Did the Supreme Court Depart From its Earlier Position in Hussain Ahmed Choudhury v. Habibur Rahman, 2025 SCC OnLine SC 892, in its Subsequent Decision in Shanti Devi v. Jagan Devi, 2025 INSC 1105?

Saji Koduvath, Advocate, Kottayam.

A Seeming Conflict Between Two Decisions

In Hussain Ahmed Choudhury  v. Habibur Rahman, 2025 SCC OnLine SC 892 (J.B. Pardiwala, R. Mahadevan JJ.), it was clearly opined, as regards an assailed instrument, as under:

  • “In a situation where the plaintiff was not a party to the instrument, a declaration must have been sought to the effect that the said instrument was not binding on the plaintiff.”

However, in the subsequent decision in Shanti Devi v. Jagan Devi, 2025 INSC 1105 (per Pardiwala and Mahadevan JJ.), the Supreme Court clarified its earlier position by holding that where the very character of a sale deed is assailed as fraudulent or bogus, the requirement of seeking a declaration stands implicitly satisfied. The Court said as under:

  • “In cases where the character of the sale deed is assailed as being fraudulent, this requirement is implicitly satisfied since the very averment that the sale deed was fraudulent or a sham and bogus transaction by itself indicates that the plaintiff did not intend to be bound by it. Therefore, this requirement too, could be said to have been satisfied by the plaintiff in the present case.”

As a consequence –

  • a void document need not be challenged by claiming a declaration (that the said instrument is not binding), as the said plea can be set up and proved even in collateral proceedings.

It is also made clear –

  • A plaintiff who was not a party to the instrument need not seek its cancellation; and
  • Relevant article in the Limitation Act, 1963 is Article 65 (12-year period) and not Article 59 (3-year period)

Subsequent Decision (Shanti Devi v. Jagan Devi) Vividly Explained the Legal Position

In Shanti Devi v. Jagan Devi,  2025 INSC 1105, on 12 September 2025, made it clear – when a deed is fraudulent or a sham and bogus one, ‘it is not necessary for the plaintiff to claim any separate declaration that a document is void‘. It is held as under:

  • “25. The crux of the issue seems to be whether it is Article 65 or Article 59 of the Schedule to the Limitation Act, 1963, which would apply to the present facts in hand. ….”
  • “28. In State of Maharashtra v. Pravin Jethalal Kamdar, reported in 2000 SCC OnLine SC 522, this Court held that as far as void and non-est documents are concerned, it would be enough for the plaintiff to file a simpliciter suit for possession to which Article 65 of the Limitation Act, 1963 would apply. …… Subsequently, the decision of this Court in Bhim Singhji v. Union of India reported in (1981) 1 SCC 186 … opined as follows:
    • .i. First, the contention of the State that it is Article 58 of the Limitation Act, 1963 that would apply, was rejected. It was held that the suit is primarily one for possession of property based upon title. It was observed that owing to the decision in Bhim Singhji (supra), the order dated 26.05.1976 along with the sale deed dated 23.08.1976 became void ab intio and without jurisdiction. Therefore, it was not necessary for the plaintiff to claim any separate declaration that they are void. The plea about their invalidity could be raised in the course of any proceedings. Therefore, it is Article 65, which deals with a suit for possession based on title, that would apply from the date on the which the possession of the defendant State became adverse to the plaintiff.
    • ii. Secondly, though the plaintiff sought a declaration that the order dated 26.05.1976 and the sale deed dated 23.08.1976 were void, yet it was held that the same would be of no consequence insofar as the question of limitation is concerned.
  • The fact would still remain that the possession of the property was taken by the defendants via void documents. Therefore, such documents could be ignored and a suit for possession simpliciter, for which the period of limitation prescribed under Article 65, i.e., 12 years, could be filed. In the course of such proceedings, it could be contended by the plaintiff that the documents are a nullity.
  • …”
  • “29. This Court in Prem Singh v. Birbal reported in (2006) 5 SCC 353, discussed the position of law as to when Article 59 of the Limitation Act, 1963 would apply and opined as follows:
    • .i. First, that Article 59 of the Limitation Act, 1963 would only encompass within its fold fraudulent transactions which are ‘voidable’ transactions and not those that are ‘void’. In other words, Article 59 would apply only where an instrument is prima facie valid and not to those instruments which are presumptively invalid.
    • ii. Secondly, that when the document in question is void ab initio/or void, a decree for setting aside the same would not be necessary since such a transaction would be non-est in the eyes of law, owing to it being a nullity.
    • iii. Thirdly, a fine distinction was drawn between fraudulent misrepresentation as regards the ‘character of the document’ and fraudulent misrepresentation as regards the ‘contents of a document’. It is only in the former situation that the instrument would be void and, in the latter, it would remain voidable. To put it simply, Article 59 would not govern the period of limitation in respect of a void transaction.
    • iv. Lastly, that if a deed was executed by the plaintiff when he was a minor and it was thereby void, he had two options to file a suit to get the property conveyed thereunder, i.e., he could either file the suit within 12 years of the deed or within 3 years of attaining majority.
    • ….”
  • “30. In the decision of this Court in Hussain Ahmed Choudhury v. Habibur Rahman reported in 2025 SCC OnLine SC 892, where one of us, J.B. Pardiwala J., was a member of the Bench, it was reiterated that a person who is not a party to an instrument would not be obliged in law to seek its cancellation. The reason being that such an instrument would neither be likely to affect his title nor be binding on him. However, such a plaintiff must at least seek a declaration that the said instrument is not binding on him or that is invalid insofar as he is concerned. ………
  • 31. As per the dictum in Prem Singh (supra), this Court, in order to ascertain whether Article 65 of the Limitation Act, 1963 would apply to the present factual scenario, has to first determine whether the fraud was alleged as regards the contents of the sale deed dated 14.06.1973 or the character of such sale deed. Both the First Appellate Court as well as the High Court have arrived at the finding that the plaintiff had never executed the said sale deed in the first place as it was proved that it was not her thumb impression that was affixed therein. Therefore, this finding goes to the character of the sale deed and thereby, renders it void/void ab initio. Hence, as per this decision, there remained no reason for the plaintiff to seek for its cancellation. The original sale deed also was not produced before the Trial Court by the defendants in order to rebut the doubt cast upon the veracity of the said sale deed. Consequently, Article 59 of the Limitation Act, 1963 would find no application to the case in hand.
  • 32. In Hussain Ahmed Choudhury (supra), it was clearly opined that a plaintiff who is not a party to the instrument in question need not seek its cancellation. We are not oblivious to the fact that in a situation where the plaintiff was not a party to the instrument, the said decision laid down a requirement that a declaration must be sought to the effect that the said instrument was not binding on the plaintiff. However, the said decision clarified that whether the plaintiff has sought such a declaration or not could be culled out from a holistic reading of the plaint along with the relief(s) sought. In cases where the character of the sale deed is assailed as being fraudulent, this requirement is implicitly satisfied since the very averment that the sale deed was fraudulent or a sham and bogus transaction by itself indicates that the plaintiff did not intend to be bound by it. Therefore, this requirement too, could be said to have been satisfied by the plaintiff in the present case.”
  • “34. We may look at the matter from one another angle. Apart from the aspect of fraud, the decision of this Court in Kewal Krishnan v. Rajesh Kumar and Others reported in (2022) 18 SCC 489, while looking into whether the defendants had paid any sale consideration to the plaintiff while purchasing the plaintiff’s share in the property, held as follows:
    • .i. First, that the sale of an immovable property would have to be for a price and such a payment of price is essential, even if it is payable in the future. If a sale deed is executed without the payment of price, it is not a sale at all in the eyes of law, specifically under Section 54 of the Transfer of Property Act,  1882. Such a sale without consideration would be void and would not affect the transfer of the immovable property.
    • ii. Secondly, that, in the said case, the defendants could not rebut the allegation of the plaintiff that no sale consideration was paid as no evidence was adduced to indicate – (a) the actual payment of the price mentioned in the sale deeds and, (b) that the defendants had any earning capacity at the time of the transaction such that the sale consideration could have been paid. As such the sale deed being void for want of valid consideration, could not be said to have affected the one-half share of the plaintiff in the suit properties nor have conferred any right of title on the defendants. In fact, it was held that the sale deeds were a sham and must be ignored.
    • iii. Lastly, it was reiterated that a document that is void need not be challenged by seeking a declaration as the said pleas can be set up and proved even in collateral proceedings.”
  • “The relevant observations are thus:
    • “……
    • Thus, the sale deeds of 10-4-1981 will not confer any right, title and interest on Sudarshan Kumar’s wife and children, as the sale deeds will have to be ignored, being void. It was not necessary for the appellant to specifically claim a declaration as regards the sale deeds by way of amendment to the plaint. The reason being that there were specific pleadings in the plaints as originally filed that the sale deeds were void. A document which is void need not be challenged by claiming a declaration as the said plea can be set up and proved even in collateral proceedings.
    • …..”

End Notes I

A suit for (i) declaration of Title and (ii) Recovery – Art. 65 Governs; Not, Art. 58.

Shanti Devi (Since Deceased) v. Jagan Devi,  2025 INSC 1105, on 12 September, 2025,  (J.B. Pardiwala, R. Mahadevan JJ.)  1. Crux of the issue whether Article 65 or Article 59 
2. State of Maharashtra v. Pravin Jethalal Kamdar, AIR 2000 SC 1099; 2000-3 SCC 460 – void and non-est documents – a simpliciter suit for possession to which Article 65 would apply
3. Bhim Singhji v. Union of India, (1981) 1 SCC 186 – Claim of title void ab initio and without jurisdiction – suit for possession based upon title – not necessary to claim any separate declaration that they are void. -invalidity could be raised in any proceedings. – Article 65 deals with.
N. Thajudeen v. TN Khadi and Village Industries Board, AIR 2024 SC 5641  declaration of title and recovery of possession – relief of declaration would only be an ancillaryone
K. Vattakandiyil Madhavan v. Janaki, 2024(2) KLT 789(SC)  If Document ex-facie reveals- conveyer hadno title – No Specific declaration needed.  
C. Natrajan v. Ashim Bai, AIR 2008 SC 363; (2007) 14 SCC 183  Suit for possession, as a consequence of declaration – Article 58 will have no application
Prem Singh v. Birbal  (2006) 5 SCC 3531. Article 59 fraudulent transactions – ‘voidable’ not ‘void’. 2. Article 59 apply where an instrument is prima facie valid and not to presumptively invalid. 3. Article 65 apply when document is void ab initio or void 4. A decree for setting aside the document void ab initio or void would not be necessary since – non-est. 5. Fraudulent misrepresentation as regards the ‘character of the document’ would be void, not ‘contents’.  Article 59 would not govern a void transaction.
State of Maharashtra v. Pravin Jethalal Kamdar, AIR 2000 SC 1099; 2000-3 SCC 460The sale deed executed pursuant to the said order would also be a nullity. It was not necessary to seek a declaration about the invalidity of the said order and the sale deed. The fact of plaintiff having sought such a declaration is of no consequence. When possession has been taken by the appellants pursuant to void documents, Article 65 of the Limitation Act will apply, and the limitation to file the suit would be 12 years.
Indira v. Arumugam, AIR 1999 SC 1549Once the title is established,  the defendant to prove adverse possession (Followed in: Mallavva v. Kalsammanavara Kalamma, 20 Dec 2024, 2024 INSC 1021)
C. Mohammad Yunus v. Syed Unnissa, AIR 1961 SC 808  declaration with a further relief – Article governing -that for such further relief
Gopakumar v. Kamalakshy Purushothaman, 2019-3 KHC 478; 2019-3 Ker LJ 269 Declaration with possession – Article 65 would come into play giving 12 year period – not Article 58.
S. Krishnamma v. T.S. Viswajith:  2009 (4) KerLT 840Article 58 is not applicable for declaration sought only as an ancillary relief.
Chelathukandy Meenakshi Amma v. Parappurath Unni Nair, 2017-2 KLJ 247; 2017-3 KLT(SN) 47Document is per se illegal, in the sense that it is void ab initio, a party need not seek for the cancellation Sarojini vs. Ratnamma, 2015 (1) KLT 602, Gomathy vs. Kesavan Neelakantan, 2013 (3) KLT SN 43 (Case No. 47) referred.
K.J. Abraham v. Mrs. Mariamma Itty, ILR 2016-3 Ker 98 (Antony Dominic & Hariprasad, JJ.)1. suit for recovery based on title,  limitation arise only when adverse possession 2.  recovery of possession on title – declaration is only subservient to the main prayer, possession 3. Article 58 will apply only to a suit for declaration simplicitor.

End Notes II

Declaration of Title & Recovery: Article 65 of the Limitation Act Governs; Not, 58

58To obtain any other declarationThree years.When the right to sue first accrues.
59To cancel or set aside an instrumentor decree or for the rescission of a contract.Three years.When the facts entitling the plaintiff to have the instrument or decree cancelled or set aside or the contract rescinded first become known to him.
65  For possession of immovable property or any interest therein based on title.Twelve years.When the possession of the defendant becomes adverse to the plaintiff.

End Notes III

Earlier Supreme Court Decisions

1. Kizhakkevattakandiyil Madhavan v. Janaki, 2024-4 SCR 383; 2024(2) KLT 789(SC)

  • “If a document seeking to convey immovable property ex-facie reveals that the conveyer does not have the title over the same, specific declaration that the document is invalid would not be necessary. The Court can examine the title in the event any party to the proceeding sets up this defence.”

2. N. Thajudeen v. Tamil Nadu Khadi and Village Industries Board, AIR 2024 SC 5641

  • “In the case at hand, the suit is not simply for the declaration of title rather it is for a further relief for recovery of possession. It is to be noted that when in a suit for declaration of title, a further relief is claimed in addition to mere declaration, the relief of declaration would only be an ancillary one and for the purposes of limitation, it would be governed by the relief that has been additionally claimed. The further relief claimed in the suit is for recovery of possession based upon title and as such its limitation would be 12 years in terms of Article 65 of the Schedule to the Limitation Act.

3. C. Natrajan v. Ashim Bai, AIR 2008 SC 363; (2007) 14 SCC 183

  • “If the plaintiff is to be granted a relief of recovery of possession, the suit could be filed within a period of 12 years. It is one thing to say that whether such a relief can be granted or not after the evidences are led by the parties but it is another thing to say that the plaint is to be rejected on the ground that the same is barred by any law. If the suit has been filed for possession, as a consequence of declaration of the plaintiffs title, Article 58 will have no application.”

4. Madhegowda v. Ankegowda, AIR 2002 SC 215; (2002) 1 SCC 178.

  • “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.”

5. State of Maharashtra v. Pravin Jethalal Kamdar, AIR 2000 SC 1099; 2000-3 SCC 460, held as under:

  • “6. As already noticed, in Bhim Singhji’s case (Bhim Singhji v. Union of India & Ors., (1981) 1 SCC 166), Section 27(1) insofar as it imposes a restriction on transfer of any urban or urbanisable land with a building or a portion of such building, which is within the ceiling area, has been held to be invalid. Thus, it has not been and cannot be disputed that the order dated 26th May, 1976, was without jurisdiction and nullity. Consequently, sale deed executed pursuant to the said order would also be a nullity. It was not necessary to seek a declaration about the invalidity of the said order and the sale deed. The fact of plaintiff having sought such a declaration is of no consequence. When possession has been taken by the appellants pursuant to void documents, Article 65 of the Limitation Act will apply and the limitation to file the suit would be 12 years. When these documents are null and void, ignoring them a suit for possession simpliciter could be filed and in the course of the suit it could be contended that these documents are nullity. In Ajudh Raj & Ors. v. Moti S/o Mussadi2 this Court said that if the order has been passed without jurisdiction, the same can be ignored as nullity, that is, non-existent in the eyes of law and is not necessary to set it aside; and such a suit will be governed by Article 65 of the Limitation Act. The contention that the suit was time barred has no merit. The suit has been rightly held to have been filed within the period prescribed by the Limitation Act.”

6. C. Mohammad Yunus v. Syed Unnissa and Others, AIR 1961 SC 808

  • In a suit for declaration with a further relief, the limitation would be governed by the Article governing the suit for such further relief.

The Kerala High Court, 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).”

In Gopakumar v. Kamalakshy Purushothaman, 2019-3 KHC 478; 2019-3 Ker LJ 269 it is held as under:

  • “Article 58 of the Limitation Act would be applicable in a suit for declaration, but it has no application when the relief sought in the plaint is not for a mere declaration,but coupled with other reliefs like injunction, partition, possession etc. and Article 65 of the Limitation Act would come into play giving 12 year period. In the instant case, the relevant Article which can be applied is not Article 58, but Article 65 as the suit was filed not merely for a relief of declaration, but for declaration of title and for recovery of possession of immovable property.”

In S. Krishnamma v. T.S. Viswajith:  2009 (4) KerLT 840, it is held that Article 58 is not applicable for declaration that is sought only as an ancillary relief. It is held as under:

  • “When a declaration regarding the void character of the document is sought for that is which would not govern the period of limitation for the suit. The consequential relief sought for is to be treated as main relief governing the period of limitation for the suit. (See Mrs. Indira Bhalchandran Gokhale v. Union of India & Another-AIR 1990 Bombay 98). Therefore declaration prayed for in this case as relief Nos. 1 and 2 were unnecessary, and even if made, need only be treated as ancillary to the main relief of partition of immovable prop

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