Henry Richards, C.J.
1. This appeal arises out of a suit in which the plaintiff sought a declaration that a bond, dated the 5th of October, 1904, and executed by him mortgaging certain property being without valid consideration is ineffectual, and that the defendants had no right under it. The court of first instance decreed the claim. The lower appellate court allowed the appeal and dismissed the suit.
2. The plaintiff's own case is that the bond in question was executed in favour of the defendant, who was a relation of his, for the purpose of defeating actual or possible creditors. The present suit was not instituted until the 26th of July, 1913, that is to say, about nine years after the execution. The lower appellate court has dismissed the suit solely on the ground that it is barred by limitation.
3. Article 91 provides that a 'suit to cancel or set aside an instrument not otherwise provided for shall be brought within three years from the time when the facts entitling the plaintiff to have the instrument cancelled or set aside become known to him.'
4. If Article 91 is appropriate, it seems to me that the facts which entitled the plaintiff to bring the present suit were that no consideration had passed and that the bond was only executed for the purpose of defeating his creditors. These facts were known to the plaintiff the day he executed the bond. Article 120 provides that 'where no period of limitation is provided elsewhere in the schedule, the suit must be brought within six years from the time when the right to sue accrues.' If Article 120 is appropriate, it seems to me that it is clear that what gave the plaintiff a right to bring the present suit was that there was no consideration paid or intended to be paid. His right to sue therefore accrued at the very time when he executed the bond and his suit had to be brought within six years. If it were necessary to decide which - article of the Limitation Act applies, I am inclined to think Article 91 is the appropriate article. If the bond was altogether, fictitious it ought to be cancelled and a note made of its cancellation in the Registration office as provided by Section 39 of the Specific Relief Act. Cancellation of the bond was the real relief to which the plaintiff was entitled if he proved his case and if the suit was brought within time.
5. There are many cases in which a party might be entitled to a declaration that a deed did not bind him while he would not be entitled to have the deed cancelled. It is contended that whether we apply Article 91, or Article 120, the fact which entitled the plaintiff to have the instrument cancelled or the time when his right to sue accrued was when he apprehended that a suit would be brought against him. It seems to me that though his apprehension may have been a reason for bringing the suit it was neither the fact which entitled him to have the instrument cancelled within the meaning of Article 91, nor was it by reason of his apprehension that the right to sue accrued to him within the meaning of Article 120.
6. There have been a number of cases cited none of which seem to me to be very much in point, except the case of Singarappa v. Talari Sangjivappa (1904) I.L.R. 28 Mad. 349. The learned Judges seem to have suggested that the right to have a document set aside was when the party had reasonable apprehension that such instrument, if left outstanding, would cause him serious injury, and they referred to Section 39 of the Specific Relief Act. In my opinion Section 39 merely states under what circumstances a plaintiff can bring a suit for the setting aside of a document. The section is clearly subject to the provisions of the Limitation Act. In my opinion the decision of the court below was quite correct and ought to be confirmed. I wish to say, in conclusion, that I am deciding the case on its own facts and circumstances.
7. In concurring with the decision of the learned Chief Justice in this case I wish to add a few remarks, principally because of the authorities which have been quoted on the other side, and I would mention the case of Vithai v. Hari (1900) I.L.R. 25 Bom. 78 in addition to the Madras case referred to by the Honourable Chief Justice. I mention that case as the type of a number of others in which essential relief sought by the plaintiff was the recovery of possession, or in which at any rate a cause of action was afforded by actual interference with the plaintiff's possession. I think all cases of this sort are easily distinguishable from the one now before us. On its facts even the case reported in I.L.R., 28 Mad., 349, is distinguishable from the present, on the ground that the deed sought to be set aside was' a deed of sale, and that it was an essential part of the plaintiff's case that he had continued in possession in spite of the execution of that deed, and that he got his cause of action owing to an attempt on the part of the defendant to interfere with his possession. The line of reasoning, however, adopted by the learned Judges of the Madras High Court in that case is in favour of the contention of the appellant now before us. With all respect to the learned Judges, I can only say that a general application of the principles suggested in this decision, and in particular their application to the present case, would amount to something like a reduction ad absurd of the relief intended to be allowed by the Legislature by means of declaratory suits. In a case like the present the plaintiff, the executant of the disputed document, was fully entitled to wait quietly at home until the defendant brought a suit to enforce the mortgage. As against such a suit all the pleas put forward in this case would have been available as a defence. The period of limitation for a suit on the mortgage deed had barely three more years to run when the plaintiff came into court with the present suit. The object of allowing a declaratory suit to be brought at all in such circumstances as the present is for the perpetuation of testimony when the plaintiff is apprehensive that, if he waits for the opposite party to take action against him, evidence at present readily available would become difficult or impossible to obtain. I think that is why a narrow period of limitation was prescribed for suits to which article 91 of the Indian Limitation Act applies. There is no doubt that attempts are frequently made to secure a longer period of limitation by drafting the plaint so as to evade all reference to Section 39 of the Specific Relief Act (No. I of 1877), and to claim a mere decalaration instead of the full relief prescribed by that section. It is open to question how far litigants should be encouraged to claim the benefit of the general Article 120 of the first schedule to the Indian Limitation Act by going out of their way to word their plaint so as to escape the application of article 91. Regard should undoubtedly be had to the essence of the suit rather than to the particular colouring sought to be put upon it by plaintiff. I am content, however, to deal with this case on the assumption that Article 120 applies. If so, the test which I would suggest is whether the present suit could or could not have been instituted prior to what the plaintiff alleges to be the origin of his cause of action, namely, the day on which the defendant in some way, not clearly specified, showed an intention to institute a suit in respect of the money apparently due on the face of this bond. In my opinion, if the plaintiff had come into court within a year, or within a month, or within a week, of the execution of this deed, alleging that he had been induced to execute it as a matter of policy, and (as his witnesses have deposed) in order to protect the property therein referred to from the attacks of creditors whom the plaintiff feared, but that he had repented of his conduct and realized that so long as the deed was in existence, the defendant might make a dishonest and improper use of it against him, he would have had a proper and valid cause of action for the very declaration which he seeks in the present case. On this ground, therefore, it seems clear to me that the right to sue for a declaration in respect of this bond accrued to the plaintiff on the day on which it was executed, and that time was always running against him, I, therefore, concur in the finding that the present suit was rightly dismissed by the learned District Judge.
8. The order of the Court is that we dismiss the appeal with costs.