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Appeal from Appellate Decree No. 626 of 1948, decided on 9th February 1954, against the Decree of B. N. Roy, Additional District judge, 2nd Court, Dacca, dated 9th October 1947 in Title Appeal No. 194 of 1947, affirming the Decree of Amal Krishna D. Munsif, 2nd Court, Manikganj, dated 29th March, 1947.

Article 91‑Person not challenging an instrument but only seeking to avoid legal effect of a fraudulent insertion in it‑Article 91 whether applicable.

Where a person did not challenge in any way a particular deed but was only seeking to avoid the legal effect of a fraudulent insertion in it; the principle laid down in Article 91 of Limitation Act will not apply.

For the application of Article 91, Limitation Act there must be all instrument which is required to be set aside. If an instrument is void, the executants is not prevented from pleading that it does not affect his right, even though the time limited by the Article has expired ; nor does this Article apply where the plaintiff does not challenge the validity of transac tion or of the deed but attacks a particular portion of it as being a nullity.

Rani Janki Kunwar v. Raja Ajit Sing 14 I A 148, Raja Rajeswara Dorai alias Muthu Ramalinga Dorai v. K. L. A. R. R. M. Arunachellan Chettiar I L R 38 Mad. 321 distinguished.

Jafri Begam and another v. Syed Ali Raza 28 I A III followed.

Harihar Ojha v. Dasarathi Misra I L R 33 Cal. 257 dissented from.

F. K. M. Abdul Munim for Appellant.

A. F. M. Mesbahuddin for Respondent.

‑This appeal has been brought by the defen dant. The only point raised by him in this Court is 'one of limitation.

The facts relevant to this question are short and simple and are not disputed in this Court. The defendant is the sister s son of the plaintiff. In 1939 there was an exchange of some lands between them. The plaintiff gave him her share in plot No. 221 and received in return plots Nos. 1636 and 1642 from him. The exchange was effected by two deeds of gift executed by them in favour of each other. The defendant was in charge of preparation of the deeds. Taking advantage of his position, he fraudulently inserted two more plots of the plaintiff in the deed executed by her. These plots are Nos. 230 and 546. The plaintiff, who was unaware of this fraudulent insertion, continued in possession, and when, sometime after, she came to know of it, she instituted a Criminal case which was compromised and the plaintiff remained in possession of these two plots as before. In 1351 B. S. the defendant dispossessed her from plot No. 546, and she thereupon instituted this suit for recovery of possession on declaration of her title. The date of institution was beyond three years from the time when she came to know of the fraudulent insertion.

The defendant's contention is that the suit is barred by Article 91 of the Limitation Act. The limitation to cancel or set aside an instrument under this Article is three Years from the time when the facts entitling the plaintiff to have the instrument cancelled or set aside become 'Known to him. The defendant's argument is that the plaintiff cannot get relief ill this suit without setting aside the deed of gift executed by her, and that the time for setting aside the deed having expired, the plaintiff cannot maintain this suit.

Mr. Munim, the learned Advocate for the defendant appellant has referred, in support of tills contention, to Rani Janki Kunwar v. Raja Ajit Sing (14 I A 148,) and Raja Rajeswara Dorui alias Muthu Ramalinga Dorai v. K. L. A. R. R. M. Aruna chellan Chettiar (I L R 38 Mad. 321) which followed the first‑mentioned case. In both the cases the suit was for recovery of possession of lands which had been conveyed by registered deeds. In the first case the deed was attacked on the ground of mental incompetence of the executant, undue influence and uncons cionable bargain. In the second case it was alleged that the deeds were obtained by undue influence. It was held in both the cases that the suits were barred under Article 91. The principle deducible from these two decisions is that a suit for cancellation of an invalid instrument is governed by Article 91, There can indeed be no dispute that if a person seeks relief against an instrument executed by him on the loround that it is invalid, he must first set aside the deed within the period of limitation laid down in this Article ; but the plaintiffs' case here is not that the deed of gift executed by leer is invalid. The deed was acted upon and the lands were exchanged according to the agreement, and they are in possession of the same, respec tively. The plaintiff was never interested in setting aside the deed of gift. Her case is that the wrongful insertion of the suit, lands in the deed of gift does not affect her right. She is in no sense challenging the deed of gift; but is seeking to avoid the legal effect of the fraudulent insertion.

This case must be decided on the principle applied in Jafri Begam and another v. Syed Ali Raza (28 I A III). There the plaintiff sued for relief under an award, but stated in the plaint that the fifth clause of it was ultra vales and invalid inasmuch as it was entered after the arbitrator had made his award. It was contended that the suit was barred by Article 91. Their Lordships of the Privy Council said that "A plaintiff who contends that an arbitrator has no power to make an unauthorized addition to on award already made and sought to be enforced by him is not in any sense seeking to cancel or set aside the award".

Mr. Munim referred to an observation of Woodroffe, J, in Harihar Ojha v. Dasarathi Misra (I L R 33 Cal. 257) : "When a person seeks to recover property against an instrument executed by himself or one under whom he claims he must first obtain the cancellation of the instrument, and the three years' rule enacted by Article 91 applies to any suit brought by such person". With due respect, I must say that the law was too broadly stated by his Lordship. In order that this Article may apply, there must be an instrument which is required to be set aside. A void instrument has no existence in law and does not require to be set aside. If an instrument is void, this Article does not prevent the executant from pleading that it does not affect his right, even though the time limited by the Article has expired; nor does this Article apply where the plaintiff does not challenge the validity of the transaction or of the deed but attacks a particular portion of it as being a nullity.

The defendant's contention, therefore, fails. The appeal is dismissed with costs.

Leave to appeal under clause 15 of the Letters Patent is asked for but refused.

K. B. A. Appeal dismissed.

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