JUDGMENT Ismail, J. - This is a Defendant's appeal arising out of a suit brought by the Plaintiff for a declaration that he was the owner of the property described in the plaint. The suit was contested by the Defendant on several grounds. It was pleaded inter alia that the suit was barred by Article 91 of the India Limitation Act and that the suit as ramed was not maintainable. It appears that the Plaintiff Ghulam Ghaus was the owner of this property. On he 14th September, 1931 his wife brought a suit against him for recovery of Rs. 5,000 as dower debt On 4th January, 1933, the Plaintiff executed as sale-deed in favour of one Yusuf Ali with respect to certain properties including the property in dispute ostensibly for a sale consideration of Rs. 2.500. The dower suit however was con promised on 22nd November, 1933. Yusuf Ali vendee died on 22nd September, 1934. On 27th September 1934, a deed of relinquishment was executed by all the heirs of Yusuf Ali except the Defendant. In the deed it was stated that the sale-deed was a fictitious document executed solely with the object of protecting the property from the wife of the Plaintiff in case she obtained a decree for recovery of dower debt. Tie Defendant who is admittedly one of the heirs of Yusuf Ali declined to be a party to the deed of relinquishment. The Plaintiff therefore brought this suit on the 20th February, 1936. The Courts below have decided the issue of limitation against the Defendant. Learned Counsel for the Appellant contends that Article 91 of the Limitation Act clearly barred the suit, particularly as in effect the suit was for the avoidance of the sale-deed which was executed by the Plaintiff in favour of Yusuf Ali. Reference has been made to Mst. Panna Bibi v. Mst. Habiba (1910) 6 I.C. 891. In that case the Plaintiff transferred certain zamindari property to the Defendants. Three years after the execution of the sale-deed the Plaintiff brought a suit to set aside the sale-deed. The learned Judges held that the suit was barred by Article 91 of the Limitation Act. From the judgment reported it is not clear on what ground the Plaintiff sought to have the sale set aside. It does not appear from, the statement of facts that the Plaintiff treated the sale-deed as fictitious. The learned Judges held that the suit was barred by Article 91 of the Limitation Act. From the judgment reported it is not clear on what ground the Plaintiff sought to have the sale set aside. It does not appear from, the statement of facts that the Plaintiff treated the sale-deed as fictitious. The next case cited is Anandappa v. Totappa (1916) 33 I.C. 441 (Bom.). In that case the Plaintiff a minor as the adopted son of a Vatandar acting through his natural father executed a deed of exchange and later on attaining majority brought a suit for a declaration that the deed of exchange was not binding on him. The learned Judges held that it was not necessary for the Plaintiff to have the document set aside before he could recover possession and that a suit for possession was governed by the 12 years rule. Learned Counsel has relied on certain observations in the body of the judgment, but as the facts are distinguishable it is not necessary to consider them. 2. Another case cited is Deo Singh and Others Vs. Mt. Rani Dulaiya Judeo, AIR 1932 All 63 . In that case the Plaintiff executed a deed of gift and after the expiry of three years brought a suit for recovery of possession alleging that the deed of gift was obtained by practicing fraud, bringing undue pressure to bear on her and taking advantage of her being a pardanashin lady. In the body of the plaint however the chief point relied upon was the allegation of fraud only. On these facts it was held that the suit was barred by Article 91 of the Limitation Act. 3. Learned Counsel for the Respondent has relied upon Muhammad Nazir v. Zulaikha Bibi (1928) 50 All. 510. In that case a suit for a declaration was brought that a transaction embodied in a particular deed was from its very inception a sham transaction. The learned Judges Sulaiman and Kendall JJ. held: Where a deed is ab initio null and void, there is no necessity for a person who considers himself aggrieved thereby to come to Court promptly and have the deed actually cancelled or set aside, but where a dead is good but is voidable at the option of the party aggrieved, he must come to Court within three years to have it set aside. 4. 4. The Plaintiff in that case alleged that the document in dispute was wholly fictitious and never intended to pass title in the life-time of the Plaintiff and that no consideration had in fact passed. Similarly in the present case the Plaintiff has stated that the sale-transaction was wholly fictitious and no title under it passed to the vendee. The Courts below have accepted the case of the Plaintiff and have come to the conclusion that the transaction was fictitious from its very inception and that the Plaintiff continued to be in possession of the property in spite of the sale-deed. Under the circumstances it must be held that no title under the sale-deed passed to the vendees and the Plaintiff continued to be the owner of the property. It may be mentioned that it was not the Plaintiff's case that the sale-deed was executed under undue influence or fraud. In such a case the title to the property would pass to the vendee until the deed was avoided. But in a case where the parties to the deed agree to execute a fictitious document, in my judgment it is not incumbent upon the executant to have the sale-deed set aside. 5. In Petherpermal Chetty v. Muniandy (1908) 35 Cal. 551 : 5 A.L.J. 290 (P.C.), their Lordships of the Privy Council held that if 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. In my opinion the cases cited by learned Counsel for the Appellant are clearly distinguishable. In the result the appeal fails and is dismissed with costs.