Kanhaiya Lal, J.@mdashThe plaintiff seeks to set aside a deed of gift purporting to have been executed by her in favour of the defendant on the
11th of February, 1914. Her allegation was that the defendant practised fraud on the plaintiff and caused her to execute the deed of gift by the
exercise of undue influence over her. The precise nature of the fraud was not specified, but it was alleged that certain misrepresentations had been
made by the defendant to obtain her consent. It was further alleged that in spite of the deed of gift, the plaintiff had continued in possession of the
house comprised in the gift.
2. The defendant denied that any fraud, undue influence or misrepresentation had been committed. He pleaded that ha had been in possession of
the house from the date of the gift and spent Rs. 150 in making improvements of the house in question and paid Rs. 150 to Bulaqi Das who had
purchased the rights of Musammat Aliman, the daughter of the plaintiff, who was found to be the joint owner of the said house with the plaintiff.
There was a further defence that the deed in suit was really a sale for consideration cloaked in the form of a gift to defeat a claim for pre-emption.
3. The trial court found that the deed in question was nothing more than a gift without consideration and that it was executed under a
misapprehension arising out of false promises made by the defendant and gentle persuasion exercised by him and was not consequently binding on
the plaintiff. In the course of its judgment it observed that the plaintiff might be said to have been duped or misled but she could not be said to have
been put under undue influence, and that the plaintiff had given preference to the defendant, who was a very distant relation of her husband, in
disregard of the claim of her own brother, because the latter had been neglecting her and the former had been attending to her wants and comforts
in her old age. In regard to the question of possession, the trial court came to the conclusion that the rent of the house tin dispute used to be paid to
the plaintiff till very recently and that as long as the defend ant paid the rent realized from the house to her, she was quite pleased with the
arrangement she had made, but when the defendant began to neglect her and stopped the payment of the rent to her, her eyes were opened and
she sought the help of her brother in getting rid of the transaction. With reference to the other pleas raised by the defendant the finding of the trial
court was that Rs. 150 had actually been spent in improvements and a similar sum in acquiring the rights of Bulaqi Das who had purchased the
rights of Musammat Aliman, the daughter of the plaintiff. A decree was accordingly passed in favour of the plaintiff for the cancellation of the deed
of gift and for the recovery of possession of her share of the house on condition of the plaintiff''s paying Rs. 150 to the defendant on account of the
improvements effected by the latter and Rs. 150 which the defendant had paid to Bulaqi Das for the share of her daughter, Musammat Aliman.
3. The defendant appealed and the plaintiff filed certain cross objections. The whole of the suit was in effect before the lower appellate court for
determination; but the court confined itself to the question of limitation and without going into the various pleas raised on behalf of either side, came
to the conclusion that Article 91 of the Indian Limitation Act (No. IX of 1908) barred the claim.
4. It is not possible, however, to determine the question of limitation without going into many of the questions of fact which arise in the suit. The
plaintiff had, for instance, alleged that she had remained in possession of the house in dispute in spite of the deed of gift but that allegation was
traversed by the defendant. The trial court had recorded a finding on that point but the lower appellate court left it undetermined. Where a deed of
gift is executed by a person governed by the Muhammadan Law and the possession of the property comprised in the gift has not been delivered,
the gift would be void ab initio, and, as held in Sarajul Haq v. Khadim Husain 1884 WN 60 and Meda Bibi v. Imaman Bibi ILR (1884) All. 207,
no question of limitation will arise in such circumstances. The right of the plaintiff to impeach such a gift can only accrue from the moment when by
receipt of possession the gift becomes operative by law.
5. Article 91 of the Indian Limitation Act provides a period of three years from the date when the fact''s entitling the plaintiff to have the instrument
cancelled or set aside become known to him. The lower appellate court has not determined when the facts entitling the plaintiff to have the
instrument cancelled or set aside became known to her. In Singarappa v. Talari Sanjivappa ILR (1904) Mad. 349, where the plaintiff executed a
sham sale-deed in favour of the defendants, neither party intending that it should be acted upon, and four years later the defendants began to set up
a claim to ownership on the strength of the deed, it was held that the suit was not barred by Article 91 of the Indian Limitation Act, having been
brought within three years from the date when the plaintiff apprehended that the defendants had set up title under the instrument. In Petherpermal
Chetty v. MUniandy Servai ILR (1908) Cal 551, their Lordships of the Privy Council similarly held that where a deed was inoperative, it was
unnecessary for the plaintiff to have it set aside as a preliminary to his obtaining possession of the property. The plaintiff stated in her deposition that
the payment of the rent of the house in dispute was stopped at or about the time when the suit was filed. That fact must, therefore, be determined.
6. It has also been urged that the deed of gift was in its very nature revocable under the Muhammadan Law, but that point also cannot be
determined until the other questions raised in the appeal before the court below are decided. The parties are Sunnis, and according to the Hanafi
Law a gift cannot be revoked after the subject of the gift has increased in value owing to some accession thereto made by the donee which is
inseparable from it.
7. The appeal is, therefore, allowed and the decree of the lower appellate court set aside and the suit remanded to that court with a direction to
reinstate it under its original number and to dispose of it after determining the other points involved in the appeal and the cross objections. The
costs of this appeal will abide the event.
Mukerji J.
8. I agree that the appeal before the lower court could not be decided merely on the point of limitation. The other points involved in the appeal
required determination. I, therefore, agree with my learned brother that the appeal must be decreed and on terms stated by him.