Holding

A gift by a Hindu coparcener of his undivided interest in joint family property is void, the sale deeds’ validity must be decided on facts with Article 109 of the Limitation Act applicable, and the will is tainted by suspicious circumstances.

Summary

The case concerned the alienation of undivided co‑parcenary property by a Hindu coparcener through a gift deed, two sale deeds and a will. The Supreme Court held that a gift by a coparcener of his undivided interest in joint family property is void, and that the validity of the sale deeds must be examined on the factual matrix with the limitation period governed by Article 109 of the Limitation Act, 1963, not Article 65. The will executed by the deceased was found to be surrounded by suspicious circumstances and therefore not valid. The High Court had decided the limitation issue without a proper plead‑in and without framing the correct question of law; consequently the matter was remitted to the High Court to determine the limitation and the sale deed’s validity. The Supreme Court dismissed the appeals, leaving the lower court to re‑hear the limitation aspect.

Issues considered

Whether a gift deed executed by a coparcener of his undivided interest in coparcenary property is void or voidable.
Whether the sale deeds executed by the coparcener are void or voidable.
Whether the suits challenging the gift, sale deeds and will are barred by limitation under Article 109 or Article 65 of the Limitation Act, 1963.
Whether the will dated 1‑8‑1969 is proved and free from suspicious circumstances.
What share of the plaintiffs is entitled to in the disputed property.

Legislation cited

Hindu Succession Act, 1956s. 6
Limitation Act, 1963s. 109, s. 65

Subjects

co‑parcenary propertygift deedsale deedwillLimitation ActArticle 109Article 65Hindu lawvoidvoidableshare division

Judgment

-,

1.-
[2008] 11 S.C.R. 904 .-

'ti
A BALJINDER SINGH
;.
II.
RATTAN SINGH
CIVIL APPEAL NO. 598 OF 2005 ETC.
AUGUST 5, 2008
B
[DR. ARIJIT PASAYAT AND TARUN CHATTERJEE, JJ.] -f

Hindu Law:
1.-
Alienation of undivided co-parcenary property - By way .-
c of Gift, Sale and Will - Validity of- Held: Gift by a co-parcener ..
of his undivided interest in the co-parcenary property is void -
In the facts and circumstances, Will was correctly found by
courts below surrounded by suspicious circumstances -
Hence, alienation thereby not valid - Validity of sale needs to
D be decided on the basis of factual scenario - Hence matter
to
remitted High Court to decide its validity in the facts by con-
sidering applicability of s. 109 of Limitation Act - High Court ~

by applying s. 65 of Limitation Act, made out a new case for
which there was no pleading nor any question of law was
E framed - Limitation Act, 1963 - s. 109.

Words and Phrases - 'void' and 'voidable' - Meaning of
'S', out of his ancestral property executed a gift deed
in favour of his son from his second marriage (appellant/
F defendant). He also executed a sale deed in favour of sis-
ter of his second wife (the property sold ultimately came
to grandson of 'S' through second marriage by virtue of a
Will executed by the vendee). He further executed a Will
in favour of his second wife. Respondents (children from
G his first wife (since deceased) filed three suits disputing
the execution of the deeds.
In the suit disputing the gift, "trial court came to the
-;
finding that the property being ancestral, is liable to be

H 904

I
BALJINDER SINGH v. RATTAN SINGH . 905

challenged, in terms of Article 109 of the Limitation Act, A
but the suit was liable to be dismissed since barred by
limitation.
In the suit challenging the sale deed, trial court held
that the same was barred by limitation under Article 109
8
of Limitation Act.
In the suit disputing the Will, trial court held that the
Will is proved to have been executed and was not sur-
rounded by suspicious circumstances. Hence suit was
dismissed. c
Plaintiffs-respondents filed three separate appeals,
wherein first appellate court held that the two suits were
not barred by limitation. In the appeal as regards the Will,
it was found that the same was surrounded by suspicious
circumstances. Thus the plaintiff (son from the first mar- D
riage) would have 1/3 share and the second wife and the
son through her would have 213rd share. Thus the suits
were decreed.
Second appeal was filed by the defendants. Appel- E
!ant-plaintiff also filed second appeal challenging the or-
der granting 1/3rd share. High Court upheld the order of
first appellate court holding that the gift deed was not a
genuine document; and that in respect of the suit ques-
tioning the sale, Article 65 of Limitation Act was applicable. F
It further held that the plaintiff-respondent was not entitled
to 1/3 share as the property was to be divided into four
equal shares between the co-parceners including 'S' and
after death of 'S' his share would be equally divided be-
tween the children from first wife and children from sec-
G
ond wife and second wife herself. Hence the present ap-
peals.
Disposing of the appeals, the Court
HELD: 1.1 High Court proceeded to decide the is- H
906 SUPREME COURT REPORTS [2008] 11 S.C.R.

A sue relating to period of limitation by making out a new 1
case for which there was no pleading and even no ques- \.-
tion of law was framed. Articles 65 and 109 of Limitation
Act, 1963 operate in different fields. The trial Court categori-
cally found that Article 65 was not applicable and Article
B 109 was applicable to the facts of the case. The first appel-
late court in essence accepted that Article 109 was appli-
cable, yet it held that the period of 12 years as laid down in
Article 109 was to be reckoned from the year 1992 and since
the suit had been filed in 1994 it is within the period of limi-
C tation. [Paras 14 and 16] [916 A,8 & E 917 8]
1.2 High Court proceeded on the basis that the ap-
plicable Article is Article 65 and not Article 109. It is to be
noted that there was no issue framed about applicability
of Article 65. On the contrary, the issue framed related to
D the applicability of Article 109. There was no pleading by
the plaintiff about applicability .of Article 65. Even in the
counter affidavit filed before this Court in the concerned
Civil Appeal, the categorical stand is that Article 109 is
applicable. The effect of Exhibit D-11 and the deed on
E which the appellants placed strong reliance has not been
considered by the first appellate court and it reversed the
findings of the trial Court. The plea regarding applicabil-
ity of Article 109 was not raised even before this Court.
(Para 1S] [916 F,G,H, 917 A]
F
· 1.3 So far as the question as to whether the sale is
void or voidable much depends on the factual scenario.
In the circumstances, it would be proper for the High Court
to re-hearthe appeal relating to applicability of Article 109
of the Limitation Act and to decide the matter taking note
G of the factual position. [Paras 22 and 29] [920 A, 926 C,D]
Sunil Kumar and Anr. v. Ram Parkash and Ors. AIR 1988
SC 576; Sadasivam v. K. Doraisamy AIR 1996 SC 1724 -
referred to.
H

1
BALJINDER SINGH v. RATIAN SINGH 907

'Hindu Law' by Mulla, Seventeenth Edn., (Article 258); A
'Hindu Law' by Mayne, XIV Edn.; 'Judicial Review of Admin-
istrative Action' by De Smith, Woolf and Jowell 5th, para 5-
044; 'Judicial Remedies in Public Law' by Clive Lewis
p.131; 'Words and Phrases' by Justice R.P. Sethi - referred to
2. A gift by a coparcener of his undivided interest in 8
the coparcenary property is void. Therefore, the decision
of the High Court so far the gift is concerned, does not
warrant any interference. [Paras 18 and 21] [917 D,E, 919
H, 920 A]
c
Thamma Venkata Subbamma (dead) by Lrs. v. Thamma
Rattamma and Ors. 1987 (3) SCC 294 - relied on
3. So far as the Will is concerned, first appellate
courts as well as High Court have come to the conclu-
sion that its execution is surrounded by suspicious cir- D
cumstances. The finding recorded about the genuineness
of the Will is essentially factual. The Courts below have
analysed the factual position in great detail. Nothing in-
firm in the conclusions has been shown on behalf of the
appellant. [ Paras 26 and 28] [925 G, 926 B] E
Case Law Reference
1987 (3) sec 294 Relied on. 18
~

AIR 1988 SC 576 Referred to. 23 F
AIR 1996 SC 1724 Referred to. 24
CIVILAPPELLATE JURISDICTION: Civil Appeal No. 598
of 2005

From the final Judgment and Order dated 18.8.2004 of G
the High Court of Punjab and Haryana at Chandigarh in R.S.A.
No. 2549 of 2000

WITH

C.A. Nos. 601 & 605 of 2005 H
908 SUPREME COURT REPORTS (2008] 11 S.C.R.

1'
A U.U. Lalit, Ankit Singhal and Nikhil Nayyar for the Appel-
lant.
R.S. Mittal, Manoj Swarup for the Respondent. (
The Judgment of the Court was delivered by ~

~
B
Dr. ARIJIT PASAYAT, J. 1. These appeals are directed
.;
against a common judgment of a learned Single Judge of the
Punjab and Haryana High Court disposing of three Second
Appeals filed under Section 100 of the Code of Civil Proce- ~

dure, 1908 (in short 'CPC'). All the three appeals and the cross )
c objections filed related to certain acts of one Shivdev Singh. All
the appeals and cross objections were dismissed except with
certain modifications. .
2. The background facts in a nutshell are as follows:
D Shiv Dev Singh was allotted land measuring 811 kanal 14
marlas out of which he effected sale of 440 kanals earlier. The
said sale is not disputed in the present proceedings. Shiv Dev
Singh earlier married Harbans Kaur and from the said wedlock ""
one son i.e. plaintiff Lt. Col. Rattan Singh, and four daughters
E who are also plaintiffs along with Lt. Col. Rattan Singh in Civil
Suit No.172 of 3.9.1994 were born. Smt. Harbans Kaur died in
the year 1986. Shiv Dev Singh thereafter married lqb.al Kaur
and from wedlock of Shiv Dev Singh with Iqbal Kaur, Jaspal
Singh, Lakhwinder Kaur, Sukhjinder Kaur and Baljit Kaur were
F born. Baljinder Singh and Balwinder Singh were grandsons
through the second marriage. The dispute in these appeals is
in respect of the land measuring 337 kanals 10 marlas. Shiv
Dev Singh executed a gift deed on 19.12.1962 in favour of
Jaspal Singh, one of the sons of Shiv Dev Singh in respect of
G land measuring 10 kanals 5 marlas. The said gift deed was
disputed by his another son Lt. Col. Rattan Singh and four daugh-
ters in Civil Suit No172 of 3.9.1994. Regular Second Appeal
No.2550 of 2000 before the High Court arose out of the said 1
suit.
H
BALJINDER SINGH v. RATTAN SINGH 909
[DR. ARIJIT PASAYAT, J.]

The said suit was for declaration to the effect that they are A
co owners in joint possession to the extent of Yi share, and that
the property in the hands of Shiv Dev Singh was ancestral. In
the written statement, the defendant denied that the land was
ancestral. It was asserted that same was self acquired prop-
erty of Shiv Dev Singh. It was pleaded that since 19.12.1962 B
when Shiv Dev Singh gifted the land in his favour, possession
was delivered to him and ever since he is continuing in posses-
sion as owner of the suit land. Jaspal Singh, the donee, was
minor at the time of execution of gift deed. The learned trial
Court recorded a finding that the suit land was ancestral in the c
hands of Shiv Dev Singh and that alienation of ancestral prop-
erty effected by father of a Hindu governed by Mitakshara law
could be challenged in terms of Article 109 of the Limitation
Act, 1963 (in short the 'Limitation Act') within 12 years from the
r, date when alienee takes possession of the property alienated. D
Since Jamabandi for the year 1973-74, (Exhibit D-8) Jamabandi
.,,,, for the year 1978-79 (Exhibit D-9), Jamabandi for the year 1983-
84 (Exhibit D-10) record Jaspal Singh as a person in posses-
....,
\
sion, the Court returned a finding that Jaspal Singh came into
possession more than 12 years before the filing of the suit and E
thus, the suit is beyond the period of limitation.
Shiv Dev Singh also executed two separate sale deeds
on 25.2:1980 and 27.3.1980 in respect of land measuring 73
kanals 1"1 marlas in favour of Pritam Kaur, widow of Thakur
Singh, who happened to be sister of Iqbal Kaur, wife of Shiv F
Dev Singh. After the death of Pritam Kaur on 1.4.1990, the same
)
devolved upon defendant Baljinder Singh, minor son of Jaspal
Singh i.e. grandson Shiv Dev Singh by virtue of will dated
30.1.1984. The said sale deeds were disputed by Lt. Col. Rat-
tan Singh in Civil Suit No.171 of 6.9.1994. Regular Second G
Appeal No.2549 of 2000 before the High Court arose out of
said suit.
f In the said suit, the challenge is to the sale deeds dated
;
' 25.2.1980 and 27.3.1980 whereby Shiv Dev Singh has sold
H
910 SUPREME COURT REPORTS [2008] 11 S.C.R.
,,,
A the land in favour of Pritam Kaur, his sister-in-law through his }-

attorney Jaspal Singh. In the said suit it was alleged that the l-
'I
suit land was ancestral having been inherited from his forefa- I
'
thers and that the sale deeds were without legal necessity and )'--

thus null and void. It was alleged that the defendant, son of Jaspal
~
B Singh is in illegal and unauthorized possession of the suit land
-I
without any legal right for the last four. years. The plaintiff al-
leged that the cause of action accrued in the year 1993 when
the share of compensation amount in respect of the land ac-
quired by the Improvement Trust was not allowed to be with-
c drawn by the plaintiff at the instance of Iqbal Kaur, second wife
of Shiv Dev Singh. The defendant in written statement pleaded
that the sales in question are not in any way illegal, without con- I,.
sideration and/or void. Shiv Dev Singh was the sole owner of
the suit land. The suit land remained in possession of Smt. Pri!am
·1
D Kaur as owner ever since the sale in her favour. It was alleged
that cause of action·; if any, arose to the plaintiff to challenge the
alienation on the date of execution of the sale deeds. The ....
learned trial Court dismissed the suit holding that the suit is )

barred by limitation governed by Article 109 of the Limitation
E Act as revenue record ~ince Jamabandi 1983-84 (Exhibit D-:5)
• I
,__
r
records the name of Pritam Kaur in the column of ownership
and cultivation. The said Jamabandi entry was recorded after j
I-
mutation in favour of Pritam Kaur and was sanctioned in ·the
year 1980.
F Shiv Dev Singh also executed a registered will dated
· 1.8.1969 in favour of his wife Iqbal Kaur. At the time of dei3th of ~

Shiv Dev Singh on 9.6.1988 he was owner of land measuring ...._
)
107kanals13 Marlas. Lt. Col. Rattan Singh and his four sisters I-
filed suit for declaration to claim % share of the said land on the
G basis of natural succession and for joint possession in Civil Suit t-
No.170 of 3.9.1994. Regular Second Appeal No.2548 of 2000
before the High Court arose out of the said suit.

..
~
The said suit was for declaration and in the alternative for t-
joint possession filed, inter alia, on the ground that they are
H "
r-
.,1
~·
BALJINDER SINGH v. RATTAN SINGH 911
[DR. ARIJIT PASAYAT, J.]

owners of% share of the land. It was averred that .Shiv Dev A
Singh son of Sahib Singh was owner of 107 kanals 13 marlas
of land which was inherited from his forefathers and it was an-
cestral. Shiv Dev Singh died on 9.6.1988 leaving behind plain-
tiffs and defendants Nos. 1 and 4 to 6 and Smt. Lakhwinder
Kaur as his legal heirs. Lakhwinder Kaur died on 18.6.1993 B
\ leaving behind defendants Nos. 2 and 3 as her legal heirs. It
was averred that defendant no.1 has claimed a will in her favour.
The deceased Shiv Dev Singh has not executed any. valid will
in favour of defendant No.1 and the alleged will is false and
fabricated. It was further alleged that the plaintiffs have sue- c
ceeded to the estate of Shiv Dev Singh to the extent of% share
and the defendants succeeded to the remaining % share of his
estate. Defendant No.1 relied upon will dated 1.8.1969 and
claimed that she has become the exclusive owner in posses-
sion of the suit land. In evidence, the defendants produced son o
of the scribe and one of the attesting witnesses of the wilt. The
trial Court held that the said will is proved to have been executed
and is not surrounded by suspicious circumstances. One of the
reasons for coming to such view by the trial Court was that Lt.
Col. Rattan Singh has got 8 acres of land earlier and thus, the E
plaintiffs cannot make any grievance.

3. However, in three separate appeals, the first Appellate
Court reversed the findings recorded by the trial Court. The first·
Appellate Court held that Civil Suit No.171 and 172 of 1994
are within the period of limitation as cause of action arose to Fi
them when they were excluded from the Joint Hindu Family prop-
erty in the year 1992. However, in respect of the will, the first
Appellate Court held that it is surrounded by suspicious circum-
stances and consequently decreed the suit holding that the es-
tate of Shiv Dev Singh will vest on the coparceners Rattan G
Singh, Jaspal Singh and Iqbal Kaur wife of Rattan Singh in equal
shares and thus plaintiff Lt. Col. Rattan Singh would have 1/3rd
share and the defendants Jaspal Singh and Iqbal Kaur would
have 2/3rd share.
H
912 SUPREME COURT REPORTS [2008] 11 S.C.R.

A 4. Aggrieved by the findings recorded by the learned First "
Appellate Court, Second Appeals were filed.
5. The plaintiffs also filed cross objections in each of the
appeals claiming that the judgment and decree of the first Ap-
pellate Court granting 113rd share to Rattan Singh is incorrect
B as a matter of fact plaintiff Rattan Singh has % share.
~
6. In Second Appeals the findings of the Courts below that
the land is joint Hindu Family coparcenary property was not dis-
puted. This fact was not disputed even before the learned trial
c Court. It was also not disputed that the sale deeds were ex-
ecuted without legal necessity and Shiv Dev Singh was not com-
petent to gift the property. However, what was disputed is that
the suit challenging alienation by way of gift in the year 1962
and sale deeds in the year 1980 by way of suit filed in the year
1994 were clearly beyond the period of limitation as prescribed
D
under Article 109 of the Indian Limitation Act, 1963 (in short the
'Limitation Act'). The first Appellate Court had recorded a find-
ing that the plaintiffs acquired knowledge of alienation by way
of gift and sale in the year 1992 after Lt. Col. Rattan Singh re-
tired from army. Learned counsel for the appellants before the
E High Court disputed such finding as one based upon perver- !-
sity. It was that it is impossible to believe that the gift deed ex-
ecuted in the year 1962 mutation of which was recorded in the
year 1967 came to the notice of the plaintiffs only in the year
1992 since plaintiff Lt. Col. Rattan Singh was visiting the village
F every year during his annual leave. However, since the.firstAp-
pellate Court has believed the statement of the plaintiff to record -4,
a finding that he acquired the knowledge of alienation of the .._
year 1992, it would be a finding of fact. High Court was of the )'
view that even if a different view was possible to be taken it ~

G would not entitle the High Court to take a different view in Sec-
ond Appeal. The finding recorded by the first Appellate Court
t
was held to have been arrived at after discussing the relevant t-
oral and documentary evidence. Therefore, the High Court pro- l'
ceeded on the assumption that plaintiff Lt. Col: Rattan Singh
H came to know about the alienation in the year 1992.
BALJINDER SINGH v. RATTAN Sl~GH 913
[DR. ARIJIT PASAYAT, J.]
Shivdev Singh A
l
l
Iqbal Kaur (wife) Pritam Kaur
Harbans Kaur - Wife l (Sister of Iqbal)
l
Rattan Gurbachan Manjit Kuldip Balwinder Jaspal Lakhwinder Sukhwinder Baljit
Singh Kaur (R-2 Kaur (R-2 Kaur (R-2 Kaur (R-2 Singh Kaur (since Kaur (App. Kaur B
(R-1 in in CA No. in CA in CA in CA (App. No deceased) no. 5 in App. No.
All Ap- 605 and No. 605 605 & No. 605 1 in CA CA No. 6 in CA
peals) 601 of and 601 601 of and 601 No. 605 605 and No. 605
2005) of 2005) 2005) of 2005) and App. App. No. 4 and App.
No. 6 in in CA 601 No. 5 in
CA 601 of 2005) CA 601
of 2005) of 2005
l c
Baljinder Gurtej Singh (App.
Singh (App. No. 2 in CA 605
In C.A. No. and App. No. 1 in
598/2005) C.A. No. 601 of
2005)

7. The High Court formulated following substantial ques- D
tions of law for consideration:
1. Whether the gift deed executed by Shiv Dev Singh
· in favour of son Jaspal Singh on 19.12.1962 is void
or voidable?
E
2. Whether the sale deeds dated 25.2.1980 and
27.3.1980 executed by Shiv Dev Singh in favour of
Pritam Kaur, his sister in law, is void or voidable?

3. Whether the suit for possession is within the period
of limitation or such suit is barred by limitation in F
terms of Article 109 of the Limitation Act, 1963?

4. Whether Will dated 1.8.1969 executed by deceased
Shiv Dev Singh in favour of his wife Iqbal Kaur is
proved to be duly executed and is not surrounded by G
suspicious circumstances?
5. What will be the share of the plaintiffs in the suit
property consequent to the decision on the above
questions of law?
H
914 SUPREME COURT REPORTS [2008] 11 S.C.R.

A 8. The genealogy as given below indicating the relation-
ship between the parties was taken note of by the High Court.
· 9. After analyzing the legal position and the applicable
Hindu Law the High Court inter alia came to the following con-
clusions:
B
"In the judgment and decree passed by the learned first
Appellate Court holding that Rattan Singh plaintiff will have
113rd share is not sustainable as the share of Shiv Dev
Singh was excluded for the reason that Shiv Dev Singh
c during his life time sold 50-60 acres of land and, thus he
ceased to have any share in the suit land. The said
reasoning is not sustainable in law. The sale effected by
Shiv Dev Singh during his life time will diminish the joint
property of all the coparceners. Such sale is not disputed
D and, therefore, such sale is for the benefit of coparcenary
body and, thus, it cannot be said that such sale was out
of the share of Shiv Dev Singh alone. In terms of
Explanation 1 to Section 6 of the Hindu Succession Act,
1956, the notional partition is to be presumed immediately
E before the death of Shiv Dev Singh. Therefore, Shiv Dev
Singh will have equal share within Rattan Singh, Jaspal
Singh and Iqbal Kaur.
Immediately before the death of Shiv Dev Singh, the
coparceners were Shiv Dev Singh himself, Rattan Singh
F plaintiff, Iqbal Kaur (wife of Shiv Dev Singh), and Jaspal
Singh. The married daughters from the first wife Harbans
Kaur or from the second wife Iqbal Kaur were not
coparceners and, thus not entitled to any share. Thus,
Shiv Dev Singh, Rattan Singh, Jaspal Singh and Iqbal
G Kaur shall have 114th share each as coparcener. One fourth
share of Shiv Dev Singh will fall equally to the share of one
son and four daughters from his first wife Harbans Kaur
one son and three daughters from the second wife Iqbal
Kaur and Iqbal Kaur herself i.e. 1/41h share to each of the
H legal heirs.of Shiv Dev Singh at the time of his death".
.
BALJINDER SINGH v. RATTAN SINGH 915
[DR ARIJIT PASAYAT, J.]
'r
10. It was inter alia held that the deed of gift purported to A
have been executed by Shivdev Singh in favour of Jaspal Singh
was surrounded by mysterious circumstances and was not a
genuine document. So far as the sale deeds in favour of Pritam
Kaur are concerned it was held that Article 65 of the Limitation
Act was applicable. While the challenge in the first suit relating B
~ to the sale deeds was filed on 1.9.1994, the other suits chal-
lenging the gift purported to have been made on 19.12.1962
and the will purported to have been executed on 1.8.1969 were
filed on 3.9.1994.
11. In the present appeals, challenge to the High Court's c
judgment was on various grounds. We shall deal with them sepa-
rately.
12. So far as the appeal relating to the effect of the sale
deed is concerned, it was submitted that the High Court had D
made out a new case about applicability of Article 65 of the
)r Limitation Act, while the trial Court and the first Appellate Court
had proceeded on the basis that Article 109 was applicable.
Similarly, the basic issue was whether the sale deed was void

• or voidable. So far as the appeal relating to validity of the gift E
made by Shivdev Singh is concerned, according to learned
counsel, the relevant issue is whether he made the gift and if
the answer to the question is in the affirmative, to what extent
could· he had made the gift. Here again the question was
whether the gift was void or voidable. So far as the appeal re-
F
lating to the validity of the Will is concerned, it was submitted
>· that the Courts below failed to notice that there was nothing
suspicious about execution of the Will and the evidence on
record clearly established that the Will had been executed out
of free will and was not tainted in any way.
G
13. In resppnse, learned counsel for the respondent sub-
mitted that the High Court has analysed the legal and the fac-
\ '( tual position in great detail and has rightly dismissed the ap-
peals.
H
916 SUPREME COURT REPORTS [2008] 11 S.C.R.

A 14. The first issue in the appeals relates to the validity of
the sale deeds. Articles 65 and 109 operate in different fields.
The trial Court categorically found that Article 65 was not appli-
cable and Article 109 was applicable to the facts of the case.
The first Appellate Court in essence accepted that Article 109
B was applicable, which provided for a period of 12 years to set
aside the alienation effected by a father from the date when the
alienee was in possession of the property. Though the first Ap-
pellate court accepted that Article 109 was applicable, yet it
was held that the spirit of Article 109 is that by taking over the
c possession of the land which is subject matter of the suit the
alienee inter alia gives a notice to the persons governed by
Mitakashara School of Law to agitate their rights, if any. Other-
wise, their remedy would become barred by limitation. It was
held that the starting point of limitation would be somewhere in
o the year 1992 when he came to know of the alienation made by
the father. Consequently, the cause of action accrued in the year
1992 when. he gained knowledge about the existence and ex-
ecution of the sale deeds. Therefore, the period of 12 years as
laid down in Article 109 was to be reckoned from the year 1992
E and since the suit had been filed in 1994 it is within the period
of limitation.
15. A bare perusal of the High Court's order it is seen that
the High Court proceeded on the basis that the applicable Ar-
ticle is Article 65 and not Article 109. It is to be noted that there
F was no issue framed about applicability of Article 65. On the
contrary, the issue framed related to the applicability of Article
109. There was no pleading by the plaintiff about applicability
of Article 65. Even in the counter affidavit filed before this Court
in the concerned Civil Appeal, the categorical stand is that Ar-
G ticle 109 is applicable. In para 8 of the cour:iter affidavit filed in
Civil Appeal No.598 of 2005 it has been stated that the suit of
the respondent (plaintiff) is within time under Article 110 and
counting from the date of knowledge, the suit filed is clearly within
the period of limitation. The effect of Exhibit D-11 and the deed
H on which the appellants placed strong reliance has not been
BALJINDER SINGH v. RATTAN SINGH 917
[DR. ARIJIT PASAYAT, J.]
'?'
considered by the first Appellate Court and it reversed the find- A
ings of the trial Court. On the question of position relating to
applicability of Article 109 there is practically no discussion by
the learned counsel.
16. It is, therefore, crystal clear that the High Court pro-
ceeded to decide the issue relating to period of limitation by
B
"!
making out a new case for which there was no pleading and
even no question of law was framed.
17. The question whether the sale deed was void or void-
able has to be adjudicated in the light of principles set out by c
this Court in several decisions. We shall deal with this aspect in
detail while considering the appeal relating to the gift.
18. In Thamma Venkata Subbamma (dead) by Lrs. V
Thamma Rattamma and Others (1987 (3) SCC 294) it was
observed as follows: D
"12. There is a long catena of decisions holding that a gift
by a coparcener of his undivided interest in the
coparcenary property is void. It is not necessary to refer
to all these decisions Instead, we may refer to the following E
statement of law in Mayne's Hindu Law, eleventh Edn.,
Article 382:
"It is now equally well settled in all the Provinces that
a gift or devise by a coparcener in a Mitakshara
family of his undivided interest is wholly invalid .... A F
> coparcener cannot make a gift of his undivided
interest in the family property, movable or immovable,
either to a stranger or to a relative except for purposes
warranted by special texts.
G
13. We may also refer to a passage from Mulla's Hindu
Law, fifteenth edn., Article 258, which is as follows:

Gift of undivided interest. - (1) According to the
Mitakshara law as applied in all the States, no
coparcener can dispose of his undivided interest in H
-
918 SUPREME COURT REP<?RTS [2008] 11 S.C.R.

A . coparcenary property by gift. Such transaction being
void altogether there is no estoppel or other kind of
personal bar which precludes the donor from
asserting his right to recover the transferred property.
He may, however, make a gift of his interest with the
B consent ofthe other coparceners.
14. It is submitted by Mr. P. P~ Rao, learned counsel
appearing on behalf of the respondents, that no reason
has been given in any of the above decisions why a
coparcener is not entitled to alienate his undivided interest
c in the coparcenary property by way of gift. The reason is,
however, obvious. It has been already stated that an
individual member of the joirit Hindu family has.no definite
share in the coparcenary property. By an alienation of his
undivide.d int.erest in the coparcenary property, a
D coparcener cannot deprive the other coparceners of their
right to the property. The object of this strict rule against
alienation by way of gift is to maintain the jointness of
ownership and possession of the coparcenary property. It
is true that there is no specific textual authority prohibiting
E an alienation by gift and the law in· this regard has
developed gradually, but that is for the purpose of
preventing a joint Hindu family from being disintegrated.
17. It is, however, a settled law that a coparcenary can
make a gift of his undivided interest in the coparcenary
F
property to another coparcener or to a stranger with the
prior"' consent of all other coparceners. Such a gift would
be quite legal and valid".
19. We may also refer to a passage from Mulla's Hindu
G Law, Seventeenth Edn., (Article 258), which is as follows:
"Gift of undivided interest- (1 )According to
Mitakshara law as applied in all the States, no
coparcener can dispose of his undivided interest in
coparenary property by gift. Such transaction being'
H
BALJINDER SINGH v. RATTAN SINGH 919
.,. [DR. ARIJIT PASAYAT, J.]

void altogether there is no estoppel or other kind of A
personal bar which precludes the donor from
asserting his right to recover the transferred property.
He may, however, make a gift of his interest with the
consent of the other coparcener".
B
20. In Mayne's Hindu Law, XIV Edn. It has been noted as
follows:
"Gifts of affection- The father's power to make gifts through
~
affection within reasonable limits of ancestral movable
--( property has been fully recognized. In Ramalinga v c
' Narayana (1922 (49) IA 168) the Privy Council held that
"the father has undoubtedly the power under the Hindu
Law of making within reasonable limits, gifts of movable
property to a daughter".
By Will- But such gifts through affection of joint family D
y property when they are by will, are invalid, because the
I
right of the coparceners vests by survivorship at the
moment of the testator's death, and there is accordingly
nothing upon which the will can operate. In Subbarami v.
Ramamma ((1920 (43) Mad 824) the Madras High Court E
held that a will made by a Hindu father bequeathing certain
family properties for the maintenance of his wife was
invalid as against his infant son through it would have
been a proper provision if made by him, during his lifetime.
This may be in a sense right. There is however no F
compelling logic in not regarding wills "as gifts to take
effect upon death at least as to the property which they
can transfer and the persons to whom it can be transferred".
Convenience would seem rather to point to the extension
to the sphere of Hindu Law of the general principle of G
jurisprudence that what a man can give by act inter vivos,
he can give by will".
~

21. In view of the decision in Venkata Subbamma's case
(supra), the decision of
... the High Court so far the gift is con- H
920 SUPREME COURT, REPORTS [2008] 11 S,C.R.
..,
A cerried, does not warrant any interference.
22. So far as the question whether the gift is void or void-
able much depends on the factual scenario. The distinction ~

between void or voidable is summarized as follows:

B "De Smith, Woolf and Jowell in their treatise Judicial
Review of Administrative Action, 5th, para 5-044, have f
summarized the concept of void and voidable as follows:
"Behind the simple dichotomy of void and voidable ~
acts (invalid and valid until declared to be invalid)
c Jurk terminological and conceptual problems of >-
excruciating complexity. The problems -arose from
the premise that if an act, order or decision is ultra
vires in the sense of outside jurisdiction, it was said
to be invalid, or null and void. If it is intra vires it was,
D of course, valid. If it is flawed by an error perpetrated
within the area of authority or jurisdiction, it was usually ..,.,
said to be voidable; that is, valid till set aside on
appeal or in the past quashed by certiorari for error
of law on the face of the record."
E
Clive Lewis in his work Judicial Remedies in Public Law
at p.131 has explained the expressions "void and voidable"
as follows:
"A challenge to the validity of an act may be by direct
F action or by way of collateral or indirect challenge. A
direct action is one where the principal purpose of
the action is to establish the invalidity. This will usually
be by way of an application for judicial review or by
use of any statutory mechanism for appeal or review.
G Collateral challenges arise when the invalidity is
raised in the course of some other proceedings, the
purpose of which is not to establish invalidity but
..,
where questions of validity become relevant."

23. In Sunil Kumar and Anr. v. Ram Parkash and Ors.
H
BALJINDER SINGH v. RATTAN SINGH 921
[DR. ARIJIT PASAYAT, J.]

" (AIR 1988 SC 576) it was noted in paras 23 and 24 as follows: A
23. The managing member or karta has not only the power
to manage but also power to alienate joint family property.
The alienation may be either for family necessity or for the
benefit of the estate. Such alienation would bind the
B
interests of all the undivided members of the family whether
they are adults or minors. The oft quoted decision in this
aspect, is that of the Privy Council in Hanuman Parshad
v. Mt. Babooee, [1856] 6 M.l.A. 393. There it was observed
at p. 423: (1) "The power of the manager for an infant heir
to charge an estate not his own is, under the Hindu law, a c
limited and qualified power. It can only be exercised rightly
in case of need, or for the benefit of the estate." This case
was that of a mother, managing as guardian for an infant
heir. A father who happens to be the manager of an
undivided Hindu family certainly has greater powers to D
which I will refer a little later. Any other manager however,
y is not having anything less than those stated in the said
case. Therefore, it has been repeatedly held that the
principles laid down in that case apply equally to a father
or. other coparcener who manages the joint family estate. E
Remedies against alienations:
24. Although the power of disposition of joint family
property has been conceded to the manager of joint Hindu
family for the reasons aforesaid, the law raises no F
presumption as to the validity of his transactions. His acts
could be questioned in the Court of law. The other
members of the family have a right to have the transaction
declared void, if not justified. When an alienation is
challenged as being unjustified or illegal it would be for G
the alienee to prove that there was legal necessity in fact
or that he made proper and bona fide enquiry as to the
existence of such necessity. It would be for the alienee to
prove that he did all that was reasonable to satisfy himself
as to the existence of such necessity. If the alienation is H
922 SUPREME COURT REPORTS [2008) 11 S.C.R.

A found to be unjustified, then it would be declared void.
.,
Such alienations would be void except to the extent of f-

manager's snare in Madras, Bombay and Central
Provinces. The purchaser could get only the manager's ..-
share. But in other provinces, the purchaser would not get
B even that much. The entire alienation would be void.
[Mayne's Hindu Law 11th ed. para 396].
24. In Sadasivam v. K. Doraisamy (AIR 1996 SC 1724) it
was found that when the father has executed sale deed in favour
of a near relative and the intention to repay debt or legal neces-
C ·· sity has not been proved as a sham transaction .

. 25. In Wqrds and Phrases by Justice R.P. Sethi the ex- \_
pression 'void' and "voidable' read as under:

"Void-'·Black's Law Dictionary gives the meaning of the
D word "void" as· having different nuances in different
connotations. One of them is of course "null or having no
·legal force or binding effect". And the other is "unable in '(

law, to support the purpose for which· it was intended".
After referring to the nuances between void and voidable
E the lexicographer pointed out the following: "The word 'void'
in its strictest sense, means that which has no force and
effect, is· without legal efficacy, is incapable of being
enforced by law, or has no legal or binding force, but
frequently the word is used and construed as having the
F ·more liberal meaning of 'voidable'. The word 'void' is used
in statute in the sense of utterly void so as to be incapable
df ratification, and also in the sense of voidable and resort ""·
must be had to the rules of construction in many cases to
·determine in which sense the legislature intended to use
G it. Ari act or contract neither wrong in itself nor against
public policy, which has been declared vqid by statute for
the protection or benefit of a certain party, or class of
- parties, is voidable only". (Pankan Mehra and Anr. v. State ')

of Maharashtra and Ors. (2000 (2) SCC 756).
H
BALJINDER SINGH v. RATTAN SINGH 923
[DR ARIJIT PASAYAT, J.]
it'
Per Fazal Ali, J- The meaning of the word "void" is stated A
in Black's Law Dictionary (3rd Edn.) to be as follows:
I
"Null and void; ineffectual; nugatory; having no legal
-{ force or binding effect; unable· in law to support the
purpose for which it was intended; nugatory and
B
ineffectual so that nothing can cure it; not valid".
~ "' Keshavan Madhava Menon v. State of Bombay (1951
· SCR 228).

The expression "void" has several facets. One type of
void acts, transactions, decrees are those which are wholly c
without jurisdiction, ab initio void and for avoiding the same
• no declaration is necessary, law does not take any notice
of the same and it can be disregarded in collateral
proceeding or otherwise. Judicial Review of Administration
Action, 5th Edn., para 5-044 (See also Judicial Remedies D
in Public Law at page 131; Dhurandhar Prasad Singh v.
y Jai Prakash University and Ors. (2001 (6) SCC 534)
...
The other type of void act, e.g. may be transaction against
a minor without being represented by a next friend. Such
a transaction is a good transaction against the whole world. E
So far as the minor is concerned, if he decides to avoid
... the same and succeeds in avoiding it by taking recourse
to appropriate preceding the transaction becomes void
-1
from the very beginning. Another type of void act may be
one, which is not a nullity, but for avoiding the same, a F
• declaration has to be made. (See Government of Orissa
v Ashok Transport Agency and Ors (2002 (9) SCC 28)

The meaning to be given to the word ''void". in Article 13
"""'
-,
of the Constitution is no longer res integra, f~r the matter
G
stands concluded by the majority decision .of the Court in
Kesha van Madhava Menon v. The State of Bombay (1951)
SCR 228. We have to apply the ratio decidendi in that
--./ case to the facts of the present case. The impugned Act
was a existing law at the time when the Constitution came
H
924 SUPREME COURT REPORTS [2008] 11 S.C.R.

A into force. That existing law imposed on the exercise of ..
the right guaranteed in the citizens of the India by Article
19(1 )(g) restrictions which could not be justified as
reasonable under clause (6) as it then stood and ...._
consequently under Article 13(1) that existing Law became .
B void "to the extent of such inconsistency". As explained in
Keshavan Madhava Menon's case (supra) the Law ..,,
became void in toto or for all purposes or for all times or
l>
for all persons but only "to the extent of such inconsistency",
that is to say, to the extent it became inconsistent with the .
c provisions of Part Ill which conferred the fundamental rights
on the citizens. It did not become void independently of
the existence of the rights guaranteed by Part Ill. (See r-
~
Bhikaji Narain Dhakras and Ors. v. The State of Madhya ).

Pradesh and Anr. (1955 (2) SCR 589). l

D The word "void" has a relative rather than an absolute
meaning. It only conveys the idea that the order is invalid { I
or illegal. In Halsbury's Laws of England, 4th Edn. (Re-
~\ ~
issue) Vol. 1(1) in para 26, p.31 it is stated thus: "If an act "'
of decision, or an order or other instrument is invalid, it
E should, in principle, be null and void for all purposes; and
it has been said that there are no degrees of nullity. Even
though such an act is wrong and lacking in jurisdiction,
however, it subsists and remains fully effective unless and
,
until it is set aside by a court of competent jurisdiction.
F Until its validity is challenged, its legality is preserved".
(See State of Kerala v. M.K. Kunhikannan Nambiar Manjeri
~
Manikoth, Naduvil (dead) and ors. (1996 (1) SCC 435).
\l
.
"Voidable act" is that which is a good act unless avoided,
!. t
e.g. if a suit is filed for a declaration that a document is ~

G '
fraudulent, it is voidable as the apparent state of affairs is f-
the real state of affairs and a party who alleges otherwise
is oblige to prove it. If it is proved that the document is
forged and fabricated and a declaration to that effect is
'-
given, a transaction becomes vo:d from the very beginning.
H
l
,J

BALJINDER SINGH v. RATTAN SINGH 925
[DR. ARIJIT PASAYAT, J.]
" There may be voidable transaction which is required to A
be set aside and the same is avoided from the day it is
so set aside and not any day prior to it. In cases, where
-i"
legal effect of a document cannot be taken away without
setting aside the same, it cannot be treated to be void but
would be obviously voidable. Government of Orissa v. B
"' Ashok Transport Agency and Ors. (2002 (9) SCC 28)".
26. So far as the appeal relating to Will is concerned, it is
to be noted that the first appellate court as well as the High
'; Court have come to the conclusion that its execution is sur-
rounded by suspicious circumstances. c
27. The defendants have relied upon will dated 1.8.1969
executed by Shiv Dev Singh in favour of his wife Iqbal Kaur. Will
Ex.D-1 is sought to be proved by DW-1 Sham Lal son of
Jitender Nath scribe of the Will and DW-2 Surinder Nath Vohra, D
the attesting witness DW-1 Sham Lal has identified the hand-
writing of his father and deposed that his father died in the year
1993. DW-2 Surinder Nath Vohra has deposed that the Will
was executed by Shiv Dev Singh at Kharar in his presence. At
that time, Shiv Dev Singh was in sound disposing mind. It has E
come on record that Dharam Singh, husband of Lakhwinder
Kaur daughter of Shiv Dev Singh was residing at Chandigarh.
Shiv Dev Singh used to stay with Dharam Singh when he used
to visit Chandigarh in connection with litigation. However, the
Will was not executed and registered at Chandigarh but at
........
F
Kharar. Surinder Nath Vohra is not known to the testator but
attested the Will at the asking of Dharam Singh. Still further, in
Will Exhibit D-1 there is no reference about Rattan Singh who
is none else but real son of the testator. The first Appellate Court
found that the reasoning given by the learned trial Court that
G
Shiv Dev Singh gave 8 acre-s of land to Rattan Singh and, there-
fore, it was not necessary for him to assign any reason was
found to be incorrect because the said land measuring 8 acres
< came to him from his grand father as he was born after 4 daugh-
ters. The first Appellate Court found that even if Shiv Dev Singh
H
926 SUPREME COURT REPORTS [2008] 11 S.C.R:
..
I
A had been given 8 acres, there is no reason as to why such men-
tion was not made in the Will. Consequently, the first Appellate
Court returned a finding that the execution of the Will Exhibit D-
1 is not proved and its execution is surrounded by suspicious
circumstances.
B 28. The finding recorded about the genuineness of the Will r
is essentially factual. The Courts below have analysed the fac-
tual position in great detail. Nothing infirm in the conclusions
could be shown by learned counsel for the appellant. I
c 29. In view of the aforesaid circumstances it would be
proper for the High Court to re-hear the appeal relating to appli-
\
cability of Article 109 of the Limitation Act and to decide the
matter taking note of the factual position.
30. The other appeals are dismissed. The appeals are
D accordingly disposed of.
K.K.T. Appeals disposed of.

....