Sham sale deed declaration falls outside cancellation limitation; dismissal on Article 91 was set aside and the suit remitted.

A suit seeking a declaration that a sale deed was fictitious, sham, and without consideration was held not to be a suit to cancel or set aside an instrument. Article 91 of the Second Schedule to the Limitation Act therefore did not govern the claim, because the plaintiff challenged the transaction as void ab initio rather than seeking cancellation of the deed itself. The dismissal on limitation was unsustainable since the court below decided the matter only on limitation without examining the merits. The decree was set aside and the suit was remitted for disposal on the merits.

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Issues: Whether the suit for a declaration that the sale deed was a fictitious transaction was barred by Article 91 of the second schedule to the Limitation Act.

Analysis: The relief claimed was not to set aside the sale deed but to declare that the transaction was void ab initio as a sham and without consideration. A suit of that nature does not attract the provision governing actions to cancel or set aside an instrument. Since the learned Judge disposed of the case only on limitation, without determining the merits or the point as to when the plaintiff acquired knowledge of any ground to cancel the instrument, the dismissal could not be sustained.

Conclusion: Article 91 did not apply to the suit, and the dismissal on limitation was unsustainable.

Final Conclusion: The appeal succeeded, the decree of the court below was set aside, and the suit was remitted for disposal on the merits.

Ratio Decidendi: A suit seeking a declaration that an instrument is a sham or fictitious transaction is not a suit to cancel or set aside the instrument, and therefore the limitation provision applicable to cancellation suits does not govern it.

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