Om Parkash, J.
1. The sole question, which requires determination, in this appeal, against the decree and judgment of the learned District Judge, Kinnaur, is whether the suit of the appellant was barred by time.
2. The appellant had instituted a suit, in the Court of the Subordinate Judge, Kalpa, for a declaration that the mortgage-deed dated 2-11-1958, executed by the appellant and respondent No. 2, in favour of respondent No. 1, was without consideration and void. It was alleged, in the plaint, that the possession of the land mortgaged, never passed to respondent No. 1 and that the mortgage deed was got executed without consideration, and under undue influence The suit was contested on behalf of respondent No. 1. One of the grounds, taken up, by him, was that the suit was barred by limitation.
3. The learned Subordinate Judge held that Article 91, Limitation Act, was applicable to the suit of the appellant and that as the suit was instituted more than three years after the execution of the mortgage deed, it was barred by time. Without going into other points raised, the learned Subordinate Judge dismissed the suit as time barred.
4. The appellant went up in appeal to the learned District Judge The learned District Judge agreed with the learned Subordinate Judge that Article 91 of the Limitation Act applied to the suit and that it was barred by time. He upheld the decree of dismissal.
5. The appellant has come up in second appeal to this Court. The finding of the lower Courts that Article 91, Limitation Act, applied to the suit of the appellant and that it was barred by time, has been challenged, as erroneous. It is contended, on behalf of the appellant, that on the averments, made in the plaint. Article 120 and not Article 91, Limitation Act was applicable to the suit of the appellant and that as the suit was instituted within six years of the date of the execution of the mortgage-deed, it was within time. On the other hand, the finding of the lower Courts that the suit was governed by Article 91 Limitation Act and was barred by time, has been supported, on behalf of respondent No. 1.
6. The allegations of the appellant, in the plaint, were that the mortgage-deed dated 2-11-1958 was not supported by any consideration and that the possession of the land mortgaged had never passed to respondent No. 1. It is true that the appellant had also said in the plaint that the mortgage-deed was got executed through undue influence. But a perusal of the plaint leads to the conclusion that the main allegation of the appellant was that the mortgage-deed was without consideration and a sham transaction. As the mortgage-deed was alleged to be without consideration, it was void under Section 25, Contract Act. A suit for a declaration that a transaction is void as being not supported by any consideration is governed by Article 120, Limitation Act and not by Article 91 which is applicable to the cancellation or setting aside of instruments which embody voidable transactions and not transactions which are void ab initio.
In Mohammad Nazir v. Mt. Zulaikha, AIR 1928 All 267, the plaintiff's allegations were that the document which purports to be a sale-deed was wholly fictitious and no consideration had in fact passed, and the document was void. It was held, that on those allegations the suit was governed by Article 120 and not by Article 91, Limitation Act. The above case was followed in Mt. Aisha Begam v Mt. Kundan Jan, AIR 1945 All 367, wherein it was held that a suit for a declaration that a deed was null and void is governed by Article 120 and not by Art. 91, Limitation Act. The same proposition was laid down in Gouri Amma Vaidehi Amma v. Parameswaran Pillai Madhavan Pillai, AIR 1957 Trav Co 312 and Sanat Kumar Mitra v Hem Chandra Dev. AIR 1961 Cal 411.
7. The authorities, cited by the learned counsel for respondent No. 1, are distinguish able. The allegation in Nidhan Singh v. E. D. Sasoon & Co , AIR 1927 Lah 172 was that the award and the decree, passed thereon, were got through fraud It was held that the suit was governed either by Article 91 or by Article 95, Limitation Act and that it was barred by time whichever article was applicable. In the present case, the appellant did not seek a declaration on the basis of fraud. His allegation was that the mortgage-deed was a sham transaction and without consideration Article 91 or Article 95 could not apply to the suit of the appellant in Ram Sumran v. Sarjoo Parshad, AIR 1929 Oudh 67, the suit was brought to get a deed cancelled on the ground of fraud and undue influence The suit was not based on the ground that the deed was without consideration.
8. The suit of the appellant that the mortgage-deed was without consideration was governed by Article 120, Limitation Act. The limitation of six years, under that article, started when the mortgage-deed was executed, namely, from 2-11-1958. The suit which was instituted on 19-4-1962, was clearly within time. Both the lower Courts erred in holding that the suit of the appellant was time barred.
9. The appeal is allowed. The finding andthe decree of both the lower Courts are setaside. The suit is remitted to the SubordinateJudge, Palpa, for disposal in accordance withlaw. The costs, in this appeal, will abide theresult of the suit.