suit for declaration without cancellation of sale deed is valid
Suit for partition -questioning the validity and binding nature of sale deed without asking for cancellation .
Partition suit without prayer for cancellation of sale deed is maintainable and the question of limitation of 3 years not applies from the date of alienation As the plaintiff is not eo nomine a party to the sale-deed, it is not necessary for him to pray for cancellation of the sale-deed and it is open for him to question the validity and binding nature of the sale-deed
that the lower Court erred in holding that the suit filed for partition without a prayer for cancellation of the sale-deed is not maintainable and that the suit is also barred by limitation inasmuch as it was not filed within three years from the date of the alienation. I find force in this submission. As the plaintiff is not eo nomine a party to the sale-deed, it is not necessary for him to pray for cancellation of the sale-deed and it is open for him to question the validity and binding nature of the sale-deed. In Ramaswami v. Rangacharia a Full Bench of the Madras High Court held that in respect of alienations by the father to which the minor son was not eo nomine a party and which are challenged by him in the suit for partition against his father, the plaint need not contain a prayer for a declaration or cancellation. The Full Bench referred to in this context the following observations made in Unni v. Kunchi Amma, (1891) 14 Mad 26:
"If a person not having authority to execute a deed, or having such authority under certain circumstances which did not exist, executes a deed, it is not necessary for persons who are not bound by it, to sue to set it aside, for it cannot be used against them. They may treat it as nonexistent and sue for their right as if it did not exist."
The same principle has been laid down in Bijoy Gopal v. Krishna Mahishi Debi, (1907) 34 Cal 32 = 34 IA 87, regarding the alienations made by the widow of the last male owner which are sought to be impeached by the reversioners as not binding on them. It, therefore, follows that it was not necessary for the plaintiff to pray for cancellation or for setting aside the sale-deed. In this view of the matter, the question of limitation also does not arise. However, this would not make any difference so far as the ultimate result is concerned.
For all the aforesaid reasons, the plaintiff-appellant is not entitled to any relief.
The appeal thus fails and it is accordingly dismissed. But there will be no order as to costs.-2015 A.P.(1998) MSKLAWREPORTS