1908 (5) TMI 1 - HC - Indian Laws

Appeal allowed, lower court decision set aside due to limitation. Remand for further consideration.

The High Court of Allahabad allowed the appeal, set aside the lower court's decision based on limitation under Article 91 of the Limitation Act, and ... Declaration that an instrument is a sham - distinction between declaring a transaction a sham and setting aside/cancelling an instrument - limitation under Article 91 of the Second Schedule to the Limitation ActDeclaration that an instrument is a sham - limitation under Article 91 of the Second Schedule to the Limitation Act - Whether Article 91 governs a suit seeking a declaration that a sale deed was a fictitious transaction rather than a suit to set aside or cancel the instrument - HELD THAT: - The Court held that the plaintiff's claim was for a declaration that the 27 June 1899 sale was a sham from its inception and not a suit to set aside or cancel the deed. Because the relief sought did not require the instrument to be set aside, Article 91 of the Second Schedule to the Limitation Act did not apply. The Court relied on precedent treating a declaration of a sham transaction as distinct from actions to annul instruments, and observed that, had Article 91 been applicable, the court below ought to have determined when the facts entitling cancellation became known to the plaintiff - a determination which was not made. For these reasons the preliminary finding of limitation was held to be untenable. [Paras 1]Article 91 does not govern the plaintiff's suit for a declaration that the sale deed was a fictitious transaction; the finding that the suit was time-barred is erroneous.Remand under Section 562 of the Code of Civil Procedure - Whether the case should be remitted for adjudication on the merits - HELD THAT: - Since the Court found the preliminary limitation ground unsustainable and the lower court had not decided the merits, the matter was remitted to the trial court for fresh consideration. The High Court directed that the suit be re-admitted under its original number and disposed of according to law on the merits, thereby requiring the trial court to examine the substantive contentions (including whether the sale was fictitious or genuine and any alternate claim for consideration) which had not been finally determined below. [Paras 1]Appeal allowed; decree of the Court below set aside and the case remanded to the trial court under Section 562 CPC for disposal on the merits.Final Conclusion: The appeal is allowed; the decree dismissing the suit as barred by limitation is set aside and the case is remitted to the trial court under Section 562 CPC for re admission and disposal on the merits. The appellant is awarded the costs of the appeal. The High Court of Allahabad allowed the appeal, set aside the lower court's decision, and remanded the case for further consideration. The lower court had dismissed the suit on the ground of limitation under Article 91 of the Limitation Act, but the High Court found this ground to be erroneous. The plaintiff sought a declaration that a sale deed was a sham transaction, not to set it aside, so Article 91 did not apply. The High Court directed the lower court to re-admit the case and decide it on its merits.