DEKA J. : This is an appeal on behalf of the defendants 1 and 3 against the decree passed by the learned Subordinate Judge, L. A. D., in a Title Suit brought by the plaintiff for a declaration that a deed of gift executed by the plaintiff's father on 15-12-1928 in favour of defendant 2 was not operative against the plaintiff and that the defendants 1, 2 and 3 had not acquired any right, title or interest in the land covered by the said deed of gift which was the sub­ject-matter of the present suit and for a further de­claration that the compromise decree dated 16-6-1930 and the ex parte decree obtained against the plaintiff on 21-7-1936 by the defendant 1 were both fraudulent and inoperative, and the plaintiff asked for confirmation and restitution of possession with regard to the property in suit. (2) The plaintiff's case was that Homeswar, his father, died in 1931 leaving his widow and the plain­tiff, his only son, who was then a child of three years of age. It is alleged that Homeswar was a man of weak mind and was addicted to Ganja and defendant 2 Jadab Chandra Rai taking advantage of this evil habit of Homeswar became closely asso­ciated with him and engaged him as a cook for some time in an hotel at Nalbari. Jadab took Homeswar completely under his con-and by some false inducements succeeded in getting a power of attorney executed in his behalf by Homeswar for the management of his entire valuable landed property and he oven authorised Jadab to transfer the same, which deed of attorney, however, was subsequently cancelled at the instance of the plaintiff's mother. Even after that the intimacy between Jadab and Homeswar continued dur­ing which Jadab constantly encouraged Homeswar's ganja habit and fraudulently or by some false in­ducements or misrepresentation and by undue influence got a deed of gift executed by Homeswar in his favour on 15-12-1928 in respect of half of the land that Homeswar owned and possessed. The plaintiff's mother being aware of the deed prevailed upon her husband Homeswar to institute a suit for cancellation of the said deed of gift and the suit was accordingly instituted it being Suit No. 1254/1929 of the Court of the Sadar Munsif, at Gauhati. The plaintiff's mother being aware of the deed prevailed upon her husband Homeswar to institute a suit for cancellation of the said deed of gift and the suit was accordingly instituted it being Suit No. 1254/1929 of the Court of the Sadar Munsif, at Gauhati. The suit was fixed for hearing on 20-6-1930, but Jadab somehow got an application filed by Homeswar four days ahead of the date fixed i.e. on 16-6-1930 whereby the suit was allowed to be dismissed without cost. Homeswar died in 1931, after which Chandi Oharan Das, defendant 1, in collusion with Jadab defendant 2 filed a money suit and obtained a de­cree and in execution of the said decree defendant 1 purported to purchase the land in suit himself. The defendant 1 thereupon applied for mutation which was resisted by the plaintiff's mother and his appli­cation for mutation was rejected. Thereupon defendant 1 instituted a declaratory suit in respect of the major portion of the land in suit which "was suit No. 309 of 1936 in the Court if the Sadar Munsif, Gauhati. and by suppressing summons he fraudulently obtained an ex parte decree on 21-7-1936 and although a guardian ad item was purported to be appointed on behalf of the present plaintiff, who was then minor, the guar­dian did not contact either the minor or the natural guardian and no steps were taken on behalf of the present defendant and the suit proceeded ex parte. Defendant 3 Mofizur Rohman then came into the picture and claimed to have purchased the land in suit from defendant 1 but since defendants 1 and 2 had no saleable interest in the land, defendant 3 acquired no title to the property purchased even if the sale be genuine. The plaintiff alleges that this transaction was also colourable and the defendant 3 a neighbour of the plaintiff knew all about the inci­dents of this land. It was further alleged that the land shown in the Ka Schedule was given as usufructuary mort­gage for Rs. 250/- by Homeswar, father of the plaintiff, to the father of defendants 4, 5 and 6 and as the same defendants have been possessing the land for more than 12 years the mortgage stood re­deemed according to the provisions of the Assam Money lenders Act and the plaintiff was entitled to get khas possession thereby. 250/- by Homeswar, father of the plaintiff, to the father of defendants 4, 5 and 6 and as the same defendants have been possessing the land for more than 12 years the mortgage stood re­deemed according to the provisions of the Assam Money lenders Act and the plaintiff was entitled to get khas possession thereby. (3) Defendants 1 and 3 alone contested the suit and they filed a joint statement wherein they alleged that defendant 1 had acquired valid title to the land by the Court sale in his favour in execution of the money decree and defendant 3 claimed to be a bona fide purchaser for value without notice and thus ac­quired a valid title to the property in suit. (4) On the pleadings, the following issues were framed: (1) Whether the suit is maintainable in the pre­sent form? (2) Whether the suit is barred by res judicata and by limitation? (3) Whether the compromise of 16-6-1930 is bad in law as being fraudulent? (4) Whether defendant 2 had acquired any right and title over the lands in suit by virtue of the gift made by plaintiff's father? (5) Whether defendant 1 had acquired right and title over the lands in suit by right of purchase? (6) Whether the decree of 21-6-1936 is had hi law as being fraudulent? (7) Whether defendant S is a bona fide pur­chaser for value without notice? If not, whether he had acquired any right over the lands in suit by right of purchase? (8) Whether relief, if any, is the plaintiff en­titled to? (5) The plaintiff examined himself and twelve witnesses for him including one on commission. De­fendants 1 and 3 examined only themselves. (6) All the issues were decided in favour of the plaintiff by the learned Subordinate Judge and he-decreed the suit in favour of the plaintiff with costs on contest against defendants 1 and 3 and ex parte against defendant 2. (7) 1 have already mentioned that this appeal is on behalf of the contesting defendants, viz. defen­dants 1 and 3. The learned Advocate for the appel­lants strenuously contested that the point of limita­tion was not correctly decided and urged that Art. 91, Limitation Act applied to the facts and cir­cumstances of the case. (7) 1 have already mentioned that this appeal is on behalf of the contesting defendants, viz. defen­dants 1 and 3. The learned Advocate for the appel­lants strenuously contested that the point of limita­tion was not correctly decided and urged that Art. 91, Limitation Act applied to the facts and cir­cumstances of the case. According to him the limitation started from the date of knowledge of the executant of the deed of gift and it being clear that Homeswar himself had knowledge of the transaction, the limitation started from the date of the gift or at the latest from or about the date of the institution of the suit by hint i.e. 31-5-29 for cancellation of the deed of gift which was the subject matter of suit No. T1254 of 1929. Even though the plaintiff was a minor at tha1: time the limitation once running did not stop arid the present suit was barred even though it was brought within three years of his attaining majo­rity. (8) With a view to ascertain this point correct­ly the issue No. 4 is very material, viz., whether de­fendant 2 had acquired any right and title over the lands in suit by virtue of the gift made by the plain­tiff's father or in other words, whether the deed of gift in favour of defendant 2 by Homeswar was void ab initio or merely voidable. In case it was void­able, surely, Art. 91, Limitation Act had application, bat in case it was void, that Article would not ap­ply. This position is accepted. (9) Mr. Chose, in support of his contention, cited the authority of - Ramchandra Jivaji v. Laxmnan Shrinivas Naik', AIR 1945 PC 54 (A). His con­tention was that where the donor wished to make a gift and acted voluntarily in making it, but the tran­saction was induced by undue influence, the gift was only voidable and required to be set aside be­fore the property conveyed by it could be claimed by the donor or any one claiming through him. His con­tention was that where the donor wished to make a gift and acted voluntarily in making it, but the tran­saction was induced by undue influence, the gift was only voidable and required to be set aside be­fore the property conveyed by it could be claimed by the donor or any one claiming through him. His submission was that Art. 91 applied to such a case and when the donor was aware of the character of the transaction when he executed the deed, limitation for setting aside the deed of gilt would ran from the date of the gift because under Art. 91, lime runs from the date of the knowledge and not from that of the removal of the undue in­fluence, as was held in the Privy Council case re­ferred to. (10) In the same case, there is an observation by their Lordships that "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." Their Lordships accepted the finding of the High Court as to facts - that the executant made the gift voluntarily, and it was only voidable, as it was in­duced by undue influence. (11) The same view is expressed in the case of - 'Appanna v. Venkatappadu', AIR 1953 Mad 611 (B). This was a Division Bench decision of the Mad­ras High Court presided over by Rajamannar C. J. and Venkatarama Aiyar J. (as he then was), and the judgment was that of Venkatarama Aiyar J. The relevant portion of the judgment runs as follows: "Article 91 of the Limitation Act provides for a period of three years for a suit to cancel or set aside an instrument, not otherwise provided for. This Article presupposes that a suit is necessary un­der the law to set aside the instrument. But, where, under the law, there is no duty cast on the person to get an instrument set aside, this Article does not impose any obligation on him to get it set aside. We must, therefore, have recourse to the sub­stantive law to ascertain whether a party to an in­strument should get that cancelled or not. But, where, under the law, there is no duty cast on the person to get an instrument set aside, this Article does not impose any obligation on him to get it set aside. We must, therefore, have recourse to the sub­stantive law to ascertain whether a party to an in­strument should get that cancelled or not. Now the authorities have established that for this purpose there is a distinction between voidable and void transactions, and that while the former class of transactions should be set aside, the latter need not be." (12) Mr. Chose also placed before us the case Of - 'Someshwar Dutt v. Tribhawan Dutt', AIR 1934 PC 130 (C), where it was held by their Lord­ships that "the period of three years permitted by Art. 91 begins to run from the discovery of the plaintiff of the true nature of the deed which he had signed, and not from the date when he escaped from the influence by which, according to the plaintiff, he was dominated." This case was considered in the Madras case refer­red to above, and there is no dispute as to the ap­plicability of Art. 91, where the deed is voidable, but not where the deed is void from its inception and there was no obligation to have it set aside. (13) Therefore, the main point for investigation in this case is - whether the deed of gift executed by Homeswar on 15-11-1928, was void or only void­able. Section 122, T. P. Act, which defines a gift, says that gift is the transfer of certain existing movable or immovable property made voluntarily and without consideration, by one person, called the donor, to another, called the donee, and accepted by or on be­half of the donee." The finding of the learned Subordinate Judge is that the gift was not voluntarily made nor was it accept­ed by the donee, and, as such, it remained an imperfect transaction and had no force in the eye of low. I would like to reproduce the portion from the judgment of the lower Court: "Then again, acceptance of the gift by the donee is one of the essential elements of gift: the law requires that the acceptance must be in the life time of the donor. There is nothing in evidence to show that Jadav accepted the gift, nothing either to infer for various reasons. There is nothing in evidence to show that Jadav accepted the gift, nothing either to infer for various reasons. There is no evidence of the delivery of possession of the property to Jadav by the donor: there is no evidence of Jadav being in possession of the property at any time: Jadav neither obtained mutation nor paid the land revenue. In my opinion, the gift is bad for non-acceptance by the donee." (14) At the same time, there is complete ab­sence of motive for the gift. The property was un­doubtedly valuable and it amounted to half of the agricultural land owned by Homeswar, the total area of which was 71 bighas and a major portion covered by two Nisf Khiraj Pattas, handed down from generations. Defendant 2, Jadav, did not ap­pear, nor have the contesting defendants succeeded in showing what might have been the motive for the gift, but the plaintiff's case has all along been, as supported by his mother and other witnesses, that Homeswar was a man of weak mind, his mind made still weaker by the Ganja habit which Jadav very much encouraged and helped with a view to acquire undue influence over him and finally arranged to defraud him of the properties. At the time the gift was made, the plaintiff was born and Homeswar had apparently no other in­come, except from his landed property, to maintain himself and his family, and no reason appears, ex­cept of weak mind of the plaintiff's father and his Ganja habit, that were responsible for this un­accounted for gift to a stranger like defendant 2. In the circumstances of the case, and in the light of the evidence that is on record, we agree with the learned Subordinate Judge that there was no voluntary gift by Homeswar to Jadav, as alleged, though the document in question was executed by him. In our opinion, the executant, Homeswar, was not capable of understanding or forming a rational judgment at the time of the execution of the deed as to (lie effect of his action upon his interest and he could not be stated to be of a perfectly sound mind, and the transaction was void ab initio. The transaction was apparently hit by S. 12, Indian Con­tract Act and did not operate as a valid contract. (15) Mr. The transaction was apparently hit by S. 12, Indian Con­tract Act and did not operate as a valid contract. (15) Mr. Ghose placed before us S. 19A, Con­tract Act and contended on behalf of the appellants that when consent or agreement is caused by un­due influence, the agreement is a contract voidable at the option by a party whose consent was so caused, and here the plaintiff's allegation being that Homes-war was under undue influence of Jadav Chandra Rai, the contract was voidable, and not void. But we have already given our reasons why we consider the contract to be void, and even though there was some degree of undue influence, S. 19A, Contract Act did not exclusively cover the case under consi­deration. But it came under S. 12, Indian Contract Act, as I have already pointed out. (16) Reading the situation as a whole. Art. 91, Limitation Act had, therefore, no application inas­much as we consider the contract to be void and it is in keeping with the judgment of the Judicial Committee as well as of the Madras High Court that have been placed before us, that Art. 91 had no application and the suit was not barred, as con­tended by the learned Advocate for the appellants. It was further found by the learned Subordinate Judge that the withdrawal of the suit filed by Homes-war on 16-6-1930, was also fraudulent, and that finding has not been challenged seriously before us. (17) The second point urged by the learned Advocate for the appellant was that the decree pass­ed on 21-7-1936, in the Title Suit No. 309 of 1936 in the Court of the Munsiff at Gauhati, filed by the present defendant 1, stood as a bar against the plaintiff's present claim. The finding of the learned Subordinate Judge on this issue is that defendant 1 who was the plaintiff in that suit, gave purposefully a wrong address of the present plaintiff who was de­fendant 1 in the suit, and no attempt was made to have the notice served on him or his natural guar­dian. The natural guardian not having appeared, Cheui Ram Das, P. W. 1, a pleader, was appointed a guardian ad litem. But from the evidence of this gentleman, read with the relevant records of the suit, it appears that the minor's interest was not safeguarded, and Chandi's bona fides were open to doubt. The natural guardian not having appeared, Cheui Ram Das, P. W. 1, a pleader, was appointed a guardian ad litem. But from the evidence of this gentleman, read with the relevant records of the suit, it appears that the minor's interest was not safeguarded, and Chandi's bona fides were open to doubt. In the language of the Subordinate Judge, "It looks like a fraud practised on the Court to gain his own ends. The decree is obviously bad in law and the present plaintiff is not bound by it." The learned Advocate for the appellants does not seriously challenge this finding, but what ha urges is that at best the suit should have been treat­ed as revived after setting aside that decree, and not that the decree itself was void and ineffective. This point was a subject for decision in a Full Bench case of the Patna High Court - 'Nirsan Singh v. Kishuni Singh', AIR 1931 Pat 204 (2) (FB) (D). It was held by their Lordships that "as to whether when an ex parte decree is set aside in a subsequent suit, the original suit in which that decree was obtained, is revived or not, depends upon the pleadings, the issues and the actual deci­sion in the subsequent suit. If, upon an issue pro­perly raised and tried in the subsequent suit, it is held that the claim itself of the plaintiff in the ori­ginal suit was false and fraudulent, the effect of such a decision is to put an end to that suit, and the suit cannot be revived and retried." Here, it was found that there was suppression of summons, and the defendant was not properly repre­sented and, as such, the ex parte decree had no bind­ing effect. Further, from the facts found it appears that Jadav had no saleable interest in the land and as such, die purchase by defendant 1 from him in execution of the money decree, could not give de­fendant 1 a better title and, as such, he had also acquired no interest to the land in suit and he, being aware of this defect in his claim, had managed to obtain fraudulently an ex parte decree against the present plaintiff. That decree had, therefore, no effect, and as a result of the findings in the present suit, it is clear that defendant 1 could not get an advantage by vir­tue of the decree that he obtained fraudulently. (18) The next point urged by the learned Advo­cate for the appellant was that defendant 3 had ac­quired good title to the land by virtue of his alleged purchase from defendant 1 and his brother by a registered sale deed. Irrespective of the fact whether the transaction was genuine or otherwise, he could not have got better title to the land in suit than what defendant 1 had or his predecessor, Jadav, had acquired. In our opinion, the deed of gift be­ing void, Jadav acquired no title to the land, nor defendant 1, and he could not have transferred title to his transferee, defendant 3, even if the transac­tion was genuine. Section 41, T. P. Act had no application to the facts of this case, which refers to a purchase from an ostensible owner. The materials on record show, as found by the learned Subordinate Judge, that de­fendant 3 knew about the suits and litigations and the possession of a third party with regard to the land in suit, and he was not a bona fide purchaser, as found by the trial Court. He further knew that neither Jadav nor Chandi succeeded in acquiring any mutation in respect of the land, except for a small portion, and, as such, his action in the matter of purchasing the property could not be said to be bona fide, and he had ac­quired no title to the land by virtue of his alleged purchase. (19) The entire evidence has been placed be­fore us by the learned Advocate for the appellants and, after consideration of the facts and circum­stances, we agree with the learned Subordinate Judge that Homeswar did not make the gift, as alleged, voluntarily and the deed was not properly acted upon. We agree that Jadav had attempted to deprive him of the property by fraud, misrepresen­tation and undue influence. There was, in our opi­nion, no proper gift in the eye of law, and the deed of gift was inoperative. We agree that Jadav had attempted to deprive him of the property by fraud, misrepresen­tation and undue influence. There was, in our opi­nion, no proper gift in the eye of law, and the deed of gift was inoperative. Defendants 2 and 3, being successors-in-interest to defendant 1, had acquired no better title to the property, and the suit is not barred by limitation as the transfer was void, and urging for cancellation of the deed of gift was only an ancillary relief. The result is that we uphold die judgment and decree of the trial Court and dismiss the appeal with costs. SARJOO PROSAD C. J. : (20) I agree. The only point of any substance urged in this appeal is whether the suit was barred . by limitation and Art. 91, Limitation Act applied to the facts and circumstances of the case. The mate­rial findings of the learned Subordinate Judge al­ready referred to in the judgment of my learned brother have not been seriously assailed and in my opinion, rightly. There is overwhelming evidence to .show that Homeswar, the plaintiff's father, was a hemp addict to such an extent that he had little or no control over himself. The defendant Jadav who indulged him in this evil habit could obviously lead him by the nose and make him do anything which he liked. In that state of mind, Homeswar was incapable of understanding the nature of the acts he did and was unable to form a rational judgment as to the effect of his acts upon his own interest or on that of his only son, the plaintiff, who was then a minor. He was therefore incompetent to enter into any contract and the so-called deed of gift executed by him in favour of Jadav was consequently inoperative and void and conveyed no title to die defendant 1 or his succes­sors-in-interest. Similarly, the petition of withdrawal filed by Homeswar in the title suit was for the same reason equally inoperative and without any legal effect. It was therefore clearly a case to which Art. 91, Limi­tation Act had no application and the suit was not barred by limitation. I accordingly agree that die appeal should be dismissed with costs. Appeal dismissed.