BALJINDER SINGH versus RATTAN SINGH

Citation: [2008] 11 S.C.R. 904 · Decided: 05-08-2008 · Supreme Court of India · Bench: ARIJIT PASAYAT · Disposal: Disposed off

Judgment (excerpt)

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[2008] 11 S.C.R. 904 
1
A 
BALJINDER SINGH 
'ti 
;
II. 
RATTAN SINGH 
CIVIL APPEAL NO. 598 OF 2005 ETC. 
B 
AUGUST 5, 2008 
[DR. ARIJIT PASAYAT AND TARUN CHATTERJEE, JJ.] 
-f 
Hindu Law: 
Alienation of undivided co-parcenary property - By way 
1.-.-
c of Gift, Sale and Will - Validity of- Held: Gift by a co-parcener 
..
of his undivided interest in the co-parcenary property is void -
In the facts and circumstances, Will was correctly found by 
courts below surrounded by suspicious circumstances -
Hence, alienation thereby not valid - Validity of sale needs to 
D be decided on the basis of factual scenario - Hence matter 
remitted to High Court to decide its validity in the facts by con-
sidering applicability of s. 109 of Limitation Act - High Court 
~ 
by applying s. 65 of Limitation Act, made out a new case for 
which there was no pleading nor any question of law was 
E framed - Limitation Act, 1963 - s. 109. 
Words and Phrases - 'void' and 'voidable' - Meaning of 
'S', out of his ancestral property executed a gift deed 
in favour of his son from his second marriage (appellant/ 
F defendant). He also executed a sale deed in favour of sis-
ter of his second wife (the property sold ultimately came 
to grandson of 'S' through second marriage by virtue of a 
Will executed by the vendee). He further executed a Will 
in favour of his second wife. Respondents (children from 
G his first wife (since deceased) filed three suits disputing 
the execution of the deeds. 
In the suit disputing the gift, "trial court came to the 
finding that the property being ancestral, is liable to be 
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H 
904 
I 
BALJINDER SINGH v. RATTAN SINGH . 
905 
challenged, in terms of Article 109 of the Limitation Act, A 
but the suit was liable to be dismissed since barred by 
limitation. 
In the suit challenging the sale deed, trial court held 
that the same was barred by limitation under Article 109 8 
of Limitation Act. 
In the suit disputing the Will, trial court held that the 
Will is proved to have been executed and was not sur-
rounded by suspicious circumstances. Hence suit was 
dismissed. 
c 
Plaintiffs-respondents filed three separate appeals, 
wherein first appellate court held that the two suits were 
not barred by limitation. In the appeal as regards the Will, 
it was found that the same was surrounded by suspicious 
circumstances. Thus the plaintiff (son from the first mar-
D 
riage) would have 1/3 share and the second wife and the 
son through her would have 213rd share. Thus the suits 
were decreed. 
Second appeal was filed by the defendants. Appel-
E 
!ant-plaintiff also filed second appeal challenging the or-
der granting 1/3rd share. High Court upheld the order of 
first appellate court holding that the gift deed was not a 
genuine document; and that in respect of the suit ques-
tioning the sale, Article 65 of Limitation Act was applicable. 
F 
It further held that the plaintiff-respondent was not entitled 
to 1/3 share as the property was to be divided into four 
equal shares between the co-parceners including 'S' and 
after death of 'S' his share would be equally divided be-
tween the children from first wife and children from sec-
G 
ond wife and second wife herself. Hence the present ap-
peals. 
Disposing of the appeals, the Court 
HELD: 1.1 High Court proceeded to decide the is-
H 
906 
SUPREME COURT REPORTS 
[2008] 11 S.C.R. 
A sue relating to period of limitation by making out a new 
case for which there was no pleading and even no ques-
tion of law was framed. Articles 65 and 109 of Limitation 
Act, 1963 operate in different fields. The trial Court categori-
cally found that Article 65 was not applicable and Article 
B 109 was applicable to the facts of the case. The first appel-
late court in essence accepted that Article 109 was appli-
cable, yet it held that the period of 12 years as laid down in 
Article 109 was to be reckoned from the year 1992 and since 
the suit had been filed in 1994 it is within the period of limi-
C tation. [Paras 14 and 16] [916 A,8 & E 917 8] 
1.2 High Court proceeded on the basis that the ap-
plicable Article is Article 65 and not Article 109. It is to be 
noted that there was no issue framed about applicability 
of Article 65. On the contrary, the issue framed related to 
D the applicability of Article 109. There was no pleading by 
the plaintiff about applicability .of Article 65. Even in the 
counter affidavit filed before this Court in the concerned 
Civil Appeal, the categorical stand

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