1. In 1915 plaintiff obtained a decree for money against the husband of defendant 2. In 1918 the plaintiff in execution of the said decree purchased three properties and took symbolical possession thereof through Court. In 1928 defendant 1 applied for getting his name registered in respect of two of the properties on the allegation that he purchased them from defendant 2 who had obtained them from her husband under a deed of gift. The plaintiff also applied for mutation of his own name in respect of all the three properties. The result of the proceedings was that the name of defendant 1 was recorded in respect of the two properties that he had purchased, and the name of defendant 2 remained recorded as regards the third one. Thereafter the two defendants caused obstruction to the plaintiffs' possession. On the above facts the plaintiff sued for declaration of title and for recovery of possession of all the three properties. He challenged the gift by defendant 2's husband in favour of defendant 2 as a fraudulent and a benami transaction. The Courts below have decreed the suit. Defendant 1 has appealed. The first ground urged is that the present suit in so far as it challenged the gift as fraudulent was really a suit under Section 53, T.P. Act, and as such should have been brought by or on behalf of all the creditors of defendant 2's husband. Reliance for this contention is placed on the observations of Mookerjee, J., in the case of Hakim Lal v. Mooshahar Sahu (1907) 34 Cal 999 at p. 1007. The observations are perfectly correct if the suit is one for the benefit of all the creditors; but if it is not meant to be for that end, though the claim in it proceeds on the principle enunciated in Section 53, T.P. Act, it is not a suit within that section. I entirely agree with what Das, J., has said as regards these observations in the case of Sri Thakurji v. Narsingh Narain Singh AIR 1921 Pat 53.
2. The second contention is that the suit in substance is one for cancelling the deed of gift and so is one governed by Article 91, Sch. 1, to the Limitation Act, and that it has been instituted more than three years after the plaintiff came to bo aware of it. There is a considerable conflict of judicial opinion on the question of the exact scope of this article and the circumstances which attract its operation. But such conflict as there is in this matter relates to two questions, namely, first whether the article applies only to cases where the only relief asked for is the setting aside or cancellation of an instrument, or also to cases in which the said prayer is only ancillary or incidental to some other relief which is also asked for; and second whether the article has any application at all to suits for recovery of immovable property which are expressly governed by other articles of the Act. It is unnecessary to go into the decisions bearing upon this conflict, because the one feature of the present case which at once brings it within the purview of the article is a matter on which there is no difference of opinion. The article can possibly have no application where the deed which the plaintiff challenges is one which was not executed by him or by one under whom he claims, and where it is absolutely immaterial to the plaintiff whether it is cancelled or not. But there is no doubt that it does apply to a case in which it is not possible for the plaintiff to get any relief until the instrument is set aside: see Janki Kuar v. Ajit Singh (1887) 15 Cal 58. In other words, if the instrument is binding upon the plaintiff, then even though the plaint may have been made to look as much like a suit for recovery of lands as possible, the plaintiff in order to get any such relief must have the instrument cancelled or at any rate have a declaration of its invalidity as against him: see Raja Rampal Singh v. Balbhaddar Singh (1902) 25 All 1.
3. In neither of the cases just cited however was the instrument concerned executed by a judgment-debtor, whose interest the plaintiff subsequently purchased at an execution sale, as is the case here. And in the case of Bejoy Gopal Mukerji v. Krishna Mahishi Debi (1907) 31 Cal 329, their Lordships held that the plaintiff stood in no need for a declaration of the above character or for cancelling or setting aside the instrument because the instrument which had been executed by a widow had become inoperative, on the death of the widow, as against the plaintiffs, who were her husband's heirs. The real question therefore is, was the gift binding on the plaintiff. This question, I think, I must answer in the affirmative. The gift was made by the husband of defendant 2. If it offended Section 53, T.P. Act, it was voidable but not necessarily void. So long as it was not avoided it bound the husband of defendant 2, and, in my opinion, the plaintiff who purchased the interest of the latter in a money execution sale was equally bound by it. It requires to be set aside or, in any event, a declaration of its inoperative character is essential, before the plaintiff can succeed in getting possession of the property. The question as to whether the plaintiff would be entitled to a declaration that the deed is not binding on him will therefore have to be approached from the point of view of Article 91 of the Schedule to the Limitation Act. In other words, the learned Judge will have to decide the question as to whether the plaintiff's prayer in that respect is barred by limitation or not, upon a consideration of the question as to whether he has instituted the suit within three years from the date on which the facts entitling him to have the instrument cancelled or set aside became known to him.
4. There is also another part of the case which has not yet been dealt with by him though it was found against the defendants in the trial Court, I mean the question of benami, which, if found in plaintiff's favour, will also entitle the plaintiff to a decree, irrespective of any question of limitation. The appeal is allowed, the decree of the Subordinate Judge is set aside and the case is remanded to the Court of appeal below in order that it may be dealt with in the light of the observations made above. Costs of this appeal will abide the result. Leave to appeal under the Letters Patent is asked for but it is refused.