Judgement Appeal (No. 54 of 1941) from a decree of the High Court (March 17, 1937) which reversed a decree of the Court of the First Class Subordinate Judge of Belgaum (April 23, 1932). The following facts are taken from the judgment of the Judicial Committee. The question for determination in this appeal was whether the plaintiffs (appellants) suit for recovery of possession of 09 Law. Rep. 72 Ind. App. 21 ( 1944- 1945) Ramchandra Jivaji Kanago V. Laxman Shrinivas Naik 110 the suit properties was barred by art.91 of the Indian Limitation Act, 1908 (Act IX. of 1908). That article prescribes a period of "three years" for a suit to cancel or "set aside an instrument not otherwise provided for,” and time begins to run "when the facts entitling the plaintiff to have the instrument cancelled or set aside become known to him." The table given below shows the relationship of the parties to the suit who were members of a Hindu family descended from one Balaji Kanago— Balaji surnamed Kanago of Pachhapur. | || Annaji I Ramchandra I = Gangabai | alias Sitaram (predeceased | (died in 1889). her husband). | Kashibai=Tammaji=Tungabai (died in (died on 1900). 5-5-26). | | | | | Jiwaji Guru Appaji = Savitribai Shakuntalabai=Laxman shrinivas Tamntajis (prede-ce (born in (died on alisa Akkubai Naik son by ased 1894, 13-7-17) (died on (Defendant No 1) Kashibai his died on 3-2-23). 19-11-20). (died on father) | | 4-7-18) | | | | | | | | | | | | | | | | | Sitaram Annaji II | Raghavendra alias (Plaintiff | alias Annaji Ramchandra II. No. 2) | (Defendant (born on | No. 2). 12-3- 1902) | (Plaintiff No. 1) | | | | Tammana Vatsala (born in January (born on 1915 and died in 19-6-17 February or March died on of the same year). 17-10-17) Balaji had two sons, Annaji I and Ramchandra T. As found by the High Court, they separated in 1865. The elder, Annaji, died leaving a son Tammaji. The suit giving rise to this appeal was instituted by plaintiffs 1 and 2, Ramchandra II and Annaji II, the two sons of Jiwaji, who was the son of Tammaji, 09 Law. Rep. 72 Ind. App. The elder, Annaji, died leaving a son Tammaji. The suit giving rise to this appeal was instituted by plaintiffs 1 and 2, Ramchandra II and Annaji II, the two sons of Jiwaji, who was the son of Tammaji, 09 Law. Rep. 72 Ind. App. 21 ( 1944- 1945) Ramchandra Jivaji Kanago V. Laxman Shrinivas Naik 111 against respondent No.1, Laxman, who was defendant No. 1, and his minor son Raghavendra, respondent No. 2, who was defendant No. 2. It was alleged in the plaint that the suit properties belonged to Appaji, son of Tammaji by Tungabai, that Appaji died without leaving surviving him either a widow or any issue, that on his death his mother Tungabi succeeded to his properties, and that on her death the plaintiffs as the nearest reversioners to Appaji were entitled to the properties in the suit. Tungabai died in 1926, and the suit was instituted in 1927. Defendant No. 1 was the husband of a sister of Appaji named Shakuntalabai, alias Akkubai, deceased, and defendant No. 2 was their son. In the joint written statement which they filed, they stated that the father of the plaintiffs was adopted by Ramchandra I in the genealogical table, that defendant No, 2 was adopted by Tungabai after the death of Appaji, and that he was therefore a nearer heir to Appaji as he became his brother by Tungabais adoption. The defendants contended further that Appaji had made a gift of the suit properties to his sister, Shakuntalabai, by a deed of gift dated May 24, 1915, that she left the same to her son, defendant No. 2, by her will dated November 16, 1920, which she had made before she died on November 19, 1920, and that defendant No. 1 as the guardian of his son came into possession of those properties. The plaintiffs met that plea with the case that Appaji was induced to execute the deed by the undue influence of defen dant No. 1 and his wife Shakuntalabai, and that therefore the gift was invalid. Lastly, the defendants pleaded that the plaintiffs suit was barred by limitation. The plaintiffs met that plea with the case that Appaji was induced to execute the deed by the undue influence of defen dant No. 1 and his wife Shakuntalabai, and that therefore the gift was invalid. Lastly, the defendants pleaded that the plaintiffs suit was barred by limitation. Issues 5, 6, and 9 which were as follows, related to the validity of the gift set up by the defendants and their plea of limitation "(5) Is the gift by Appaji to Shakuntalabai proved?" (6.) If so, do plaintiffs prove that it was brought about by undue influence? (9.) Is the plaintiffs’ suit in time? "On the above issues, the Subordinate Judge found that the gift was proved, but that it was not proved that it was made by Appaji "voluntarily" within the meaning of s. 122 of the Transfer of Property Act (IV. of 1882) which says " gift is the " transfer of certain existing movable or immovable property "made voluntarily and without consideration...."; that it was proved that it was caused by the undue influence of defendant No.1, exercised on Appaji; that it was void; that art. 91 of the Limitation Act did not apply, and that the suit was in time under art.141 which prescribes a period of twelve years for a "like suit by a Hindu or Muhammedan entitled to possession of immovable property on the death" of a Hindu or Muhammedan female from the time when the female dies." "Like suit" in the article means a suit for recovery of immovable property. In the result, the Subordinate Judge gave the plaintiffs a decree for possession of the suit properties, with mesne profits and costs. The learned judges of the High Court (Barlee and Divatia JJ.) held that the gift was brought about by the undue influence exercised on Appaji by defendant No. 1 and also by Shakuntalabai, but they held, differing from the Subordinate Judge, that it was made "voluntarily" "as Appaji may have " probably executed the deed voluntarily in the sense that " he expected to die and wished to benefit his beloved nephew," though in doing so, he acted under the influence of his sister and her husband. As the transaction was, in their view, voidable and not void, they held that art. As the transaction was, in their view, voidable and not void, they held that art. 91 applied to the case, and that time began to run against Appaji, who was aware of the character of the transaction, from the date of the document, namely, May 24, 1915, and that the suit was barred as it was brought beyond three years from that date. They also held that s. 10 of the Indian Limitation Act, also relied on by the plaintiffs, would not apply to the case. In the result, they allowed the appeal and dismissed the plaintiffs suit with costs. 1944. Oct. 24, 25. J. M. Parikh and Subba Row for the appellants. The gift in question was not "made voluntarily" within the meaning of s.122 of the Transfer of Property Act (IV of 1882)—there is no question here that it was made without consideration. " Voluntarily "must involve the exercise of free will, without being influenced by any other considerations. It was a void gift which was inoperative and ineffective and did not require to be set aside, and consequently art. qi of the Indian Limitation Act does not apply. In view of ss. 88, 89 and 95 of the Indian Trusts Act, 1882, the donee and her 09 Law. Rep. 72 Ind. App. 21 ( 1944- 1945) Ramchandra Jivaji Kanago V. Laxman Shrinivas Naik 112 successor, the second respondent, were holding the properties for the benefit of the donor Appaji and his successor, the appellants, as if they (the donee and her successor) were trustees, and the possession of the latter was not adverse to the former (Appaji and his successors), and having regard to the provisions of s. 14 of the Trusts Act the respondents are precluded from setting or aiding any title to the properties adverse to the interest of the appellants, and no question of limitation arises. [Reference was made to Someshwar Dutt v. Tirbhawan Dutt (( 1934) L.R. 6l I. A. 224).] The respondents did not appear. Dec. 4. [Reference was made to Someshwar Dutt v. Tirbhawan Dutt (( 1934) L.R. 6l I. A. 224).] The respondents did not appear. Dec. 4. The judgment of their Lordships was delivered by SIR MADHAVAN NAIR, who stated the facts set out above and continued As regards the plea that the second respondent was adopted by Tungabai after the death of Appaji, and that he was, therefore, a nearer heir to Appaji as he became his brother by Tungabais adoption, it may be stated at once that the courts in India have held that Jiwaji was not the adopted son of Ramchandra I. It would therefore follow that the alleged adoption of respondent No. 2 was in law invalid for the reason that in the presence of the appellants, the grandsons of Tammaji, his widow had no power to make any adoption to him. These questions are not now before the Board. Having regard to the findings of the High Court, which their Lordships find no reason to reject, the main question for determination before the Board is whether the suit is barred by art.91 of the Indian Limitation Act. If the deed of gift is a void transaction no question of cancelling, or setting it aside, would arise, but if it is only a voidable transaction, that is, a transaction valid until rescinded, then the necessity to set it aside is obvious before possession of the property can be claimed. Mr. Parikhs first argument was that as the transaction in question was brought about by undue influence, as found by the courts in India, it was not voluntary, and was therefore void as a gift within the meaning of s. 122 of the Transfer of Property Act. This argument cannot be accepted. Though the transaction was induced by undue influence it does not necessarily follow that it was not made "voluntarily." As held by the - learned judges of the High Court, it is clear to their Lordships that Appaji wished to make a gift and acted "voluntarily" in making it. Circumstances brought out in the evidence amply support this view. Appaji was a delicate boy. In 1915, he was only twenty. He suffered from epilepsy. Before he made the gift he had been travelling from place to place in search of health and visiting temples. Circumstances brought out in the evidence amply support this view. Appaji was a delicate boy. In 1915, he was only twenty. He suffered from epilepsy. Before he made the gift he had been travelling from place to place in search of health and visiting temples. At about the time of the gift he must have realized that his health was not improving and that the prospect of having any issue was becoming more and more uncertain. It was then that he made the gift to his sister in 1915. The opinion of the High Court that he was in no way an idiot or weak-minded intellectually, though he was under the influence of his sister and her husband cannot be controverted in view of the evidence in the case. In these circumstances, their Lordships do not find any sufficient reason to differ from the opinion of the High Court that Appaji made the gift "voluntarily." The transaction is therefore not void, but only voidable, as induced by undue influence, and requires to be set aside before the properties conveyed by it could be claimed by Appaji or by anyone claiming through him. Under art.91 of the Indian Limitation Act, limitation begins to run from the time the facts entitling the plaintiff to have the instrument cancelled or set aside become known to him. It is true that Appaji became insane in or about July, 1917, and continued so until his death in 1923, but he was fully aware of the character of the transaction when he executed the deed in 1915 and before he became insane. On this point the High Court observes as follows—" It is not shown that any of the " facts which might have entitled him (Appaji) to nave the " gift cancelled were unknown to him—either his relationship with Laxman and Akkubai which gave them an opportunity " of dominating his will, or the effect of this gift on his family " and himself.” Their Lordships agree with this view. In this connexion reference may be made to the decision of the Board in Someshwar Dutt v. Tirbhawan Dutt (L. R. 61 I. A. 224.) where it was held that time runs from the date of the knowledge and not from that of the removal of the undue influence. In that case it was held by their Lordships 09 Law. Rep. 72 Ind. App. In that case it was held by their Lordships 09 Law. Rep. 72 Ind. App. 21 ( 1944- 1945) Ramchandra Jivaji Kanago V. Laxman Shrinivas Naik that " the plaintiff, not being of weak " intellect, was aware of the character of the transaction at the date when it was entered into" (Ibid. 233.), and that time began to run from that date. It follows, therefore, that, in this case time began to run against the appellants from the date of the gift and that their claim was barred by limitation at the date of the suit. It was also argued by learned counsel for the appellants that, inasmuch as the properties in the suit were obtained by undue influence, having regard to ss. 88, 89 and 95 of the Indian Trusts Act (II. of 1882), the donee and her successor, respondent No. 2, should be considered to be holding the properties as if they were " trustees " of the same, and the suit to recover their profits will not be barred by time, having regard to s. 10 of the Limitation Act, which says—"....no suit against a person " in whom property has become vested in trust for any specific " purpose, or against his legal representatives or assigns (not " being assigns for valuable consideration), for the purpose of " following in his or their hands such property or proceeds " thereof, or for an account of such property or proceeds, shall " be barred by any length of time." Their Lordships do not think it is necessary to examine this argument beyond saying that, as s. 10 of the Limitation Act applies only to a case of property which has become " vested in trust for a specific " purpose," which certainly is not the case here, that section can have no application to the present case. For the above reasons, their Lordships would humbly advise His Majesty that this appeal should be dismissed, but without costs, as the respondents have not appeared before the Board.