HUSSAIN AHMED CHOUDHURY & ORS.versusHABIBUR RAHMAN (DEAD) THROUGH LRS & ORS.

                 [2025] 4 S.C.R. 2320 : 2025 INSC 553

               Hussain Ahmed Choudhury & Ors.
                              v.
           Habibur Rahman (Dead) Through LRs & Ors.
                        (Civil Appeal No. 5470 of 2025)
                                   23 April 2025
              [J.B. Pardiwala* and R. Mahadevan, JJ.]


                             Issue for 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.

                                    Headnotes†
       Specific Relief Act, 1963 – ss.31 and 34 – 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 T.S. No. 88/1997 came to be allowed in
       favour of the plaintiff by the Trial Court – First Appellate
       Court vide two different judgments, both dated 17.06.2006,
       affirmed the findings of the Trial Court – However, the High
       Court 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 – Correctness:
       Held: 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 u/s.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 – 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 factors as to

* Author
[2025] 4 S.C.R.                                                               2321

                 Hussain Ahmed Choudhury & Ors. v.
              Habibur Rahman (Dead) Through LRs & Ors.

     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 – 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. [Paras 34-36]

     Specific Relief Act, 1963 – s.34 – Discretion of court as to
     declaration of status or right – Examination of s.34:
     Held: 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’. [Para 26]

     Specific Relief Act, 1963 – s.34 – Object of the proviso to s.34:
     Held: The object of the proviso to s.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 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. [Para 27]
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    Specific Relief Act, 1963 – s.34 – Words used in proviso to
    s.34 are “further relief” and “no other relief”:
    Held: The words used in proviso to s.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 s.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. [Para 28]

                              Case Law Cited
    Sk. Golam Lalchand v. Nandu Lal Shaw & Ors., 2024 SCC OnLine
    SC 2456; Ram Rattan v. State of U.P. [1977] 2 SCR 232 : (1977) 1
    SCC 188; Deccan Paper Mills Company Limited v. Regency Mahavir
    Properties and Others [2020] 13 SCR 427 : (2021) 4 SCC 786;
    Suhrid Singh alias Sardool Singh v. Randhir Singh & Ors. [2010] 3
    SCR 1121 : (2010) 12 SCC 112; Supreme General Films Exchange
    Ltd. v. His Highness Maharaja Sir Brijnath Singhji Deo of Maihar
    and Ors. [1976] 1 SCR 237 : (1975) 2 SCC 530 – referred to.
    Mohd. Noorul Hoda v. Bibi Raifunnisa [1995] Supp. 6 SCR 110 :
    (1996) 7 SCC 767; Abdul Rahim & Ors v. Sk. Abdul Zabar & Ors.
    [2009] 4 SCR 32 : (2009) 6 SCC 160 – held inapplicable.
    Muppudathi Pillai v. Krishnaswami Pillai, 1959 SCC OnLine Mad 5;
    Unni v. Kunchi Amma, 1890 SCC OnLine Mad 5; Vellayya Konar
    (Died) & Anr. v. Ramaswami Konar & Anr., 1939 SCC OnLine
    Mad 149 – referred to.
    Bijoy Gopal Mukerji v. Krishna Mahishi Debi, 1907 SCC OnLine
    PC 1 – referred to.

                                 List of Acts
    Specific Relief Act, 1963.
[2025] 4 S.C.R.                                                               2323

                 Hussain Ahmed Choudhury & Ors. v.
              Habibur Rahman (Dead) Through LRs & Ors.

                              List of Keywords
     Suit; Declaration of title; Valid Gift Deed; Cancellation of sale deed;
     Possession; Confirmation of possession; Injunction; Consequential
     relief of cancellation of the sale deed; Section 34 of Specific Relief
     Act, 1963; Proviso to section 34 of Specific Relief Act, 1963; Further
     relief; No other relief.

                             Case Arising From
     CIVIL APPELLATE JURISDICTION: Civil Appeal No. 5470
     of 2025
     From the Judgment and Order dated 09.10.2015 of the Gauhati
     High Court in RSA No. 3 and 11 of 2007

                          Appearances for Parties
     Advs. for the Appellants:
     Parthiv K. Goswami, Sr. Adv., Ms. Diksha Rai, Ms. Atiga Singh,
     Ms. Apurva Sachdev, Piyush Vyas, Ms. Purvat Wali, Abhishek Jaiswal.
     Adv. for the Respondents:
     Avijit Roy.

                Judgment / Order of the Supreme Court

                                  Judgment

     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.
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                           Supreme Court Reports


     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
            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.
     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
[2025] 4 S.C.R.                                                              2325

                 Hussain Ahmed Choudhury & Ors. v.
              Habibur Rahman (Dead) Through LRs & Ors.

                     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-
                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.”
2326                                                        [2025] 4 S.C.R.

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    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.
    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
[2025] 4 S.C.R.                                                          2327

                 Hussain Ahmed Choudhury & Ors. v.
              Habibur Rahman (Dead) Through LRs & Ors.

                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 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
                that Dag No. 174 of 2nd R.S. Patia No. 7 and Dag
                No, 175 of 2nd 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
2328                                                          [2025] 4 S.C.R.

                        Supreme Court Reports


          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.
    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.
[2025] 4 S.C.R.                                                            2329

                 Hussain Ahmed Choudhury & Ors. v.
              Habibur Rahman (Dead) Through LRs & Ors.

                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
                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, 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
2330                                                         [2025] 4 S.C.R.

                         Supreme Court Reports


     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:
          “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)
[2025] 4 S.C.R.                                                          2331

                 Hussain Ahmed Choudhury & Ors. v.
              Habibur Rahman (Dead) Through LRs & Ors.

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.

     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.
13. The counsel further submitted that under the Specific Relief Act,
    1963, (for short, “the Act, 1963”) the aggrieved can seek cancellation
2332                                                          [2025] 4 S.C.R.

                          Supreme Court Reports


     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
    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.
[2025] 4 S.C.R.                                                             2333

                 Hussain Ahmed Choudhury & Ors. v.
              Habibur Rahman (Dead) Through LRs & Ors.

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.

     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.”
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
2334                                                         [2025] 4 S.C.R.

                         Supreme Court Reports


          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 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
[2025] 4 S.C.R.                                                              2335

                 Hussain Ahmed Choudhury & Ors. v.
              Habibur Rahman (Dead) Through LRs & Ors.

           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 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
2336                                                  [2025] 4 S.C.R.

                 Supreme Court Reports


        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
        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
[2025] 4 S.C.R.                                                             2337

                 Hussain Ahmed Choudhury & Ors. v.
              Habibur Rahman (Dead) Through LRs & Ors.

                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 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
2338                                                       [2025] 4 S.C.R.

                        Supreme Court Reports


          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
          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
[2025] 4 S.C.R.                                                          2339

                 Hussain Ahmed Choudhury & Ors. v.
              Habibur Rahman (Dead) Through LRs & Ors.

     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 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
2340                                                       [2025] 4 S.C.R.

                         Supreme Court Reports


     being enforced by the court and such relief should be necessary to
     make the 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 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
[2025] 4 S.C.R.                                                              2341

                 Hussain Ahmed Choudhury & Ors. v.
              Habibur Rahman (Dead) Through LRs & Ors.

     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
    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
2342                                                        [2025] 4 S.C.R.

                         Supreme Court Reports


          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:
          “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
[2025] 4 S.C.R.                                                        2343

                 Hussain Ahmed Choudhury & Ors. v.
              Habibur Rahman (Dead) Through LRs & Ors.

     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 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
    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
2344                                                         [2025] 4 S.C.R.

                         Supreme Court Reports


     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.
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
[2025] 4 S.C.R.                                                       2345

                 Hussain Ahmed Choudhury & Ors. v.
              Habibur Rahman (Dead) Through LRs & Ors.

           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 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 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
2346                                                    [2025] 4 S.C.R.

                            Supreme Court Reports


     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.

     Result of the case: Appeal allowed.




     †
         Headnotes prepared by: Ankit Gyan