1. MUHAMMAD AFZAL ZULLAH, J.-This appeal through special leave is directed against judgment dated 6-5-1974 of the Lahore High Court, where--by Regular Second Appeal against first appellate judgment of reversal, dismissing appellant's suit, was dismissed.
2. The appellant-plaintiff filed a suit against the respondent-defendant, her own husband, on 9-6- 1969, for a declaration: that she was owner in possession of the suit land; that the registered sale deed dated 11-2-1958, purported to be by the appellant in favour of the respondent, was void and unlawful on account of fraud and lack of consideration and thus was without any effect on the rights of the appellant; and that mutation No. 1674 dated 19-5-1969, which was sanctioned on the basis of the said registered deed, was illegal and for further relief of permanent injunction against the defendant that he be restrained from claiming himself to be the owner of, and also from taking possession of the suit land. Her case was that the respondent defrauded her into the execution of the sale by misrepresenting to her that it was a special power of attorney.
3. The respondent contradicted these allegations and also raised plea of bar of limitation. The learned trial Court, relying on the statement of respondent's own father who appeared as plaintiff's witness, and also on an admission of the respondent, held that the appellant continued to be in possession of the land. It was also held that notwithstanding the respondent's plea that limitation was governed under Article 120 of Limitation Act and would commence from the date of registration of the sale deed (11-5-1958) the suit was within time, because the time would run against the plaintiff from 19-5-1969 when the defendant got sanctioned a mutation with object of denial of possession and ownership to the plaintiff. On merits, the learned Judge found it a case of clear fraud by a husband with his wife for which there was ample evidence. Accordingly, decree was passed declaring the deed as void and granting all. The reliefs claimed by the plaintiff.
4. On respondent's appeal, the learned District Judge, without disturbing the finding of fraud, held that the suit was under section 42 of the Specific Relief Act and that it would be governed by Article 120 of the Limitation Act, whereunder the period of six years commenced on 9-11-1958 when an earlier attempt by the respondent was made to effectuate the so-called sale transaction through mutation proceedings before the Revenue Authorities, wherein the plaintiff had participated and got the mutation rejected on the plea that the registered deed which was being pressed by the respond--ent as the basis of his claim was void on account of fraud-the plaintiff had then become aware of the deed, therefore, the terminus quo being plaintiff's knowledge, the suit was time- barred. The judgment and decree of the trial Court were, accordingly, reversed.
5. On plaintiff's second appeal, a learned Single Judge affirmed the first appellate decision on limitation with further observation that Article 95 of the Limitation Act governed the present case and in case even if Article 120 applied, the suit was time barred because the time would run from the knowledge of the plaintiff about the deed, i.e. 9-11-1958.
6. Leave to appeal was granted to consider the argument that "the foundation of the petitioner's suit was fraud and since fraud vitiates the most solemn transaction, the petitioner was entitled to ignore the sale deed altogether and rest content with her title in the land particularly when she had remained in possession of the land throughout, notwith--standing the purported execution of the sale deed in favour of the respondent." In order to determine whether Article 95 or 120, or any other provision of the Limitation Act is applicable to this case, it is necessary to appreciate the essential nature and background of the claim and prayer made in the plaint. The appellant. Was in possession of the land. Ordinarily she could not be dispossessed except in accordance with law.
7. The respondent had a registered sale deed to support his title, which the appellant did not own and proclaimed that it was they result of fraud practised on her. Mere ostensible title without possession was of no avail to the respondent: He wanted to have the benefit there--under which could not accrue to him without possession. One course for him was to sue for possession on the basis of the deed and claim that he was the owner and that the deed was genuine. In that eventuality, the appellant, as defendant, would have been within her right to plea that the deed was void on account of fraud and that the responder had no title and no right to possess the land.
8. To raise such a plea, then would not have been any impediment of limitation for a defendant..-.See Orr and others v. Sundra Pandia I L R 17 Mad. X55, Gopal Bhaurao Jape v. Shree Jagannath Pandit Wasudeoreo Pandit Maharaj I L R 59 Bom. 502, Deodhari Pandey v. Dayanand Pandey 35 1 C 610), Hargovandas Lakhmidas and others v. Bajibbai Jjibhai and others (1 L R 14 Bom. 222) and Sri Bishan Lal v. Kashmiro AIR 1916 PC 172 The respondent did not choose the course visualized above. He could resort to force to take possession, but that would have been hazardous. He could be punished in a Court of law. He, therefore, chose the middle course of getting a mutation sanctioned, wherein the appellant would be involved as party and thereafter any venture to take possession through Court, or otherwise, might not be met with resistance. Accordingly, he sought the revenue intervention through a mutation on the basis of the sale deed. The appellant did not accept the claim, raised the defence of fraud against the deed and succeeded in obtaining a finding from the Revenue Authorities in her favour. Subsequently, the mutation was rejected on 9-11-1958 vide order Exh. P. 2.
9. After the failure on the revenue side, judging the normal conduct, the appellant could legitimately expect that the respondent would then seek assistance from the civil Court for obtaining possession through due process, wherein she would have resisted the deed and claim thereon with--out fear of bar of limitation, as already observed, in the position of a defendant. She had the enjoyment of possession and in particular the usufruct through, as found by the trial Court, self cultivation. In this position of possession, with a rejected mutation resulting in the failure of her adversary party, she was in the position of a lawful strength which could not be disturbed except through Court proceedings.
10. Strangely enough the respondent waited for more than ten years after the rejection of the mutation and did not file a suit for possession. Instead, he succeeded in getting a fresh mutation sanctioned in the revenue forum, on 19-5-1969 vide order, Exh. P.
3. He thus gained an edge for the first time, after a decade. The next step for' him in normal lawful course would have been to obtain the possession through a Court of law, or press the appellant out of Court, on the newly-added strength of the mutation, to hand over the possession. He, according to the plaint, adopted the latter course. At this stage there were two courses open to the appellant one, to wait further till the respondent lodged a suit for possession and then resist it; and two, to pre-empt any unlawful exercise on the part of the respondent to take possession, by filing a suit herself. She chose the second course.
11. The plaint very clearly highlights the main grievance, namely, that the possession of the appellant was being threatened by the respondent. She wanted to protect it. So her essential claim was that she was to be accepted as in possession, her main grievance was the unlawful design of the respondent, and the effective relief prayed for was permanent injunction and restraint against this design. In connection with all this she sought ancillary declaration that she was the real owner and that being so the mutation dated 19-5-1969 and the deed dated 11-2-1958 on which the mutation was based, were void and ineffective on account of fraud.
12. Hamid Begum v. Murad Begum PLD 1975 SC 62), while interpreting Article 91 of the Limitation Act, which provides limita--petition of three years for filing a suit to cancel or set aside an instrument, a distinction was made between void and voidable instruments insofar as the legal requirement to seek the setting aside of the instrument is concerned. It was held that a voidable instrument would remain operative as long -at it was not set aside by a competent Court in accordance with the principles embodied in sections 19 and 19-A of the Contract Act. There was, however, no such compulsion to approach a Court with regard to instruments which are void ab initio and thus nullity. In the light of these basic rules, it was further held that Article 91 would not be attracted if the substantial relief claimed the plaintiff is not the cancellation o the instrument and it is merely ancillary to some other substantial claim, for example, recovery of possession, or a declaration that the instrument is ineffective as against the plaintiff's rights, as "the principle is that the plaintiff is not bound by the document, or if he is not claiming under the same, and the substantial relief prayed for by him is not the cancellation or setting aside of the instrument, then the suit is not governed by Article 91." If this rule is applied to the facts of the present case, as already noted, the main -relic' claimed by the plaintiff was with regard to the protection of her possession, for which a permanent injunction was sought, against the respondent, and the declaration that the mutation dated 19-5-1969 and the registered deed dated 11-2-1958 were void and ineffective was prayed for as an ancillary relief. That being so, the bar of Article 91 would not be attracted.
13. Shamshad A.I Shah v. Hassan Shah PLD1964SC143also, this Court examined the question as to whether it is always necessary to seek the setting aside and/or cancellation of instruments obtained by fraud. It was observed that "a person who claims that a deed which purports to be executed by him is a forgery is not asking that the deed be set aside and is not bound to sue within three years" and further that "the sole criterion for the applicability of Article 91 is whether the deed affects rights till some person entitled to have it sot aside does so. If the deed as a matter of fact never affected rights the need for its being set aside would never arise." A rider, however, was placed, subject of course to the foregoing that "the position, however, with respect to the attack on the ground of fraud is different. As provided in section 19 of the Contract Act a contract affected by fraud is voidable and not void." Although the question was not discussed in this case, it might have been argued against the appellant that she, at least, having alleged fraud with regard to the execution of sale dead, it was essential for her, under section 19 of the Contract Act to seek the cancellation of the deed.
14. It is necessary here. To reproduce section 19 of the Contract Act. It reads :-- "19. When consent to an agreement is caused by coercion, fraud or misrepresentation, the agreement is a contract voidable at the option of the party whose consent was so caused.
15. A party to a contract, whose consent was caused by fraud or mis-representation, may, if he thinks fit, insist that the contract shall be performed, and that he shall be put in the position in which he would have been if the representations made had beer, true.
16. Explanation.-If such consent was caused by misrepresentation or by silence, fraudulent within the meaning of section 17, the contract, nevertheless, is not voidable, if the party whose consent was so caused had the means of discovering the truth with ordinary diligence.
17. Explanation.-A fraud or misrepresentation which did not, cause the consent to a contract of the party on whom such fraud was practised, or to whom such misrepresentation was made, does not render 11 a contract voidable." , A valuable comment in this behalf has been made in the celebrated 'work on the Indian Contract Act by Pollock and Mulla. It reads: "A man who has put his name to an instrument of one kind understanding it to be an instrument of a wholly different kind may be entitled, not only to set it aside against the other party on the ground of any fraud or misrepresentation which caused his error, but to treat it as an absolute nullity, under which no right can be acquired against him by any one. In an English case the defendant had purported to endorse a bill of exchange which he was told was a guarantee. The plaintiff was a subsequent holder for value, and therefore the fact that the defendant's signature was obtained by fraud would not have protected him in this action. But the Court held that his signature, not being intended as an endorse--ment of a bill of exchange, or as a signature to .Any negotiable instru--ment at all, was wholly inoperative, as much as so if the signature had been written on a blank piece of paper first, and a bill or note written on the other side afterwards. There are much older authorities showing that if a deed is falsely read over to an illiterate man, and he executes the deed relying on the false reading as being the true substance of the transaction, his act is wholly void." *Foster v. Mackinnon (1869) L R 4 C P 704. It has been observed that it is arguable that the case was not one of non est factum at all, since the defendant was assured that he was signing a guarantee, whereas in fact he put his signature to an endorsement of 'a- bill of exchange, which is guarantee for many purposes: 37 L Q R 514, 39 L Q R 131, 20 Can. Bar. Rev. 748, 61 L Q R 194.
18. It is in this very connection that considerable law has developed with regard to the execution of valuable instrument by a Pardahnasheen lady, to the effect that it would be necessary for the party concerned to show that the deed was not only explained to her, but also that she correctly understood the contents thereof. In the Privy Council case (Sri Kishan Lal v. Kashmiro), already cited, in another connection, an illiterate Pardahnasheen lady who was not a woman of business, had acted under the advice of persons having conflicting interests. She had consented to an agreement to make reference to an arbitration "the effect and nature of which was fraudulently concealed from her by those persons." It was held that the award made on the reference, "whether regarded as an award or as a family arrangement, must be treated as a nullity. The question in such a case is not whether the woman knew what she was doing, had done, or proposed to do, but how her intention to act was produced, whether all that care and providence was placed round her as against those who advised her which from their situation and relation to her they were bound to exert on her behalf."
19. It is thus clear that section 15 of the Contract Act would not be' attracted in the instant case. It was the case of the plaintiff, and has also been found so, that although the defendant had made her believe that she was executing a power of attorney, in reality, on account of fraud practised on her, he had prepared a sale deed. Some Authorities go to the extent of observing that the signature or thumb impression in token of execution of such a document would be treated as having been obtained on a blank paper. It would thus be seen that even section 19 of the Contract Act would not be attracted to the present case, and by virtue of it the appellant would not be bound to seek the cancellation of the alleged sale deed prior, to the seeking of the protection of her possession and restraint in the form of injunction against the defendant.
20. Although the learned District Judge had held that the appellant's suit is time-barred on the basis of the application of Article 120 of the Limita--petition Act, the learned Single Judge in the High Court was of the view that Article 95 of the Act, which provides for the setting aside of a deed. By fraud or for any other relief on the ground of fraud, three years' period of limitation, would also be attracted to this case. The point emerging from the aforementioned discussion on the application of Article 91, in the circumstances of this case, would also apply to Article 95, therefore, it is not necessary to discuss it separately. It was claimed that essential reliefs being possession and injunction against the respondent the period of limitation could be much more than what is provided in the residuary Article 120. It would not be necessary to examine that aspect of the case, because even if Article 120 is applied, the suit of the plaintiff would not be time barred. It provides that where no period of limitation is provided elsewhere in the schedule the limitation would be six years from the date "when the right to sue accrues." It has already been held that the relief claimed with respect to the registered deed that it may be declared as void was only ancillary, therefore, Articles 91 and 95 of the Limitation Act would not be attracted. Thus, the date of the accrual of the cause of action in this case would not be necessarily relatable to the date of the accrual deed, or the knowledge of the plaintiff with regard to the fact that she had been defrauded.> The essential relief claimed was with regard to the maintenance of possession and issuance of injunction in this behalf, against the defendant. It would be seen that the cause of action in this behalf, in the light of the facts and circumstances, already analysed, accrued to the appellant, firstly, on l account of the effort made by the defendant to disturb the then existing status quo through the sanction of the mutation. The mutation was sanctioned on 19-5-1969, therefore, this would be one relevant date of the accrual of the cause of action, but as is well known, the cause of action may not be constituted by a single act; but consists, in reality, of bundle of facts of varied types. In the present case, the averment made in the plaint that after the sanction of the mutation notwithstanding the appellant's disclaimer of the right of the respondent and warning him against any interference regarding the suit land, he had insisted upon denying the appellant's right, and as stated by the appellant, this ha necessitated the filing of the suit. It was in this context that the last sentence used in the prayer paragraph, namely " gets added significant. The plaintiff in this case, as already held, was not bound to seek the cancellation of the deed through a suit' filed for that purpose. She could wait till the threat to her possession had become not only visible, but more real, and that would be the point when the right to seek the reliefs claimed in the suit would accrue to her. The starting point of limitation in this case would remain 19-5-1969, and thereafter on every day when the respondent continued making the claim against the plaintiff's right to possess the suit land. Thus counted, the suit was within limitation. Accordingly, the judgments of the two appellate Courts cannot be sustained. They are set aside.
21. The learned trial Court had given convincing reasons in support of the findings rendered in favour of the appellant on questions of fact. These findings have full support from the deposition, on one hand, of the father of the respondent, who, according to the evidence, had no animus or interest against the respondent, and, on the other, from some of the admissions made in the respondent's evidence. The learned two appellate Courts below have not upset the findings of fact which are unexceptionable. Accordingly, it is not considered necessary to remand the case for hearing from the appellate stage. We, while setting aside the appellate judgments and decrees, restore the judgment and decree passed by the learned trial Court. The respondent shall bear the costs of the appellant throughout. s. A. H. Appeal allowed.