Supreme Court of India
RAJEEV GUPTA & ORS.versusPRASHANT GARG & ORS.
- Citation
- 2025 INSC 552
- Decided
- 23 April 2025
- Disposal
- Appeal(s) allowed
- Bench
- DIPANKAR DATTA
Holding
The Supreme Court held that the suit was time‑barred, the sale deeds were not void, the will was not proved, and the first appellate court lacked jurisdiction to grant relief without a declaration, thereby restoring the trial court’s dismissal.
Summary
The plaintiffs, heirs of Dr. Karam Chand, sued the appellants for cancellation of two 1992 sale deeds and recovery of possession of a family house, alleging that the deeds were void because the vendor, Ramesh Chand, had no title and that a will favouring the plaintiffs had been admitted in earlier suits. The trial court dismissed the suit on limitation grounds, but the first appellate court reversed the decision and the High Court upheld that reversal. The Supreme Court held that the suit was barred by the three‑year limitation period applicable to cancellation of documents, that the sale deeds were not void merely because an injunction was in force, that the will was not proved as required by the Evidence Act, and that the first appellate court erred in granting relief without a declaration. Consequently, the Court restored the trial court’s dismissal and allowed the appeal.
Issues considered
- Whether the suit for cancellation of sale deeds and recovery of possession was barred by limitation under the Limitation Act, 1963.
- Whether the sale deeds executed by Ramesh Chand were void documents under the Transfer of Property Act, 1882.
- Whether the will of the common ancestor was deemed admitted in earlier suits and thus no longer required to be proved.
- Whether the first appellate court could decree relief of possession without a declaration or cancellation of the sale deeds.
- Whether the appellants are entitled to protection as bona fide purchasers under Section 41 of the Transfer of Property Act.
Legislation cited
- Code of Civil Procedure, 1908s. Order 6 Rule 17, s. Sec.96
- Evidence Act, 1882s. Sec.65(c), s. Sec.68, s. Sec.90, s. Sec.90A
- Limitation Act, 1963s. Art.113, s. Art.58, s. Art.59, s. Art.65
- Transfer of Property Act, 1882s. Sec.41, s. Sec.52, s. Sec.54
Headnote
Issue for Consideration Issue arose whether the suit was barred by limitation; whether the sale deeds were void documents; whether the Will stood admitted in the previous suits and was no longer required to be proved; whether the First Appellate Court was right in decreeing the suit without the of declaration/cancellation. Headnotes† Limitation Act, 1963 – Arts.58, 59 and 65 – Transfer of Property Act, 1882 – ss.54, 41 – Suit for cancellation of sale deed and recovery of possession – Limitation period – Will allegedly executed by the common
Subjects
WillSale deeds duly registeredCancellation of the sale deedsLimitationComposite suitBarred by limitationRight to sue first accruesBona fide purchaser for valueRequirement of proof of a WillDeclaration of title and consequential relief of injunctionRelief of declaration/cancellationSuit for cancellation of sale deed and recovery of possessionLimitation periodSale deeds, void documentMeaning of the word “first” under the column ‘Time from which period begins to run’ in Arts.58 and 59 of the Limitation Act, 1963
Judgment
[2025] 4 S.C.R. 2364 : 2025 INSC 552
Rajeev Gupta & Ors.
v.
Prashant Garg & Ors.
(Civil Appeal No. 11061 of 2024)
23 April 2025
[Dipankar Dutta* and Prashant Kumar Mishra, JJ.]
Issue for Consideration
Issue arose whether the suit was barred by limitation; whether the
sale deeds were void documents; whether the Will stood admitted
in the previous suits and was no longer required to be proved;
whether the First Appellate Court was right in decreeing the suit
without the plaintiffs seeking relief of declaration/cancellation.
Headnotes†
Limitation Act, 1963 – Arts.58, 59 and 65 – Transfer of Property
Act, 1882 – ss.54, 41 – Suit for cancellation of sale deed and
recovery of possession – Limitation period – Will allegedly
executed by the common ancestor of the parties, bequeathing
suit property in favour of his two sons-I and Dr.K, and third
son was bequeathed business of pharmacy – Thereafter, a
family settlement in 1956, the names of wife of I and the third
son mutated in respect of the suit property, with remaining
properties being allotted to Dr.K – Rounds of litigation between
the family members qua ownership of the suit property –
Ultimately, Dr.K’s absolute right over the eastern portion of
the suit property was accepted, third son was permitted to
remain in possession thereof – Two sale deeds duly registered
(qua the eastern and southern portions of the suit property)
executed by the third son in favour of the appellants in 1992 –
Thereafter, suit filed by Dr.K and his son (plaintiffs) against
the appellants seeking cancellation of the sale deeds and
possession of the suit property – Subsequently, the plaint
amended whereby new relief added to the effect that the suit
is based on title, and recovery of possession is sought on
the basis of title and by way of abundant precaution plaintiff
seeks relief of cancellation – Trial Court dismissed the suit –
First Appellate court allowed the suit and granted the reliefs
* Author
[2025] 4 S.C.R. 2365
Rajeev Gupta & Ors. v. Prashant Garg & Ors.
sought for – High Court dismissed the second appeal filed
by the appellants – Appeal before this Court, wherein issue
arose whether the suit was barred by limitation; whether the
sale deeds were void documents; whether the Will stood
admitted in the previous suits and was no longer required
to be proved; and whether the First Appellate Court right
in decreeing the suit without the plaintiffs seeking relief of
declaration/cancellation:
Held: Subject suit of the plaintiffs could not have succeeded –
Trial court, was right in dismissing the suit – Impugned second
appellate judgment and decree of the High Court and the first
appellate judgment and decree of the first appellate court, both
set aside and that of the trial court restored, dismissing the subject
suit – As regards limitation, the limitation period would have to be
adjudged from the primary relief of cancellation which is 3 (three)
years, and not the ancillary relief of possession which is 12 (twelve)
years – Limitation period prescribed for suits seeking cancellation
of documents being 3 (three) years, despite the cause of action
having arisen in 1992, the plaintiffs chose to institute the suit 11
(eleven) years later, the suit of the plaintiffs having been instituted in
2003, was hopelessly barred by limitation and s.3 of the Limitation
Act essentially entails its dismissal – Appellants had been put in
possession of the suit property in furtherance of the sale deeds
executed by and between third son and the former after the same
were registered – Hence, suit seeking declaration of status or right
simplicitor would not have sufficed for the plaintiffs since admittedly,
they were required to seek further relief – Composite suit seeking
cancellation, recovery of possession and injunction is what was
required to be instituted, as distinguished from a suit seeking only
recovery of possession – Thus, cancellation was the primary relief
in the circumstances with recovery of possession being the ancillary
relief – Plaintiffs did have knowledge-constructive as well as actual
during the pendency of the second suit or soon thereafter of transfer
of the suit property in favour of the appellants effected by the third
son by way of execution of the sale deeds – It is from such date of
knowledge in June, 1992 that the said transfer effectively did invade
or jeopardize the plaintiffs’ interest in respect of the suit property –
As regards sale deeds being void documents, submission of the
plaintiffs that the third son had no right in the property, and being
devoid of any ownership rights, was in no position to transfer title
of the same to the appellants, and the sale deeds having been
2366 [2025] 4 S.C.R.
Supreme Court Reports
executed when an ad-interim injunction order was in operation,
the bar in s.52 of the ToP Act would render the sale deeds void ab
initio, cannot be accepted – Appellants submission that third son
having been portrayed to the world at large as owner, the plaintiffs
could not emerge from out of the woodwork to claim a secret title
accepted – High Court’s finding that the sale deeds would be
rendered void solely on account of the operation of an injunction
order has necessarily to be set aside – s.52 of the ToP Act does
not ipso facto render a sale transaction as inoperative, it merely
subjects it to the outcome of the pending proceedings – Transfer,
subject to the result of the suit, could remain valid – There being
no proof that the appellants had knowledge of this injunction order,
the transaction could not have been declared void ab initio – Thus,
the appellants would have be held to be bona fide purchaser for
value and, thus, entitled to the benefit of s.41 of the ToP Act –
As regards whether the Will stood admitted in the previous suits
and was no longer required to be proved, the requirement of
proof of a Will in accordance with s.68 is not done away with,
even if the Will is not disputed by the opposite party – In light
of the vague descriptions about the WILL, it is difficult to accept
that there was deemed admission due to non-denial in the first
place – Plaintiffs were specifically put on notice by the appellants
that they were disputing the WILL – Burden was on the plaintiffs
to prove the WILL – List of documents sought to be relied on by
the plaintiffs included certified copy of the registered Will of the
father but there was no pleading in the plaint as to whether the
WILL was lost or misplaced – Certified copy was only sought to be
produced – First appellate court proceeded on the basis that the
WILL was accepted by the parties to the first and the second suit
and, thus, res judicata applied without, however, realising that the
appellants were not parties to any of those two suits and neither
was there any occasion for them to be bound by any admission
or acceptance of the WILL by their predecessor-in-interest nor did
the appellants ever make any such admission – Thus, the plaintiffs’
title to the suit property could not have been traced to the WILL
of the testator – As regards whether the First Appellate Court was
right in decreeing the suit without the plaintiffs seeking relief of
declaration/cancellation, the first appellate court acted illegally in
the exercise of its jurisdiction in granting relief to the plaintiffs by
passing a decree for recovery of possession without there being
any decree for declaration of rights/cancellation of deeds – At the
stage of exercise of jurisdiction by the appellate court u/s.96 CPC,
[2025] 4 S.C.R. 2367
Rajeev Gupta & Ors. v. Prashant Garg & Ors.
the plaint in the form it was there before such court was incurably
defective and no relief could have been granted to the plaintiffs.
[Paras 32-69]
Limitation Act, 1963 – Art.58 and 59 – Meaning of the word
“first” under the column ‘Time from which period begins
to run’ in Articles 58 and 59 – Interpretation – Explained.
[Paras 30-31]
Case Law Cited
Khatri Hotels (P) Ltd. v. Union of India [2011] 15 SCR 299 : (2011)
9 SCC 126; G.T. Girish v. Y. Subba Raju [2022] 8 SCR 991 : (2022)
12 SCC 321; Anathula Sudhakar v. P. Buchi Reddy [2008] 5 SCR
331 : (2008) 4 SCC 594; Rukhmabai v. Lala Laxminarayan [1960]
2 SCR 253 : AIR 1960 SC 335; Shakti Bhog Food Industries
Ltd. v. Central Bank of India [2020] 6 SCR 538 : (2020) 17 SCC
260; Union of India v. West Coast Paper Mills Ltd. [2004] 2 SCR
145 : (2004) 2 SCC 247; Madhukar Vishwanath v. Madhao (1999)
9 SCC 446; L.C. Hanumanthappa v. H.B. Shivakumar [2015] 9
SCR 651 : (2016) 1 SCC 332; Rajpal Singh v. Saroj [2022] 19
SCR 202 : (2022) 15 SCC 260; Ramesh Verma v. Lajesh Saxena
[2016] 11 SCR 210 : (2017) 1 SCC 257; Benga Behera v. Braja
Kishore Nanda [2007] 6 SCR 853 : (2007) 9 SCC 728; Jagmail
Singh v. Karamjit Singh [2020] 4 SCR 1163 : (2020) 5 SCC 178;
Sopanrao v. Syed Mehmood [2019] 9 SCR 37 : (2019) 7 SCC
76 – referred to.
List of Acts
Evidence Act, 1882; Limitation Act, 1963; Transfer of Property Act,
1882; Code of Civil Procedure, 1908.
List of Keywords
Will; Sale deeds duly registered; Cancellation of the sale deeds;
Limitation; Composite suit; Barred by limitation; Right to sue first
accrues; Bona fide purchaser for value; Requirement of proof of
a Will; Declaration of title and consequential relief of injunction;
Relief of declaration/cancellation; Suit for cancellation of sale deed
and recovery of possession; Limitation period; Sale deeds, void
document; Meaning of the word “first” under the column ‘Time
from which period begins to run’ in Arts.58 and 59 of the Limitation
Act, 1963.
2368 [2025] 4 S.C.R.
Supreme Court Reports
Case Arising From
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 11061
of 2024
From the Judgment and Order dated 21.09.2021 of the High Court
of Judicature at Allahabad in SA No. 426 of 2017
Appearances for Parties
Advs. for the Appellants:
Kavin Gulati, Sr. Adv., Rohit Amit Sthalekar, Pramod Dayal, Nikunj
Dayal, Rakesh Kumar.
Advs. for the Respondents:
Santosh Kumar, Ms. Dharitry Phookan, Ms. Sangeeta Vazirani,
Ms. Lanutula K.
Judgment / Order of the Supreme Court
Judgment
Dipankar Dutta, J.
The Appeal
1. This appeal, by special leave, is at the instance of the second to
fifth defendants1 in a suit for cancellation of sale deeds, recovery of
possession and injunction. The appellants mount a challenge to the
judgment and decree dated 21st September, 2021 of the High Court
of Judicature at Allahabad2, dismissing their second appeal under
Section 100 of the Code of Civil Procedure, 19083. In such appeal,
the first appellate judgment and decree was under challenge which
reversed the decree of the trial court of dismissal of the civil suit
instituted by the respondent 1.
Resume of Facts
2. The factual conspectus of the case, to the extent relevant for
adjudication of the present lis, is set out below:
1 appellants, hereafter
2 High Court, hereafter
3 CPC, hereafter
[2025] 4 S.C.R. 2369
Rajeev Gupta & Ors. v. Prashant Garg & Ors.
i) The common ancestor of the parties, Dr. Babu Ram Garg,
allegedly executed a will dated 17th October, 19514, bequeathing
House No. 49/1, Nai Mandi, Muzaffarnagar5 in favour of his
two sons - Ishwar Chand and Dr. Karam Chand. The third son,
i.e., Ramesh Chand was not given a share in the suit property;
instead, he was bequeathed the business of a pharmacy and
a sum of Rs 5,000/- (Rupees five thousand only). The suit
property was a two storeyed building, with shops being run in
part / portion of the ground floor.
ii) The genealogical chart of the family is reproduced below for
the sake of convenience:
iii) In the year 1956, a family settlement was entered into by the
parties concerned in terms whereof the names of Leelawati and
Ramesh Chand were mutated in respect of the suit property,
with the remaining properties being allotted to Dr. Karam Chand.
iv) After the death of Ishwar Chand in 1984, a civil suit6 was filed
by his wife Leelawati against Ramesh Chand, praying that she
be declared the owner of the western portion of the suit property
admeasuring 48 ft x 83 ft 6 inches, leaving the eastern portion of
the house, admeasuring 96 ft 6 inches x 48 ft for Ramesh Chand.
The said suit stood decreed on 30th May, 1987 by compromise.
v) Litigation inter se the family members did not end with the
first suit being decreed on compromise. The same continued
with Dr. Karam Chand instituting a suit7 against his brother
Ramesh Chand as well as the heirs of late Ishwar Chand,
4 WILL, hereafter
5 suit property, hereafter
6 Original Suit No. 307/1987, referred to as the “first suit” hereafter
7 Original Suit No. 458/1992, referred to as the “second suit” hereafter
2370 [2025] 4 S.C.R.
Supreme Court Reports
whereby permanent injunction was sought restraining them from
alienating the suit property. An ex-parte ad-interim injunction
was granted vide order dated 15th June, 1992 as regards the
suit property. Such order does not seem to have been served
upon Ramesh Chand or Ishwar Chand’s heirs.
vi) During the pendency of the second suit, on 16th June, 1992 and
29th June, 1992 to be precise, two sale deeds were executed qua
the southern and eastern portion of the suit property by Ramesh
Chand, in favour of the appellants for a total consideration of
Rs 80,000/- (Rupees Eighty thousand only). The deeds were
duly registered, and entered in the relevant book (Book No.1)
on 17th June, 1992 and 30th June, 1992, respectively. It is
material to note that the appellants were not wholly unknown
to the family; they resided in the building immediately to the
south of the suit property.
vii) During the pendency of the second suit instituted by Dr. Karam
Chand, again a compromise was arrived at between Dr. Karam
Chand and Ishwar Chand’s heirs on 28th September, 1992. In
terms thereof, Dr. Karam Chand relinquished his rights in respect
of the western portion of the house which had continuously
been in the possession of Ishwar Chand’s family.
viii) In yet another seemingly filial turn of events, the second suit was
finally compromised between Dr. Karam Chand and Ramesh
Chand. Dr. Karam Chand’s absolute rights over the eastern
portion of the suit property having been accepted, Ramesh
Chand was permitted to remain in possession thereof. In view
of the latter’s unemployment, he was allowed to use part of the
rental receipts from the shops to support his family, with the
remainder being given to Dr. Karam Chand. Lastly, the revenue
records were to be mutated to insert Dr. Karam Chand’s name.
ix) It is the appellants’ claim that this compromise was never
acted upon, which is evinced by the fact that as agreed upon
in the compromise, mutation in the revenue entries was never
carried out.
x) In 1997, however, a mutation did occur in the revenue records.
This was carried out in favour of the appellants.
xi) Ramesh Chand left for his heavenly abode in 2002.
[2025] 4 S.C.R. 2371
Rajeev Gupta & Ors. v. Prashant Garg & Ors.
3. This factual background set the stage for the commencement of
the third round of legal proceedings, out of which this civil appeal
has arisen.
4. As late as on 25th February, 2003, Dr. Karam Chand (since deceased)
along with his son8 instituted a suit9 against the appellants, their
mother (the first defendant) (since deceased), the other heirs of Dr.
Karam Chand, and the heirs of Ramesh Chand seeking, inter alia,
the following relief:
“A. That the sale deed dated 16.06.1992 executed by
Shri Ramesh Chand favoring Smt. Meena Kumari etc.
at Rs.80,000/- whose registry has been done on date
17.06.1992 in Book No.1 Section 440 at Page No.347/360
at Serial No.4215 and dated 29.06.1992 executed by
Shri Ramesh Chand favoring Smt. Meena Kumari etc.
at Rs.80,000/- the registry of which has been done in
Book No.1 at Section 3317/3485 at Page No.350/408 at
Serial No.5179 on date 30.06.1992 and whose details
have been given at the end of the plaint and which are
in respect of House No.49B, Nai Mandi, Muzaffarnagar,
should be cancelled and possession be given to Plaintiff
No.2 from the Defendant No.1 to 5 and the intimation of
cancellation of the sale deeds be sent to the office of Sub-
Registrar, Registry, Muzaffarnagar. In case the Hon’ble
Court considers that the relief cannot be granted only in
favour of the Plaintiff No.2 then the relief may be granted
in favour of the Plaintiff No.2 and Defendant No.8 and 9.
B. That the Defendants should be restrained by way of
injunction order that the property built in A B C D as shown
in map plaint in which on the ground floor Defendant No.
6 and 7 are in possession over some portion should not
execute the sale deed in favour of Defendant No.1 to 5
or in favour of any other person or in any other manner
should not put the Defendant No.1 to 5 or any other person
into the possession over the property of occupancy by
oneself or on any other portion.
8 plaintiffs, hereafter
9 Original Suit No. 117/2003, referred to as the “subject suit” hereafter
2372 [2025] 4 S.C.R.
Supreme Court Reports
C. That the total cost of the suit be directed to be paid by
the defendants to the Plaintiff No. 2.
D. That any other or further order which this Hon’ble Court
may deem fit and proper in the facts and circumstances
of the case may be passed in favour of the Plaintiff No.2
and against the Defendants.”
5. The plaintiffs had applied for amendment of the plaint by filing an
application under Order 6 Rule 17, CPC. They intended to insert
paragraph 13A, after paragraph 13, reading as follows:
“13A: - That the suit is based on title and the suit has
been filed for recovery of possession based on title and
the ground in the plaint is that through the two sale deeds
dated 16.06.1992 and 29.06.1992 which are executed
by Ramesh Chand Garg in favour of Defendant No. 1 to
5 no title has been transferred to Defendant No. 1 to 5
or any one of them. Ramesh Chand Garg had no title in
the said property to which those two sale deeds relate.
Plaintiff by way of abundant precaution also seeks the
relief of cancellation of sale deeds in the suit but which is
not required under the law. Dr. Karam Chand Garg is not
a party in both the sale deeds and Ramesh Chand Garg
had no title in the property.”
6. The order passed on such prayer for amendment by the trial court
is reproduced hereunder:
“From the proposed amendment in the Plaint the nature
of the suit is not changed and nor any irreparable loss is
to be caused to the Defendants at all. The condonation of
delay may be compensated through the costs. Hence the
amendment application is liable to be accepted with costs.”
7. The amendment, though innocuous, was applied with a definite
purpose in mind, which will unfold as the discussion goes ahead.
8. In the subject suit, a compromise was eventually arrived at between
the plaintiffs and Ramesh Chand’s legal heirs on 28th January, 2008.
The latter accepted execution of the WILL by the common ancestor,
thus, consequently accepting that they had no right or title in the
suit property. It was accepted that Ramesh Chand was merely in
[2025] 4 S.C.R. 2373
Rajeev Gupta & Ors. v. Prashant Garg & Ors.
permissive possession and, thus, did not have the right to execute
sale deeds qua the suit property in favour of the appellants.
Verdicts of the Trial Court, the First Appellate Court and the
High Court
9. On 25th January, 2015, the subject suit was dismissed by the trial
court on the following grounds:
i) That the plaintiffs failed to prove execution of the WILL in view
of Section 68 of the Indian Evidence Act, 187210 and Section
90A thereof as amended by the State of Uttar Pradesh. It was
held that the presumption of valid execution of documents older
than 30 (thirty) years would not be attracted to those documents
which formed the basis of the subject suit. The plaintiffs’ claim
having arisen from the WILL, they failed to prove its execution
inasmuch as only a certified copy of the WILL was produced
before the trial court. Further, the plaint was found to be bereft
of the date of the execution of the WILL, nor was there any
description of the witnesses to the WILL or whether they were
alive at the time.
ii) Reliance was placed on Section 41 of the Transfer of Property
Act, 188211 to observe that ever since the death of the common
ancestor, the plaintiffs had allowed Ramesh Chand to reside
in the suit property, allowed his name to be mutated in the
revenue records and collected rent from the shopkeepers, thus,
effectively portraying Ramesh Chand as the owner. In such
circumstances, the plaintiffs could not appear out of the blue as
the actual owners so as to challenge the sale deeds by which
the appellants derived title to the suit property.
iii) With respect to the contention that the sale deeds were barred by
the doctrine of lis pendens, the trial court held that the doctrine
excepted from its ambit suits that are collusive in nature, which
the second suit was found to be. Furthermore, no objection had
been taken by the plaintiffs during the pendency of the second
suit with respect to the strangers taking possession.
10 Evidence Act, hereafter
11 ToP Act, hereafter
2374 [2025] 4 S.C.R.
Supreme Court Reports
iv) The amendment applied for by the plaintiffs, referred to above,
was ostensibly made with the purpose of getting over the bar of
limitation. If it were a suit seeking only recovery of possession,
the prescribed period of limitation would be 12 (twelve) years,
whereas for cancellation, it would be 3 (three) years. However,
the trial court did not confine itself to what the plaintiffs averred
in paragraph 13A (inserted by way of amendment) and looking
at the nature of relief claimed, placed reliance on Article 59 of
the Limitation Act, 196312 providing only a three-year limitation
period for cancellation of documents. The subject suit was
instituted only in 2003 qua sale deeds which had been executed
11 (eleven) years prior in 1992. Thus, the suit was held to be
barred by limitation.
v) Additionally, it was held that the plaintiffs had been unable to
prove their ownership of the suit property and, thus, were not
entitled to the consequential reliefs sought for.
10. Aggrieved, the plaintiffs filed a first appeal before the District Judge13.
During the pendency of this appeal, the second plaintiff had also filed
an interlocutory application, again seeking an amendment. On this
occasion, he sought to introduce in the plaint the relief of declaration
with respect to the disputed sale deeds. Given the stand taken in
paragraph 13A of the plaint that cancellation of the sale deeds had
been prayed for only as and by way of abundant caution, a completely
new relief of declaration that the sale deeds dated 16th June, 1992
and 29th June, 1992 do not affect the title of the plaintiffs to the suit
property and are not binding on them was sought by the second
plaintiff which effectively turned his said stand on its face. Surprisingly,
this application was allowed by the first appellate court vide order
dated 18th October, 2016. However, on an application made by the
appellants under Article 227 of the Constitution, the High Court set
aside the same vide its order dated 06th December, 2016.
11. The first appellate court thereafter, vide judgment dated 04th March,
2017, allowed the appeal and decreed the suit of the plaintiffs on
the following grounds:
12 Limitation Act, hereafter
13 first appellate court, hereafter
[2025] 4 S.C.R. 2375
Rajeev Gupta & Ors. v. Prashant Garg & Ors.
i) In the first suit, Ms. Leelawati relied upon the WILL which was
not contested by Ramesh Chand, thus, proving the veracity
of the WILL. Furthermore, the appellants being strangers to
the family could not question the validity of the WILL, more so
when none of the family members themselves had laid such
a challenge.
ii) The appellants traced their interest in the suit property from
Ramesh Chand, who himself had never claimed ownership of
the suit property either on the basis of the WILL or a family
settlement. Their case being that Ramesh Chand acquired
ownership through the latter, the burden to prove the same
rested on the appellants.
iii) Since Ramesh Chand was never the owner, the sale deeds
executed by him in favour of the appellants were void and,
thus, it could not affect the plaintiffs’ right to the suit property,
hence obviating the necessity to seek a declaration qua such
sale deeds. Consequently, Article 59 of the 1963 Act would not
apply, the deeds having been executed by a person who had
no right to execute them, with the plaintiffs not being a party
thereto.
iv) The sale deeds were held to be hit by the doctrine of lis pendens,
having been executed during the pendency of the second suit.
The trial court’s finding of the second suit being collusive was
set aside on the ground that the compromise arrived at in the
said suit benefitted only Ramesh Chand, and not the plaintiffs.
12. The second appeal carried by the appellants before the High Court
resulted in the judgment and decree impugned in this civil appeal.
It was held by the High Court as follows:
i) The sale deeds being void, having been hit by lis pendens,
the plaintiffs were not obliged to seek the relief of cancellation.
Further, it was Article 65 of the 1963 Act which would govern
the suit proceedings and the relief of possession having been
sought, the period of limitation prescribed therefor being 12
(twelve) years.
ii) The plaints of both the first and the second suits were examined.
In the first suit, Ms. Leelawati claimed title to the suit property
through the WILL, which suit was eventually compromised.
2376 [2025] 4 S.C.R.
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In the second suit too, it was categorically averred that the
WILL executed did not give any share in the suit property to
Ramesh Chand. This suit too was decreed on compromise, with
both parties admitting execution of the WILL. The execution
of the WILL having, thus, been proved by admission of both
the plaintiffs and the predecessor-in-interest of the appellants,
there thus arose no need to prove the WILL in the present
proceedings, the issue being barred by res-judicata.
iii) The subject suit was held to be instituted within limitation,
Article 65 of the 1963 Act being applicable since the plaintiffs
sought possession not on the basis of the cancellation of void
documents, but on the basis of title. Though there was a prayer
seeking cancellation of the documents, the benefit of the outer
limitation period of 12 (twelve) years for recovery of possession
would still accrue in favour of the plaintiffs.
iv) The compromise decree in the first suit would not bind the
plaintiffs since they were not parties to the suit. Hence, the
subject suit being decreed by the first appellate court was
confirmed.
Arguments
13. Mr. Gulati, learned senior counsel on behalf of the appellants, assailed
the impugned judgment on the following grounds:
(i) First, though the plaintiffs’ claim to title rested entirely on the
WILL, the plaint was woefully bereft of pertinent particulars with
respect to execution of the document, such as the date of its
execution, who were the attesting witnesses and whether the
WILL was registered or not. Furthermore, the original of the
WILL had not been produced before any forum in the present
proceedings, and only a certified copy of the WILL was produced,
that too 5 (five) years after the subject suit was instituted.
There was no pleading in the plaint that the original WILL had
been misplaced or lost. Thus, the courts below could not have
accepted the WILL without the plaintiffs first having proved the
loss of the original.
(ii) Secondly, though the plaint originally contained a prayer for
cancellation of the sale deeds, the same was later given up
on the premise that it was wholly unnecessary and had only
[2025] 4 S.C.R. 2377
Rajeev Gupta & Ors. v. Prashant Garg & Ors.
been made by way of abundant caution. Once such prayer
stood removed, the only prayer remaining in the suit was that
of seeking possession. However, where there lay a cloud over
the title, such a suit for bare relief of possession could not lie
and succeed.
(iii) Thirdly, the first and the second suits, which were decreed by
way of compromise, were evidently collusive suits and, thus,
constituted an exception to the doctrine of lis pendens. Further,
the validity of the execution of the WILL was not an issue that
was determined in either of the two suits, so as to constitute
res judicata in the present proceedings. Even in the subject
suit, Ramesh Chand’s daughter, i.e., the seventh defendant
had admitted in her evidence that she was paid money by the
plaintiffs to settle the subject suit, though she was also a witness
to both the sale deeds executed by her father.
(iv) Fourthly, the compromise in the second suit was recorded
only on 13th October, 1992, by which time Ramesh Chand had
already executed the two sale deeds. Having sold his share in
the subject property anterior to the compromise, Ramesh Chand
no longer had any locus to enter into the said compromise,
having transferred the entirety of his rights, title and interest
in the suit property to the appellants. Reliance was placed on
Section 18 of the Evidence Act to urge that an admission by a
person would be binding only if the person still had an interest
in the matter at the time the admission was made.
(v) Fifthly, the interim order of injunction dated 05th June, 1992 in
the second suit was never communicated to the appellants.
Though the plaint contains a bare averment with respect to such
order being within the knowledge of the appellants, no details
of the same were ever given. Furthermore, this interim order
was not produced before the trial court and was only produced
for the first time at the first appellate stage.
(vi) Sixthly, Section 41 of the ToP Act would apply to the present
proceedings, as rightly held by the trial court, since the plaintiffs
had allowed Ramesh Chand to act as the owner for all intents and
purposes to the world at large. This is evinced by the factum of
Ramesh Chand’s name being mutated in the municipal records
in respect of the eastern portion of the suit property all the way
2378 [2025] 4 S.C.R.
Supreme Court Reports
back in 1956, and that he was allowed to collect rent from the
tenants in possession of part of the suit property.
(vii) Seventhly, the second plaintiff in his cross-examination admitted
that within 10 (ten) days of purchase of the suit property, in 1992
itself, the appellants had taken possession of the suit property.
Despite the cause of action having arisen in 1992, the plaintiffs
chose to institute the suit 11 (eleven) years later in 2003. The
limitation period prescribed for suits seeking cancellation of
documents being 3 (three) years, as laid down in Article 59 of
the 1963 Act, the plaintiffs’ suit was evidently barred by limitation.
14. Mr. Gulati, resting on the aforesaid contentions, appealed that it was
a fit and proper case where the impugned second appellate judgment
and decree ought to be reversed and that of the trial court restored.
15. Mr. Kumar, learned counsel for the plaintiffs, assiduously argued
in favour of upholding of the impugned second appellate judgment
and decree, asserting that it was in accordance with law and did not
deserve interference, on the following grounds:
(a) First, the WILL of Dr. Babu Ram Garg gave all the three sons
shares of the testator’s properties, leaving none behind. As per
the document, Ramesh Chand only inherited the pharmacy
business and Rs 5000. Thus, Ramesh Chand (the vendor of
the appellants) not having been bequeathed any interest in the
suit property by his father, he could not have transferred any
portion thereof to the appellants. The plaintiffs had duly produced
a certified copy of the registered WILL on 26th February, 2003
and a certified copy was also exhibited on 06th February, 2008.
At no point in the proceedings did the appellants raise any
additional issue with respect to the WILL or non-production of
the original thereof. Thus, the issue could not be agitated for
the first time before this Court.
(b) Secondly, the WILL stood admitted by all heirs of Dr. Babu Ram
Garg with none of the legal heirs contesting the same. In view
thereof, the appellants could not have raised a challenge to
the WILL when the party through whom they traced their title,
i.e., Ramesh Chand, never contested the WILL. It was argued
that any defence that could not have been taken by the person
from whom a transferee derives his title could not be taken by
such transferee.
[2025] 4 S.C.R. 2379
Rajeev Gupta & Ors. v. Prashant Garg & Ors.
(c) Thirdly, the sale deeds executed by Ramesh Chand in favour
of the appellants were executed in violation of the ad-interim
stay order dated 05th June, 1992 passed in the second suit
and hence, were void.
(d) Fourthly, the plaint duly prayed for cancellation of sale deeds,
by way of abundant caution. The issue was duly contested by
the appellants and, thus, they cannot today claim that such
prayer was never made.
(e) Fifthly, the appellants would not get the benefit of Section 41 of
the ToP Act in the absence of any pleadings to such effect. It
was argued that there is no whisper of the alleged ostensible
ownership of Ramesh Chand in either the written statement, the
grounds of the second appeal or the present special leave petition.
The appellants could not be held entitled to the benefit of such
provision since no case was specifically made out for the same.
(f) Sixthly, without prejudice to the submission that no challenge
could have been laid to such compromise without filing an
application under Order XXIII Rule 3, CPC, it was contended
that no issue was framed in the subject suit/proceedings with
respect to the compromise decrees passed in the earlier suits
being collusive. Further, no questions or suggestions in this
regard were put to the plaintiffs’ witnesses. The compromise
decree in the second suit was, thus, valid and binding on the
appellants.
(g) Lastly, it was submitted that the main relief sought in the subject
suit was recovery of possession, the limitation period for which
is 12 (twelve) years, as prescribed in Article 65 of the Limitation
Act. The dispossession of the plaintiffs having occurred in
1992, institution of the subject suit in 2003 was well within
the period of limitation. The relief of cancellation of void sale
deeds was merely an ancillary relief, and would not disentitle
the plaintiffs to the primary relief for which the limitation period
is 12 (twelve) years.
Analysis and Reasons
16. The present proceedings involve determination of multiple legal
issues of some complexity. We would endeavour to deal with them
sequentially.
2380 [2025] 4 S.C.R.
Supreme Court Reports
I. Whether the suit was barred by limitation
17. A coordinate Bench of this Court, in its decision of Khatri Hotels
(P) Ltd. v. Union of India14, examined the position under Article
120 of the Limitation Act, 1908 vis-à-vis Article 58 of the Limitation
Act to observe that the right to sue would accrue when there was a
clear and unequivocal threat of infringement of the plaintiff’s right.
However, while the former provision simply stated that the period of
limitation commenced when the right to sue accrues, in a marked
linguistic departure, the latter provision stated that the limitation would
commence when the right to sue “first” accrued. Having observed
so, this Court held that:
“30. While enacting Article 58 of the 1963 Act, the legisla-
ture has designedly made a departure from the language
of Article 120 of the 1908 Act. The word ‘first’ has been
used between the words ‘sue’ and ‘accrued’. This would
mean that if a suit is based on multiple causes of action,
the period of limitation will begin to run from the date when
the right to sue first accrues. To put it differently, succes-
sive violation of the right will not give rise to fresh cause
and the suit will be liable to be dismissed if it is beyond
the period of limitation counted from the day when the
right to sue first accrued.”
(emphasis supplied)
18. Khatri Hotels (P) Ltd. (supra) noticed the decision of a three-Judge
Bench in Rukhmabai v. Lala Laxminarayan15 wherein the legal
position was stated thus:
“34. The legal position may be briefly stated thus : The right
to sue under Article 120 of the Limitation Act accrues when
the defendant has clearly and unequivocally threatened to
infringe the right asserted by the plaintiff in the suit. Every
threat by a party to such a right, however ineffective and
innocuous it may be, cannot be considered to be a clear
and unequivocal threat so as to compel him to file a suit.
Whether a particular threat gives rise to a compulsory
14 (2011) 9 SCC 126
15 AIR 1960 SC 335
[2025] 4 S.C.R. 2381
Rajeev Gupta & Ors. v. Prashant Garg & Ors.
cause of action depends upon the question whether that
threat effectively invades or jeopardizes the said right.”
(emphasis supplied)
19. Khatri Hotels Pvt. Ltd. (supra) was noticed and applied by a bench
of three-Judges in Shakti Bhog Food Industries Ltd. v. Central
Bank of India16, although in the context of Order VII Rule 11, CPC.
It was held thus:
“17. The expression used in Article 113 of the 1963 Act is
‘when the right to sue accrues’, which is markedly distinct
from the expression used in other Articles in First Division
of the Schedule dealing with suits, which unambiguously
refer to the happening of a specified event. Whereas,
Article 113 being a residuary clause and which has been
invoked by all the three courts in this case, does not specify
happening of particular event as such, but merely refers
to the accrual of cause of action on the basis of which the
right to sue would accrue.
18. Concededly, the expression used in Article 113 is
distinct from the expressions used in other Articles in the
First Division dealing with suits such as Article 58 (when
the right to sue ‘first’ accrues), Article 59 (when the facts
entitling the plaintiff to have the instrument or decree
cancelled or set aside or the contract rescinded ‘first’
become known to him) and Article 104 (when the plaintiff is
‘first’ refused the enjoyment of the right). The view taken by
the trial court, which commended to the first appellate court
and the High Court in the second appeal, would inevitably
entail in reading the expression in Article 113 as — when
the right to sue (first) accrues. This would be rewriting of
that provision and doing violence to the legislative intent.
We must assume that Parliament was conscious of the
distinction between the provisions referred to above and
had advisedly used generic expression ‘when the right to
sue accrues’ in Article 113 of the 1963 Act. Inasmuch as,
it would also cover cases falling under Section 22 of the
1963 Act, to wit, continuing breaches and torts.”
16 (2020) 17 SCC 260
2382 [2025] 4 S.C.R.
Supreme Court Reports
20. Shakti Bhog Food Industries Ltd. (supra) also noticed the earlier
three-Judge bench decision in Union of India v. West Coast Paper
Mills Ltd.17. There, the distinction between Article 58 and Article 113
of the Limitation Act was noticed and delineated as under:
“21. A distinction furthermore, which is required to be
noticed is that whereas in terms of Article 58 the period
of three years is to be counted from the date when ‘the
right to sue first accrues’, in terms of Article 113 thereof,
the period of limitation would be counted from the date
‘when the right to sue accrues’. The distinction between
Article 58 and Article 113 is, thus, apparent inasmuch as
the right to sue may accrue to a suitor in a given case
at different points of time and, thus, whereas in terms of
Article 58 the period of limitation would be reckoned from
the date on which the cause of action arose first, in the
latter the period of limitation would be differently computed
depending upon the last day when the cause of action
therefor arose.”
21. One other three-Judge bench decision of this Court is Madhukar
Vishwanath v. Madhao18, wherein the question arising for decision
was whether a suit filed by a minor, 7 (seven) years after having
attained majority, seeking a declaration that the alienation made by
his guardian was barred by limitation. While the appellant argued that
possession being sought, Article 65 of the 1963 Act would govern the
question of limitation, the respondents argued that the suit being one
seeking declaratory relief, would be governed by Article 60 of the 1963
Act. Upholding the latter argument, this Court held that possession
only being a consequential relief, Article 65 would not apply.
22. This principle was further relied upon and affirmed by this Court in
L.C. Hanumanthappa v. H.B. Shivakumar19.
23. Further, in Rajpal Singh v. Saroj20, this Court held that where a
composite suit had been filed for cancellation of the sale deed and
17 (2004) 2 SCC 247
18 (1999) 9 SCC 446
19 (2016) 1 SCC 332
20 (2022) 15 SCC 260
[2025] 4 S.C.R. 2383
Rajeev Gupta & Ors. v. Prashant Garg & Ors.
of possession, the limitation period would have to be adjudged from
the primary relief of cancellation which is 3 (three) years, and not the
ancillary relief of possession which is 12 (twelve) years. In holding
so, this Court held that:
“14. The submission on behalf of the original plaintiff (now
represented through her heirs) that the prayer in the suit
was also for recovery of the possession and therefore
the said suit was filed within the period of twelve years
and therefore the suit has been filed within the period of
limitation, cannot be accepted. Relief for possession is
a consequential prayer and the substantive prayer was
of cancellation of the sale deed dated 19-4-1996 and
therefore, the limitation period is required to be considered
with respect to the substantive relief claimed and not
the consequential relief. When a composite suit is filed
for cancellation of the sale deed as well as for recovery
of the possession, the limitation period is required to
be considered with respect to the substantive relief of
cancellation of the sale deed, which would be three years
from the date of the knowledge of the sale deed sought
to be cancelled. Therefore, the suit, which was filed by
the original plaintiff for cancellation of the sale deed, can
be said to be substantive therefore the same was clearly
barred by limitation. Hence, the learned trial court ought
to have dismissed the suit on the ground that the suit was
barred by limitation. …”
(emphasis supplied)
24. These precedents would certainly have a bearing on the question
of limitation, which we are tasked to decide.
25. Heavy reliance has been placed by the plaintiffs on a 3-Judge Bench
decision of this Court in Sopanrao v. Syed Mehmood21 wherein,
while adjudicating a suit for possession and declaration of title, this
Court held that:
21 (2019) 7 SCC 76
2384 [2025] 4 S.C.R.
Supreme Court Reports
“9.***The appellants contend that the limitation for the
suit is three years as the suit is one for declaration. We
are of the view that this contention has to be rejected.
We have culled out the main prayers made in the suit
hereinabove which clearly indicate that it is a suit not
only for declaration but the plaintiffs also prayed for
possession of the suit land. The limitation for filing a
suit for possession on the basis of title is 12 years and,
therefore, the suit is within limitation. Merely because one
of the reliefs sought is of declaration that will not mean
that the outer limitation of 12 years is lost. Reliance placed
by the learned counsel for the appellants on the judgment
of this Court in L.C. Hanumanthappa v. H.B. Shivakumar
[(2016) 1 SCC 332 : (2016) 1 SCC (Civ) 310] is wholly
misplaced. That judgment has no applicability since that
case was admittedly only a suit for declaration and not
a suit for both declaration and possession. In a suit filed
for possession based on title the plaintiff is bound to
prove his title and pray for a declaration that he is the
owner of the suit land because his suit on the basis of
title cannot succeed unless he is held to have some title
over the land. However, the main relief is of possession
and, therefore, the suit will be governed by Article 65 of
the Limitation Act, 1963.***”
(emphasis supplied)
26. Mr. Kumar has been vociferous in his argument that the aforesaid
precedent binds us.
27. However, what we find from the decision in Sopanrao (supra) is that
the larger bench did not have the benefit of taking into consideration
number of precedents in the field some of which are noticed above.
28. Bare reading of the aforesaid precedents reveals a cleavage of
opinion. While all the precedents seem to be ad idem on the point of
interpretation of Articles 58, 59 and 113 under First Division – Suits
forming part of the Schedule to the Limitation Act, the decision in
Sopanrao (supra) does seem to strike a discordant note on such point.
29. Taking into consideration all the precedents, we may summarise our
views on the question under consideration.
[2025] 4 S.C.R. 2385
Rajeev Gupta & Ors. v. Prashant Garg & Ors.
30. Insertion by the Parliament of the word “first” under the column
‘Time from which period begins to run’ in Article 58 is not without a
purpose. Such word, which was not there in the Limitation Act, 1908,
has been designedly used in Article 58 to signify that a suit to obtain
declaration (other than those referred to in Articles 56 and 57) has to
be instituted within three years of ‘when the right to sue first accrues’.
In simpler terms, if cause of action to sue means accrual of the right
for an actionable claim, it is the moment from which such right first
accrues that the clock of limitation would start ticking. Thus, even
though cause of action for instituting a suit might arise on varied
occasions and/or at different times, what is material and assumes
relevance for computing the period of limitation under Article 58 is
the date when the right to sue first accrues to the aggrieved suitor.
Though dominus litus, a suitor cannot pick and choose a time for
approaching court. The period of limitation in terms of Article 58 being
3 (three) years, the prescribed period has to be counted from that
date of the right to sue first accruing and the suit, if not instituted
within 3 (three) years therefrom, would become barred by time.
31. Similarly, under the column ‘Time from which period begins to run’ in
Article 59 providing for a three-year limitation period for cancellation
of an instrument, the ordainment is that the period will run ‘when the
facts entitling the plaintiff to have the instrument … cancelled or set
aside … first become known to him’. Any suit seeking cancellation
of a particular instrument as void or voidable would be governed by
Article 59 and, therefore, has to be instituted within 3 (three) years
from date the suitor could be said to have first derived knowledge
of the fact of such an instrument (which, according to him, is void or
voidable) coming into existence. The word “first” in Article 59 would
ordinarily have the same connotation as in Article 58.
32. In the present case, the appellants had been put in possession
of the suit property in furtherance of the sale deeds executed by
and between Ramesh Chand and the former after the same were
registered. Hence, a civil suit seeking declaration of status or right
simplicitor would not have sufficed for the plaintiffs since admittedly,
they were required to seek further relief. A composite suit seeking
cancellation, recovery of possession and injunction is what was
required to be instituted, as distinguished from a suit seeking only
recovery of possession. There is an admission of the plaintiffs on
2386 [2025] 4 S.C.R.
Supreme Court Reports
record that the appellants had moved into the suit property soon after
execution of the sale deeds. Thus, the facts and circumstances were
such that in addition to seeking cancellation of the sale deeds, since
registered, the plaintiffs had to and did seek recovery of possession.
Cancellation, we are inclined to hold, was the primary relief in the
circumstances with recovery of possession being the ancillary relief.
33. Turning to the facts, the sale deeds executed by and between Ramesh
Chand and the appellants were not sham and inoperative such that
the plaintiffs could, at their option, not seek cancellation thereof.
Execution of the sale deeds was followed by registration as required
by law. Whether or not Ramesh Chand had any subsisting right to
transfer the suit property or whether or not the plaintiffs did trace
their title through any valid deed/document could be examined by
the trial court only if the civil suit had been instituted by the plaintiffs
within the period of limitation, as prescribed. In a case of the present
nature, it was not sufficient for the plaintiffs to claim a decree for
recovery of possession only. They had to otherwise establish their
right to the suit property.
34. The civil suit was instituted with a prayer for cancellation of the
registered sale deeds, which the plaintiffs conveniently sought to
give up to project that the suit was only for recovery of possession
and, thus, duly instituted in terms of Article 65, i.e., within 12 (twelve)
years ‘when the possession of the defendant becomes adverse to
the plaintiff’. After the civil suit failed on the ground of limitation,
the relief of declaration was belatedly sought to be inserted in the
plaint in course of the first appeal. Although the plaintiffs sought to
contend that the prayer for cancellation as well as the proposed
insertion of the prayer for a declaration was by way of an abundant
caution, we have no hesitation in rejecting such a contention as an
after-thought.
35. It is not in dispute that the plaintiffs did have knowledge - constructive
as well as actual - during the pendency of the second suit or soon
thereafter of transfer of the suit property in favour of the appellants
effected by Ramesh Chand by way of execution of the sale deeds
which were subsequently registered as required by Section 54 of the
ToP Act. Once the appellants started residing in the suit property,
what crystallised was the invasion of the plaintiffs’ rights. Their
right to the suit property, if any, was put to clear jeopardy. With the
[2025] 4 S.C.R. 2387
Rajeev Gupta & Ors. v. Prashant Garg & Ors.
execution of the sale deeds, subsequently registered, this was the
moment when the right to sue first accrued to the plaintiffs. In fact,
according to the plaintiffs, Ramesh Chand was proposing to dispose
of the suit property in favour of third parties and such apprehension
of an intended transfer was precisely the cause of action that was
pleaded for institution of the second suit. In any event, whatever be
the relevant date, i.e., execution of the sale deeds by which Ramesh
Chand conveyed the suit property to the appellants or the date of
taking actual possession of the suit property by the appellants from
Ramesh Chand a few days after execution of such deeds, it is from
such date of knowledge in June, 1992 that the said transfer effectively
did invade or jeopardize the plaintiffs’ interest in respect of the suit
property. Contention of Mr. Gulati, therefore, has sufficient force
that the suit had to be instituted within 3 (three) years, since the
title in respect of the suit property had passed on to the appellants.
He is also right in submitting that the conduct of the plaintiffs does
throw light on how they juggled to overcome the bar of limitation
by seeking a decree for cancellation of the sale deeds, which they
sought to abandon midway by applying for amendment; thereafter,
again they made an attempt for insertion of the prayer for declaration,
also by way of an amendment at the appellate stage, which did not
ultimately fructify.
36. The civil suit of the plaintiffs having been instituted in 2003, it was
hopelessly barred by limitation and Section 3 of the Limitation Act
essentially entails its dismissal. The trial court, therefore, was right
in dismissing the suit, inter alia, on the ground of limitation.
37. The civil suit of the plaintiffs being barred by limitation, normally,
we would not be required to delve into the other questions urged
by the parties.
38. However, in view of the fact that we have expressed a view in accord
with other precedents in the field but not necessarily a view which
is wholly in consonance with the larger bench decision in Sopanrao
(supra) and Mr. Kumar having urged that we are bound thereby,
freeing ourselves of the finding that the civil suit was time-barred,
we wish to deal with the other questions arising for decision as well.
39. However, before parting with our discussion on this question, we
also wish to observe that there is one observation in the same relied
on paragraph of the decision in Sopanrao (supra) which could cost
2388 [2025] 4 S.C.R.
Supreme Court Reports
the plaintiffs dearly. We propose to refer to the same at a later part
of this judgment, while proceeding to decide the other questions
arising for decision.
II. Whether the sale deeds were void documents
40. The plaintiffs contended that Ramesh Chand had no right in the
property, and being devoid of any ownership rights, was in no position
to transfer title of the same to the appellants. Reliance has been
placed on the legal maxim nemo dat quod non habet, i.e., no one can
transfer a better title than what he himself possesses. Furthermore,
the sale deeds having been executed when an ad-interim injunction
order was in operation, the bar in Section 52 of the ToP Act would
render the sale deeds void ab initio. On the other hand, the appellants
have relied on Section 41 of the ToP Act to advance the submission
that Ramesh Chand having been portrayed to the world at large as
owner, the plaintiffs could not emerge from out of the woodwork to
claim a secret title.
41. The High Court’s finding that the sale deeds would be rendered
void solely on account of the operation of an injunction order has
necessarily to be set aside. It is settled law that Section 52 of the
ToP Act does not ipso facto render a sale transaction as inoperative,
it merely subjects it to the outcome of the pending proceedings. This
Court in G.T. Girish v. Y. Subba Raju22 held that:
“137. A transfer which is made lis pendens it is settled law,
is not a void document. It does create rights as between
the parties to the sale. The right of the party to the suit
who conveys his right by a sale is extinguished. All that
Section 52 of the Transfer Property Act provides is that
the transfer which is made during the pendency of the
proceeding is subjected to the final result of the litigation.”
42. Furthermore, the High Court failed to scrutinise the nature of the
second suit in which the alleged ad-interim injunction order was
passed. A perusal of the same reveals that the second suit was filed
by Dr. Karam Chand on 15th June, 1992 and was compromised 4
(four) months later on 12th October, 1992 with one of the terms of
22 (2022) 12 SCC 321
[2025] 4 S.C.R. 2389
Rajeev Gupta & Ors. v. Prashant Garg & Ors.
compromise being that the revenue records would be mutated in
the name of Dr. Karam Chand, which mutation was never carried
out. Suspicion clouds the second suit, more so, when it is noted that
though the first sale deed was executed by Ramesh Chand on the
very next day the order of injunction was passed, i.e., on 16th June,
1992 and the second deed executed on 29th June, 1992, whereafter
the appellants were put in possession, neither was the ad-interim
injunction order ever produced before the trial court in the present
proceedings (having seen the light of day in the first appellate court
for the first time) nor was the issue brought before the trial court
for its examination and decision. Dr. Karam Chand and Ramesh
Chand conveniently had the civil suit disposed of on the basis of
compromise, when Ramesh Chand did not have any subsisting right
in the suit property having sold it to the appellants. The effect of the
doctrine of lis pendens, which Section 52 of the ToP Act embodies,
is not to annul all voluntary transfers effected by a party to the suit
but only to render it subservient to the rights of the parties thereto
under the decree or order that the court may make in the suit. The
transfer, subject to the result of the suit, could remain valid. In view
of Dr. Karam Chand and Ramesh Chand conveniently entering into
a compromise, collusion between the plaintiffs and Ramesh Chand
is writ large. There being no proof that the appellants had knowledge
of this injunction order, the transaction could not have been declared
void ab initio. In view of the facts and circumstances discussed above,
we thus find this to be a case which falls within the exceptions laid
down under Section 52 of the ToP Act, i.e., non-applicability of the
provision to collusive suits.
43. We now proceed to advert to the second limb of the argument, i.e.,
the competence of Ramesh Chand to execute the sale deeds. In
arguendo, even if it is accepted that Dr. Babu Ram Garg by the
WILL did not bequeath any interest in the suit property to Ramesh
Chand, it is an admitted fact that he was allowed to reside in the
property, and that he was allowed to continue with collection of rent
from shops therein. Most importantly, in 1956, the name of Ramesh
Chand was mutated in the revenue records in respect of the suit
property and this record remained unchanged and unchallenged
till 1997 when the appellants applied for and obtained mutation of
revenue records in their favour. In view thereof, it would have been
well-nigh impossible for any vendee to conclude that someone other
2390 [2025] 4 S.C.R.
Supreme Court Reports
than Ramesh Chand was the owner of the suit property. Thus, the
appellants would have to be held to be bona fide purchaser for value
and, thus, entitled to the benefit of Section 41 of the ToP Act.
44. Mr. Kumar has joined issue by citing absence of requisite pleadings
for attracting Section 41 of the ToP Act. Even though Section 41 might
not have been expressly referred to in their written statement by the
appellants, what was pleaded in paragraph 35 thereof is considered
sufficient for the present purpose. The appellants have taken the
same plea in ground (cc) of the appeal. Contention of Mr. Kumar,
to the contrary, is thus not acceptable.
45. Disagreeing with the High Court, we answer this question in favour
of the appellants and against the plaintiffs.
III. Whether the WILL stood admitted in the previous suits and
was no longer required to be proved
46. An intriguing argument was presented by Mr. Kumar for the plaintiffs,
asserting that the execution of the WILL was not contested by the
predecessor-in-interest of the appellants in the initial two suits, and
therefore, the WILL is deemed to be admitted and they are bound by
such admission of their predecessor; and, also, because res judicata
applies. Reliance was placed upon Section 58 of the Evidence Act
in support of the argument that facts admitted, which in the present
case is the execution of the WILL, do not require further proof. As
a result, there was no obligation to prove the WILL in accordance
with Section 68 of the Evidence Act, which mandates that at least
one attesting witness be called for proving the WILL.
47. At the first blush, this argument may appear to be rational but we
find it difficult to agree with it.
48. The principle that a will must be proven in accordance with Section 68
of the Evidence Act, is firmly established in law. In Ramesh Verma v.
Lajesh Saxena23, this Court held that requirement of proof of a will
in accordance with Section 68 is not done away with, even if the will
is not disputed by the opposite party. For ease of understanding, we
quote the relevant passage hereunder:
23 (2017) 1 SCC 257
[2025] 4 S.C.R. 2391
Rajeev Gupta & Ors. v. Prashant Garg & Ors.
“13. A will like any other document is to be proved in terms
of the provisions of Section 68 of the Evidence Act and
the Succession Act, 1925. The propounder of the will is
called upon to show by satisfactory evidence that the will
was signed by the testator, that the testator at the relevant
time was in a sound and disposing state of mind, that he
understood the nature and effect of the disposition and put
his signature to the document on his own free will and the
document shall not be used as evidence until one attesting
witness at least has been called for the purpose of proving
its execution. This is the mandate of Section 68 of the
Evidence Act and the position remains the same even in
a case where the opposite party does not specifically deny
the execution of the document in the written statement.”
(emphasis supplied)
49. Furthermore, it is worth mentioning that the plaint in the first suit lacked
essential details regarding the WILL; the original WILL was never filed
before the trial court; the WILL only came to light in 2003; the plaint
in the subject suit did not clarify the WILL’s current status —whether
it was lost or not. In light of such vague descriptions, it is difficult to
accept that there was deemed admission due to non-denial in the
first place. Nonetheless, for the sake of argument, even if these
flaws were absent and yet the defendant did not deny the execution
of WILL, the obligation to prove a WILL as specified in Section 68
would remain unaltered (as discussed above).
50. Next, it was submitted by Mr. Gulati, and rightly so, that the benefit of
Section 90 of the Evidence Act of presumption as to documents thirty
years old could not have been given to the plaintiffs. As applicable in
the State of Uttar Pradesh, Section 90A with the State amendment
is reproduced below:
“90-A. (1) Where any registered document or a duly certified
copy thereof or any certified copy of a document which
is part of the record of a Court of Justice, is produced
from any custody which the court in the particular case
considers proper, the court may presume that the original
was executed by the persons by whom it purports to have
been executed.
2392 [2025] 4 S.C.R.
Supreme Court Reports
(2) This presumption shall not be made in respect of any
document which is the basis of a suit or of a defence or
is relied upon in the plaint or written statement.”
The explanation to sub-Section (1) of Section 90 will also
apply to this Section.”
51. Section 90A(1) provides that where a registered document or its
certified copy being a part of the record of court is produced from the
custody of court, the court may presume that the original was executed
by the person by whom it is purported to have been executed.
Section 90A(2), however, makes it clear that the presumption in
Section 90A(1) will not be made if the said document forms the
basis of the suit. The plaintiffs in the subject suit traced their title to
the WILL. The WILL, therefore, formed the basis of the subject suit
and hence no presumption under Section 90A(1) can be raised to
the benefit of the plaintiffs.
52. Significantly, the statement made in paragraph 2 of the plaint is that
“Dr. Babu Ram Garg passed away in 1958 and he had executed a
will and also got it registered which is well into the knowledge of the
parties”. In their written statement, the appellants denied existence
of the WILL by pleading that Dr. Babu Ram Garg never executed
any will. Insofar as the appellants are concerned, there was no
admission. In fact, the plaintiffs were specifically put on notice by
the appellants that they were disputing the WILL. The burden was
on the plaintiffs to prove the WILL. The list of documents sought to
be relied on by the plaintiffs included certified copy of the registered
Will of Dr. Babu Ram Singh but there was no pleading in the plaint
as to whether the WILL was lost or misplaced. A certified copy was
only sought to be produced.
53. We may at this stage notice a few precedents on the point of a party
adducing secondary evidence in the nature of certified copy.
54. In Benga Behera v. Braja Kishore Nanda24, a coordinate Bench
of this Court had the occasion to observe thus:
“31. A document upon which a title is based is required to
be proved by primary evidence, and secondary evidence
24 (2007) 9 SCC 728
[2025] 4 S.C.R. 2393
Rajeev Gupta & Ors. v. Prashant Garg & Ors.
may be given under Section 65(c) of the Evidence Act.
The said clause of Section 65 provides as under:
‘65. (c) when the original has been destroyed or lost, or
when the party offering evidence of its contents cannot,
for any other reason not arising from his own default or
neglect, produce it in reasonable time;’
Loss of the original, therefore, was required to be proved.
32. In a case of this nature, it was obligatory on the part
of the first respondent to establish the loss of the original
will beyond all reasonable doubt. His testimony in that
behalf remained uncorroborated.”
55. Yet again, in Jagmail Singh v. Karamjit Singh25, the law was
reiterated in the following words:
“14. It is trite that under the Evidence Act, 1872 facts have
to be established by primary evidence and secondary
evidence is only an exception to the rule for which
foundational facts have to be established to account for
the existence of the primary evidence. In H. Siddiqui v.
A. Ramalingam, (2011) 4 SCC 240, this Court reiterated
that where original documents are not produced without
a plausible reason and factual foundation for laying
secondary evidence not established it is not permissible for
the court to allow a party to adduce secondary evidence.”
56. We do not find from the materials on record including the judgments
of the trial court and the first appellate court as to whether any
evidence was led that the WILL of Dr. Babu Ram Garg was misplaced
or lost or not otherwise available. In the absence of evidence being
led, acceptable to the court, that the original WILL was misplaced
or lost or otherwise not available, the precedents above referred
would apply on all fours.
57. Interestingly, the first appellate court proceeded on the basis that the
WILL was accepted by the parties to the first and the second suit
and, therefore, res judicata applied without, however, realising that
the appellants were not parties to any of those two suits and neither
25 (2020) 5 SCC 178
2394 [2025] 4 S.C.R.
Supreme Court Reports
was there any occasion for them to be bound by any admission or
acceptance of the WILL by their predecessor-in-interest nor did the
appellants ever make any such admission.
58. In such view of the matter, the inevitable conclusion that we reach
is that the plaintiffs’ title to the suit property could not have been
traced to the WILL of Dr. Babu Ram Garg.
59. This question too stands answered in favour of the appellants and
against the plaintiffs.
IV. Whether the first appellate court was right in decreeing
the suit without the plaintiffs seeking relief of declaration/
cancellation?
60. The decree passed by the first appellate court reads as follows:
“Civil Appeal is accepted. Judgment and order under
question dated 25.02.2015 is set aside. Respondents are
directed to vacate the possession of the property, possessed
on the basis of disputed document dated 16.06.1992 and
29.06.1992 within 30 days and hand over the possession
to the plaintiff/ appellant otherwise appellant/plaintiff will be
entitled to take possession in accordance with law.
So far as the question of grant of relief of injunction against
Defendant No. 6 and 7 is concerned; Defendant No.6 and
7 has the possession on the ground floor of the disputed
house being A. B. C. D. with the permission of the plaintiff
and his father, therefore, plaintiff / appellant will be entitled
to dispossess the Defendant No. 6 & 7 by filing a suit of
eviction against the Defendant No. 6 & 7 in accordance
with law and the plaintiff / appellant will be entitled to get
the possession of the disputed property.”
61. It is, therefore, seen that the first appellate court without passing
any decree in favour of the plaintiffs (i) declaring their right, title and
interest in respect of the suit property; (ii) declaring that the sale
deeds dated 16th June, 1992 and 29th June, 1992 did not affect their
title and/or that they were not bound thereby and (iii) cancelling the
registered sale deeds dated 16th June, 1992 and 29th June, 1992,
granted relief by issuing a decree for recovery of possession.
[2025] 4 S.C.R. 2395
Rajeev Gupta & Ors. v. Prashant Garg & Ors.
62. This Court in Anathula Sudhakar v. P. Buchi Reddy26 had the
occasion to hold that where the plaintiff is in possession, but his title
to the property is in dispute, or under a cloud, or where the defendant
asserts title thereto and there is also a threat of dispossession from
the defendant, the plaintiff will have to sue for declaration of title and
the consequential relief of injunction; however, where the title of the
plaintiff is under a cloud or in dispute and he is not in possession or
not able to establish possession, necessarily the plaintiff will have to file
a suit for declaration, possession and injunction (emphasis supplied).
63. In Sopanrao (supra) too, the three-Judge bench reiterated the
position by holding that in a suit filed for possession based on title
the plaintiff is bound to prove his title and pray for a declaration that
he is the owner of the suit land because his suit on the basis of title
cannot succeed unless he is held to have some title over the land
(emphasis supplied).
64. We have noticed hereinbefore that the sale deeds executed by
Ramesh Chand in favour of the appellants were registered. On the
date the second suit was compromised by Ramesh Chand with Dr.
Karam Chand, Ramesh Chand had lost title to the suit property.
Legally speaking, he could not have entered into any compromise
with Dr. Karam Chand and thereby confer on him any right, title or
interest in respect of the suit property. Although, transfer of property
by the sale deeds was well within the knowledge of the plaintiffs,
neither did they bring the fact of such sale to the notice of the trial
court, seized of the second suit, nor could the appellants be shown
to have knowledge of the pending suit while the sale transaction
was effected. In such circumstances, any compromise arrived at
when the first and the second suits were pending by and between
the family members of the plaintiffs in the absence of the appellants
as parties to such proceedings, such compromise decrees could not
have had the effect of binding the appellants. Thus, the appellants
having legitimately objected to validity of the WILL in their written
statement, law required the plaintiffs to prove such WILL in accordance
with law. For the reasons mentioned in Section III above, we have
held that the WILL was not proved.
26 (2008) 4 SCC 594
2396 [2025] 4 S.C.R.
Supreme Court Reports
65. That apart, the plaintiffs having given up the relief of cancellation before
the trial court and their attempt to insert in the plaint the prayer for
relief of declaration that the sale deeds dated 16th June, 1992 and 29th
June, 1992 do not affect their title and are not binding on them having
been spurned by the High Court in its revisional jurisdiction, which has
since attained finality, we hold that on the face of the strong opposition
raised by the appellants the first appellate court acted illegally in the
exercise of its jurisdiction in granting relief to the plaintiffs by passing
a decree for recovery of possession without there being any decree
for declaration of rights/cancellation of deeds. At the stage of exercise
of jurisdiction by the appellate court under Section 96 of the CPC, the
plaint in the form it was there before such court was incurably defective
and no relief could have been granted to the plaintiffs.
66. The High Court, in the exercise of its second appellate jurisdiction, did
not fare better. In fact, application of judicial mind to the substantial
questions of law arising for decision on the second appeal is
conspicuous by its absence.
67. For the reasons aforesaid, this question is also answered in favour
of the appellants and against the plaintiffs.
Conclusion
68. Having regard to the foregoing discussions, we have no hesitation to
hold that the subject suit of the plaintiffs could not have succeeded.
The trial court, in our opinion, was right in dismissing the suit.
69. The impugned second appellate judgment and decree of the High
Court and the first appellate judgment and decree of the first appellate
court are both set aside and that of the trial court is restored, with
the result that the subject suit shall stand dismissed.
70. The civil appeal, thus, stands allowed. Parties shall, however, bear
their own costs.
Result of the case: Appeal allowed.
†
Headnotes prepared by: Nidhi Jain
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