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TMI Blog1952 (11) TMI 22X X X X Extracts X X X X X X X X Extracts X X X X ..... cuted a deed of settlement Ex. B 3 whereby she transferred all the suit properties to the first defendant and his brother Kamanna by way of gift. It is this deed that is the subject-matter of attack by the plaintiff in this action. The plaintiff alleges that the first defendant and his brother represented to her that the deed was a general power of attorney authorising them to manage the estate, that she did not read it nor was it read to her and that she executed it in the thought and belief that it was only a power of attorney. She goes on to state that she lived with her husband till 1939, that in that year he drove her and her children out of the house and that she became aware of the fraud practised on her only on 29-8-1944. In paragraph 10 of the plaint it is stated that the settlement deed dated 16-8-1925 was vitiated by fraud and misrepresentation of the first respondent and his brother and as such it confers no title on them to the plaint properties and that the suit is laid for recovery of possession with mesne profits. Conformably to these allegations, the plaintiff prays for a declaration that the settlement deed dated 16-3-1925 is vitiated by fraud and undue influenc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y to an instrument should get that cancelled or not. Now the authorities have established that for this purpose there is a distinction between voidable and void transactions and that while the former class of transactions should be set aside, the latter need not be. The reason for this distinction is that in the case of a voidable transfer the title to the properties vests in the transferee on the execution of the deed and that it can revest in the transferor only by a decree of Court rescinding the transfer on grounds such as coercion, undue influence or fraud. To such a suit, Article 91 prescribes the period of limitation and if no suit is filed within the time-limited thereby the transferor loses his right to avoid the sale and the title of the transferee becomes unimpeachable. Thereafter, it is not open to the transferor to sue for possession of the properties ignoring the deed because the right to possession is an adjunct to the title to the properties and that had passed to the transferee and had become unimpeachable by the operation of Article 91. But different considerations arise when the instrument of transfer is void and does not operate to vest the title in the transfer ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... v. Lakshmanan', AIR 1915 Mad 1196 (G), certain trustees had transferred their right to manage a temple in favour of the defendants and put them in possession of the temple properties. In a suit to recover possession of the properties, the defendants pleaded that it was barred by limitation under Article 91 as it was instituted more than three years after the date of the transfer. It was held by Wallis C. J. and Coutts-Trotter J. that as the deed of transfer was void, it did not require to be set aside and that Article 91 had no application and they observed: The Limitation Act merely prescribes within what periods suits must be brought and cannot be construed as of itself creating an obligation to sue where none existed. In -- 'Banku Behari v. Krishto Govinda', 30 Cal 433 (H), Bannerjee and Geidt JJ. observed: That a document which was never intended by the executant to be operative does not require to be set aside or cancelled in order to entitle any person to the possession of the property covered by it as against the person in whose favour it stands, has been held by this Court in the cases of -- 'Sham Lal v. Amarendra Nath', 23 Cal 460 (I) and -- ' ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t aside the deed on the ground of fraud. But the complaint here is something different. The plaintiff states that it was represented to her that the deed which she was executing was a power of attorney, whereas in truth it was a deed of gift and that she signed Ex. B. 3 thinking and believing that it was only a power of attorney. That also is what she stated in the notice, Ex. B. 2. Now the authorities have made a distinction between misrepresentations as to the character of the deed and misrepresentations as to its contents. With reference to the former, it has been held that the transaction is void, while in the case of the latter, it is voidable. In -- 'Foster v. Mackinnon', (1869) 4 CP 704 (L) the action was by the endorsee of a bill of exchange. The defendant pleaded that he endorsed the bill on a fraudulent representation by the acceptor that he was signing a guarantee. In holding that such a plea was admissible, the Court observed: It (signature) is invalid not merely on the ground of fraud, where fraud exists, but on the ground that the mind of the signer did not accompany the signature; in other words, that he never intended to sign, and therefore in contempla ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... executed a deed of gift in favour of the second defendant sold the property subsequently to the plaintiff alleging that the gift deed was executed by her on a representation by the second defendant that it was a power of attorney and the suit was by the purchaser to recover possession. It was pleaded by the second defendant that it was barred under Article 91 of the Limitation Act. In rejecting this contention, Cuming and Pearson JJ. observed: On the other hand in --- AIR 1919 Cal 728 (M) a decision directly in point, it has been held that when it is established that the plaintiff by defendant's misrepresentation was induced to execute a deed of sale believing the same to have been a deed of a different kind the transaction is void and not voidable only and Article 91, Limitation Act has no application to his suit to recover the property. It will be seen that that decision is directly in point, because in this case the plaintiff sues as the transferee of defendant 3 and stands in her shoes. Defendant 3 was induced by the misrepresentation of defendant 2 to execute a deed of a different kind to what she thought she was executing. It has been found that she thought that she ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... deed of gift was executed under the impression that it was a 'mukhtarnama' and that was found as a fact. With reference to a plea of limitation based on Article 91 the Court observed: It is now well established that this article applies to suits in which it is sought to cancel or set aside an instrument which is voidable, and has no application where the instrument which is challenged is void 'ab initio'. The plea of limitation was accordingly overruled. 6. Mr. E. V. Subramaniam the learned advocate for the respdts. argued that the distinction made in the decisions quoted above between misrepresentation as to the character of a deed and misrepresentation as to its contents was untenable in view of the pronouncement of the Privy Council in -- 'Atmaram Manekal v. Bai Hira. There, a widowed daughter-in-law living with her father-in-law had executed on 12-6-1926 a deed relinquishing her rights over the properties inherited by her from her husband. On 14-10-1930 she instituted a suit for setting aside the deed on the ground that the defendant got her to execute the document while she was in distress and under his protection, influence and control and wit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssion of the properties covered by the deed on the ground that the defendant represented to him that it was a deed of management, that he had signed it without knowing that it was a deed of gift and that the suit was not barred by limitation, as it was filed within twelve years of the transaction. It was found that there was no misrepresentation and that the plaintiff had executed the deed with full knowledge of its contents. The substantive case put forward by the plaintiff, therefore, failed. It was then sought to be argued on behalf of the plaintiff that a case of undue influence had also been raised in the plaint and that the suit was within time as one to set aside a deed under Article 91. As to this, the Privy Council observed that the only substantive case put forward in the plaint was that the deed had' been executed under a misrepresentation as to its character, that allegations as to undue influence were made only as ancillary to that case and that there was no independent and substantive plea of undue influence put forward in the suit. It was also remarked that a suit for relief based on undue influence would be governed by three years limitation whereas according to ..... X X X X Extracts X X X X X X X X Extracts X X X X
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