If a Document is Per Se Illegal, or Void Ab Initio, it Need Not be Set Aside

Saji Koduvath, Advocate, Kottayam.

Abstract

  • If a document is per se invalid, it can be set aside by the Court.
  • In certain cases, if a document is per se invalid, it need not be set aside; the court can proceed, taking notice of its illegality, without setting it aside.

“Void” has several facets.

  • ‘Void’ nature has several facets. No declaration needed if a document is void. The court can proceed by ignoring the deed.
  • One type of void acts, those which are wholly without jurisdiction, ab initio void and for avoiding the same no declaration is necessary,
  • The other type of void act (e.g., may be transaction against a minor without being represented by a next friend) is a good transaction against the whole world except the minor. If he decides to avoid the same and succeeds in avoiding it by taking recourse to appropriate proceeding the transaction becomes void from the very beginning.
  • Another type of void act may be which is not a nullity but for avoiding the same a declaration has to be made.

Transfer Per Se Invalid or Ab-initio Void, Need Not Set Aside

The general principle is – if a document is per se invalid, it can be set aside by the Court. In certain cases, if a document is per se invalid, it need not be set aside; the court can proceed, taking notice of its illegality, without setting it aside.

In Madhegowda v. Ankegowda, (2002) 1 SCC 178, it is held by our Apex Court as under:

  • “25………Undoubtedly Smt Madamma, sister of the minor, is not a “guardian” as defined in Section 4(b) of the Act (Hindu Minority and Guardianship Act, 1956). Therefore, she can only be taken to be a “de facto guardian” or more appropriately “de facto manager”. To a transfer in such a case Section 11 of the Act squarely applies. Therefore, there is little scope for doubt that the transfer of the minor’s interest by a de facto guardian/manager having been made in violation of the express bar provided under the section is per se invalid. The existence or otherwise of legal necessity is not relevant in the case of such invalid transfer. A transferee of such an alienation does not acquire any interest in the property. Such an invalid transaction is not required to be set aside by filing a suit or judicial proceeding. The minor, on attaining majority, can repudiate the transfer in any manner as and when occasion for it arises. After attaining majority if he/she transfers his/her interest in the property in a lawful manner asserting his/her title to the same that is sufficient to show that the minor has repudiated the transfer made by the de facto guardian/manager.”

In Chelathukandy Meenakshi Amma v. Parappurath Unni Nair, 2017-2 KLJ 247; 2017-3 KLT(SN) 47, held as under:

  • “When a document is per se illegal, in the sense that it is void ab initio, a party need not seek for the cancellation of such a document. Suppose a person executes a sale deed in respect of a property on which he has no right or title and especially when title belongs to other person, the vendee will not get anything. At the same time, it cannot be said that the true title holder of the property should go for the cancellation of such a document. In such case, the document is void ab initio and, therefore, such a document is liable to be ignored, since it will not cause any cloud on title of the true title holder.”

In this decision (Chelathukandy Meenakshi Amma v. Parappurath Unni Nair, 2017-2 KLJ 247; 2017-3 KLT(SN) 47) it is pointed out as under:

  • “39. In Sarojini vs. Ratnamma, 2015 (1) KLT 602, a learned Single Judge of this Court has held that if a document is void, it is not at all necessary for the aggrieved person to get a declaration that it is void. But, if it is only voidable, it has to be set aside.
  • 40. The very same dictum was laid down by another learned Single Judge of this Court in Gomathy vs. Kesavan Neelakantan, 2013 (3) KLT SN 43 (Case No. 47).”

Also read:

If Voidable, to be Set Aside

In Amirtham Kudumbah v. Sarnam Kudumbah, (1991) 3 SCC 20, it is held as under:

  • “8. .. The property was transferred by him without obtaining the previous permission of the Court and the transfer was not for the benefit of the minor. Such a sale by the minor’s father who is his natural guardian is, unlike in the case of transfer by a de facto guardian (Section 11), not a void sale, but only a voidable sale. Such a sale until set aside is sufficiently effective to pass title, but being a voidable sale, what the buyer has obtained is a defeasible title which is liable to be set aside at the instance of the person entitled to impeach it. Section 8(3) of the Guardianship Act says: “Any disposal of immovable property by a natural guardian, in contravention of sub-section (1) or sub-section (2), is voidable at the instance of the minor or any person claiming under him.”(emphasis supplied)

In Vishwambhar v. Laxminarayan, (2001) 6 SCC 163, Vishwambhai v. Laxminarayan, (2001) 6 SCC 163, and Nangali Amma Bhavani Amma v. Gopalkrishnan Nair, (2004) 8 SCC 785, also, the challenge was made to alienation of minor’s property without Court’s sanction and without legal necessity. It was held that the alienation by natural guardian was voidable.

No declaration Needed if a Document is Void

In Sarojini v. Ratnamma, 2015 (1) KLT 602, and in Gomathy v. Kesavan Neelakantan, 2013 (3) KLT SN 43, it is held that if a document is void, it is not at all necessary for the aggrieved person to get a declaration that it is void. But, if it is only voidable, it has to be set aside.

In Laxmanan v. Padmini, (2009) 1 SCC 354, wherein our Apex Court had considered a deed of Will and a Gift allegedly executed by the very same person on the very same day. In that particular case also, it was a simple suit for partition, even when the said two documents were propounded by the opponent. Even though such contentions were taken in the written statement, regarding the existence of a Will as well as a gift deed, the plaint was not amended and any other reliefs were not incorporated. The propounder of the Will failed to dispel the suspicious circumstances existed in the execution of the Will. Same was the case with the gift deed also. Both the said documents were registered documents. Even then, the Apex court found that the suit for partition, disregarding and ignoring the said two documents, was maintainable, and the decree was granted.

‘Void” has several facets; If ab initio Void, No declaration Needed

Dhurandhar Prasad Singh v. Jai Prakash University, (2001) 6 SCC 534, laid down the distinction between Void and Voidable. It reads as under:

  • “22. Thus the expressions “void and voidable” have been the subject-matter of 20 consideration on innumerable occasions by courts. The expression “void” has several facets. One type of void acts, transactions, decrees are those which are wholly without jurisdiction, ab initio void and for avoiding the same no declaration is necessary, law does not take any notice of the same and it can be disregarded in collateral proceeding or otherwise. The other type of void act, e.g., may be transaction against a minor without being represented by a next friend. Such a transaction is a good transaction against the whole world. So far as the minor is concerned, if he decides to avoid the same and succeeds in avoiding it by taking recourse to appropriate proceeding the transaction becomes void from the very beginning. Another type of void act may be which is not a nullity but for avoiding the same a declaration has to be made. Voidable act is that which is a good act unless avoided, e.g., if a suit is filed for a declaration that a document is fraudulent and/or forged and fabricated, it is voidable as the apparent state of affairs is the real state of affairs and a party who alleges otherwise is obliged to prove it. If it is proved that the document is forged and fabricated and a declaration to that effect is given, a transaction becomes void from the very beginning. There may be a voidable transaction which is required to be set aside and the same is avoided from the day it is so set aside and not any day prior to it. In cases where legal effect of a document cannot be taken away without setting aside the same, it cannot be treated to be void but would be obviously voidable.”

Document Void Ab Initio – Need Not Be Set Aside, Neither Should There Be A Prayer

In Prem Singh v. Birbal, AIR 2006 SC 3608, the Supreme Court has held as under:

  • “16. When a document is valid, no question arises of its cancellation. When a document is void ab initio, a decree for setting aside the same would not be necessary as the same is non-est in the eye of law, as it would be a nullity.”

 In Pragnya Rout v. Hemaprava Ray AIR 2006 Ori. 21, it was held as under:

  • “22. Law is well settled that a decree and/or a registered document which is otherwise ab initio void need not be set aside. Such decree does not strip the right of a party who is the real owner and was not a signatory to the document in question or a party to the suit…. If the deed is void at the threshold, no steps need be taken to set it aside. The vendor may not have title to convey, and in such a case the title deed conveys no title and can be ignored as not worth the paper written on. (see: 1992-2 OLR 362, Sarbeswar v. Commissioner, Consolidation).” (Quoted in: Gulam Mustafa v. Md.  Yusuf Ansari, 2018-3 JBCJ 606; 2019-1 JCR 83 (Jhk).

In Natarajan v. M.  Ravi, 2019-4 CTC 543; 2019-2 LW 673 (Mad), the High Court found that the release deed being a fraudulent document, ‘it is a void document’- void ab initio, which need not have been be set aside and neither should there be a prayer to set aside the document. The Court said it as under:

  • “53. I hold that the release deed being a fraudulent document cannot be upheld by this Court. It is a void document. Its basis is not free consent. The basis is an agreement entered to defeat the rights of the plaintiffs and to grab the property. Consequently, I hold that the doubt being void ab initio, need not be set aside neither should there be a prayer to set aside the document. It is a non-est document in law. It is void. It is a null document. It does not give any right to the releasee. The point is answered accordingly.”

Babulal Tiwari v. Jabbar Singh, 2018-1 MPWN 41, also it is held that the law is well settled that a registered document which is otherwise void ab initio need not be set aside. Such deeds do not strip the right of the party who is the real owner.

In Kaka Hajee Md. Ishaque Sahib v. Kaka Md. Saddiq Sahib, (1970) 1 MLJ 207, it has been held as under:

  • “Normally a transaction will bind a person if he or persons under whom he derives title are eo nomine parties to the same, and must be set aside before any relief is claimed thereunder. This, however, is subject to two important, exceptions : (1) Where the transaction is only a sham and nominal one, not intended to be given effect to; and (2) Where the transaction is void in law. It necessarily follows that (1) transactions to which a person or persons under whom the said persons derive title are not eo nomine parties; (2) transactions which are challenged as sham and nominal and (3) transactions which are void ab initio are not legally binding in character need not be cancelled and set aside, before any claim is made thereunder. …”

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