Full Judgment Text
2025 INSC 553
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 5470 OF 2025
(Arising from SLP (C) No. 3056 OF 2016)
HUSSAIN AHMED CHOUDHURY & ORS. ...APPELLANTS
Versus
HABIBUR RAHMAN (DEAD) THROUGH LRs
& ORS. ...RESPONDENTS
J U D G M E N T
Signature Not Verified
Digitally signed by
CHANDRESH
Date: 2025.04.23
17:40:19 IST
Reason:
SLP (C) No. 3056 of 2016 Page 1 of 31
J.B. PARDIWALA, J.
1. Leave granted.
2. This appeal arises from the common judgment and order passed by
the High Court of Guwahati dated 09.10.2015 in Regular Second
Appeal No. 3 of 2007 and Regular Second Appeal No. 11 of 2007
respectively by which the High Court allowed both the Second Appeals
preferred by the respondents herein (original defendants) and thereby
set aside the judgment and decree passed by the Trial Court as
affirmed by the First Appellate Court in favour of the appellants herein
(original plaintiffs).
3. For the sake of convenience, the appellants herein shall be referred
to as the original plaintiffs and the respondents herein shall be
referred to as the original defendants.
A. FACTUAL MATRIX
4. The facts giving rise to this appeal may be summarized as under:
i. A registered Gift Deed dated 26.04.1958 in respect of land
admeasuring 08 bighas and 06 chatak (which includes the suit
land admeasuring 04 bighas, 05 katha and 06 chatak), was
executed by one Haji Abdul Aziz Choudhury (grandfather of the
original plaintiff) in favour of Siraj Uddin Choudhury (original
SLP (C) No. 3056 of 2016 Page 2 of 31
plaintiff). The reason for the execution of the Gift Deed being
that as Abdul Aziz’s son had predeceased him, his grandson,
Siraj Uddin, would not otherwise have been eligible to inherit
his grandfather’s property as per Muslim law.
ii. The appellants herein are the legal heirs of the original plaintiff.
iii. The grandfather of the original plaintiff passed away in 1971.
iv. On 05.05.1997, the respondent no. 1 allegedly purchased part
of the suit land from the original defendant nos. 1 to 6 (brothers
and sisters of the plaintiff’s deceased father) who, according to
the plaintiff, had no title or saleable rights over the suit
property.
v. The Title Suit, bearing No. 88/1997 was filed by the plaintiff,
seeking declaration, confirmation of possession and mandatory
injunction over the suit land. The cause of action for the suit
arose in 1997 when the defendants started threatening to
dispossess the plaintiff from the suit property, and did succeed
in forcibly dispossessing him on 08.05.1999, during the
pendency of the suit.
vi. The plaint was accordingly amended on 28.08.1999, to seek
recovery of possession as the plaintiff was dispossessed during
pendency of the suit.
SLP (C) No. 3056 of 2016 Page 3 of 31
vii. The Trial Court framed the following issues for its
consideration:
“Upon the pleadings of both the sides, the following
issues were framed:
1. Is there any cause of action for the suit?
2. Is the suit bad for defect of necessary parties?
3. Whether late Haji Abdul Aziz Choudhury,
grandfather of the plaintiff as well as predecessor
of the defendants, gifted the suit land in favour of
the plaintiff by executing registered Gift Deed No.
2656 dated 26.04.1958 and delivered
possession?
4. Whether the plaintiff acquired right, title, interest
and possession over the suit land on the basis of
Gift Deed No. 2656?
5. Whether the defendants threatened the plaintiff
to dispossess him, out of the possession of the
suit land illegally?
6. Is the plaintiff entitled to a decree as prayed for?
7. To what other relief/reliefs, the parties are
entitled to?
--xxx--
Additional Issue:
(1) Is the suit maintainable in law, as well as, on
facts?”
viii. The T.S. No. 88/1997 came to be allowed vide the judgment
and decree dated 21.05.2001 in favour of the plaintiff, with all
issues decided in his favour. The Civil Judge, Cachar, Silchar
was pleased to hold as follows:
“1. That the Gift Deed was validly executed by the
plaintiff’s grandfather in his favour, as corroborated
by unimpeachable documentary and oral evidence.
2. The property transferred by virtue of the Gift Deed
was clearly identifiable by the specific boundary
description contained in its Schedule and the mis-
SLP (C) No. 3056 of 2016 Page 4 of 31
description of the Dag numbers did not hamper
proper identification of the property conveyed.
Accordingly, the plaintiff had acquired right, title
interest and possession over the suit land by virtue
of the said deed of gift.
3. Defendants no. 1 to 6 had no saleable interest to
sell the suit land. Furthermore, the land covered by
the alleged subsequent sale deed was distinct and
had no relation with the suit land.”
ix. Two separate appeals against the judgment and decree dated
21.05.2001 were preferred:
a. Title Appeal No. 15/2001 by respondent no. 21 herein
(original defendant no. 2),
b. Title Appeal No. 17/2001 by respondent no.1 herein
(original defendant no. 14, being the alleged subsequent
purchaser).
x. The First Appellate Court vide two different judgments, both
dated 17.06.2006, affirmed the findings of the Trial Court that
the Gift Deed was validly executed in favour of the plaintiff and
possession was handed over to the plaintiff through his mother.
It was further reiterated that despite mis-description of the suit
land in the Gift Deed, the Schedule land was clearly
identifiable, and that the plaintiff had proved his title thereon.
xi. The original defendants being dissatisfied with the judgment
and order passed by the First Appellate Court preferred two
second appeals in the High Court.
SLP (C) No. 3056 of 2016 Page 5 of 31
xii. The High Court vide its common judgment and order dated
09.10.2015 affirmed the finding of the Trial Court and the
Appellate Court that: (i) the Gift Deed was validly executed and
delivery of possession in pursuance thereof had taken place; (ii)
that the mis-description was a mere irregularity that did not
affect the identity of the property.
xiii. The relevant observations made by the High court in para 29
and 30 respectively of its impugned judgment reads thus:
“29. In the instant case, there is no evidence of any
oral gift. Both the courts below had held that the gift
deed, Ext. 1, to be duly executed by the donor, who
was the grandfather of the plaintiff. The gift deed
also indicated the purpose for which the gift was
made, namely, the plaintiff would not have inherited
any property of the donor as the plaintiff’s father had
expired during the lifetime Nails of the donor and as
Risa Msg each under the Mahomedan Law, son of a
pre-deceased son is not entitled to inherit ancestral
property. The plaintiff and PW 2, the attesting
witness, had deposed towards execution of the gift
deed by the grandfather of the plaintiff and their
evidence is not impeached in any manner and as
such, it must be held that the gift deed was duly
executed by the grandfather of the plaintiff. With
regard to acceptance of the gift and delivery of
possession, I am inclined to uphold the view taken
by the learned courts below that mother of the
plaintiff had accepted the gift and taken delivery of
possession. I am Unable to accept the submission
advanced by Mr. Kalita and Mr. Purkayastna that
acceptance of the gift by the mother of the plaintiff
was an afterthought, merely because in the plaint,
the said fact was not expressly mentioned. Absence
of any recital in the gift deed that gift was accepted
and delivery of possession was given will not be of
SLP (C) No. 3056 of 2016 Page 6 of 31
any consequence in respect of a gift under the
Mahomedan Law. The learned courts below, on the
basis of Ext. 2 and Ext, 9, came to the conclusion that
the aforesaid deeds established that plaintiff was
delivered possession of the property pursuant to the
gift. A finding was also recorded by the learned
courts below that the suit land as described in the
plaint conforms to the boundary given in Ext, 1 and
nd
that Dag No. 174 of 2 R.S. Patia No. 7 and Dag No,
nd
175 of 2 R.S. Patta No. 109 are adjacent dags. In
that view of the matter, the learned courts below
were justified to hold that there was mis-description
with regard the dag numbers in the gift deed.
30. When there is no doubt as to the identity of the
land and there is only mis-description that could be
treated as a mere irregularity. If no boundaries had
been given in the gift deed, matter would have been
different. But in the instant case, both boundaries
and dag numbers are mentioned and in the
circumstances of the case, mistakes in the dag
numbers must be treated as a mere mis-description
not affecting the identity of the property gifted.”
(Emphasis Supplied)
xiv. It appears from the above that although the High Court agreed
with the two Courts below as regards the Gift Deed being validly
executed, yet it went on to allow the two second appeals and
thereby, dismissed the suit of the plaintiffs on the ground that
in the absence of challenge to the subsequent sale deed and
omission on the part of the plaintiff to seek the consequential
relief of cancellation of the sale deed, the plaintiff would be
disentitled from obtaining a decree declaring his right, title and
interest over the suit property.
SLP (C) No. 3056 of 2016 Page 7 of 31
xv. In the aforesaid context, we may reproduce paras 34, 35, 36
and 37 respectively of the impugned judgment. The same reads
thus:
“34. However, there is another facet of the matter.
Even if the plaintiff was entitled to have right, title
and interest on the basis of the gift deed, the question
arises as to whether in absence of any challenge to
the sale deed, Ext. A, on the basis of which the
defendant No. 14 had taken possession over a part
of the suit property, the plaintiff would be entitled to
the reliefs prayed for in the suit.
35. The plaintiff by way of amendment prayed for
recovery of khas possession without challenging the
sale deed. The learned lower appellate court before
which the question was raised that the plaintiff
would not be entitled to the reliefs as prayed for in
absence of the challenge made to the sale deed,
skirled the issue and did not give any decision on the
question posed.
36.In Md. Noorul Hoda v. Bibi Raifunnisa and ors.,
reported in (1996) 7 SCC 767, the Apex Court had
laid down that when the plaintiff seeks to establish
his title to the property which cannot be established
without avoiding a decree by a court or an instrument
that stands as an insurmountable obstacle in his
way, the plaintiff has to seek a declaration and have
the decree or the instrument cancelled or set aside.
Similar view is taken by the Apex Court in the case
of Abdul Rahim and ors. v. Sheikh Abdul Zabbar and
ors., reported in (2009) 6 SCC 140.
37. In the facts of the case, a prayer for cancellation
of Ext. A as a consequential relief was necessary to
enable the plaintiff to get a decree declaring his right,
title and interest. If was incumbent upon the plaintiff
SLP (C) No. 3056 of 2016 Page 8 of 31
to have challenged the sale deed. It must not be
forgotten that suit land was mutated in the names of
the vendors of the sale deed by way of inheritance
and there was no objection by the plaintiff ~ to such
mutation. That apart, dag numbers were also
wrongly given in the gift deed, Ext. 1 and the same
were not corrected and rectified. Without there being
any challenge to Ext. A, the learned courts below
proceeded to embark upon an enquiry to find out
legality and validity of the sale deed and whether the
defendant No. 14 could have taken possession of
land in Dag No. 174 by virtue of such sale deed. The
exercise undertaken by the courts below was
impermissible in law. In absence of a declaration
that the sale deed is invalid in law, which was not
sought for, learned courts below could not have
granted a decree declaring right, title and interest in
favour of the plaintiff and for recovery of khas
possession from the defendant No. 14 in respect of,
the land which was sold to him through the sale
deed, Ext. A.”
5. In such circumstances referred to above, the original plaintiffs are
here before this Court with the present appeal.
B. SUBMISSIONS ON BEHALF OF THE APPELLANTS
6. Mr. Parthiv K. Goswami, the learned senior counsel appearing for the
plaintiffs vehemently submitted that the High Court committed an
egregious error in passing the impugned judgment and order. He
would submit that the High Court erred in setting aside the decree
passed in favour of the plaintiff on the ground that the consequential
relief of cancellation of the subsequent sale deed had not been prayed
for in the suit. He would submit that the plaintiff had acquired right,
SLP (C) No. 3056 of 2016 Page 9 of 31
title and possession over the suit property by virtue of a prior, validly
executed and duly registered Gift Deed in 1958, and the said finding
stands affirmed even in the impugned order. He submitted that the
alleged subsequent sale deed dated 05.05.1997 which forms the basis
for the claim of respondent no.1 herein is void-ab-initio and non est on
account of the fact that it was executed by vendors who were not
competent to transfer it in terms of Section 7 of the Transfer of
Property Act, 1882.
7. It was argued that a vendor cannot transfer a title to the vendee better
than what he possesses. It was submitted that once the plaintiff has
successfully established his right, title and interest over the suit
property based on a prior instrument, it was not incumbent upon him
to seek cancellation of the subsequent sale deed which was void-ab-
initio .
8. The learned counsel in support of his aforesaid submissions placed
strong reliance on the decision of this Court in the case of Sk. Golam
Lalchand v. Nandu Lal Shaw & Ors ., reported in 2024 SCC OnLine
SC 2456.
9. In the last, it was argued that the subsequent sale deed has been
otherwise also specifically found by the Civil Judge to have no relation
to the suit land covered by Dag Nos. 174 and 175 respectively. He
invited our attention to the following findings recorded by the High
Court:
SLP (C) No. 3056 of 2016 Page 10 of 31
“But from Ext.5 (Settlement Map of Mouza Niz Banskandi
Part-11), it transpires that the said Purchased land has
no relation with the suit land, covered by dag No.174 and
Part of dag No.175. Though in the schedule of Ext.A; there
is mention of sale of 2 bighas 14 kathas 7 chhattaks of
land in Dag No.174, but the boundary description of the
land does not refer to any land of Dag No.l74. From the
Ext.S, it is revealed that land appertaining to Dag No. 174
situates at a distance from Dag No: 21/22 intervened by
many plots under different dags and hence both the plot
of lands cannot be sold by a ·single boundary. The
boundaries given in the schedule of Ext.A rather refer a
complete different plot of land near the plot of land
covered under Dag No.20 of the Said Mouza, i.e. towards
adjacent South of Dag No.20. It is, therefore, proved that
the defendant No.14 Habibur Rahman acquired no right,
title and interest over the suitland appertaining to Dag
Nos.174/ 175 and he has been possessing the same
illegally.”
(Emphasis supplied)
10. The learned counsel submitted that in view of the specific finding
recorded by the Trial Court that the land covered by the subsequent
sale deed was distinct and had no relation with the suit land, the High
Court fell in error in setting aside the decree declaring the right, title
and interest of the plaintiff over the suit land, more so, in light of the
fact that the said findings were not disturbed or interfered within the
impugned order.
11. In such circumstances referred to above, the learned counsel prayed
that there being merit in his appeal, the same may be allowed and the
impugned judgment and order passed by the High Court be set aside.
SLP (C) No. 3056 of 2016 Page 11 of 31
C. SUBMISSIONS ON BEHALF OF THE DEFENDANTS :
12. Mr. Avijit Roy, the learned counsel appearing for the defendants
vehemently submitted that no error, not to speak of any error of law,
could be said to have been committed by the High Court in passing
the impugned order. The counsel would submit that the High Court
rightly allowed the two appeals and thereby dismissed the suit
instituted by the plaintiff on the ground that the plaintiff failed to
challenge the subsequent sale deed and thus the omission on the part
of the plaintiff to seek the consequential relief of cancellation of the
sale deed would disentitle the plaintiff from seeking a declaration as
regards his right, title and interest over the suit property. The learned
counsel submitted that the High Court rightly held at para 37 of its
impugned judgment that without there being any challenge to the sale
deed, the courts below could not have proceeded to embark upon an
enquiry to find out the legality and validity of the sale deed and further
whether the defendant no. 14 i.e., respondent no. 1 herein could have
taken over the possession of land in Dag No. 174 by virtue of such
sale deed. The exercise undertaken by the courts below was
impermissible in law. In the absence of a specific declaration that the
sale deed is invalid in law, which was not sought for, the courts below
could not have granted a decree declaring right, title and interest in
favour of the plaintiff and for recovery of possession of khas from the
defendant no. 14 i.e., respondent no. 1 herein, in respect of the land
which was sold to him through the sale deed dated 05.05.1997.
SLP (C) No. 3056 of 2016 Page 12 of 31
13. The counsel further submitted that under the Specific Relief Act,
1963, (for short, “ the Act, 1963 ”) the aggrieved can seek cancellation
of a registered instrument on the ground of fraud, by filing a suit
under Section 31. In case a person, without any title, executes a sale
deed, the real owner may file a suit under Section 34 of the Act, 1963,
if his peaceful enjoyment of ownership right is impinged due to the
said sale. He also argued that the provision of Section 34 of the Act,
1963 was not discussed in Sk. Golam Lalchand (supra) .
14. It was argued that in order to obtain the relief of declaration, the
plaintiff must establish that (i) the plaintiff at the time of institution
of the suit was entitled to any legal character or any right to any
property, (ii) the defendant had denied or was interested in denying
the character or the title of the plaintiff, (iii) the declaration asked for
was a declaration that the plaintiff was entitled to a legal character or
to a right to property, and (iv) the plaintiff was not in a position to
claim any further relief. In the present case the answering
respondents/ defendant no. 14 as the purchaser, clearly denied the
claim of title by the plaintiffs over the suit land.
15. It was also argued that even assuming without admitting that the
plaintiffs have a legal right over the suit land, in that case, this Court
in Ram Rattan v. State of U.P. reported in (1977) 1 SCC 188 had
held that a true owner has every right to dispossess or throw out a
trespasser while he is in the act or process of trespassing but this
right is not available to the true owner if the trespasser has been
SLP (C) No. 3056 of 2016 Page 13 of 31
successful in accomplishing his possession to the knowledge of the
true owner. In such circumstances, the law requires that the true
owner should dispossess the trespasser by taking recourse to the
remedies under the law. Therefore, in the instant case, the High Court
rightly held at para 37 of the impugned judgment that without there
being any challenge to the sale deed, the courts below could not have
proceeded to embark upon an enquiry to test the legality and validity
of the sale deed and whether the defendant no. 14 could have taken
over the possession of land in Dag No. 174 by virtue of such sale deed.
16. The learned counsel in support of his aforenoted submissions placed
strong reliance on the following two decisions:
i. Mohd. Noorul Hoda v. Bibi Raifunnisa , reported in (1996) 7
SCC 767 .
ii. Abdul Rahim & Ors v Sk. Abdul Zabar & Ors. , reported in
(2009) 6 SCC 160 .
17. In such circumstances referred to above, the learned counsel
appearing for the respondents prayed that there being no merit in the
appeal, the same may be dismissed.
SLP (C) No. 3056 of 2016 Page 14 of 31
D. ANALYSIS
18. Having heard the learned counsel appearing for the parties and having
gone through the materials on record, the following question of law
falls for our consideration:
“Whether the High Court was right in taking the view that the suit of
the plaintiff for declaration of his title based on a valid Gift Deed should
fail as the plaintiff omitted to pray for the consequential relief of
cancellation of the sale deed or a declaration that the same is not
binding on him?”
19. Before we proceed to answer the question of law as formulated above,
we must look into Sections 31 and 34 of the Act, 1963 respectively.
Section 31 reads thus:
“Section 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.”
SLP (C) No. 3056 of 2016 Page 15 of 31
20. A Full Bench of Madras High Court in Muppudathi Pillai v.
Krishnaswami Pillai reported in 1959 SCC OnLine Mad 5
considered the scope of Sections 39 and 41 of Specific Relief Act, 1877
(which are now Sections 31 and 33 of the Act, 1963). The principle
entrenched in Section 39 was explained thus:
“The principle is that such document though not
necessary to be set aside may, if left outstanding, be a
source of potential mischief. The jurisdiction under S.39
is, therefore, a protective or a preventive one. It is not
confined to a case of fraud, mistake, undue influence etc.
and as it has been stated it was to prevent a document to
remain as a menace and danger to the party against
whom under different circumstances it might have
operated. A party against whom a claim under a
document might be made is not bound to wait till the
document is used against him. If that were so he might
be in a disadvantageous position if the impugned
document is sought to be used after the evidence
attending its execution has disappeared. Section 39
embodies the principle by which he is allowed to
anticipate the danger and institute a suit to cancel the
document and to deliver it up to him. The principle of the
relief is the same as in quia timet actions.”
(Emphasis supplied)
21. It was further laid down as under:
“The provisions of S.39 make it clear that three conditions
are requisite for the exercise of the jurisdiction to cancel
an instrument: (1) the instrument is void or voidable
against the plaintiff; (2) plaintiff may reasonably
apprehend serious injury by the instrument being left
outstanding; (3) in the circumstances of the case, the
Court considers it proper to grant this relief of preventive
justice. On the third aspect of the question the English
and American authorities hold that where the document
is void on its face the Court would not exercise its
SLP (C) No. 3056 of 2016 Page 16 of 31
jurisdiction while it would if it were not so apparent. In
India it is a matter entirely for the discretion of the Court”
“The question that has to be considered depends on the
first and second conditions set out above. As the principle
is one of potential mischief, by the document remaining
outstanding, it stands to reason the executant of the
document should be either the plaintiff or a person who
can in certain circumstances bind him. It is only then it
could be said that the instrument is voidable by or void
against him. The second aspect of the matter emphasizes
that principle. For there can be no apprehension if a mere
third party, asserting a hostile title creates a document.
Thus, relief under S.39 would be granted only in respect
of an instrument likely to affect the title of the plaintiff and
not of an instrument executed by a stranger to that title.”
(Emphasis supplied)
22. In Deccan Paper Mills Company Limited v. Regency Mahavir
Properties and Others reported in (2021) 4 SCC 786 , this Court
held that the proceedings under Section 31 of the Act, 1963 are in
personam in nature and therefore, any question pertaining to Section
31 would be amenable to adjudication by an arbitral tribunal. While
stating so, this Court explained the ambit and scope of Section 31 in
detail and authoritatively held that the expression “any person”
occurring in this provision does not include a third party but is
restricted to either a party to the written instrument or any person
who is bound by a party to the instrument. Placing reliance on
Muppudathi Pillai (supra), this Court observed thus:
“19 . The Court then continued its discussion as follows :
(Muppudathi Pillai case [Muppudathi
SLP (C) No. 3056 of 2016 Page 17 of 31
Pillai v. Krishaswami Pillai, 1959 SCC OnLine Mad 314 :
(1959) 72 LW 543] , SCC OnLine Mad paras 13-16)
“13. … The provisions of Section 39 make it clear that
three conditions are requisite for the exercise of the
jurisdiction to cancel an instrument : (1) the instrument
is void or voidable against the plaintiff; (2) plaintiff
may reasonably apprehend serious injury by the
instrument being left outstanding; (3) in the
circumstances of the case the court considers it proper
to grant this relief of preventive justice. On the third
aspect of the question the English and American
authorities hold that where the document is void on its
face the court would not exercise its jurisdiction while
it would if it were not so apparent. In India it is a
matter entirely for the discretion of the court.
14. The question that has to be considered depends
on the first and second conditions set out above. As
the principle is one of potential mischief, by the
document remaining outstanding, it stands to reason
the executant of the document should be either the
plaintiff or a person who can in certain circumstances
bind him. It is only then it could be said that the
instrument is voidable by or void against him. The
second aspect of the matter emphasises that principle.
For there can be no apprehension if a mere third party
asserting a hostile title creates a document. Thus relief
under Section 39 would be granted only in respect of
an instrument likely to affect the title of the plaintiff
and not of an instrument executed by a stranger to
that title.
15. Let us take an example of a trespasser purporting
to convey the property in his own right and not in the
right of the owner. In such a case a mere cancellation
of the document would not remove the cloud
occasioned by the assertion of a hostile title, as such
a document even if cancelled would not remove the
assertion of the hostile title. In that case it would be
the title that has got to be judicially adjudicated and
SLP (C) No. 3056 of 2016 Page 18 of 31
declared, and a mere cancellation of an instrument
would not achieve the object. Section 42 of the Specific
Relief Act would apply to such a case. The remedy
under Section 39 is to remove a cloud upon the title,
by removing a potential danger but it does not
envisage an adjudication between competing titles.
That can relate only to instruments executed or
purported to be executed by a party or by any person
who can bind him in certain circumstances. It is only
in such cases that it can be said there is a cloud on
his title and an apprehension that if the instrument is
left outstanding it may be a source of danger. Such
cases may arise in the following circumstances : A
party executing the document, or a principal in respect
of a document executed by his agent, or a minor in
respect of a document executed by his guardian de
jure or de facto, a reversioner in respect of a document
executed by the holder of the anterior limited estate, a
real owner in respect of a document executed by the
benamidar, etc. This right has also been recognised in
respect of forged instruments which could be
cancelled by a party on whose behalf it is purported
to be executed. In all these cases there is no question
of a document by a stranger to the title. The title is the
same. But in the case of a person asserting hostile
title, the source or claim of title is different. It cannot
be said to be void against the plaintiff as the term void
or voidable implies that but for the vitiating factor it
would be binding on him, that is, he was a party to
the contract.
16. There is one other reason for this conclusion.
Section 39 empowers the court after adjudicating the
instrument to be void to order the instrument to be
delivered up and cancelled. If the sale deed is or
purported to have been executed by a party, the
instrument on cancellation could be directed to be
delivered over to the plaintiff. If on the other hand such
an instrument is executed by a trespasser or a person
claiming adversely to the plaintiff it is not possible to
SLP (C) No. 3056 of 2016 Page 19 of 31
conceive the instrument being delivered over not to the
executant but his rival, the plaintiff.”
---xxx---
21. A reading of the aforesaid judgment [Muppudathi
Pillai v. Krishaswami Pillai, 1959 SCC OnLine Mad 314 :
(1959) 72 LW 543] of the Full Bench would make the
position in law crystal clear. The expression “any person”
does not include a third party, but is restricted to a party
to the written instrument or any person who can bind
such party. Importantly, relief under Section 39 of the
Specific Relief Act, 1877 would be granted only in respect
of an instrument likely to affect the title of the plaintiff,
and not of an instrument executed by a stranger to that
title. The expression “any person” in this section has been
held by this Court to include a person seeking derivative
title from his seller [see Mohd. Noorul Hoda v. Bibi
Raifunnisa [Mohd. Noorul Hoda v. Bibi Raifunnisa,
(1996) 7 SCC 767] , at p. 771]. The principle behind the
section is to protect a party or a person having a
derivative title to property from such party from a
prospective misuse of an instrument against him. A
reading of Section 31(1) then shows that when a written
instrument is adjudged void or voidable, the Court may
then order it to be delivered up to the plaintiff and
cancelled—in exactly the same way as a suit for
rescission of a contract under Section 29. Thus far, it is
clear that the action under Section 31(1) is strictly an
action inter parties or by persons who obtained derivative
title from the parties, and is thus in personam. ”
(Emphasis supplied)
23. The decision in Sk. Golam Lalchand (supra) , which has been
canvassed by the counsel appearing on behalf of the plaintiff,
observed as follows:
“23. A faint effort was made in the end to contend that
the plaintiff-respondent Nandu Lal had not asked for any
SLP (C) No. 3056 of 2016 Page 20 of 31
relief of cancellation of the sale deed by which the
property was purchased by the defendant-appellant S.K.
Golam Lalchand and, therefore, is not entitle to any relief
in this suit. The argument has been noted only to be
rejected for the simple reason that Section 31 of
the Specific Relief Act, 1963 uses the word ‘may’ for
getting declared the instrument as void which is not
imperative in every case, more particularly when the
person is not a party to such an instrument.”
(Emphasis supplied)
24. This observation made in Sk. Golam Lalchand (supra) must
necessarily be understood in the context of our preceding discussion.
All that has been stated therein is that as Section 31 of the Act, 1963
uses the word “may”, it is not a mandate, even as regards the parties
to the instrument or the persons claiming through or under them, to
seek for the cancellation of an instrument which is otherwise void and
therefore, it cannot be contended that a stranger to that instrument
must necessarily seek for its cancellation. By no stretch of
imagination can this be construed to mean that when there exists an
instrument with respect to the same property but executed by some
other person, the plaintiff despite being a stranger to that instrument
would fall under the scope of “any person” in Section 31 of the Act,
1963.
25. Having explained the scope of Section 31, we now deem it necessary
to examine Section 34 of the Act, 1963, which reads thus:
“Section 34. Discretion of court as to declaration of
status or right .—
Any person entitled to any legal character, or to any right
as to any property, may institute a suit against any
SLP (C) No. 3056 of 2016 Page 21 of 31
person denying, or interested to deny, his title to such
character or right, and the court may in its discretion
make therein a declaration that he is so entitled, and the
plaintiff need not in such suit ask for any further relief:
Provided that no court shall make any such
declaration where the plaintiff, being able to seek further
relief than a mere declaration of title, omits to do so.
Explanation.—A trustee of property is a “person
interested to deny” a title adverse to the title of some one
who is not in existence, and whom, if in existence, he
would be a trustee.”
26. Section 34 entitles a person to approach the appropriate court for a
declaration, if that person is entitled to (i) any legal character or (ii)
any right as to any property. “Legal character” and “right to property”
are used disjunctively so that either of them, exclusively, may be the
basis of a suit. The disjunctive ‘ or ’ cannot be read as a conjunctive
‘ and ’.
27. The object of the proviso to Section 34 is to obviate the necessity for
multiple suits by preventing a person from getting a mere declaration
of right in one suit and then subsequently seeking another remedy
without which the declaration granted in the former suit would be
rendered otiose. However, the answer to the question whether it was
incumbent upon the plaintiff to ask for further relief must depend on
the facts of each case and such relief must be appropriate to and
consequent upon the right or title asserted. “Further relief” must be a
relief flowing directly or necessarily from the declaration sought, i.e.,
the relief should not only be capable of being granted but of being
enforced by the court and such relief should be necessary to make the
SLP (C) No. 3056 of 2016 Page 22 of 31
declaration fruitful. The relief must also be such that it is not
automatically granted to the plaintiff by virtue of the declaration
already sought for.
28. The words used in proviso to Section 34 are “ further relief” and “ no
other relief ”. Since, a further relief must flow necessarily from the relief
of declaration, if such further relief is remote and is not connected in
any way with the cause of action which has accrued in favour of the
plaintiffs, then there is no need to claim a further relief and the proviso
to Section 34 will not be a bar. All that the proviso forbids is a suit for
pure declaration without necessary relief where the plaintiff being able
to seek such a relief, has omitted to do so. The proviso must not be
construed in a manner which compels the plaintiff to sue for any and
all the reliefs which could possibly be granted to him. The plaintiff
must not be debarred from obtaining a relief that he wants for the
reason that he has failed to seek a relief which is not directly flowing
from the relief of declaration already sought for.
29. Where the executant of a deed wants it to be annulled, he has to seek
cancellation of the deed under Section 31 of the Act, 1963. But if a
non-executant seeks annulment of a deed, he has to only seek a
declaration that the deed is invalid, or non est , or illegal or that it is
not binding on him. The difference between a prayer for cancellation
and declaration in regard to a deed of transfer/conveyance, can be
brought out by the following illustration relating to ‘A’ and ‘B’ ─ two
brothers. ‘A’ executes a sale deed in favour of ‘C’. Subsequently ‘A’
wants to avoid the sale. ‘A’ has to sue for cancellation of the deed. On
the other hand, if ‘B’, who is not the executant of the deed, wants to
SLP (C) No. 3056 of 2016 Page 23 of 31
avoid it, he has to sue for a declaration that the deed executed by ‘A’
is invalid/void and non est / illegal and he is not bound by it. In
essence, both may be suing to have the deed set aside or declared as
non-binding. [See : Suhrid Singh alias Sardool Singh v. Randhir
Singh & Ors., reported in (2010) 12 SCC 112]
30. As observed aforesaid, a plaintiff who is not a party to a decree or a
document, is not obligated to sue for its cancellation. This is because
such an instrument would neither be likely to affect the title of the
plaintiff nor be binding on him. We have to our advantage two very
old erudite judgments of the Madras High Court and one of the Privy
Council on the subject.
31. In Unni v. Kunchi Amma reported in 1890 SCC OnLine Mad 5 , the
legal position has been thus explained:
“If a person not having authority to execute a deed or
having such authority under certain circumstances which
did not exist, executes a deed, it is not necessary for
persons who are not bound by it, to sue to set it aside for
it cannot be used against them. They may treat it as non-
existent and sue for their right as if it did not exist.”
(Emphasis supplied)
32. The same principle has been distinctly laid down by the Privy Council
in Bijoy Gopal Mukerji v. Krishna Mahishi Debi , reported in 1907
SCC OnLine PC 1, where the jural basis underlying such transactions
was pointed out. In that case, the reversioner sued for a declaration
that a lease granted by the widow of the last male owner was not
SLP (C) No. 3056 of 2016 Page 24 of 31
binding on him and also for khas possession. It was objected that the
omission to set aside the lease by a suit instituted within the time
limit prescribed by Article 91 of the Indian Limitation Act, 1877 was
fatal to the suit. The following observations which are equally
applicable to the case at hand, are apposite:
“A Hindu widow is not a tenant for life, but is owner of
her husband’s property subject to certain restrictions on
alienation and subject to its devolving upon her
husband’s heirs upon her death. But she may alienate it
subject to certain conditions being complied with. Her
alienation is not, therefore, absolutely void, but it is prima
facie voidable at the election of the reversionary heir. He
may think fit to affirm it, or he may at his pleasure treat
it as a nullity without the intervention of any Court, and
he shows his election to do the latter by commencing an
action to recover possession of the property. There is, in
fact, nothing for the Court either to set aside or cancel as
a condition precedent to the right of action of the
reversionary heir. It is true that the appellants prayed by
their plaint for a declaration that the ijara was inoperative
as against them, as leading up to their prayer for delivery
to them of khas possession. But it was not necessary for
them to do so, and they might have merely claimed
possession, leaving it to the defendants to plead and (if
they could) prove the circumstances, which they relied on,
for showing that the ijara of any derivative dealings with
the property were not in fact voidable, but were binding
on the reversionary heirs.”
33. In fact, it is logically impossible for a person who is not a party to a
document or to a decree to ask for its cancellation. This is clearly
explained by Wadsworth, J., in the decision rendered in Vellayya
Konar (Died) & Anr. v. Ramaswami Konar & Anr., reported in
1939 SCC OnLine Mad 149 , thus:
SLP (C) No. 3056 of 2016 Page 25 of 31
“When, the plaintiff seeks to establish a title in himself
and cannot establish that title without removing an
insuperable obstruction such as a decree to which he has
been a party or a deed to which he has been a party, then
quite clearly he must get that decree or deed cancelled or
declared void ‘in toto’, and his suit is in substance a suit
for the cancellation of the decree or deed even though it
be framed as a suit for declaration. But when he is
seeking to establish a title and finds himself threatened
by a decree or a transaction between third parties, he Is
not in a position to get that decree or that deed cancelled
‘in toto’. That is a thing which can only be done by parties
to the decree or deed or their representatives. His proper
remedy therefore in order to clear the way with a view to
establish his title, is to get a declaration that the decree
or deed is invalid so far as he himself is concerned and
he must therefore sue for such a declaration and not for
the cancellation of the decree or deed.”
(Emphasis supplied)
34. Therefore, filing a suit for cancellation of a sale deed and seeking a
declaration that a particular document is inoperative as against the
plaintiff are two distinct, separate suits. The plaintiff in the present
case, not being the executant of the sale deed dated 05.05.1997
executed in favour of the respondent no. 1 (original defendant no. 14),
was therefore, not obligated to sue for its cancellation under Section
31 of the Act, 1963. The question that remains is whether the plaintiff
ought to have sought for a declaration that the sale deed dated
05.05.1997 was inoperative in so far as he is concerned or is not
binding on him.
35. One should not lose sight of the fact that a suit for declaration of title
to be decided by a court takes within its fold, consideration of several
SLP (C) No. 3056 of 2016 Page 26 of 31
factors as to how the plaintiff is entitled for declaration of title. In such
cases, the plea of the defendants about the validity, enforceability and
binding nature of any document defeating the title of the plaintiff have
also to be considered. In such cases, the court naturally views the
evidence on both sides leaving apart the frame of the suit.
36. Therefore, the High Court having concurred with the Courts below on
the legality and validity of the Gift Deed should not have dismissed
the suit only on the ground that the plaintiff failed to pray for
cancellation of the sale deed. The High Court should have kept the
settled position of law in mind that the declaration of title is as good
as a relief of cancellation of the sale deed or at least, a declaration that
the sale deed is not binding on the plaintiff being void and thus non
est .
37. Furthermore, it is a well-known and settled principle of law that the
plaint must be read as a whole and the actual relief sought can also
be culled out from the averments of the plaint. Those reliefs can be
granted, if there is evidence and circumstances justifying the grant of
such relief, though not directly or specifically claimed, or asked as a
relief. The plaintiff had averred in his plaint that the original
defendant nos. 1 to 6 had no title or saleable rights over the suit
property. This reflects the intention of the plaintiff to not be bound by
any instrument which they may have executed in favour of another
party.
38. Courts have ample inherent powers and indeed it is their duty to
shape their declaration in such a way that they may operate to afford
SLP (C) No. 3056 of 2016 Page 27 of 31
the relief which the justice of the case requires. Section 34 of the Act,
1963 is not exhaustive of the cases in which a declaratory decree may
be made and the courts have power to grant such a decree
independently of the requirements of the Section. Section 34 merely
gives statutory recognition to a well-recognised type of declaratory
relief and subjects it to a limitation, but it cannot be deemed to
exhaust every kind of declaratory relief or to circumscribe the
jurisdiction of courts to give declarations of right in appropriate cases
falling outside Section 34. The circumstances in which a declaratory
decree under Section 34 should be awarded is a matter of discretion
depending upon the facts of each case. [See: Supreme General Films
Exchange Ltd. v. His Highness Maharaja Sir Brijnath Singhji Deo
of Maihar and Ors ., reported in (1975) 2 SCC 530 ]
39. Before we close the matter, we should also explain, why the two
judgments upon which strong reliance has been placed on behalf of
the defendants are of no avail to them.
40. In Mohd. Noorul (supra) , the petitioner therein had, through a
benamidar , purchased the suit property which was jointly owned by
three persons. Pursuant thereto, a partition suit was filed by the
respondent (one of the joint owners), and a partition decree was
passed, wherein the suit property fell to the share of the respondent.
Almost seven years after the decree, the petitioner therein got a sale
deed in respect of the suit property executed by his benamidar in his
favour, and filed the underlying suit for setting aside the partition
decree on the grounds of fraud, collusion, etc.
SLP (C) No. 3056 of 2016 Page 28 of 31
41. The question as formulated in para 6 of the said judgment was solely
limited to whether the suit was barred by limitation, having been filed
much beyond a period of three years (stipulated under Article 59) from
the date of the partition decree sought to be set aside. The petitioner
therein contended that the limitation under Article 59 would not apply
as he was not a party to the partition decree sought to be set aside in
the underlying suit.
42. This Court had held that the appellant would be deemed to have
constructive notice through his benamidar , who was a party thereto,
and that Article 59 read with Section 31 of the Act, 1963 would apply
not only to parties to the decree or the instrument sought to be
cancelled, but also to ‘persons’ claiming through or under them. It
was in the said factual conspectus that this Court had held that:
“[...] 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.
[...]”
43. In Abdul Rahim (supra) , the question of law as framed in para 1 of
the decision pertains to the interpretation and/or application of the
Islamic law on gift vis-à-vis handing over of possession of the property
gifted, and whether the underlying suit therein was barred by
limitation on account of Article 59 of the Limitation Act, 1963. The
SLP (C) No. 3056 of 2016 Page 29 of 31
dispute involved therein pertained to the validity of a gift deed
executed by the father of the contesting parties in favour of the
petitioner. The contentions raised by the respondents were that (i) the
said gift deed was invalid as possession had not been handed over to
the petitioners and the property continued to be in possession of the
tenants, and rent being paid to the petitioners was not reflective of
transfer of possession as even before the alleged execution of the gift
deed, rent was being paid to the petitioners; (ii) their suit was not
barred by limitation.
44. This Court proceeded to hold that the essentials of a valid gift deed
can be met even by constructive handover of possession and did not
require actual occupation of the property by the donee. On the
question of limitation, this Court held the suit filed in 1980 to be
barred, as it was filed beyond the three-year period (stipulated in
Article 59) from the date the respondent had knowledge of the
instrument/transaction sought to be set aside. The judgment in
Mohd. Noorul (supra) was relied upon by this Court in para 29 on the
aspect of limitation.
45. The plaintiff herein cannot be said to be otherwise bound by the sale
deed dated 05.05.1997 executed in favour of the respondent no. 1 as
stated in Mohd. Noorul (supra) for the simple reason that unlike a
benamidar, he is not a person claiming through or under the vendors
of that instrument i.e. original defendant no. 1 to 6. Furthermore,
there exist concurrent findings of the Courts below holding the Gift
Deed as valid and the respondent has also chosen not to challenge
the same. In such a circumstance, there arises no occasion or
SLP (C) No. 3056 of 2016 Page 30 of 31
overwhelming reason for us to apply the dictum laid down in Abdul
Rahim (supra) in the facts of the present case.
46. In the result, the appeal succeeds and is hereby allowed. The
impugned common judgment and order dated 09.10.2015 passed by
the High Court in Regular Second Appeal No. 3 of 2007 and Regular
Second Appeal No. 11 of 2007 is hereby set aside and the original
decree passed by the Trial Court as affirmed by the First Appellate
Court is hereby restored.
47. No order as to costs.
48. Pending application(s), if any, also stand disposed of.
……………………………….J.
(J.B. PARDIWALA)
…….…………………………J.
(R. MAHADEVAN)
New Delhi,
April 23, 2025.
SLP (C) No. 3056 of 2016 Page 31 of 31
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 5470 OF 2025
(Arising from SLP (C) No. 3056 OF 2016)
HUSSAIN AHMED CHOUDHURY & ORS. ...APPELLANTS
Versus
HABIBUR RAHMAN (DEAD) THROUGH LRs
& ORS. ...RESPONDENTS
J U D G M E N T
Signature Not Verified
Digitally signed by
CHANDRESH
Date: 2025.04.23
17:40:19 IST
Reason:
SLP (C) No. 3056 of 2016 Page 1 of 31
J.B. PARDIWALA, J.
1. Leave granted.
2. This appeal arises from the common judgment and order passed by
the High Court of Guwahati dated 09.10.2015 in Regular Second
Appeal No. 3 of 2007 and Regular Second Appeal No. 11 of 2007
respectively by which the High Court allowed both the Second Appeals
preferred by the respondents herein (original defendants) and thereby
set aside the judgment and decree passed by the Trial Court as
affirmed by the First Appellate Court in favour of the appellants herein
(original plaintiffs).
3. For the sake of convenience, the appellants herein shall be referred
to as the original plaintiffs and the respondents herein shall be
referred to as the original defendants.
A. FACTUAL MATRIX
4. The facts giving rise to this appeal may be summarized as under:
i. A registered Gift Deed dated 26.04.1958 in respect of land
admeasuring 08 bighas and 06 chatak (which includes the suit
land admeasuring 04 bighas, 05 katha and 06 chatak), was
executed by one Haji Abdul Aziz Choudhury (grandfather of the
original plaintiff) in favour of Siraj Uddin Choudhury (original
SLP (C) No. 3056 of 2016 Page 2 of 31
plaintiff). The reason for the execution of the Gift Deed being
that as Abdul Aziz’s son had predeceased him, his grandson,
Siraj Uddin, would not otherwise have been eligible to inherit
his grandfather’s property as per Muslim law.
ii. The appellants herein are the legal heirs of the original plaintiff.
iii. The grandfather of the original plaintiff passed away in 1971.
iv. On 05.05.1997, the respondent no. 1 allegedly purchased part
of the suit land from the original defendant nos. 1 to 6 (brothers
and sisters of the plaintiff’s deceased father) who, according to
the plaintiff, had no title or saleable rights over the suit
property.
v. The Title Suit, bearing No. 88/1997 was filed by the plaintiff,
seeking declaration, confirmation of possession and mandatory
injunction over the suit land. The cause of action for the suit
arose in 1997 when the defendants started threatening to
dispossess the plaintiff from the suit property, and did succeed
in forcibly dispossessing him on 08.05.1999, during the
pendency of the suit.
vi. The plaint was accordingly amended on 28.08.1999, to seek
recovery of possession as the plaintiff was dispossessed during
pendency of the suit.
SLP (C) No. 3056 of 2016 Page 3 of 31
vii. The Trial Court framed the following issues for its
consideration:
“Upon the pleadings of both the sides, the following
issues were framed:
1. Is there any cause of action for the suit?
2. Is the suit bad for defect of necessary parties?
3. Whether late Haji Abdul Aziz Choudhury,
grandfather of the plaintiff as well as predecessor
of the defendants, gifted the suit land in favour of
the plaintiff by executing registered Gift Deed No.
2656 dated 26.04.1958 and delivered
possession?
4. Whether the plaintiff acquired right, title, interest
and possession over the suit land on the basis of
Gift Deed No. 2656?
5. Whether the defendants threatened the plaintiff
to dispossess him, out of the possession of the
suit land illegally?
6. Is the plaintiff entitled to a decree as prayed for?
7. To what other relief/reliefs, the parties are
entitled to?
--xxx--
Additional Issue:
(1) Is the suit maintainable in law, as well as, on
facts?”
viii. The T.S. No. 88/1997 came to be allowed vide the judgment
and decree dated 21.05.2001 in favour of the plaintiff, with all
issues decided in his favour. The Civil Judge, Cachar, Silchar
was pleased to hold as follows:
“1. That the Gift Deed was validly executed by the
plaintiff’s grandfather in his favour, as corroborated
by unimpeachable documentary and oral evidence.
2. The property transferred by virtue of the Gift Deed
was clearly identifiable by the specific boundary
description contained in its Schedule and the mis-
SLP (C) No. 3056 of 2016 Page 4 of 31
description of the Dag numbers did not hamper
proper identification of the property conveyed.
Accordingly, the plaintiff had acquired right, title
interest and possession over the suit land by virtue
of the said deed of gift.
3. Defendants no. 1 to 6 had no saleable interest to
sell the suit land. Furthermore, the land covered by
the alleged subsequent sale deed was distinct and
had no relation with the suit land.”
ix. Two separate appeals against the judgment and decree dated
21.05.2001 were preferred:
a. Title Appeal No. 15/2001 by respondent no. 21 herein
(original defendant no. 2),
b. Title Appeal No. 17/2001 by respondent no.1 herein
(original defendant no. 14, being the alleged subsequent
purchaser).
x. The First Appellate Court vide two different judgments, both
dated 17.06.2006, affirmed the findings of the Trial Court that
the Gift Deed was validly executed in favour of the plaintiff and
possession was handed over to the plaintiff through his mother.
It was further reiterated that despite mis-description of the suit
land in the Gift Deed, the Schedule land was clearly
identifiable, and that the plaintiff had proved his title thereon.
xi. The original defendants being dissatisfied with the judgment
and order passed by the First Appellate Court preferred two
second appeals in the High Court.
SLP (C) No. 3056 of 2016 Page 5 of 31
xii. The High Court vide its common judgment and order dated
09.10.2015 affirmed the finding of the Trial Court and the
Appellate Court that: (i) the Gift Deed was validly executed and
delivery of possession in pursuance thereof had taken place; (ii)
that the mis-description was a mere irregularity that did not
affect the identity of the property.
xiii. The relevant observations made by the High court in para 29
and 30 respectively of its impugned judgment reads thus:
“29. In the instant case, there is no evidence of any
oral gift. Both the courts below had held that the gift
deed, Ext. 1, to be duly executed by the donor, who
was the grandfather of the plaintiff. The gift deed
also indicated the purpose for which the gift was
made, namely, the plaintiff would not have inherited
any property of the donor as the plaintiff’s father had
expired during the lifetime Nails of the donor and as
Risa Msg each under the Mahomedan Law, son of a
pre-deceased son is not entitled to inherit ancestral
property. The plaintiff and PW 2, the attesting
witness, had deposed towards execution of the gift
deed by the grandfather of the plaintiff and their
evidence is not impeached in any manner and as
such, it must be held that the gift deed was duly
executed by the grandfather of the plaintiff. With
regard to acceptance of the gift and delivery of
possession, I am inclined to uphold the view taken
by the learned courts below that mother of the
plaintiff had accepted the gift and taken delivery of
possession. I am Unable to accept the submission
advanced by Mr. Kalita and Mr. Purkayastna that
acceptance of the gift by the mother of the plaintiff
was an afterthought, merely because in the plaint,
the said fact was not expressly mentioned. Absence
of any recital in the gift deed that gift was accepted
and delivery of possession was given will not be of
SLP (C) No. 3056 of 2016 Page 6 of 31
any consequence in respect of a gift under the
Mahomedan Law. The learned courts below, on the
basis of Ext. 2 and Ext, 9, came to the conclusion that
the aforesaid deeds established that plaintiff was
delivered possession of the property pursuant to the
gift. A finding was also recorded by the learned
courts below that the suit land as described in the
plaint conforms to the boundary given in Ext, 1 and
nd
that Dag No. 174 of 2 R.S. Patia No. 7 and Dag No,
nd
175 of 2 R.S. Patta No. 109 are adjacent dags. In
that view of the matter, the learned courts below
were justified to hold that there was mis-description
with regard the dag numbers in the gift deed.
30. When there is no doubt as to the identity of the
land and there is only mis-description that could be
treated as a mere irregularity. If no boundaries had
been given in the gift deed, matter would have been
different. But in the instant case, both boundaries
and dag numbers are mentioned and in the
circumstances of the case, mistakes in the dag
numbers must be treated as a mere mis-description
not affecting the identity of the property gifted.”
(Emphasis Supplied)
xiv. It appears from the above that although the High Court agreed
with the two Courts below as regards the Gift Deed being validly
executed, yet it went on to allow the two second appeals and
thereby, dismissed the suit of the plaintiffs on the ground that
in the absence of challenge to the subsequent sale deed and
omission on the part of the plaintiff to seek the consequential
relief of cancellation of the sale deed, the plaintiff would be
disentitled from obtaining a decree declaring his right, title and
interest over the suit property.
SLP (C) No. 3056 of 2016 Page 7 of 31
xv. In the aforesaid context, we may reproduce paras 34, 35, 36
and 37 respectively of the impugned judgment. The same reads
thus:
“34. However, there is another facet of the matter.
Even if the plaintiff was entitled to have right, title
and interest on the basis of the gift deed, the question
arises as to whether in absence of any challenge to
the sale deed, Ext. A, on the basis of which the
defendant No. 14 had taken possession over a part
of the suit property, the plaintiff would be entitled to
the reliefs prayed for in the suit.
35. The plaintiff by way of amendment prayed for
recovery of khas possession without challenging the
sale deed. The learned lower appellate court before
which the question was raised that the plaintiff
would not be entitled to the reliefs as prayed for in
absence of the challenge made to the sale deed,
skirled the issue and did not give any decision on the
question posed.
36.In Md. Noorul Hoda v. Bibi Raifunnisa and ors.,
reported in (1996) 7 SCC 767, the Apex Court had
laid down that when the plaintiff seeks to establish
his title to the property which cannot be established
without avoiding a decree by a court or an instrument
that stands as an insurmountable obstacle in his
way, the plaintiff has to seek a declaration and have
the decree or the instrument cancelled or set aside.
Similar view is taken by the Apex Court in the case
of Abdul Rahim and ors. v. Sheikh Abdul Zabbar and
ors., reported in (2009) 6 SCC 140.
37. In the facts of the case, a prayer for cancellation
of Ext. A as a consequential relief was necessary to
enable the plaintiff to get a decree declaring his right,
title and interest. If was incumbent upon the plaintiff
SLP (C) No. 3056 of 2016 Page 8 of 31
to have challenged the sale deed. It must not be
forgotten that suit land was mutated in the names of
the vendors of the sale deed by way of inheritance
and there was no objection by the plaintiff ~ to such
mutation. That apart, dag numbers were also
wrongly given in the gift deed, Ext. 1 and the same
were not corrected and rectified. Without there being
any challenge to Ext. A, the learned courts below
proceeded to embark upon an enquiry to find out
legality and validity of the sale deed and whether the
defendant No. 14 could have taken possession of
land in Dag No. 174 by virtue of such sale deed. The
exercise undertaken by the courts below was
impermissible in law. In absence of a declaration
that the sale deed is invalid in law, which was not
sought for, learned courts below could not have
granted a decree declaring right, title and interest in
favour of the plaintiff and for recovery of khas
possession from the defendant No. 14 in respect of,
the land which was sold to him through the sale
deed, Ext. A.”
5. In such circumstances referred to above, the original plaintiffs are
here before this Court with the present appeal.
B. SUBMISSIONS ON BEHALF OF THE APPELLANTS
6. Mr. Parthiv K. Goswami, the learned senior counsel appearing for the
plaintiffs vehemently submitted that the High Court committed an
egregious error in passing the impugned judgment and order. He
would submit that the High Court erred in setting aside the decree
passed in favour of the plaintiff on the ground that the consequential
relief of cancellation of the subsequent sale deed had not been prayed
for in the suit. He would submit that the plaintiff had acquired right,
SLP (C) No. 3056 of 2016 Page 9 of 31
title and possession over the suit property by virtue of a prior, validly
executed and duly registered Gift Deed in 1958, and the said finding
stands affirmed even in the impugned order. He submitted that the
alleged subsequent sale deed dated 05.05.1997 which forms the basis
for the claim of respondent no.1 herein is void-ab-initio and non est on
account of the fact that it was executed by vendors who were not
competent to transfer it in terms of Section 7 of the Transfer of
Property Act, 1882.
7. It was argued that a vendor cannot transfer a title to the vendee better
than what he possesses. It was submitted that once the plaintiff has
successfully established his right, title and interest over the suit
property based on a prior instrument, it was not incumbent upon him
to seek cancellation of the subsequent sale deed which was void-ab-
initio .
8. The learned counsel in support of his aforesaid submissions placed
strong reliance on the decision of this Court in the case of Sk. Golam
Lalchand v. Nandu Lal Shaw & Ors ., reported in 2024 SCC OnLine
SC 2456.
9. In the last, it was argued that the subsequent sale deed has been
otherwise also specifically found by the Civil Judge to have no relation
to the suit land covered by Dag Nos. 174 and 175 respectively. He
invited our attention to the following findings recorded by the High
Court:
SLP (C) No. 3056 of 2016 Page 10 of 31
“But from Ext.5 (Settlement Map of Mouza Niz Banskandi
Part-11), it transpires that the said Purchased land has
no relation with the suit land, covered by dag No.174 and
Part of dag No.175. Though in the schedule of Ext.A; there
is mention of sale of 2 bighas 14 kathas 7 chhattaks of
land in Dag No.174, but the boundary description of the
land does not refer to any land of Dag No.l74. From the
Ext.S, it is revealed that land appertaining to Dag No. 174
situates at a distance from Dag No: 21/22 intervened by
many plots under different dags and hence both the plot
of lands cannot be sold by a ·single boundary. The
boundaries given in the schedule of Ext.A rather refer a
complete different plot of land near the plot of land
covered under Dag No.20 of the Said Mouza, i.e. towards
adjacent South of Dag No.20. It is, therefore, proved that
the defendant No.14 Habibur Rahman acquired no right,
title and interest over the suitland appertaining to Dag
Nos.174/ 175 and he has been possessing the same
illegally.”
(Emphasis supplied)
10. The learned counsel submitted that in view of the specific finding
recorded by the Trial Court that the land covered by the subsequent
sale deed was distinct and had no relation with the suit land, the High
Court fell in error in setting aside the decree declaring the right, title
and interest of the plaintiff over the suit land, more so, in light of the
fact that the said findings were not disturbed or interfered within the
impugned order.
11. In such circumstances referred to above, the learned counsel prayed
that there being merit in his appeal, the same may be allowed and the
impugned judgment and order passed by the High Court be set aside.
SLP (C) No. 3056 of 2016 Page 11 of 31
C. SUBMISSIONS ON BEHALF OF THE DEFENDANTS :
12. Mr. Avijit Roy, the learned counsel appearing for the defendants
vehemently submitted that no error, not to speak of any error of law,
could be said to have been committed by the High Court in passing
the impugned order. The counsel would submit that the High Court
rightly allowed the two appeals and thereby dismissed the suit
instituted by the plaintiff on the ground that the plaintiff failed to
challenge the subsequent sale deed and thus the omission on the part
of the plaintiff to seek the consequential relief of cancellation of the
sale deed would disentitle the plaintiff from seeking a declaration as
regards his right, title and interest over the suit property. The learned
counsel submitted that the High Court rightly held at para 37 of its
impugned judgment that without there being any challenge to the sale
deed, the courts below could not have proceeded to embark upon an
enquiry to find out the legality and validity of the sale deed and further
whether the defendant no. 14 i.e., respondent no. 1 herein could have
taken over the possession of land in Dag No. 174 by virtue of such
sale deed. The exercise undertaken by the courts below was
impermissible in law. In the absence of a specific declaration that the
sale deed is invalid in law, which was not sought for, the courts below
could not have granted a decree declaring right, title and interest in
favour of the plaintiff and for recovery of possession of khas from the
defendant no. 14 i.e., respondent no. 1 herein, in respect of the land
which was sold to him through the sale deed dated 05.05.1997.
SLP (C) No. 3056 of 2016 Page 12 of 31
13. The counsel further submitted that under the Specific Relief Act,
1963, (for short, “ the Act, 1963 ”) the aggrieved can seek cancellation
of a registered instrument on the ground of fraud, by filing a suit
under Section 31. In case a person, without any title, executes a sale
deed, the real owner may file a suit under Section 34 of the Act, 1963,
if his peaceful enjoyment of ownership right is impinged due to the
said sale. He also argued that the provision of Section 34 of the Act,
1963 was not discussed in Sk. Golam Lalchand (supra) .
14. It was argued that in order to obtain the relief of declaration, the
plaintiff must establish that (i) the plaintiff at the time of institution
of the suit was entitled to any legal character or any right to any
property, (ii) the defendant had denied or was interested in denying
the character or the title of the plaintiff, (iii) the declaration asked for
was a declaration that the plaintiff was entitled to a legal character or
to a right to property, and (iv) the plaintiff was not in a position to
claim any further relief. In the present case the answering
respondents/ defendant no. 14 as the purchaser, clearly denied the
claim of title by the plaintiffs over the suit land.
15. It was also argued that even assuming without admitting that the
plaintiffs have a legal right over the suit land, in that case, this Court
in Ram Rattan v. State of U.P. reported in (1977) 1 SCC 188 had
held that a true owner has every right to dispossess or throw out a
trespasser while he is in the act or process of trespassing but this
right is not available to the true owner if the trespasser has been
SLP (C) No. 3056 of 2016 Page 13 of 31
successful in accomplishing his possession to the knowledge of the
true owner. In such circumstances, the law requires that the true
owner should dispossess the trespasser by taking recourse to the
remedies under the law. Therefore, in the instant case, the High Court
rightly held at para 37 of the impugned judgment that without there
being any challenge to the sale deed, the courts below could not have
proceeded to embark upon an enquiry to test the legality and validity
of the sale deed and whether the defendant no. 14 could have taken
over the possession of land in Dag No. 174 by virtue of such sale deed.
16. The learned counsel in support of his aforenoted submissions placed
strong reliance on the following two decisions:
i. Mohd. Noorul Hoda v. Bibi Raifunnisa , reported in (1996) 7
SCC 767 .
ii. Abdul Rahim & Ors v Sk. Abdul Zabar & Ors. , reported in
(2009) 6 SCC 160 .
17. In such circumstances referred to above, the learned counsel
appearing for the respondents prayed that there being no merit in the
appeal, the same may be dismissed.
SLP (C) No. 3056 of 2016 Page 14 of 31
D. ANALYSIS
18. Having heard the learned counsel appearing for the parties and having
gone through the materials on record, the following question of law
falls for our consideration:
“Whether the High Court was right in taking the view that the suit of
the plaintiff for declaration of his title based on a valid Gift Deed should
fail as the plaintiff omitted to pray for the consequential relief of
cancellation of the sale deed or a declaration that the same is not
binding on him?”
19. Before we proceed to answer the question of law as formulated above,
we must look into Sections 31 and 34 of the Act, 1963 respectively.
Section 31 reads thus:
“Section 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.”
SLP (C) No. 3056 of 2016 Page 15 of 31
20. A Full Bench of Madras High Court in Muppudathi Pillai v.
Krishnaswami Pillai reported in 1959 SCC OnLine Mad 5
considered the scope of Sections 39 and 41 of Specific Relief Act, 1877
(which are now Sections 31 and 33 of the Act, 1963). The principle
entrenched in Section 39 was explained thus:
“The principle is that such document though not
necessary to be set aside may, if left outstanding, be a
source of potential mischief. The jurisdiction under S.39
is, therefore, a protective or a preventive one. It is not
confined to a case of fraud, mistake, undue influence etc.
and as it has been stated it was to prevent a document to
remain as a menace and danger to the party against
whom under different circumstances it might have
operated. A party against whom a claim under a
document might be made is not bound to wait till the
document is used against him. If that were so he might
be in a disadvantageous position if the impugned
document is sought to be used after the evidence
attending its execution has disappeared. Section 39
embodies the principle by which he is allowed to
anticipate the danger and institute a suit to cancel the
document and to deliver it up to him. The principle of the
relief is the same as in quia timet actions.”
(Emphasis supplied)
21. It was further laid down as under:
“The provisions of S.39 make it clear that three conditions
are requisite for the exercise of the jurisdiction to cancel
an instrument: (1) the instrument is void or voidable
against the plaintiff; (2) plaintiff may reasonably
apprehend serious injury by the instrument being left
outstanding; (3) in the circumstances of the case, the
Court considers it proper to grant this relief of preventive
justice. On the third aspect of the question the English
and American authorities hold that where the document
is void on its face the Court would not exercise its
SLP (C) No. 3056 of 2016 Page 16 of 31
jurisdiction while it would if it were not so apparent. In
India it is a matter entirely for the discretion of the Court”
“The question that has to be considered depends on the
first and second conditions set out above. As the principle
is one of potential mischief, by the document remaining
outstanding, it stands to reason the executant of the
document should be either the plaintiff or a person who
can in certain circumstances bind him. It is only then it
could be said that the instrument is voidable by or void
against him. The second aspect of the matter emphasizes
that principle. For there can be no apprehension if a mere
third party, asserting a hostile title creates a document.
Thus, relief under S.39 would be granted only in respect
of an instrument likely to affect the title of the plaintiff and
not of an instrument executed by a stranger to that title.”
(Emphasis supplied)
22. In Deccan Paper Mills Company Limited v. Regency Mahavir
Properties and Others reported in (2021) 4 SCC 786 , this Court
held that the proceedings under Section 31 of the Act, 1963 are in
personam in nature and therefore, any question pertaining to Section
31 would be amenable to adjudication by an arbitral tribunal. While
stating so, this Court explained the ambit and scope of Section 31 in
detail and authoritatively held that the expression “any person”
occurring in this provision does not include a third party but is
restricted to either a party to the written instrument or any person
who is bound by a party to the instrument. Placing reliance on
Muppudathi Pillai (supra), this Court observed thus:
“19 . The Court then continued its discussion as follows :
(Muppudathi Pillai case [Muppudathi
SLP (C) No. 3056 of 2016 Page 17 of 31
Pillai v. Krishaswami Pillai, 1959 SCC OnLine Mad 314 :
(1959) 72 LW 543] , SCC OnLine Mad paras 13-16)
“13. … The provisions of Section 39 make it clear that
three conditions are requisite for the exercise of the
jurisdiction to cancel an instrument : (1) the instrument
is void or voidable against the plaintiff; (2) plaintiff
may reasonably apprehend serious injury by the
instrument being left outstanding; (3) in the
circumstances of the case the court considers it proper
to grant this relief of preventive justice. On the third
aspect of the question the English and American
authorities hold that where the document is void on its
face the court would not exercise its jurisdiction while
it would if it were not so apparent. In India it is a
matter entirely for the discretion of the court.
14. The question that has to be considered depends
on the first and second conditions set out above. As
the principle is one of potential mischief, by the
document remaining outstanding, it stands to reason
the executant of the document should be either the
plaintiff or a person who can in certain circumstances
bind him. It is only then it could be said that the
instrument is voidable by or void against him. The
second aspect of the matter emphasises that principle.
For there can be no apprehension if a mere third party
asserting a hostile title creates a document. Thus relief
under Section 39 would be granted only in respect of
an instrument likely to affect the title of the plaintiff
and not of an instrument executed by a stranger to
that title.
15. Let us take an example of a trespasser purporting
to convey the property in his own right and not in the
right of the owner. In such a case a mere cancellation
of the document would not remove the cloud
occasioned by the assertion of a hostile title, as such
a document even if cancelled would not remove the
assertion of the hostile title. In that case it would be
the title that has got to be judicially adjudicated and
SLP (C) No. 3056 of 2016 Page 18 of 31
declared, and a mere cancellation of an instrument
would not achieve the object. Section 42 of the Specific
Relief Act would apply to such a case. The remedy
under Section 39 is to remove a cloud upon the title,
by removing a potential danger but it does not
envisage an adjudication between competing titles.
That can relate only to instruments executed or
purported to be executed by a party or by any person
who can bind him in certain circumstances. It is only
in such cases that it can be said there is a cloud on
his title and an apprehension that if the instrument is
left outstanding it may be a source of danger. Such
cases may arise in the following circumstances : A
party executing the document, or a principal in respect
of a document executed by his agent, or a minor in
respect of a document executed by his guardian de
jure or de facto, a reversioner in respect of a document
executed by the holder of the anterior limited estate, a
real owner in respect of a document executed by the
benamidar, etc. This right has also been recognised in
respect of forged instruments which could be
cancelled by a party on whose behalf it is purported
to be executed. In all these cases there is no question
of a document by a stranger to the title. The title is the
same. But in the case of a person asserting hostile
title, the source or claim of title is different. It cannot
be said to be void against the plaintiff as the term void
or voidable implies that but for the vitiating factor it
would be binding on him, that is, he was a party to
the contract.
16. There is one other reason for this conclusion.
Section 39 empowers the court after adjudicating the
instrument to be void to order the instrument to be
delivered up and cancelled. If the sale deed is or
purported to have been executed by a party, the
instrument on cancellation could be directed to be
delivered over to the plaintiff. If on the other hand such
an instrument is executed by a trespasser or a person
claiming adversely to the plaintiff it is not possible to
SLP (C) No. 3056 of 2016 Page 19 of 31
conceive the instrument being delivered over not to the
executant but his rival, the plaintiff.”
---xxx---
21. A reading of the aforesaid judgment [Muppudathi
Pillai v. Krishaswami Pillai, 1959 SCC OnLine Mad 314 :
(1959) 72 LW 543] of the Full Bench would make the
position in law crystal clear. The expression “any person”
does not include a third party, but is restricted to a party
to the written instrument or any person who can bind
such party. Importantly, relief under Section 39 of the
Specific Relief Act, 1877 would be granted only in respect
of an instrument likely to affect the title of the plaintiff,
and not of an instrument executed by a stranger to that
title. The expression “any person” in this section has been
held by this Court to include a person seeking derivative
title from his seller [see Mohd. Noorul Hoda v. Bibi
Raifunnisa [Mohd. Noorul Hoda v. Bibi Raifunnisa,
(1996) 7 SCC 767] , at p. 771]. The principle behind the
section is to protect a party or a person having a
derivative title to property from such party from a
prospective misuse of an instrument against him. A
reading of Section 31(1) then shows that when a written
instrument is adjudged void or voidable, the Court may
then order it to be delivered up to the plaintiff and
cancelled—in exactly the same way as a suit for
rescission of a contract under Section 29. Thus far, it is
clear that the action under Section 31(1) is strictly an
action inter parties or by persons who obtained derivative
title from the parties, and is thus in personam. ”
(Emphasis supplied)
23. The decision in Sk. Golam Lalchand (supra) , which has been
canvassed by the counsel appearing on behalf of the plaintiff,
observed as follows:
“23. A faint effort was made in the end to contend that
the plaintiff-respondent Nandu Lal had not asked for any
SLP (C) No. 3056 of 2016 Page 20 of 31
relief of cancellation of the sale deed by which the
property was purchased by the defendant-appellant S.K.
Golam Lalchand and, therefore, is not entitle to any relief
in this suit. The argument has been noted only to be
rejected for the simple reason that Section 31 of
the Specific Relief Act, 1963 uses the word ‘may’ for
getting declared the instrument as void which is not
imperative in every case, more particularly when the
person is not a party to such an instrument.”
(Emphasis supplied)
24. This observation made in Sk. Golam Lalchand (supra) must
necessarily be understood in the context of our preceding discussion.
All that has been stated therein is that as Section 31 of the Act, 1963
uses the word “may”, it is not a mandate, even as regards the parties
to the instrument or the persons claiming through or under them, to
seek for the cancellation of an instrument which is otherwise void and
therefore, it cannot be contended that a stranger to that instrument
must necessarily seek for its cancellation. By no stretch of
imagination can this be construed to mean that when there exists an
instrument with respect to the same property but executed by some
other person, the plaintiff despite being a stranger to that instrument
would fall under the scope of “any person” in Section 31 of the Act,
1963.
25. Having explained the scope of Section 31, we now deem it necessary
to examine Section 34 of the Act, 1963, which reads thus:
“Section 34. Discretion of court as to declaration of
status or right .—
Any person entitled to any legal character, or to any right
as to any property, may institute a suit against any
SLP (C) No. 3056 of 2016 Page 21 of 31
person denying, or interested to deny, his title to such
character or right, and the court may in its discretion
make therein a declaration that he is so entitled, and the
plaintiff need not in such suit ask for any further relief:
Provided that no court shall make any such
declaration where the plaintiff, being able to seek further
relief than a mere declaration of title, omits to do so.
Explanation.—A trustee of property is a “person
interested to deny” a title adverse to the title of some one
who is not in existence, and whom, if in existence, he
would be a trustee.”
26. Section 34 entitles a person to approach the appropriate court for a
declaration, if that person is entitled to (i) any legal character or (ii)
any right as to any property. “Legal character” and “right to property”
are used disjunctively so that either of them, exclusively, may be the
basis of a suit. The disjunctive ‘ or ’ cannot be read as a conjunctive
‘ and ’.
27. The object of the proviso to Section 34 is to obviate the necessity for
multiple suits by preventing a person from getting a mere declaration
of right in one suit and then subsequently seeking another remedy
without which the declaration granted in the former suit would be
rendered otiose. However, the answer to the question whether it was
incumbent upon the plaintiff to ask for further relief must depend on
the facts of each case and such relief must be appropriate to and
consequent upon the right or title asserted. “Further relief” must be a
relief flowing directly or necessarily from the declaration sought, i.e.,
the relief should not only be capable of being granted but of being
enforced by the court and such relief should be necessary to make the
SLP (C) No. 3056 of 2016 Page 22 of 31
declaration fruitful. The relief must also be such that it is not
automatically granted to the plaintiff by virtue of the declaration
already sought for.
28. The words used in proviso to Section 34 are “ further relief” and “ no
other relief ”. Since, a further relief must flow necessarily from the relief
of declaration, if such further relief is remote and is not connected in
any way with the cause of action which has accrued in favour of the
plaintiffs, then there is no need to claim a further relief and the proviso
to Section 34 will not be a bar. All that the proviso forbids is a suit for
pure declaration without necessary relief where the plaintiff being able
to seek such a relief, has omitted to do so. The proviso must not be
construed in a manner which compels the plaintiff to sue for any and
all the reliefs which could possibly be granted to him. The plaintiff
must not be debarred from obtaining a relief that he wants for the
reason that he has failed to seek a relief which is not directly flowing
from the relief of declaration already sought for.
29. Where the executant of a deed wants it to be annulled, he has to seek
cancellation of the deed under Section 31 of the Act, 1963. But if a
non-executant seeks annulment of a deed, he has to only seek a
declaration that the deed is invalid, or non est , or illegal or that it is
not binding on him. The difference between a prayer for cancellation
and declaration in regard to a deed of transfer/conveyance, can be
brought out by the following illustration relating to ‘A’ and ‘B’ ─ two
brothers. ‘A’ executes a sale deed in favour of ‘C’. Subsequently ‘A’
wants to avoid the sale. ‘A’ has to sue for cancellation of the deed. On
the other hand, if ‘B’, who is not the executant of the deed, wants to
SLP (C) No. 3056 of 2016 Page 23 of 31
avoid it, he has to sue for a declaration that the deed executed by ‘A’
is invalid/void and non est / illegal and he is not bound by it. In
essence, both may be suing to have the deed set aside or declared as
non-binding. [See : Suhrid Singh alias Sardool Singh v. Randhir
Singh & Ors., reported in (2010) 12 SCC 112]
30. As observed aforesaid, a plaintiff who is not a party to a decree or a
document, is not obligated to sue for its cancellation. This is because
such an instrument would neither be likely to affect the title of the
plaintiff nor be binding on him. We have to our advantage two very
old erudite judgments of the Madras High Court and one of the Privy
Council on the subject.
31. In Unni v. Kunchi Amma reported in 1890 SCC OnLine Mad 5 , the
legal position has been thus explained:
“If a person not having authority to execute a deed or
having such authority under certain circumstances which
did not exist, executes a deed, it is not necessary for
persons who are not bound by it, to sue to set it aside for
it cannot be used against them. They may treat it as non-
existent and sue for their right as if it did not exist.”
(Emphasis supplied)
32. The same principle has been distinctly laid down by the Privy Council
in Bijoy Gopal Mukerji v. Krishna Mahishi Debi , reported in 1907
SCC OnLine PC 1, where the jural basis underlying such transactions
was pointed out. In that case, the reversioner sued for a declaration
that a lease granted by the widow of the last male owner was not
SLP (C) No. 3056 of 2016 Page 24 of 31
binding on him and also for khas possession. It was objected that the
omission to set aside the lease by a suit instituted within the time
limit prescribed by Article 91 of the Indian Limitation Act, 1877 was
fatal to the suit. The following observations which are equally
applicable to the case at hand, are apposite:
“A Hindu widow is not a tenant for life, but is owner of
her husband’s property subject to certain restrictions on
alienation and subject to its devolving upon her
husband’s heirs upon her death. But she may alienate it
subject to certain conditions being complied with. Her
alienation is not, therefore, absolutely void, but it is prima
facie voidable at the election of the reversionary heir. He
may think fit to affirm it, or he may at his pleasure treat
it as a nullity without the intervention of any Court, and
he shows his election to do the latter by commencing an
action to recover possession of the property. There is, in
fact, nothing for the Court either to set aside or cancel as
a condition precedent to the right of action of the
reversionary heir. It is true that the appellants prayed by
their plaint for a declaration that the ijara was inoperative
as against them, as leading up to their prayer for delivery
to them of khas possession. But it was not necessary for
them to do so, and they might have merely claimed
possession, leaving it to the defendants to plead and (if
they could) prove the circumstances, which they relied on,
for showing that the ijara of any derivative dealings with
the property were not in fact voidable, but were binding
on the reversionary heirs.”
33. In fact, it is logically impossible for a person who is not a party to a
document or to a decree to ask for its cancellation. This is clearly
explained by Wadsworth, J., in the decision rendered in Vellayya
Konar (Died) & Anr. v. Ramaswami Konar & Anr., reported in
1939 SCC OnLine Mad 149 , thus:
SLP (C) No. 3056 of 2016 Page 25 of 31
“When, the plaintiff seeks to establish a title in himself
and cannot establish that title without removing an
insuperable obstruction such as a decree to which he has
been a party or a deed to which he has been a party, then
quite clearly he must get that decree or deed cancelled or
declared void ‘in toto’, and his suit is in substance a suit
for the cancellation of the decree or deed even though it
be framed as a suit for declaration. But when he is
seeking to establish a title and finds himself threatened
by a decree or a transaction between third parties, he Is
not in a position to get that decree or that deed cancelled
‘in toto’. That is a thing which can only be done by parties
to the decree or deed or their representatives. His proper
remedy therefore in order to clear the way with a view to
establish his title, is to get a declaration that the decree
or deed is invalid so far as he himself is concerned and
he must therefore sue for such a declaration and not for
the cancellation of the decree or deed.”
(Emphasis supplied)
34. Therefore, filing a suit for cancellation of a sale deed and seeking a
declaration that a particular document is inoperative as against the
plaintiff are two distinct, separate suits. The plaintiff in the present
case, not being the executant of the sale deed dated 05.05.1997
executed in favour of the respondent no. 1 (original defendant no. 14),
was therefore, not obligated to sue for its cancellation under Section
31 of the Act, 1963. The question that remains is whether the plaintiff
ought to have sought for a declaration that the sale deed dated
05.05.1997 was inoperative in so far as he is concerned or is not
binding on him.
35. One should not lose sight of the fact that a suit for declaration of title
to be decided by a court takes within its fold, consideration of several
SLP (C) No. 3056 of 2016 Page 26 of 31
factors as to how the plaintiff is entitled for declaration of title. In such
cases, the plea of the defendants about the validity, enforceability and
binding nature of any document defeating the title of the plaintiff have
also to be considered. In such cases, the court naturally views the
evidence on both sides leaving apart the frame of the suit.
36. Therefore, the High Court having concurred with the Courts below on
the legality and validity of the Gift Deed should not have dismissed
the suit only on the ground that the plaintiff failed to pray for
cancellation of the sale deed. The High Court should have kept the
settled position of law in mind that the declaration of title is as good
as a relief of cancellation of the sale deed or at least, a declaration that
the sale deed is not binding on the plaintiff being void and thus non
est .
37. Furthermore, it is a well-known and settled principle of law that the
plaint must be read as a whole and the actual relief sought can also
be culled out from the averments of the plaint. Those reliefs can be
granted, if there is evidence and circumstances justifying the grant of
such relief, though not directly or specifically claimed, or asked as a
relief. The plaintiff had averred in his plaint that the original
defendant nos. 1 to 6 had no title or saleable rights over the suit
property. This reflects the intention of the plaintiff to not be bound by
any instrument which they may have executed in favour of another
party.
38. Courts have ample inherent powers and indeed it is their duty to
shape their declaration in such a way that they may operate to afford
SLP (C) No. 3056 of 2016 Page 27 of 31
the relief which the justice of the case requires. Section 34 of the Act,
1963 is not exhaustive of the cases in which a declaratory decree may
be made and the courts have power to grant such a decree
independently of the requirements of the Section. Section 34 merely
gives statutory recognition to a well-recognised type of declaratory
relief and subjects it to a limitation, but it cannot be deemed to
exhaust every kind of declaratory relief or to circumscribe the
jurisdiction of courts to give declarations of right in appropriate cases
falling outside Section 34. The circumstances in which a declaratory
decree under Section 34 should be awarded is a matter of discretion
depending upon the facts of each case. [See: Supreme General Films
Exchange Ltd. v. His Highness Maharaja Sir Brijnath Singhji Deo
of Maihar and Ors ., reported in (1975) 2 SCC 530 ]
39. Before we close the matter, we should also explain, why the two
judgments upon which strong reliance has been placed on behalf of
the defendants are of no avail to them.
40. In Mohd. Noorul (supra) , the petitioner therein had, through a
benamidar , purchased the suit property which was jointly owned by
three persons. Pursuant thereto, a partition suit was filed by the
respondent (one of the joint owners), and a partition decree was
passed, wherein the suit property fell to the share of the respondent.
Almost seven years after the decree, the petitioner therein got a sale
deed in respect of the suit property executed by his benamidar in his
favour, and filed the underlying suit for setting aside the partition
decree on the grounds of fraud, collusion, etc.
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41. The question as formulated in para 6 of the said judgment was solely
limited to whether the suit was barred by limitation, having been filed
much beyond a period of three years (stipulated under Article 59) from
the date of the partition decree sought to be set aside. The petitioner
therein contended that the limitation under Article 59 would not apply
as he was not a party to the partition decree sought to be set aside in
the underlying suit.
42. This Court had held that the appellant would be deemed to have
constructive notice through his benamidar , who was a party thereto,
and that Article 59 read with Section 31 of the Act, 1963 would apply
not only to parties to the decree or the instrument sought to be
cancelled, but also to ‘persons’ claiming through or under them. It
was in the said factual conspectus that this Court had held that:
“[...] 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.
[...]”
43. In Abdul Rahim (supra) , the question of law as framed in para 1 of
the decision pertains to the interpretation and/or application of the
Islamic law on gift vis-à-vis handing over of possession of the property
gifted, and whether the underlying suit therein was barred by
limitation on account of Article 59 of the Limitation Act, 1963. The
SLP (C) No. 3056 of 2016 Page 29 of 31
dispute involved therein pertained to the validity of a gift deed
executed by the father of the contesting parties in favour of the
petitioner. The contentions raised by the respondents were that (i) the
said gift deed was invalid as possession had not been handed over to
the petitioners and the property continued to be in possession of the
tenants, and rent being paid to the petitioners was not reflective of
transfer of possession as even before the alleged execution of the gift
deed, rent was being paid to the petitioners; (ii) their suit was not
barred by limitation.
44. This Court proceeded to hold that the essentials of a valid gift deed
can be met even by constructive handover of possession and did not
require actual occupation of the property by the donee. On the
question of limitation, this Court held the suit filed in 1980 to be
barred, as it was filed beyond the three-year period (stipulated in
Article 59) from the date the respondent had knowledge of the
instrument/transaction sought to be set aside. The judgment in
Mohd. Noorul (supra) was relied upon by this Court in para 29 on the
aspect of limitation.
45. The plaintiff herein cannot be said to be otherwise bound by the sale
deed dated 05.05.1997 executed in favour of the respondent no. 1 as
stated in Mohd. Noorul (supra) for the simple reason that unlike a
benamidar, he is not a person claiming through or under the vendors
of that instrument i.e. original defendant no. 1 to 6. Furthermore,
there exist concurrent findings of the Courts below holding the Gift
Deed as valid and the respondent has also chosen not to challenge
the same. In such a circumstance, there arises no occasion or
SLP (C) No. 3056 of 2016 Page 30 of 31
overwhelming reason for us to apply the dictum laid down in Abdul
Rahim (supra) in the facts of the present case.
46. In the result, the appeal succeeds and is hereby allowed. The
impugned common judgment and order dated 09.10.2015 passed by
the High Court in Regular Second Appeal No. 3 of 2007 and Regular
Second Appeal No. 11 of 2007 is hereby set aside and the original
decree passed by the Trial Court as affirmed by the First Appellate
Court is hereby restored.
47. No order as to costs.
48. Pending application(s), if any, also stand disposed of.
……………………………….J.
(J.B. PARDIWALA)
…….…………………………J.
(R. MAHADEVAN)
New Delhi,
April 23, 2025.
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