that the properties that are outside the subject-matter of the suit do not require
registration. In para 18, this Court laid down the following:
“18. ………………… But with respect, it must be pointed out that a decree or order
of a court does not require registration if it is not based on a compromise on the
ground that clauses (b) and (c) of Section 17 of the Registration Act are attracted.
Even a decree on a compromise does not require registration if it does not take in
property that is not the subject-matter of the suit………………..”
14. In the facts of the present case, the decree dated 4-10-1985 was with
regard to the property, which was the subject-matter of the suit, hence not covered
 by exclusionary clause of Section 17(2)(vi) and the present case is covered by the
main exception crafted in Section 17(2) (vi) i.e. “any decree or order of a court”.
When registration of an instrument as required by Section 17(1)(b) is specifically
excluded by Section 17(2)(vi) by providing that nothing in clauses (b) and (c) of sub-
section (1) applies to any decree or order of the court, we are of the view that the
compromise decree dated 4-10-1985 did not require registration and the learned Civil
Judge as well as the High Court erred in holding otherwise. We, thus, set aside the
order of the Civil Judge dated 7-1-2015 as well as the judgment of the High Court
dated 13-22017. The compromise decree dated 4-101985 is directed to be exhibited
by the trial court. The appeal is allowed accordingly.”
20. This Court held that since the decree which was sought to be exhibited was
with regard to the property which was subject matter of suit, hence, was not covered by
exclusionary clause of Section 17(2) (vi) and decree did not require registration. The
issue in the present case is squarely covered by the above judgment. We, thus,
conclude that in view of the fact that the consent decree dated 19.08.1991 relate to the
subject matter of the suit, hence it was not required to be registered under Section 17(2)
(vi) and was covered by exclusionary clause. Thus, we, answer question No.1 that the
consent decree dated 19.08.1991 was not registrable and Courts below have rightly held
that the decree did not require registration.
Question No.2
21. The submission of the learned counsel for the appellant is that the consent
decree was passed in favour of nephews of Smt. Jagno, who do not belong to the family
of the plaintiffs-appellants. It is submitted that plaintiffs-appellants belonged to the
family of Badlu, who was the tenure-holder of the property. It is submitted that the
defendants respondents belong to family of Smt. Jagno being brother’s son of Smt.
Jagno, i.e., nephews, hence, they belong to different family and no family arrangement
could have been entered with them.
22. Before we answer the above issue, it is necessary to find out what is the
concept of family with regard to which a family settlement could be entered. A Three-
Judge bench of this Court in Ram Charan Das Vs. Girja Nandini Devi and Ors., 1965
(3) SCR 841 had occasion to consider a family settlement regarding the immovable
property, this Court laid down that every party taking benefit under a family settlement
must be related to one another in some way and have a possible claim to the property or
a claim or even a semblance of a claim. Following was laid down at page 851:-
“....................In the first place once it is held that the transaction being a family
settlement is not an alienation, it cannot amount to the creation of an interest. For, as
the Privy Council pointed out in Mst. Hiran Bibi case [AIR 1914 (PC) 44] in a family
settlement each party takes a share in the property by virtue of the independent title
which is admitted to that extent by the other parties. It is not necessary, as would
appear from the decision in Rangasami Gounden v. Nachiaopa Gounden [LR 46 I.A. 72]
that every party taking benefit under a family settlement must necessarily be shown to
have, under the law, a claim to a share in the property. All that is necessary is that the
parties must be related to one another in some way and have a possible claim to the
property or a claim or even a semblance of a claim on some other ground as, say,
affection..................
23. A Three Judge Bench in the celebrated judgment of this Court in Kale and Ors.
Vs. Deputy Director of Consolidation and Ors., (1976) 3 SCC 119 had elaborately
considered all contours of the family settlement. This Court laid down that term “family”
has to be understood in a wider sense so as to include within its fold not only close
relations or legal heirs but even those persons who may have some sort of antecedent
title, a semblance of a claim or even if they have a spes successions. In paragraphs 9
and 10, this Court laid down following:-
“9. Before dealing with the respective contentions put forward by the parties, we
would like to discuss in general the effect and value of family arrangements entered into
between the parties with a view to resolving disputes once for all. By virtue of a family
settlement or arrangement members of a family descending from a common ancestor or
a near relation seek to sink their differences and disputes, settle and resolve their
conflicting claims or disputed titles once for all in order to buy peace of mind and bring
about complete harmony and goodwill in the family. The family arrangements are
governed by a special equity peculiar to themselves and would be enforced if honestly
made. In this connection, Kerr in his valuable treatise Kerr on Fraud at p. 364 makes the
following pertinent observations regarding the nature of the family arrangement which
may be extracted thus:
“The principles which apply to the case of ordinary compromise between strangers
do not equally apply to the case of compromises in the nature of family arrangements.
Family arrangements are governed by a special equity peculiar to themselves, and will
be enforced if honestly made, although they have not been meant as a compromise, but
have proceeded from an error of all parties, originating in mistake or ignorance of fact as
to what their rights actually are, or of the points on which their rights actually depend.”
The object of the arrangement is to protect the family from long-drawn litigation or
perpetual strifes which mar the unity and solidarity of the family and create hatred and
bad blood between the various members of the family. Today when we are striving to
build up an egalitarian society and are trying for a complete reconstruction of the
society, to maintain .and uphold the unity and homogeneity of the family which
ultimately results in the unification of the society and, therefore, of the entire country, is
the prime need of the hour. A family arrangement by which the property is equitably
divided between the various contenders so as to achieve an equal distribution of wealth
instead of concentrating the same in the hands of a few is undoubtedly a milestone in
the administration of social justice. That is why the term “family” has to be understood
in a wider sense so as to include within its fold not only close relations or legal heirs but
even those persons who may have some sort of antecedent title, a semblance of a claim
or even if they have a spes successionis so that future disputes are sealed for ever and
the family instead of fighting claims inter se and wasting time, money and energy on
such fruitless or futile litigation is able to devote its attention to more constructive work
in the larger interest of the country. The courts have, therefore, leaned in favour of
upholding a family arrangement instead of disturbing the same on technical or trivial
grounds. Where the courts find that the family arrangement suffers from a legal lacuna
or a formal defect the rule of estoppel is pressed into service and is applied to shut out
plea of the person who being a party to family arrangement seeks to unsettle a settled
dispute and claims to revoke the family arrangement under which he has himself
enjoyed some material benefits. The law in England on this point is almost the same. In
Halsbury's Laws of England, Vol. 17, Third Edition, at pp. 215-216, the following apt
observations regarding the essentials of the family settlement and the principles
governing the existence of the same are made:
“A family arrangement is an agreement between members of the same family,
intended to be generally and reasonably for the benefit of the family either by
compromising doubtful or disputed rights or by preserving the family property or the
peace and security of the family by avoiding litigation or by saving its honour.
The agreement may be implied from a long course of dealing, but it is more usual to
embody or to effectuate the agreement in a deed to which the term “family
arrangement” is applied.
Family arrangements are governed by principles which are not applicable to dealings
between strangers. The court, when deciding the rights of parties under family
arrangements or claims to upset such arrangements, considers what in the broadest
view of the matter is most for the interest of families, and has regard to considerations
which, in dealing with transactions between persons not members of the same family,
would not be taken into account. Matters which would be fatal to the validity of similar
transactions between strangers are not objections to the binding effect of family
arrangements.”
10. In other words, to put the binding effect and the essentials of a family settlement
in a concretised form, the matter may be reduced into the form of the following
propositions:
“(1) The family settlement must be a bona fide one so as to resolve family disputes
and rival claims by a fair and equitable division or allotment of properties between the
various members of the family;
(2) The said settlement must be voluntary and should not be induced by fraud,
coercion, or undue influence;
(3) The family arrangement maybe even oral in which case no registration is
necessary;
 (4) It is well settled that registration would be necessary only if the terms of the
family arrangement are reduced into writing. Here also, a distinction should be made
between a document containing the terms and recitals of a family arrangement made
under the document and a mere memorandum prepared after the family arrangement
had already been made either for the purpose of the record or for information of the
court for making necessary mutation. In such a case the memorandum itself does not
create or extinguish any rights in immovable properties and therefore does not fall
within the mischief of Section 17(2) of the Registration Act and is, therefore, not
compulsorily
registrable;
(5) The members who may be parties to the family arrangement must have some
antecedent title, claim or interest even a possible claim in the property which is
acknowledged by the parties to the settlement. Even if one of the parties to the
settlement has no title but under the arrangement the other party relinquishes all its
claims or titles in favour of such a person and acknowledges him to be the sole owner,
then the antecedent title must be assumed and the family arrangement will be upheld
and the courts will find no difficulty in giving assent to the same;
(6) Even if bona fid disputes, present or possible, which may not involve legal
claims are settled by a bona fide family arrangement which is fair and equitable the
family arrangement is final and binding on the parties to the settlement.”
24. After reviewing the earlier decision, this Court laid down following in paragraph
19:-
“19. Thus, it would appear from a review of the decisions analysed above that the
courts have taken a very liberal and broad view of the validity of the family settlement
and have always tried to uphold it and maintain it. The central idea in the approach
made by the courts is that if by consent of parties a matter has been settled, it should
not be allowed to be reopened by the parties to the agreement on frivolous or untenable
grounds.”
25. In the above case, the Kale, with whom the two sisters of his mother
entered into family settlement was not a legal heir within meaning of U.P. Tenancy
Act, 1939 but the family settlement entered with Kale was upheld by this Court.
Following was laid down in paragraph 27:-
“27. As regards the first point it appears to us to be wholly untenable in law. From
the principles enunciated by us and the case law discussed above, it is absolutely clear
that the word “family” cannot be construed in a narrow sense so as to confine the
parties to the family arrangement only to persons who have a legal title to the property.
Even so it cannot be disputed that appellant Kale being the grandson of Lachman and
therefore a reversioner at the time when the talks for compromise took place was
undoubtedly a prospective heir and also a member of the family. Since Respondents 4
and 5 relinquished their claims in favour of appellant Kale in respect of Khatas Nos. 5
and 90 the appellant, according to the authorities mentioned above, would be deemed
to have antecedent title which was acknowledged by Respondents 4 and 5. Apart from
this there is one more important consideration which clearly shows that the family
arrangement was undoubtedly a bona fide settlement of disputes. Under the family
arrangement as referred to in the mutation petition the Respondents 4 and 5 were given
absolute and permanent rights in the lands in dispute. In 1955 when the compromise is
alleged to have taken place the Hindu Succession Act, 1956, was not passed and
Respondents 4 & 5 would have only a limited interest even if they had got the entire
property which would ultimately pass to appellant Kale after their death. Respondents 4
& 5 thought that it would be a good bargain if by dividing the properties equally they
could retain part of the properties as absolute owners. At that time, they did not know
that the Hindu Succession Act would be passed a few months later. Finally, the
compromise sought to divide the properties between the children of Lachman, namely,
his two daughters and his daughter's son appellant Kale in equal shares and was,
therefore, both fair and equitable. In fact, if Respondents 4 & 5 would have got all the
lands the total area of which would be somewhere about 39 acres they might have to
give away a substantial portion in view of the ceiling law. We have, therefore, to see the
circumstances prevailing not after the order of the Assistant Commissioner was passed
on the mutation petition but at the time when the parties sat down together to iron out
differences. Having regard to the circumstances indicated above, we cannot conceive of
a more just and equitable division of the properties than what appears to have been
done by the family arrangement. In these circumstances, therefore, it cannot be said
that the family settlement was not bona fide. Moreover, Respondents 4 and 5 had at no
stage raised the issue before the revenue courts or even before the High Court that the
settlement was not bona fide. The High Court as also Respondent 1 have both
proceeded on the footing that the compromise was against the statutory provisions of
law or that it was not registered although it should have been registered under the
Registration Act.”
26. Reverting to the facts of the present case, admittedly, the defendants-
respondents were nephews, i.e., brother’s sons of Smt. Jagno. We need to look into the
Hindu Succession Act, 1956, Section 15, which deals with the general rules of succession
in the case of female Hindus for properties inherited by female Hindus, which are
devolved in according to Sections 15 and 16. Section 15(1), which is relevant is as
follows:-
“15. General rules of succession in the case of female Hindus.—(1)The
property of a female Hindu dying intestate shall devolve according to the rules set out in
section 16,—
(a) firstly, upon the sons and daughters(including the children of any predeceased
son or daughter) and the husband;
(b) secondly, upon the heirs of the husband; (c) thirdly, upon the mother and
father;
(d) fourthly, upon the heirs of the father; and (e) lastly, upon the heirs of the
mother.”
27. A perusal of Section 15(1)(d) indicates that heirs of the father are covered in
the heirs, who could succeed. When heirs of father of a female are included as person
who can possibly succeed, it cannot be held that they are strangers and not the
members of the family qua the female.
28. In the present case, Smt. Jagno, who as a widow of Sher Singh, who had died in
1953, had succeeded to half share in the agricultural land and she was the absolute
owner when she entered into settlement. We, thus, do not find any merit in the
submission of learned counsel for the appellants that the
Defendants-respondents were strangers to the family.
29. In view of our discussions on above two questions, we do not find any merit in
this appeal. All the Courts have rightly dismissed the suit of the plaintiffs-appellants,
which need no interference. This appeal is dismissed. Parties shall bear their own costs.
In The Supreme Court Of India
Civil Appellate Jurisdiction
Civil Appeal No. 14807 Of 2024
(Arising Out Of Slp (C) No.18977 Of 2016)
Shri Mukund Bhavan Trust And Ors Vs. Shrimant Chhatrapati Udayan Raje
Pratapsinh Maharaj Bhonsle And Another
Decided on December 20, 2024.

Mahadevan, J.
1. Leave granted.
2. This appeal is filed by the Defendant No.1 viz., Shri Mukund Bhavan Trust and its
trustees, against the Order dated 26th April 2016 passed by the High Court of Judicature at
Bombay in the Civil Revision Application No.904 of 2014, whereby the High Court dismissed
the said application preferred by the appellants challenging the Order dated 29th April 2009
passed by the 7th Joint Civil Judge, Senior Division, Pune. By the said order, the trial Court
rejected the application filed by the appellants under Order VII Rule 11(d) of the Civil
Procedure Code, 1908 for rejection of plaint being barred by limitation.
3. The Respondent No.1 / plaintiff filed a Special Civil Suit No.133 of 2009
against the appellants and the State of Maharashtra, inter alia for the following reliefs:
a) to declare that the plaintiff is the absolute owner of the suit lands more particularly
described in schedule of the plaint;
b) to declare that other than the Plaintiff, no other person is entitled to deal with,
alienate and create any third-party interest in respect of suit lands;
c) to restrain the appellants / defendants permanently, from in any manner holding
themselves as owners or representing themselves as owners of the said suit lands;
d) to declare that the compromise decrees passed in Special Civil SuitNos.152/1951 and
1622/1988 and Civil Appeal No.787/2001, Pune, are void ab-initio, null and void and to
set aside the same;
e) to direct the appellants / defendants to vacate and hand over the possession of the
suit lands to the Plaintiff.
4. Pending the aforesaid suit, the appellants took out an application under Order VII Rule
11(d) of CPC r/w Articles 58, 59 and 65 of the Limitation Act, 1963, seeking rejection of the
plaint as the reliefs sought in the suit were barred by limitation. The said application was
seriously resisted by the Respondent No.1 / plaintiff by stating inter alia that the issue of
limitation is a mixed question of facts and law and it has to be adjudicated only in the trial.
5. The trial Court by order dated 12.10.2009, rejected the aforesaid application filed by
the appellants under Order VII Rule 11(d) of CPC. Aggrieved by the same, the appellants
preferred Civil Revision Application No.731 of 2009 before the High Court, which set aside
the order dated 12.10.2009 and remanded the matter to the trial Court for considering the
application filed under Order VII Rule 11(d) of CPC afresh.
6. After remand, the trial Court vide order dated 29.04.2014, rejected the application
filed by the appellants under Order VII Rule 11(d) of CPC, observing inter alia that the issue
of limitation is a mixed question of law and facts, for which, the parties will have to lead
evidence. Challenging the same, the appellants preferred Civil Revision Application No. 904
of 2014, which was dismissed by the High Court, by order dated 26.04.2016 impugned in
this appeal.
7. The learned counsel for the appellants, at the outset, submitted that on a bare
perusal of the averments made in the plaint disclosed that the reliefs sought in the plaint
were barred by limitation. However, the High Court erroneously dismissed the Civil Revision
Application on the ground that the question of whether the suit is barred by limitation is for
the trial Court to independently decide considering the evidence led before it by the parties
as the limitation is a mixed question of law and facts which cannot be decided based on the
pleadings alone. Adding further, it is submitted that the High Court could have examined the
maintainability and sustainability of the revision proceedings initiated by the appellants
under Order VII Rule 11 (d) of CPC.
7.1. Elaborating further, on facts, the learned counsel for the appellants submitted that
the Defendant No.1 – Trust had purchased 3/4 th share of the suit lands mentioned in the
Schedule in an auction sale conducted by the Civil Court, Pune, in the year 1938 from the
previous Inamdar Gosavis family and the same was duly registered; and they had also
purchased the remaining 1/4 th share in the suit lands in the year 1952 by another registered
sale deed. Till then, the subject lands were in possession of the Government. Thereafter, the
Defendant No.1 Trust became entitled to the suit lands in pursuance of the compromise
decree dated 05.01.1990 passed in Civil Suit No.1622 of 1988, and they entered into several
agreements with third parties, who constructed buildings in the suit lands. While so, without
any right, title and interest, the Respondent No.1 preferred Special Civil Suit No.133 of 2009
claiming declaration and possession over the suit lands. According to the learned counsel,
the Respondent No.1 by filing the said suit, has attempted to question the correctness of
various orders passed by several Courts including the order passed by this Court. These
orders date back to the year 1953. Further, this exercise is done with an oblique motive to
set at naught the orders which have attained finality decades ago and the respondent
No.1/Plaintiff and its predecessors having slept over the orders which conclusively affirmed
the title and ownership of the appellant Trust over the suit lands, cannot now suddenly come
up with a suit to overturn the effect of the orders in the guise of there being a fresh cause of
action.
7.2. Drawing our attention to paragraphs 34 and 53 of the plaint filed by the
Respondent No.1, the learned counsel for the appellants submitted that the Respondent
No.1 attempted to create an illusion of a cause of action by erroneously stating that the
cause of action to file the suit arose on 02.03.2007 when he came to know that his rights
over the suit properties have been affected by the proceedings between the defendants and
another. Further, the Respondent No.1 relied on the pleadings stated in the writ petition filed
by one Dr.F.Wadia, who claims to be in possession of a portion of the subject lands. The
Respondent No.1, in paragraph 34 of the plaint stated that “…. One Advocate Shri Godge
had appeared in the said matter. The said Advocate is well acquainted with the plaintiff. The
said Advocate, after reading all the necessary related proceedings, informed the plaintiff of
the mischief committed by the Defendants. The plaintiff thereafter collected all the
necessary information and documents. The plaintiff then instructed his Advocates to file the
present suit”. However, there is no averment as to when the Respondent No.1 was
intimated by Mr.Godge. Thus, the cause of action alleged by the Respondent No.1 is purely
illusory and has been stated with a view to get over the bar under Order VII Rule 11(d) of
CPC.
7.3. It is also submitted by the learned counsel for the appellants that the limitation period
for seeking cancellation of an instrument as per Article 59 of the Limitation Act, 1963, is 3
years from the date when the existence of document first becomes known to the plaintiff. In
case of registered document, the date of registration becomes the date of deemed
knowledge. Accordingly, the Respondent No.1 and his predecessors are deemed to have
implied notice of the contents of the registered sale deeds and as per Article 58, the period
of limitation to obtain any declaration in the suit commences within 3 years from the date
when right to sue accrues. However, the Respondent No.1 by clever drafting, attempted to
circumvent the provisions of the Limitation Act. That means, the Respondent No.1 knowing
fully well that a challenge to the registered sale deeds of the years 1938 and 1952 in and by
which the Defendant No.1 Trust acquired the title over the subject lands, would be
hopelessly barred by limitation, has attempted to question the title of the Defendant No.1
Trust by inventing an imaginary cause of action to sustain his suit.
7.4. The learned counsel for the appellants further submitted that according to Article 65
of the Limitation Act, 1963, the right to possess immovable property or any interest therein,
based on title, must be asserted within twelve years from the date, when the possession of
the defendant becomes adverse to the plaintiff. Admittedly, the Respondent No.1 did not
assert any right over the subject lands prior to the year 2008 or 2009. Consequently, the
relief sought for possession is also barred by the law of limitation. Ultimately, it is submitted
that the Respondent No.1 being stranger, has no locus standi to seek a declaration that
compromise decrees passed in Special Civil Suit Nos.152/1951 and 1622/1988 and Civil
appeal No.787/2001 are void ab initio, null and void and be set aside.
7.5. Without properly appreciating all these aspects, the trial Court erred in rejecting the
application filed by the appellants under Order VII Rule 11(d) of CPC and the same was also
affirmed by the High Court, by the order impugned herein, which will have to be set aside,
according to the learned counsel for the appellants.
8. Per contra, the learned counsel for the Respondent No.1 submitted that in the year
1710, Raja Shahu Chhatrapati, the ancestor of the Respondent No.1/Plaintiff gave a sanad to
Guru Shree Jadhavgir Gosavi of all the lands mentioned in the Sanad. The said Sanad gave
rights of revenue grant which was hereditary. The said grant did not confer any titular rights
 over the land to the Gosavi family. The descendants of the Gosavi family though not
empowered to create third party rights and interests, created third party rights. Thus, the
said Gosavis who only had Inam grant in their favour entitling them only to the revenue from
the land, had overstepped their authority and had parted the suit properties to the
Defendant No.1 Trust, when they absolutely had no right to sell the suit properties. It is
further submitted that the Defendant No.1 filed Special Civil Suit No.152/1951 against the
State of Bombay and one Sukramgir Chimangir Gosavi in relation to the lands in village
Yerawada, Taluka Haveli. The Defendant Nos.1 and 2 entered into compromise and it was
agreed between them that the Yerawada Inam Village was a grant of soil and the Defendant
No. 1 was Nivval Dhumaldars of the village to the extent of 12 anna share. The Respondent
No.l / Plaintiff was not a party to the said suit and without his knowledge, the consent decree
was obtained clandestinely.
Therefore, the said sale deeds and compromise are not binding on the Respondent No.1. It is
also contended that the parties cannot be permitted to construct and improve the terms of
sanad of the year 1710 in 1950s to their whims and fancies. In any event, the Court had not
given a determinative finding after adjudication, and hence, the compromise decree of the
Court cannot be put against it.
8.1. Continuing further, the learned counsel for the Respondent No.1 submitted that the
Respondent No.1 specifically stated in paragraph 39 of the Plaint that the defendants have
played systematic fraud on various courts and without any judicial pronouncements have
usurped the lands under suspicious compromises arrived at before the Court. Moreover, in
paragraph 44 of the Plaint, the Respondent No.1 stated that the compromise arrived at in
the suits filed in District Court, Pune, appears to be clearly an attempt to deprive the legal
rights of the Plaintiff in respect of the said suit lands.
8.2. It is also submitted that whether the Respondent No.1 is entitled to declaration as
sought for in the Plaint is a matter of trial and that cannot be gone into at the stage of
deciding the application under Order VII Rule 11(d) of CPC. The Respondent No.1 in
paragraph 53 of the Plaint clearly stated that he had come to know about the proceedings
on 2nd March 2007 only when he was informed about Civil Application No. 1562/2006 in Writ
Petition No. 3813 of 1996 filed by Dr. F Wadia. The knowledge of the fact that the
Respondent's right in the suit property has been affected by the proceedings between the
Defendants and another on 2nd March 2007 is the crucial date from which the clock starts
ticking to determine limitation. Thus, well within the period of limitation, he preferred the
Special civil suit against the appellants and another for declaration and possession of the
suit properties.
8.3. That apart, it is submitted by the learned counsel for the Respondent No.1 that when
an issue requires an inquiry into the facts, it cannot be tried as a preliminary issue. To
buttress the same, he placed reliance on the decision in Satti Paradesi Samadhi & Pillayar
Temple v. M. Sankuntala (2015) 5 SCC 674, wherein, it was held that ‘the court has no
jurisdiction to try a suit on mixed issues of law and fact as a preliminary issue’.
8.4. Referring to the decision in Sajjan Sikaria v. Shakuntala Devi Mishra (2005) 13 SCC
687, it is submitted by the learned counsel for the Respondent No.1 that while dealing with
an application under Order VII Rule 11 of CPC, there is no requirement to consider the
written statement filed by the defendant. That apart, in Saleem Bhai v. State of Maharashtra
(2003) 1 SCC 557, it was held by this Court that ‘a perusal of Order VII Rule 11 of CPC makes
it clear that the relevant facts which need to be looked into for deciding an application
thereunder are the averments in the plaint; the pleas taken by the defendant in the written
statement would be wholly irrelevant at that stage; and therefore, a direction to file the
written statement without deciding the application under Order VII Rule 11 of CPC cannot be
procedural irregularity touching the exercise of jurisdiction by the trial Court’.
8.5. Considering all these factors, the High Court rightly dismissed the application filed by
the appellants under Order VII Rule 11(d) of CPC, by observing that the plaint cannot be
rejected at the threshold, as the issue of limitation is a mixed question of facts and law for
which the parties will have to lead evidence. Thus, according to the learned counsel, there is
no requirement to interfere with the order impugned herein and the appeal filed by the
appellants is liable to be dismissed.
9. We have considered the submissions made by the learned counsel appearing for both
sides and perused the materials available on record.
10. The subject matter of the present proceedings is qua lands in S.Nos.14A/1A/1, 144, 145, 95,
90, 129, 191A (part), 160 (Part), 191 (part), 20, 103(part), 120(part), 141, 233, 94(part), 104
and 105 situated in Yerawada, Taluka Haveli, District Pune. The Respondent No.1 / plaintiff
preferred Special Civil Suit No.133 of 2009, for declaration of his ownership and possession
in respect of the suit properties. Seeking rejecting of the said plaint, the appellants filed an
application under Order VII Rule 11(d) of CPC on the ground that the reliefs sought in the suit
were clearly barred by limitation. The trial Court rejected the application filed by the
appellants stating that the issue of limitation is a mixed question of facts and law, for which,
the parties will have to lead evidence. The revision application filed by the appellants
against the said order of the trial Court, was also rejected by the High Court, by observing
that (i) the plaintiff has specifically asserted that Gosavis family had no authority to create
third party rights and they were only entitled to revenue grant; (ii)whether the Plaintiff is
entitled to declaration in terms of prayer clauses (a) and (b) in view of the sale deeds
executed in favour of Defendant No.1, is a matter of trial and that cannot be gone into at the
stage of deciding the application under Order VII Rule 11(d) of CPC; and (iii) the defendants
played a systematic fraud on various courts and without any judicial pronouncements,
usurped the suit lands under suspicious compromise arrived at before the Court. Feeling
aggrieved and being dissatisfied with the rejection orders of the Courts below, the appellants
are before us with the present appeal.
11. The law applicable for deciding an application filed under Order VII Rule 11 of CPC was
outlined by this Court in the decision in Dahiben v. Arvindbhai Kalyanji Bhanusali (Gajra)
dead through legal representatives (2020) 7 SCC 366 : 2020 SCC OnLine SC 562 and the
same read as follows:
“23.1 …
23.2. The remedy under Order VII Rule 11 is an independent and special remedy,
wherein the Court is empowered to summarily dismiss a suit at the threshold, without
proceeding to record evidence, and conducting a trial, on the basis of the evidence
adduced, if it is satisfied that the action should be terminated on any of the grounds
contained in this provision.
23.3. The underlying object of Order VII Rule 11 (a) is that if in a suit, no cause of
action is disclosed, or the suit is barred by limitation under Rule 11 (d), the Court
would not permit the plaintiff to unnecessarily protract the proceedings in the suit. In
such a case, it would be necessary to put an end to the sham litigation, so that further
judicial time is not wasted.
23.4. In Azhar Hussain v. Rajiv Gandhi9 this Court held that the whole purpose of
conferment of powers under this provision is to ensure that a litigation which is
meaningless, and bound to prove abortive, should not be permitted to waste judicial
time of the court, in the following words : (SCC p.324, para 12)
“12. …The whole purpose of conferment of such power is to ensure that a
litigation which is meaningless, and bound to prove abortive should not be
permitted to occupy the time of the Court, and exercise the mind of the
respondent. The sword of Damocles need not be kept hanging over his head
unnecessarily without point or purpose. Even if an ordinary civil litigation, the
Court readily exercises the power to reject a plaint, if it does not disclose any
cause of action.”
23.5. The power conferred on the court to terminate a civil action is, however,
adrastic one, and the conditions enumerated in Order VII Rule 11 are required to be
strictly adhered to.
23.6. Under Order VII Rule 11, a duty is cast on the Court to determine whether
theplaint discloses a cause of action by scrutinizing the averments in the plaint 10, read
in conjunction with the documents relied upon, or whether the suit is barred by any
law.
23.7. Order VII Rule 14(1) provides for production of documents, on which theplaintiff
places reliance in his suit, which reads as under:
“14.Production of document on which plaintiff sues or relies.– (1)Where a plaintiff
sues upon a document or relies upon document in his possession or power in
support of his claim, he shall enter such documents in a list, and shall produce it
in Court when the plaint is presented by him and shall, at the same time deliver
the document and a copy thereof, to be filed with the plaint.
(2)Where any such document is not in the possession or power of the plaintiff,
he shall, wherever possible, state in whose possession or power it is.
 (3)A document which ought to be produced in Court by the plaintiff when the
plaint is presented, or to be entered in the list to be added or annexed to the
plaint but is not produced or entered accordingly, shall not, without the leave
of the Court, be received in evidence on his behalf at the hearing of the suit.
(4)Nothing in this rule shall apply to document produced for the cross
examination of the plaintiff's witnesses, or, handed over to a witness merely to
refresh his memory.” (emphasis supplied)
23.8. Having regard to Order VII Rule 14 CPC, the documents filed alongwith the
plaint, are required to be taken into consideration for deciding the application under
Order VII Rule 11 (a). When a document referred to in the plaint, forms the basis of the
plaint, it should be treated as a part of the plaint.
23.9. In exercise of power under this provision, the Court would determine if the
assertions made in the plaint are contrary to statutory law, or judicial dicta, for
deciding whether a case for rejecting the plaint at the threshold is made out.
23.10.At this stage, the pleas taken by the defendant in the written statement and
application for rejection of the plaint on the merits, would be irrelevant, and cannot be
adverted to, or taken into consideration.
23.11.The test for exercising the power under Order VII Rule 11 is that if the
averments made in the plaint are taken in entirety, in conjunction with the documents
relied upon, would the same result in a decree being passed. This test was laid down in
Liverpool & London S.P. & I Assn. Ltd. v. M.V. Sea Success I which reads as :
(SCC p.562, para 139)
“139. Whether a plaint discloses a cause of action or not is essentially a
question of fact. But whether it does or does not must be found out from
reading the plaint itself. For the said purpose, the averments made in the
plaint in their entirety must be held to be correct. The test is as to whether if
the averments made in the plaint are taken to be correct in their entirety, a
decree would be passed.”
23.12.In Hardesh Ores (P.) Ltd. v. Hede & Co. the Court further held that it is not
permissible to cull out a sentence or a passage, and to read it in isolation. It is the
substance, and not merely the form, which has to be looked into. The plaint has to be
construed as it stands, without addition or subtraction of words. If the allegations in
the plaint prima facie show a cause of action, the court cannot embark upon an
enquiry whether the allegations are true in fact. D. Ramachandran v. R.V. Janakiraman
23.13. If on a meaningful reading of the plaint, it is found that the suit is manifestly
vexatious and without any merit, and does not disclose a right to sue, the court would
be justified in exercising the power under Order VII Rule 11 CPC.
23.14. The power under Order VII Rule 11 CPC may be exercised by the Court at any
stage of the suit, either before registering the plaint, or after issuing summons to the
defendant, or before conclusion of the trial, as held by this Court in the judgment of .
The plea that once issues are framed, the matter must necessarily go to trial was
repelled by this Court in Azhar Hussain (supra).
23.15. The provision of Order VII Rule 11 is mandatory in nature. It states that the
plaint “shall” be rejected if any of the grounds specified in clause (a) to (e) are made
out. If the Court finds that the plaint does not disclose a cause of action, or that the
suit is barred by any law, the Court has no option, but to reject the plaint.
24. “Cause of action” means every fact which would be necessary for the plaintiff to
prove, if traversed, in order to support his right to judgment. It consists of a bundle of
material facts, which are necessary for the plaintiff to prove in order to entitle him to
the reliefs claimed in the suit.
24.1. In Swamy Atmanand v. Sri Ramakrishna Tapovanam this Court held : “24. A
cause of action, thus, means every fact, which if traversed, it would be
necessary for the plaintiff to prove an order to support his right to a judgment
of the court. In other words, it is a bundle of facts, which taken with the law
applicable to them gives the plaintiff a right to relief against the defendant. It
must include some act done by the defendant since in the absence of such an
act, no cause of action can possibly accrue. It is not limited to the actual
infringement of the right sued on but includes all the material facts on which it
is founded”
(emphasis supplied)
24.2. In T. Arivanandam v. T.V. Satyapal this Court held that while considering an
application under Order VII Rule 11 CPC what is required to be decided is whether the
plaint discloses a real cause of action, or something purely illusory, in the following
words: (SCC p. 470, para 5)
“5. …The learned Munsif must remember that if on a meaningful – not formal –
reading of the plaint it is manifestly vexatious, and meritless, in the sense of
not disclosing a clear right to sue, he should exercise his power under Order
VII, Rule 11 C.P.C. taking care to see that the ground mentioned therein is
fulfilled. And, if clever drafting has created the illusion of a cause of action, nip
it in the bud at the first hearing …”
(emphasis supplied)
24.3. Subsequently, in I.T.C. Ltd. v. Debt Recovery Appellate Tribunal 17 this Court held
that law cannot permit clever drafting which creates illusions of a cause of action.
What is required is that a clear right must be made out in the plaint.
24.4. If, however, by clever drafting of the plaint, it has created the illusion of acause
of action, this Court in Madanuri Sri Ramachandra Murthy v. Syed Jalal18 held that it
should be nipped in the bud, so that bogus litigation will end at the earliest stage. The
Court must be vigilant against any camouflage or suppression, and determine whether
the litigation is utterly vexatious, and an abuse of the process of the court.
25. The Limitation Act, 1963 prescribes a time-limit for the institution of all suits,
appeals, and applications. Section 2(j) defines the expression “period of limitation” to
mean the period of limitation prescribed in the Schedule for suits, appeals or
applications. Section 3 lays down that every suit instituted after the prescribed period,
shall be dismissed even though limitation may not have been set up as a defence. If a
suit is not covered by any specific article, then it would fall within the residuary article.
26. Articles 58 and 59 of the Schedule to the 1963 Act, prescribe the period of
limitation for filing a suit where a declaration is sought, or cancellation of an
instrument, or rescission of a contract, which reads as under :

Description of suit Period of Time from which period

limitation begins to run
58. To obtain any other declaration Three years When the right to sue first
accrues
59. TO cancel or set aside an Three When the facts entitling the
instrument or decree or for the of a years plaintiff to have the instrument
rescission contract or decree cancelled or set aside
or the contract rescinded first
become known to him.

The period of limitation prescribed under Articles 58 and 59 of the 1963 Act is three years,
which commences from the date when the right to sue first accrues.
27. In Khatri Hotels Pvt. Ltd. v. Union of India 19 this Court held that the use of the word
‘first’ between the words ‘sue’ and ‘accrued’, 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. That is, if there are successive violations of the right, it would not give rise
to a fresh cause of action, and the suit will be liable to be dismissed, if it is beyond the
period of limitation counted from the date when the right to sue first accrued.
28. A three-Judge Bench of this Court in State of Punjab v. Gurdev Singh 20 held that the
Court must examine the plaint and determine when the right to sue first accrued to the
plaintiff, and whether on the assumed facts, the plaint is within time. The words “right to
sue” means the right to seek relief by means of legal proceedings. The right to sue accrues
only when the cause of action arises. The suit must be instituted when the right asserted in
the suit is infringed, or when there is a clear and unequivocal threat to infringe such right by
the defendant against whom the suit is instituted. Order VII Rule 11(d) provides that where
a suit appears from the averments in the plaint to be barred by any law, the plaint shall be
rejected.”
12. As settled in law, when an application to reject the plaint is filed, the averments in the
plaint and the documents annexed therewith alone are germane. The averments in the
application can be taken into account only to consider whether the case falls within any of
the sub-rules of Order VII Rule 11 by considering the averments in the plaint. The Court
cannot look into the written statement or the documents filed by the defendants. The Civil
Courts including this Court cannot go into the rival contentions at that stage. Keeping in
mind the legal position, let us examine whether the suit filed by the Respondent No.1 is
barred by limitation, in the light of the averments contained in the plaint filed by him.
13. The Respondent No.1/Plaintiff claimed title, right and interest over the suit properties,
stating that he is the direct descendent of Chhatrapati Shivaji Maharaj from the Bhonsale
Dynasty and he has inherited the vast lands all over Maharashtra from his ancestors. He
further stated in his plaint that Raja Shahu Chhatrapati gave only the rights of revenue grant
to Guru Shree Jadhavgir Gosavi and the said grant did not give any rights in the lands to the
Gosavi family and hence, they had no right to sell the suit properties to the Defendant No.1.
Though the Respondent No.1 relied on the report of the Inam Commissioner appointed
under the provisions of the Act XI, 1852, which stated that the grant enjoyed by the
Respondent No.1’s ancestors was only a revenue grant and stated that Gosavis family had
no authority to create third party rights in the suit lands, the same was not substantiated
with proper pleadings and documents. It was further stated by the Respondent No.1 that by
order dated 17.02.1980, the Government of Maharashtra was pleased to direct that the
Satara Saranjam (Jagir / grant of land) shall be continued in the name of the Respondent
No.1 / plaintiff, but, at that time, he was a minor. That apart, the Friendship Treaty was
continued by the Government of Maharashtra vide its resolution dated 28.02.1980 and on
attaining the age of majority by the plaintiff, the Maharashtra Government by resolution
dated 01.09.1984 continued the said Saranjam upon the plaintiff. Hence, the Respondent
No.1 continues to be the owner of the suit properties. We are unable to accept these
statements. The averments in the plaint disclose that even prior to the alleged Resolution
dated 28.02.1980, a major portion of the property (3/4 th share) has been conveyed as early
as in 1938 through Court auction and the remaining portion (1/4 th share) in 1952. The
plaintiff was a minor in 1980 and by 01.09.1984, he claims to have become a major.
However, he has not stated as to when he was born. From the averments, it can be
presumed that the plaintiff must have born in 1965/1966 considering the fact that he was
declared as a major in 1984. The above statements in the plaint imply that the plaintiff was
not even born when the property was sold. What also remains undisputed is the fact that the
plaintiff’s predecessors had not challenged the sale in 1938 and 1952. By the time, the
alleged resolution was passed, the property had already been conveyed. The resolution can
convey any right only over the properties which have not been conveyed. The plaintiff
though has annexed a Family Tree chart along with the plaint, he has not produced any
other documentary evidence to the various claims which he has made. In paragraph 10 of
the plaint, the plaintiff claims that the estate was attached as there were no natural heirs.
He has narrated many facts in the plaint from paragraphs 11 to 32, which are adverse to his
claim of title. The averments in the plaint relating to grant of Sanad are vague without any
reference to specific date. They, according to us, are baseless and vague statements,
cleverly crafted to create a cause of action. The plaintiff himself avers in paragraph 25 that a
suit was filed by the appellant/1 st defendant claiming his title based on the auction purchase
against the Government. The averment does not even disclose that it has come to his
knowledge only recently. We feel it strange for the plaintiff to even plead in paragraph 26
that he was not impleaded as a party in the 1951 suit, compromised in 1953, when he was
not even born.
14. The plaintiff, in our wisdom, cannot assert or deny something which was whether
within the knowledge of his predecessor or not, when he was not even born. Irrespective of
the above, the fact that the predecessors of the Respondent No.1/plaintiff, never challenged
the sale of property to the Defendant No.1/appellant by court auction and the subsequent
registration of the deeds, despite constructive notice, would imply that they had acceded to
the title of the appellant, which cannot now be questioned by the plaintiff after such long
time. There is also a presumption in law that a registered document is validly executed and
is valid until it is declared as illegal. In this regard, this Court in Prem Singh v. Birbal, held as
under:
“27. 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 1 has not been able to rebut the said presumption.”
15. At this juncture, it would be relevant to refer to relevant portion of Section 3 of the
Transfer of Property Act, 1882, which reads as under:
“3. Interpretation clause……
“a person is said to have notice” of a fact when he actually knows that fact, or when,
but for wilful abstention from an enquiry or search which he ought to have made, or
gross negligence, he would have known it.
Explanation I.—Where any transaction relating to immoveable property is required by
law to be and has been effected by a registered instrument, any person acquiring such
property or any part of, or share or interest in, such property shall be deemed to have
notice of such instrument as from the date of registration or, where the property is not
all situated in one sub-district, or where the registered instrument has been registered
under sub-section (2) of section 30 of the Indian Registration Act, 1908 (16 of 1908),
from the earliest date on which any memorandum of such registered instrument has
been filed by any Sub-Registrar within whose sub-district any part of the property
which is being acquired, or of the property wherein a share or interest is being
acquired, is situated:
Provided that—(1) the instrument has been registered and its registration completed in
the manner prescribed by the Indian Registration Act, 1908 (16 of 1908), and the rules
made thereunder, (2) the instrument or memorandum has been duly entered or filed,
as the case may be, in books kept under section 51 of that Act, and(3)the particulars
regarding the transaction to which the instrument relates have been correctly entered
in the indexes kept under section 55 of that Act.
Explanation II.—Any person acquiring any immovable property or any share or interest
in any such property shall be deemed to have notice of the title, if any, of any person
who is for the time being in actual possession thereof.
Explanation III.—A person shall be deemed to have had notice of any fact if his agent
acquires notice thereof whilst acting on his behalf in the course of business to which
that fact is material:
Provided that, if the agent fraudulently conceals the fact, the principal shall not be
charged with notice thereof as against any person who was a party to or otherwise
cognizant of the fraud.”
16. When a portion of the property has been conveyed by court auction and registered in
the first instance and when another portion has been conveyed by a registered sale deed in
1952, there is a constructive notice from the date of registration and the presumption under
Section 3 of the Transfer of Property Act, comes into operation. The possession, in the
present case, also has been rested with the appellant before several decades, which
operates as notice of title. This Court in R.K. Mohd. Ubaidullah v. Hajee C. Abdul Wahab 1,
held as follows:
“15. Notice is defined in Section 3 of the Transfer of Property Act. It may be actual where
the party has actual knowledge of the fact or constructive. “A person is said to have notice”
of a fact when he actually knows that fact, or when, but for wilful abstention from an inquiry
or search which he ought to have made, or gross negligence, he would have known it.
Explanation II of said Section 3 reads: “Explanation II.—Any person acquiring any immovable
property or any share or interest in any such property shall be deemed to have notice of the
title, if any, of any person who is for the time being in actual possession thereof.”
Section 3 was amended by the Amendment Act of 1929 in relation to the definition of
“notice”. The definition has been amended and supplemented by three explanations, which
settle the law in several matters of great importance. For the immediate purpose
Explanation II is relevant. It states that actual possession is notice of the title of the person
in possession. Prior to the amendment there had been some uncertainty because of
divergent views expressed by various High Courts in relation to the actual possession as
notice of title. A person may enter the property in one capacity and having a kind of
interest. But subsequently while continuing in possession of the property his capacity or
interest may change. A person entering the property as tenant later may become
usufructuary mortgagee or may be agreement holder to purchase the same property or may
be some other interest is created in his favour subsequently. Hence with reference to
subsequent purchaser it is essential that he should make an inquiry as to the title or interest
of the person in actual possession as on the date when the sale transaction was made in his
favour. The actual possession of a person itself is deemed or constructive notice of the title
1 (2000) 6 SCC 402 : 2000 SCC OnLine SC 995 at page 410
if any, of a person who is for the time being in actual possession thereof. A subsequent
purchaser has to make inquiry as to further interest, nature of possession and title under
which the person was continuing in possession on the date of purchase of the property. In
the case on hand Defendants 2 to 4 contended that they were already aware of the nature
of possession of the plaintiff over the suit property as a tenant and as such there was no
need to make any inquiry. At one stage they also contended that they purchased the
property after contacting the plaintiff, of course, which contention was negatived by the
learned trial court as well as the High Court. Even otherwise the said contention is self-
contradictory. In view of Section 19(b) of the Specific Relief Act and definition of “notice”
given in Section 3 of the Transfer of Property Act read along with Explanation II, it is rightly
held by the trial court as well as by the High Court that Defendants 2 to 5 were not bona
fide purchasers in good faith for value without notice of the original contract.”
17. The next aspect to be considered herein is the cause of action arose for filing the suit
by the Respondent No.1. In this regard, we may quote the following paragraphs of the plaint:
"34. The Plaintiff says that in Writ Petition No. 3813 of 1996 a Civil Application No. 1562 of
2006 came to be filed. One Advocate Shri. Godge had appeared in the said matter. The said
Advocate is well acquainted with the Plaintiff. The said Advocate, after reading all the
necessary related proceedings, informed the Plaintiff of the mischief committed by the
Defendants. The Plaintiff thereafter collected all the necessary information and documents.
The Plaintiff then instructed his Advocates to file the present suit.
35. The Plaintiff says that the present suit has been filed on the latest information received
by the Plaintiff in respect of the lands in possession with the Defendants. The Plaintiff has
accordingly described the suit properties in the schedule annexed as Exhibit "B" hereto. The
Plaintiff craves leave of the Hon'ble Court to amend the plaint in the event any other lands
of the Plaintiff are detected and are found. The Plaintiff may also be permitted to amend the
plaint and bring on record the parties in whose favour the Defendants may have created
third party rights.
53. The Plaintiff states and submits that he got the knowledge of the proceedings on 2nd
March 2007 only when he was informed about the Civil Application No. 1562 of 2006 in Writ
Petition No. 3813 of 1996 filed by Dr. F. Wadia. The said knowledge gives cause of action for
the Plaintiff to file suit. The knowledge that the Plaintiffs right in the suit Property have been
affected by the proceedings between the Defendants and another the said day i.e. 2nd
March 2007 is the date as prescribed by law for the limitation to start, as he first got the
knowledge then. The Plaintiff has thereafter collected all the information and approached
this Hon'ble Court as soon as possible. There is much more information that the Plaintiff
awaits in respect of the land in Village Yerwada. The Plaintiff is also filing· a separate
application under Order 2 Rule 2 of the Civil Procedure Code reserving right to seek other
additional reliefs against the Defendants".
On a reading of the plaint averments, it is clear that the plaintiff was well acquainted with
the counsel Mr.Godge. If the plaintiff was already acquainted with Mr. Godge, whom upon
verification of the records from the status of the suit, we find to have entered appearance in
the suit for the 20 th Respondent on 21.07.2005 itself, would have acquired knowledge much
prior to 2nd March 2007. We also find that Civil Application No 1562 of 2006 was not filed by
Mr.Godge. Therefore, it is a clear case where the plaintiff has not approached the Court with
clean hands. We have no hesitation to hold that the 2 nd March 2007, is a fictional date,
created only for the purpose of this suit. As such, the judgment in T.Arivanandam v.
T.V.Satyapal2 squarely becomes applicable.
18. Continuing further with the plea of limitation, the Courts below have held that the
question of the suit being barred by limitation can be decided at the time of trial as the
question of limitation is a mixed question of law and facts. Though the question of limitation
generally is mixed question of law and facts, when upon meaningful reading of the plaint,
the court can come to a conclusion that under the given circumstances, after dissecting the
vices of clever drafting creating an illusion of cause of action, the suit is hopelessly barred
and the plaint can be rejected under Order VII Rule 11. In the present case, we have already
held that 02.03.2007 is a fictional date. It is not a case where a fraudulent document was
created by the appellant or his predecessors. The title of the suit property as observed by us
earlier was conveyed in 1938 and 1952, and what transpired later by way of compromise
was only an affirmative assertion by the State.

2 (1977) 4 SCC 467

While so, the prayer (a) made in the suit relates to declaration to the effect that the
Respondent No. 1 is the owner of the suit properties.
19. As per Section 31 of the Specific Relief Act, 1963, a declaration to adjudge the
documents as void or voidable must be sought if it causes a serious injury. In the present
case, the sale deeds undisputably stand adverse to the interest and right of the plaintiff and
hence, a relief to declare them as invalid must have been sought. Though the plaintiff has
pleaded the documents to be void and sought to ignore the documents, we do not think that
the document is void, but rather, according to us, it can only be treated as voidable. The
claim of the plaintiff that the grant is only a revenue grant and not a soil grant, has not been
accepted by the State which entered into a compromise. In paragraph 14 of the plaint, there
is an averment that the original sanad was lost and a new sanad was given to the effect that
the inam was a revenue grant based on the report of the Inam Commissioner. Again, specific
dates are not mentioned in the plaint. In paragraph 25, the plaintiff alleges that third party
rights were created by the Gosavi family without any right. Here also, the details are vague.
It can be inferred that such rights ultimately culminated into court auction, in which, the
property was sold to the appellant. Since the original Sanad was lost, the plaintiff had
initiated a suit against the State which was compromised. It is not in dispute that there was
a grant. There is only a dispute with regard to the contents of the Sanad, which was lost. In
the absence of the original Sanad, it is not possible for any court to determine the contents
of the same. The alleged misrepresentation is neither to the character nor is there any
allegation of forgery or fabrication. It is also settled law that a document is void only if there
is a misrepresentation on its character and when there is a misrepresentation in the
contents, it is only voidable. In the present case, the averments in the plaint make out only a
case for voidabale transaction and not a void transaction. Fraud is merely pleaded without
any specific attributes but based on surmises and conjectures. It will be useful to refer to the
judgment of this Court in Ningawwa v. Byrappa Shiddappa Hireknrabar 3, wherein it was held
as under:
“5. The legal position will be different if there is a fraudulent
misrepresentation not merely as to the contents of the document but as to
its character. The authorities make a clear distinction between fraudulent
misrepresentation as to the character of the document and fraudulent
misrepresentation as to the contents thereof. With reference to the former, it
has been held that the transaction is void, while in the case of the latter, it is
merely voidable. In Foster v. Mackinon [(1869) 4 CP 704] the action was by
the endorsee of a bill of exchange. The defendant pleaded that he endorsed
the bill on a fraudulent representation by the acceptor that he was signing a
guarantee. In holding that such a plea was admissible, the Court observed:
“It (signature) is invalid not merely on the ground of fraud, where
fraud exists, but on the ground that the mind of the signer did not
accompany the signature; in other words, that he never intended to
sign, and therefore in contemplation of law never did sign, the
contract to which his name is appended…. The defendant never
intended to sign that contract or any such contract. He never
intended to put his name to any instrument that then was or
thereafter might become negotiable. He was deceived, not merely
as to the legal effect, but as to the ‘actual contents’ of the
instrument.”
This decision has been followed by the Indian courts Sanni Bibi v. Siddik
Hossain [AIR 1919 Cal 728], and Brindaban v. Dhurba Charan [AIR 1929 Cal
606]. It is not the contention of the appellant in the present case that there
was any fraudulent misrepresentation as to the character of the gift deed
but Shiddappa fraudulently included in the gift deed plots 91 and 92 of
Lingadahalli village without her knowledge. We are accordingly of the
opinion that the transaction of gift was voidable and not void and the suit
must be brought within the time prescribed under Article 95 of the
Limitation Act.”
19.1. In the present case, the right to sue had first accrued to the predecessors of the
plaintiff, when the properties were brought for sale by the court. No challenge was made to
the court auction or to the conveyance in 1952. At this length of time, we can only assume
3 1968 SCC OnLine SC 206 : (1968) 2 SCR 797 : (1968) 2 SCJ 555 : AIR 1968 SC 956
that the predecessors of the Plaintiff had not initiated any proceedings as according to them,
either it was a grant of soil or during that period, the rights had not resumed. The plaintiff
had become a major by 1984. By virtue of Article 60 of the Limitation Act, 1963, the plaintiff
has a right to seek a declaration that the alienation of a property in which he had a right,
was void within 3 years. Though the Article prima facie looks to be applicable only to cases,
where there was an alienation by the guardian, we feel that the period of limitation would be
applicable even when a third party had alienated the share or property of a minor. Even
otherwise, Article 58 would come into operation and the plaintiff ought to have filed the suit
within three years from the date when he became a major to seek any declaratory relief, as
it is the date on which his right to sue first is deemed to have been accrued. The plaintiff has
asserted that by government resolutions in 1980 and 1984 he has acquired the title over the
properties. Therefore, as a prudent man, he ought to have initiated necessary steps to
protect his interest. Having failed to do so and created a fictional date for cause of action,
the plaintiff is liable to be non-suited on the ground of limitation.
20. As noted in the preceding paragraphs, the court auction was held in 1938 and sale
deed was registered in the year 1952 in favour of the Defendant No.1 in respect of the suit
properties, whereas, the suit was filed only in the year 2008, though the Respondent No.1 /
Plaintiff and his predecessors were aware of the existence of the said registered sale deed of
the suit properties. In fact, there is no averment in the plaint to the effect that the
predecessors were not aware of the transactions. The limitation period for setting aside the
sale deed would start running from the date of registration of the same and as per Article 59
of the Limitation Act, 1963, after three years of the registration, the Plaintiff is barred from
seeking cancellation of the said registered sale deed or the decree that was passed before
50 years and the consequential judgements.
We have already referred to Section 3 of the Specific Relief Act, 1963. The plaintiff, in our
view, has miserably failed to ascertain the existence of the fact by being diligent.
The question as to when a period of limitation would commence in respect of a registered
document is no longer res integra. In this regard, this Court in Dilboo v.
Dhanraji4, held as follows:
“20…… Whenever a document is registered the date of registration
becomes the date of deemed knowledge. In other cases where a fact could
be discovered by due diligence then deemed knowledge would be attributed
to the plaintiff because a party cannot be allowed to extend the period of
limitation by merely claiming that he had no knowledge”
21. It will also be useful to refer to the judgement of this court in Mohd. Noorul Hoda v.
Bibi Raifunnisa26, wherein the effect of willful abstention from making enquires was laid
down and the following paragraphs are relevant:
“5. Section 55(1) of the Transfer of Property Act, 1882 regulates rights and
liabilities of the buyer and seller. The seller is bound to disclose to the buyer
any material defect in the property or in the seller's title thereto of which the
seller is, and the buyer is not, aware, and which the buyer could not with
ordinary care discover. The seller is to answer, to the best of his information,
all relevant questions put to him by the buyer in respect of the property or
the title thereto. The seller shall be deemed to contract with the buyer that
the interest which the seller professes to transfer to the buyer subsists and
that he has power to transfer the same. Section 3 provides that “a person is
said to have a notice of a fact when he actually knows the fact, or when but
for wilful abstention from an enquiry or search which he ought to have
made, or gross negligence, he would have known it”. Explanation II amplifies
that “any person acquiring any immovable property or any share or interest
in any such property shall be deemed to have notice of the title, if any, of
any person who is for the time being in actual possession thereof”.
Constructive notice in equity treats a man who ought to have known a fact,
as if he actually knows it. Generally speaking, constructive notice may not
be inferred unless some specific circumstances can be shown as a starting
point of enquiry which if pursued would have led to the discovery of the fact.
As a fact it is found that Rafique filed the sale deed dated 1-121959
executed in his favour by Mahangu, in Title Suit No. 220 of 1969 for which
4 (2000) 7 SCC 702 26
(1996) 7 SCC 767
the petitioner claims to have derivative title through Rafique. Rafique had
full knowledge that despite the purported sale, Bibi Raifunnisa got the
preliminary decree passed in 1973 and in 1974 under the final decree the
right, title and interest in the suit property passed on to her. Under Section
55 when second sale deed dated 6-9-1980 was got executed by the
petitioner from Rafique, it is imputable that Rafique had conveyed all the
knowledge of the defects in title and he no longer had title to the property. It
is also a finding of fact recorded by the appellate court and affirmed by the
High Court that the petitioner was in know of full facts of the preliminary
decree and the final decree passed and execution thereof. In other words,
the finding is that he had full knowledge, from the inception of Title Suit No.
220 of 1969 from his benamidar. Having had that knowledge, he got the
second sale deed executed and registered on 6-9-1980. Oblivious to these
facts, he did not produce the second original sale deed nor is an attempt
made to produce secondary evidence on proof of the loss of original sale
deed.
6. The question, therefore, is as to whether Article 59 or Article 113 of the
Schedule to the Act is applicable to the facts in this case. Article 59 of the
Schedule to the Limitation Act, 1908 had provided inter alia for suits to set
aside decree obtained by fraud. There was no specific article to set aside a
decree on any other ground. In such a case, the residuary Article 120 in
Schedule III was attracted. The present Article 59 of the Schedule to the Act
will govern any suit to set aside a decree either on fraud or any other
ground. Therefore, Article 59 would be applicable to any suit to set aside a
decree either on fraud or any other ground. It is true that Article 59 would be
applicable if a person affected is a party to a decree or an instrument or a
contract. There is no dispute that Article 59 would apply to set aside the
instrument, decree or contract between the inter se parties. The question is
whether in case of person claiming title through the party to the decree or
instrument or having knowledge of the instrument or decree or contract and
seeking to avoid the decree by a specific declaration, whether Article 59
gets attracted? As stated earlier, Article 59 is a general provision. In a suit to
set aside or cancel an instrument, a contract or a decree on the ground of
fraud, Article 59 is attracted. The starting point of limitation is the date of
knowledge of the alleged fraud. When the plaintiff seeks to establish his title
to the property which cannot be established without avoiding the decree or
an instrument that stands as an insurmountable obstacle in his way which
otherwise binds him, though not a party, the plaintiff necessarily has to seek
a declaration and have that decree, instrument or contract cancelled or set
aside or rescinded. Section
31 of the Specific Relief Act, 1963 regulates suits for cancellation of an
instrument which lays down that any person against whom a written
instrument is void or voidable and who has a reasonable apprehension that
such instrument, if left outstanding, may cause him serious injury, can sue
to have it adjudged void or voidable and the court may in its discretion so
adjudge it and order it to be delivered or cancelled. It would thus be clear
that the word ‘person’ in Section 31 of the Specific Relief Act is wide enough
to encompass a person seeking derivative title from his seller. It would,
therefore, be clear that if he seeks avoidance of the instrument, decree or
contract and seeks a declaration to have the decrees set aside or cancelled
he is necessarily bound to lay the suit within three years from the date when
the facts entitling the plaintiff to have the decree set aside, first became
known to him.
7. The question, therefore, is as to when the facts of granting preliminary
and final decrees touching upon the suit land first became known to him. As
seen, when he claimed title to the property as owner and Rafique to be his
benamidar, as admitted by Rafique, the title deed dated 1-12-1959 was filed
in Title Suit No. 220 of 1969. Thereby Rafique had first known about the
passing of the preliminary decree in 1973 and final decree in 1974 as
referred to earlier. Under all these circumstances, Article 113 is inapplicable
 to the facts on hand. Since the petitioner claimed derivative title from him
but for his wilful abstention from making enquiry or his omission to file the
second sale deed dated 6-9-1980, an irresistible inference was rightly drawn
by the courts below that the petitioner had full knowledge of the fact right
from the beginning; in other words right from the date when title deed was
filed in Title Suit No. 220 of 1969 and preliminary decree was passed on 2-1-
1973 and final decree was passed on 5-2-1974. Admittedly, the suit was
filed in 1981 beyond three years from the date of knowledge. Thereby, the
suit is hopelessly barred by limitation. The decree of the appellate court and
the order of the High Court, therefore, are not illegal warranting
interference.”
22. It will also be useful to refer to the judgment of this Court in Prem Singh v. Birbal 5, where
the scope of the Limitation Act, 1963 and Article 59 was discussed and held as under:
“11. Limitation is a statute of repose. It ordinarily bars a remedy, but, does
not extinguish a right. The only exception to the said rule is to be found in
Section 27 of the Limitation Act, 1963 which provides that at the
determination of the period prescribed thereby, limited to any person for
instituting a suit for possession of any property, his right to such property
shall be extinguished.
12. An extinction of right, as contemplated by the provisions of the Limitation
Act, prima facie would be attracted in all types of suits. The Schedule
appended to the Limitation Act, as prescribed by the articles, provides that
upon lapse of the prescribed period, the institution of a suit will be barred.
Section 3 of the Limitation Act provides that irrespective of the fact as to
whether any defence is set out or is raised by the defendant or not, in the
event a suit is found to be barred by limitation, every suit instituted, appeal
preferred and every application made after the prescribed period shall be
dismissed.
13. 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.
14. 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 (16 of 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.”
15. Section 31 of the Specific Relief Act, 1963 thus, refers to both void and
voidable documents. It provides for a discretionary relief.
16. When a document is valid, no question arises of its cancellation. When a
document is void ab initio, a decree for setting aside the same would not be
necessary as the same is non est in the eye of the law, as it would be a
nullity.
17. Once, however, a suit is filed by a plaintiff for cancellation of a transaction,
it would be governed by Article 59. Even if Article 59 is not attracted, the
residuary article would be.
18. Article 59 would be attracted when coercion, undue influence,
misappropriation or fraud which the plaintiff asserts is required to be proved.
Article 59 would apply to the case of such instruments. It would, therefore,
apply where a document is prima facie valid. It would not apply only to
instruments which are presumptively invalid. (See Unni v. Kunchi Amma [ILR

5 (2006) 5 SCC 353 : 2006 SCC OnLine SC 522

 (1891) 14 Mad 26] and Sheo Shankar Gir v. Ram Shewak Chowdhri [ILR
(1897) 24 Cal 77].)
19. It is not in dispute that by reason of Article 59 of the Limitation Act, the
scope has been enlarged from the old Article 91 of the 1908 Act. By reason of
Article 59, the provisions contained in Articles 91 and 114 of the 1908 Act had
been combined.
20. If the plaintiff is in possession of a property, he may file a suit for
declaration that the deed is not binding upon him but if he is not in
possession thereof, even under a void transaction, the right by way of
adverse possession may be claimed. Thus, it is not correct to contend that the
provisions of the Limitation Act would have no application at all in the event
the transaction is held to be void.
21. Respondent 1 has not alleged that fraudulent misrepresentation was made
to him as regards the character of the document. According to him, there had
been a fraudulent misrepresentation as regards its contents.
22. In Ningawwa v. Byrappa [(1968) 2 SCR 797 : AIR 1968 SC 956] this Court
held that the fraudulent misrepresentation as regards character of a
document is void but fraudulent misrepresentation as regards contents of a
document is voidable stating:
(SCR p. 801 C-D)
“The legal position will be different if there is a fraudulent
misrepresentation not merely as to the contents of the document but
as to its character. The authorities make a clear distinction between
fraudulent misrepresentation as to the character of the document and
fraudulent misrepresentation as to the contents thereof. With
reference 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 practised on her, the same was void. It was, however, held:
(SCR p. 803 B-E)
“Article 91 of the 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 years' 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, Ext. 45 the appellant knew that her husband prevailed upon her
to convey Surveys 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
the appellant is barred under Article 91 of the Limitation Act so far as
Plots Nos. 407/1 and 409/1 of Tadavalga village are concerned.”
………
28. 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.”
23. Further, in the aforesaid suit, the Respondent No.1 also sought possession of the
suit properties based on title. As per Article 65 of the Limitation Act, 1963, the
possession of immovable property or any interest therein, based on title can be
sought within twelve years. From the records, it is evident that the possession of
the subject properties was initially with the Government of Maharashtra, then with
the Gonsavis and thereafter with the Defendant No.1 and it can be safely said that
at least for a century, the Respondent No.1 nor his predecessors have been in
 possession of the properties after the grant of Inam. The plaintiff has failed to sue
the appellant/defendant or the State for possession within twelve years. We have
already held that the title claim of the plaintiff is barred by limitation and
therefore, the claim for possession is also barred and consequently, the relief of
recovery of possession is also hopelessly barred by limitation.
24. Moreover, the Plaintiff has not produced any documentary evidence to show that
he is entitled for the relief of declaration of ownership of the suit properties except
by way of reliance of the resolutions of the government, which has lost its force in
view of the decree of the Civil Court and subsequent compromise decrees. The
decrees had also attained finality as the neither the plaintiff nor his ancestors
have challenged the same in time. It is also evident on the face of record that the
Plaintiff is a stranger to the suit properties; on the contrary, the Defendants are
the owners of the suit properties. It is a settled principle of law that the owners
cannot be restrained from dealing with their own properties at the instance of a
stranger. The said relief is again a consequential relief to the claim of title, which
has been non-suited on the ground of limitation. Hence, the prayer (c) made in the
plaint is not maintainable.
25. Regarding the averments made in the plaint relating to fraud played on the
plaintiff by the defendants in relation to the compromise decrees obtained in their
favour, we are of the view that they are vague and general, besides baseless and
unsubstantiated. Rather, no case can be culled out from the averments made in
the plaint in this regard. The plea of fraud is intrinsically connected with the
nature of Inam. We have already discussed the plea of fraud in the preceding
paragraphs. We are also of the view that the plea has been raised only to
overcome the period of limitation. Admittedly the Plaintiff is a stranger to the suits
which ended in compromise. Therefore, in view of the direct bar under Order XXIII
Rule 3A of CPC, he cannot seek a declaration ‘that the compromise decrees
passed in Spl. Civil Suit Nos.l52/1951 and 1622/1988 and Civil Appeal
No.787/2001, Pune are void ab initio, null and void and the same are liable to be
set aside’. The law on this point is also already settled by this Court in Triloki Nath
Singh v. Anirudh Singh 6. The bar under Order XXIII Rule 3A of CPC is applicable to
third parties as well and the only remedy available to them would be to approach
the same court. In the present case, such an exercise is also not possible in view
of the bar of limitation. Hence, we find the suit to be unsustainable.
26. At this juncture, we wish to observe that we are not unmindful of the position of
law that limitation is a mixed question of fact and law and the question of
rejecting the plaint on that score has to be decided after weighing the evidence on
record. However, in cases like this, where it is glaring from the plaint averments
that the suit is hopelessly barred by limitation, the Courts should not be hesitant
in granting the relief and drive the parties back to the trial Court. We again place
it on record that this is not a case where any forgery or fabrication is committed
which had recently come to the knowledge of the plaintiff. Rather, the plaintiff and
his predecessors did not take any steps to assert their title and rights in time. The
alleged cause of action is also found to be creation of fiction. However, the trial
Court erroneously dismissed the application filed by the appellants under Order VII
Rule 11(d) of CPC. The High Court also erred in affirming the same, keeping the
question of limitation open to be considered by the trial
Court after considering the evidence along with other issues, without deciding the core issue
on the basis of the averments made by the Respondent No.1 in the Plaint as mandated by
Order VII Rule 11 (d) of CPC. The spirit and intention of Order VII Rule 11(d) of CPC is only for
the Courts to nip at its bud when any litigation ex facie appears to be a clear abuse of
process. The Courts by being reluctant only cause more harm to the defendants by forcing
them to undergo the ordeal of leading evidence. Therefore, we hold that the plaint is liable
to be rejected at the threshold.
27. In fine, this appeal stands allowed by setting aside the orders so passed by the
Courts below and the application filed by the appellants under Order VII Rule 11(d) of

6 (2020) 6 SCC 629 : (2020) 3 SCC (Civ) 732

CPC is allowed by rejecting the plaint in Special Civil Suit No.133 of 2009 filed by the
Respondent No.1. However, there is no order as to costs. Pending application(s), if any, shall
stand disposed of.
DECEMBER 20, 2024.