V. B. RAJU, J. ( 1 ) THE appellant who was original defendant No. 1 is the widow of one Mahmadalli Ibrahimji who died on 8-10-1947. After his death 5 persons filed a suit No. 31 of 1949 against 8 persons for administration of the properties of the deceased Mahmadalli Ibrahimji who was the uncle of defendant Nos. 1 to 5 and maternal uncle of defendant Nos. 2 to 7. ( 2 ) THE Civil Judge J. D. Balasinor granted a decree for administration and appointed a Commissioner to work out the partition of the properties of the deceased amongst his heirs. In appeal the learned Assistant Judge at Nadiad dismissed the appeal with a slight variation of the decree passed by the lower Court. The variation was that the administration should be in respect of 2/3 rd of 20 tolas of gold instead of 30 tolas of gold. The learned Assistant Judge also upheld the finding of the trial court that the sale-deed of a house by the deceased Mahamadalli executed by the deceased in favour of his wife defendant No. 1 was a sham transaction and that the house was therefore available for administration. ( 3 ) AGGRIEVED by the order of the appellate court the defendant No. 1 widow has now come in second appeal and the following points were urged:-- (1) The suit for administration does not lie because there was also a prayer to hold that the sale deed executed by the deceased in the name of his wife was nominal and executed as a result of undue influence. (2) It is contended that the suit is not maintainable in view of the provisions of Order 2 Rule 2 of the C. P. Code. The contention is that the earlier suit No. 51 of 1947-48 which was re-numbered as 30 of 1949 was for a declaration that the sale deed was fictitious that the suit was dismissed on the ground that the suit for a mere declaration does not lie whereupon another suit namely 52 of 1947-48 which was re-numbered as 31st of 1949 was filed on the same day for administration. It is contended that the earlier suit having been dismissed the second suit is barred by provisions of order 2 rule 2 of of the C. P. Code The third contention is that the suit was barred by Article 91 Schedule I of the Limitation Act. The contention is that the prayer regarding the sale deed in respect of a house was in fact a prayer to set aside the sale deed and therefore the suit fell under sec. 39 of the Specific Relief Act. It is therefore contended that the suit should have been filed within 3 years as provided in Article 91 Schedule I of the Limitation Act. It is also contended that the prayer relating to the sale deed of a house was introduced by an amendment application and was allowed on 7-1-1952 and that on that date the suit in respect of the sale deed of the house wasbarred by the Limitation Act. It is therefore contended that the amendment of the plaint should not have been allowed as by doing so a claim which was barred by the limitation on the date of the amendment was made by the plaintiff. ( 4 ) THE next contention is that the finding that the sale deed is bogus is bad in law. The next contention further is that the finding that Rs. 1700 was part to the estate of the deceased was based on no evidence. The last contention is that the finding that 22 tolas of gold was also part of the estate of the deceased and was with the defendant No I at the time of the death of the deceased was based on no evidence. These are the only contentions urged by the learned counsel for the appellant. ( 5 ) THE first contention is that the suit is not maintainable as in addition to the prayer for administration of the properties of the deceased there was a prayer for declaring that the sale deed of the house by the deceased in the name of his wife was nominal and was the result of undue influence. The nature and scope of administration suit have been discussed in various reported cases. The nature and scope of administration suit have been discussed in various reported cases. In the Annual Practice for 1960 at page 1489 Order 55 Rule 3 of England is quoted as follows :-THE executors or administrators of a deceased person or any of them and the trustees under any deed or instrument or any of them and any person claiming to be interested in the relief sought as creditor devisee legatee next-of-kin or heir-at-law or customary heir of a deceased person or as cestuique trust under the trust of any deed or instrument. or as claiming by assignment or otherwise under any such creditor or other person as aforesaid may take out. as of course an originating summons returnable in the Chambers of a Judge of the Chancery Division for such relief of the nature or kind following as may by the summons be specified and as the circumstances of the case may require (that is to say) the determination without an administration of the estate or trust of any of the following questions or matters. Sub-rule (g) of this rule provides that any question arising in the administration of the estate or trust can be determined. In Shiva Prasad Singh v. Prayagkumari Debee LXI Calcutta 711 the nature of suit for administration is discussed and the following observations are made :-ADMINISTRATION means the management of the estate of a deceased person who has left no executor. The object of an administration suit is to have the estate administered under a decree of the Court the suit in its essence is one for an account and for application of the estate of the deceased for the satisfaction of the dues of all the creditors and for the benefit of all others who are entitled and the court marshals the assets and makes such a decree ( See Shashi Bhushan Bose v. Manindra Chandra Nandy (1) Ramaswami Ayyar v. Rangaswami Ayyar (2) ). The administration consists generally speaking in the payment of the funeral expenses of the deceased in the payment of debts and legacies and in the collection realization preservation and distribution of the assets. Forms or plaint in such suits are given in Schedule 1 Appendix A Forms Nos. 41 to 43. The administration consists generally speaking in the payment of the funeral expenses of the deceased in the payment of debts and legacies and in the collection realization preservation and distribution of the assets. Forms or plaint in such suits are given in Schedule 1 Appendix A Forms Nos. 41 to 43. Order XX rule 13 Civil Procedure Code provides that in an administration suit the court shall pass a preliminary decree before passing the final decree directing accounts to be taken and enquiries to be made. Forms for preliminary decree are given in Appendix D Forms Nos. 17 and 19 and forms for final decree are given in Appendix D Forms 18 and 20. A perusal of Order 2 Rule 4 of the C. P. C. and of Forms Nos. 17 1819 and 20 may raise a question whether an administration suit can include immovable property even in cases where the movable property of the deceased is found sufficient for carrying the objects of administration but it is not necessary to decide this question in the present appeal in view of what follows. It is also not necessary to decide the question as to the effect on an administration suit of the presence or absence of the executors or the administrators or the persons to whom letters of administration should have been granted. In Shaikh Mahhub Alam v. Razia Begum and others A. I. R. 1950 Lahore 12 it is observed that the objects of an administration suit would appear to be: (a) ascertainment of debts due by the deceased (para 1); (b) ascertainment of legacies directed by the testator to be paid out of the estate (para 2); (c) payment of the deceaseds funeral and testamentary expenses (para 4); (d) an inquiry as to what movable property was left by the deceased and which had come to the hands of the defendant or any other person by his order or for his use (para 5); (e) an inquiry as to what part of the movable property of the deceased was outstanding and undisposed of (para 6); and (f) an inquiry and an account of what if any was the plaintiff entitled to as next-of-kin of the intestate (para 3 ). In Chand Narain and another v. Ghasi Ram A. I. R. 1940 Lahore 179 it is held as follows :- where a suit is one between rival claimants to the estate of the deceased 3 seone claiming to be her sole heir such a suit is not a suit for an account of any property and for its due administration under the decree of the Court. Hence an administration suit cannot be filed by one of the heirs to obtain possession of the property wrong-fully withheld by another person claiming to be the heir. It is not necessary to decide the nature and scope of administration suit because it is open to the plaintiff or the plaintiffs to join two causes of actions and to pray for several reliefs provided the requirements of the C. P. Code are satisfied. Order 2 Rule 3 reads as under :- (1) Save as otherwise provided a plaintiff may unite in the same suit several causes of action against the same defendant or the same defendants jointly and any plaintiffs having causes of action in which they are jointly interested against the same defendant or the same defendants jointly may unite such causes of action in the same suit. (2) Where causes of action are united the jurisdiction of the Court as regards the suit shall depend on the amount or value of the aggregate subject-matter at the date of instituting the suit. Order 7 Rule 8 reads as follows:-WHERE the plaintiff seeks relief in respect of several distinct claims or causes of action founded upon separate and distinct grounds they shall be stated as far as may be separately and distinctly. Order 2 Rule 5 reads as follows :-"no claim by or against an executor administrator or heir as such shall be joined with claims by or against him personally unless the last mentioned claims are alleged to arise with reference to the estate in respect of which the plaintiff or defendant sues or is sued as executor administrator or heir or are such as he was entitled to or liable for. jointly with the deceased person whom he represents". jointly with the deceased person whom he represents". Order 2 Rule 7 reads as follows :-"all objections on the ground or misjoinder of causes of action shall be taken at the earliest possible opportunity and in all before such settlement unless the ground of objection has subsequently arisen and any such objection not so taken shall be deemed to have been waived". In the instant case no objection has been taken on the ground of misjoinder of causes of action. Section 99 of the C. P. Code also reads as follows :-"no decree shall be reversed or substantially varied nor shall any case be remanded in appeal on account of any misjoinder of parties or causes of action or any error defect or irregularity In any proceedings in the suit not affecting the merits of the case or the jurisdiction of the Court". In the present case no doubt a prayer against the defendant No. 1 personally has been joined in a suit for administration but the ground that there has been a misjoinder of causes of action has not been taken in the suit and therefore it is not now open to the learned counsel for the defendant No. 1 to contend that the suit is not maintainable. In Goswami Rameshpuri Guru Maheshpuri and another v. Madhuker and others A. I. R. 1953 Nagpur 276 it is held as follows :-"enforcement of claims against strangers may not legitimately fall within the scope of an administration suit but collection of the assets in the hands of persons who are properly joined as defendantsinan administration suit is not outside its scope. Such persons are the heirs legatees creditors executors etc. ( Object nature and scope of administration suits explained.) ( 6 ) THE learned advocate for the respondents relies upon (Lohana Bulakhidas Durlabhjl and another v. Lohana Shantilal Haridas and others) A. I. R. 1952 Saurashtra 30 The headnote (a) reads as under :-ANY legatee under a will can file a suit for administration where it is necessary to take an Account of the estate of the deceased and such a suit can be filed against a party who was during the life time of the deceased in possession and management of the property on behalf of the deceased. The mere fact that such party refutes the claim of the plaintiff does not alter the nature of the suit. The mere fact that such party refutes the claim of the plaintiff does not alter the nature of the suit. The nature of the suit is to be determined from the allegations in the plaint. Whether those allegations are substantiated or not will be a question to be decided in the case itself. The fact that the plaintiffs rely upon the will for getting their share in the property of the deceased makes little difference so far as the frame of the suit is concerned. It would be necessary in the plaintiffs case to ascertain what the estate of the deceased was what debt had to be paid after the collection of the outstanding and other assets and payment of debts the plaintiffs share would be capable of ascertainment. Such a suit can be for an account of the administration of the estate of the deceased. Being a suit for accounts it is open to the plaintiffs to put only valuation they please and pay ad valorem court fees thereon. ( 7 ) THE learned counsel for the respondent has also relied on Khatijadaughter of Mahamadalli Abdulalli (Original plaintiff) Appellant v. Shekh Adam Husenally Vasi and others (Original defendants) respondents I. L. R. 39 Bom. 545. That was a decision on the question of Court fees. The learned counsel for the respondent relies on Esufalli Alibhai v. Abdealligulam Hussein I. L. R. 45 Bom. 75 wherein it was held that the plaintiff is not bound to file a suit for partition even though he knows what the estate of the deceased consist of. ( 8 ) THE learned counsel for the respondent has also relied on 45 B. L. R. 534. In that suit it was observed as follows:--"an administration suit is in essence a Suit for an account and application of the estate of a deceased debtor for the satisfaction of the dues of all his creditors. The entire administration and settlement of the estate are assumed by the Court. The assets are marshalled and a decree is made for the benefit of all creditors. The entire administration and settlement of the estate are assumed by the Court. The assets are marshalled and a decree is made for the benefit of all creditors. It is only when the property under administration proves to be insufficient for the payment in full of the debts and liabilities that under O. XX rule 13 (2) of the Civil Procedure Code 1908 the rules and principles applicable to insolvency proceedings are to be observed only as regards the respective rights of secured and unsecured creditors. the debts and liabilities and the valuation of annuities and future and contigent liabilities. The sub-rule has nothing to do with the vesting of the property in the receiver". The learned counsel for the respondent also relies on 38 B. L. R. 754. In that case a will was executed by the deceased and the will appointed four executors. There was also a legacy in that will. The question decided by the High Court was a question to whom the appeal lay. The High Court did not decide other questions but the High Court made some observations on the nature of an administration suit. ( 9 ) IN A. I. R. 1928 Madras 760 it was observed as follows:-"administration means management of the deceaseds estate. The Court is requested to assume its management to take upon itself the functions of an executor or administrator and administer the estate. The administration of a deceaseds estate consists of collection and preservation of assets payment of debts and legacies acts in respect of adverse claims to assets dealings with creditors or legatees and distribution finally among the heirs or next-of-kin. These are the functions of an administrator and the object of an administration suit is to have the estate administered under a decree of Court in other words the Court itself assumes the function of an administrator an administrates the estate". The learned counsel for the respondent relies on 38 B. L. R. 754. The head note reads as under:- in a suit brought in the Court of a subordinate Judge of the First Class for administration of estate. There was a prayer that a will made by the deceased was null and void. The claim was valued at Rs. 200/both for purposes of Court fees and jurisdiction. The trial Judge having ordered administration and declared the will invalid an appeal was preferred to the High Court. There was a prayer that a will made by the deceased was null and void. The claim was valued at Rs. 200/both for purposes of Court fees and jurisdiction. The trial Judge having ordered administration and declared the will invalid an appeal was preferred to the High Court. It was held that the suit was one for administration in spite of the fact that the final decree might award possession of immoveable properties and that it was properly valued for the purposes of Court fees under s. 7 (iv) (f) of the Court fees Act 1870. ( 10 ) THE next point urged is that the suit is barred by the provisions of Order 2 Rule 2 of the C. P. Code. Order 2 Rule 2 reads as follows:- (1) Every suit shall include the whole of the claim which the plaintiff is entitled to make in respect of the cause of action but a plaintiff may relinquish any portion of his claim in order to bring the suit within the jurisdiction of any Court. (2) Where a plaintiff omits to sue in respect of. or intentionally relinquishes any portion of his claim he shall not afterwards sue in respect of the portion so omitted or relinquished. (3) A person entitled to more than one relief in respect of the same cause of action may sue for all or any of such reliefs but if he omits except with the leave of the Court to sue for all such reliefs he shall not afterwards sue for any relief 50 omitted. ( 11 ) THE contention that Suit. 30/49 Which was filed for declaration that the sale deed of a house in question was fictitious and was the result of undue influence was dismissed on the ground that the suit was merely for a declaration. It is contended that in that suit a prayer for administration could have been made and was not made. This contention cannot be accepted because sub-sec. (3) of rule 3 requires that the reliefs must be in respect of the same cause of action. The cause of action for administration is different from the cause of action for a declaration that the sale deed is sham. This contention cannot be accepted because sub-sec. (3) of rule 3 requires that the reliefs must be in respect of the same cause of action. The cause of action for administration is different from the cause of action for a declaration that the sale deed is sham. It is therefore not necessary to decide the contention whether Order 2 Rule 2 applies to a case where the suit was dismissed merely on the ground that it was a suit for declaration. ( 12 ) THE third contention is that the suit was barred by Article 91schedule I of the Limitation Act. Under Art. 91 limitation runs from the time When the facts entitling the plaintiff to have the instrument cancelled or set aside become known to him. In fact the contention is put different form. It is contended that the Court was wrong in allowing a prayer on 7-1-52 whereby an additional relief was claimed in the suit regarding declaration that the sale of a house was nominal and was the result of undue influence and that the original suit which was instituted on 14-2-49 was purely a suit praying for administration on the ground that the deceased Mahmadalli died on 8-10-1947. By the amendment to the plaint which was allowed on 7-1-52 a prayer was added whereby a declaration was sought that the sale deed dated 14 in respect of a suit house by the deceased in favour of his wife-defendant No. 1 was nominal and was the result of undue influence It is said that on 7-1-1952 the date on which the amendment was allowed to the plaint the claim regarding the relief was barred by Article 91 Schedule I of the Limitation Act. It is contended that such a suit would be governed by sec. 39 of the Specific Relief Act. The learned counsel for the respondent contends that sec. 39 of the Specific Relief Act can have no application to such cases because the sale deed can be treated as void and in such a case it is not necessary for the parties to have the sale deed adjudged void or voidable. But he contends that although it may be necessary to have it set aside and cancelled. For this reliance is placed on 35 Cal. 551 (P. C.) and 40 Bom. 51 and 35 Cal. 179. But he contends that although it may be necessary to have it set aside and cancelled. For this reliance is placed on 35 Cal. 551 (P. C.) and 40 Bom. 51 and 35 Cal. 179. Section 39 of the Specific Relief Act reads as under:--ANY person against whom a written instrument is void or voidable who has reasonable apprehension that such instrument if left outstanding may cause him serious injury may sue to have it adjudged void or voidable and the court may in its discretion so adjudge it and order it to be delivered up and cancelled. If the instrument has been registered under the Indian Registration Act the Court shall also send a copy of its decree to the officer in whose office the instrument has been so registered and such officer shall note on the copy of the instrument contained in his books the fact of its cancellation. SECTION 39 refers to suits to have them adjudged void or voidable any written instrument which is void or voidable. It refers not merely to void instruments but also to voidable ones. It refers to a suit to have it adjudged void or voidable any written instrument which is void or voidable. Therefore if a suit is to have the written instrument adjudged void or voidable it falls under sec. 39 although it may not be a Suit strictly speaking to have the sale deed set aside as void or voidable The second paragraph of sec. 39 says that if the instrument has been registered under the Indian Registration Act the Court shall also send a copy of its decree to the officer in whose office the instrument has been so registered and such officer shall note on the copy of the instrument contained in his books the fact of its cancellation. In XXXV Cal. 551 it was held as follows:--"the deed being inoperative it was unnecessary for the plaintiff to have it set aside as a preliminary to his obtaining possession of the property. The suit was therefore governed not by article 91 but by article 144 of Schedule I of the Limitation Act (XV of 1877) and consequently was not barred by lapse of time". The distinction is that a plaintiff according to whom a particular sale deed is void or inoperative need not file a suit to have it set aside. The suit was therefore governed not by article 91 but by article 144 of Schedule I of the Limitation Act (XV of 1877) and consequently was not barred by lapse of time". The distinction is that a plaintiff according to whom a particular sale deed is void or inoperative need not file a suit to have it set aside. He may file a suit for possession and in the course of the suit he may contend that a sale deed was void and inoperative. To such a suitarticle-91 of Schedule I to the Limitation Act would not apply. But if he does actually file a Suit to have the sale deed adjudged as void and therefore to have the said sale deed cancelled the suit would be governed by article 91 Schedule I of the Limitation Act. ( 13 ) IN XL I. L. R. Bombay at page 53 the following observations are made:-"as to the question of limitation the argument for the appellant is that the suit is governed by article 91 of the Indian Limitation Act which prescribes for the institution of the suit a period of three years from the date when the facts entitling the plaintiff to have an instrument cancelled or set aside become known to him. The contention is that though in form the present suit is a suit for possession yet it must be regarded as essentially a suit to set aside the widows mortgage. because until that mortgage is set aside the plaintiff cannot obtain possession of the property As to this point the authorities we think are in accord and are to the effect that where the deed or instrument which seems to stand between a plaintiff and the realization of his claim in the suit is an actual nullity the plaintiff is entitled to bring his suit for possession within twelve years and is not hindered by the narrower period laid down by article 91 and that if one may say so seems to be good sense. For the only object of article 91 is to compel a plaintiff to remove out of his way some real existing obstacle but where there is no real obstacle. The article has no scope for operation I. L. R. XXV Cal. For the only object of article 91 is to compel a plaintiff to remove out of his way some real existing obstacle but where there is no real obstacle. The article has no scope for operation I. L. R. XXV Cal. 179 is relied upon by the learned counsel for the respondent in support of the same proposition which has been laid down in 1935 Cal. 39 and it is therefore not necessary to refer to the case". ( 14 ) THE learned counsel for the respondent contends that a suit for a declaration that a sale deed was nominal and was the result of undue influence and was barred by Article 91 Schedule I of the Limitation Act. He relies on XLVIII B. L. R. 193. The case decided in XLVIII B. L. R. 193 was concerned with the question of Court fees. ( 15 ) THE learned counsel for the respondent next contends that in fact in the instant case there is no prayer for declaration and what is prayed for is merely that the Court should decide or hold that the sale deeding question was the result of undue influence and the Court should administer the property of the deceased on such basis. The Court should also decide and hold that the sale deed of the house in question was nominal fictitious and result of the undue influence and that the Court should administer the properties of the deceased including the suit house. The wordcan be translated as to hold or decide or declare. If it was not the intention that there should be a declaration it should not have been included in the relief clause. If it was the intention to pray for a declaration the relief clause should have prayed that this Court should administer all the properties of the deceased including the suit house because the sale deed by the deceased in favour of his wife is nominal one. The word actually used isin the plaint and therefore it should be treated as a suit for a declaration that the sale deed is adjudged as void in view of sec. 39 of the Specific relief Act. 1 therefore hold that to such a suit Article 91 Schedule I of the Limitation Act would apply. The word actually used isin the plaint and therefore it should be treated as a suit for a declaration that the sale deed is adjudged as void in view of sec. 39 of the Specific relief Act. 1 therefore hold that to such a suit Article 91 Schedule I of the Limitation Act would apply. If a suit had been filed on that date the suit would have been barred by Limitation the sale deed having been executed on 14-8-1947. ( 16 ) THE learned counsel for the respondent contends that even in such cases the amendment application to amend the plaint can be granted and he relies on the judgments of the High Courts reported in 59 B. L. R. 401 and 11 B. L. R. 1042 and Civil Revision Application No. 222/60. There is the judgment of Their Lordships of the Supreme Court on this point and it is not necessary therefore to refer to the other cases. In LIX B. L. R. 401 Their Lordships have observed as under:-ALL amendments to a plaint ought to be allowed which satisfy the two conditions: (a) of not working injustice to the other side and (b) of being necessary for the purpose of determining the real questions in controversy between the parties. Amendments should be refused only where the other party cannot be placed in the same position as if the pleading had been originally correct but the amendment would cause him an injury which could not be compensated in costs. It is merely a particular case of this general rule that where a plaintiff seeks to amend by setting up a fresh claim in respect of a cause of action which since the institution of the suit had become barred by limitation the amendment must be refused to allow it would be to cause the defendant an injury which could not be compensated in costs by depriving him of a good defence to the claim. The ultimate test therefore still remains the same can the amendment be allowed without injustice to the other side or can it not ?their Lordships gave also referred to their observations in LIX B. L. R. 395 and the following observations are made at page 404 :-IT is no doubt true that Courts would as a rule decline to allow amendment if a fresh suit on the amended claim would be barred by limitation on the date of the application. But that is a factor to be taken into account in exercise of the discretion as to whether amendment should be ordered and does not affect the power of the Court to order it if that is required in the interests of justice. Their Lordships have also observed and accepted as correct the decision in Charan Das v. Amir Khan which laid down as under :-". . . . . (THOUGH) there was full power to make the amendment. . . . . such a power should not as a rule be exercised where the effect was to take away from the defendant a legal right which had accrued to him by lapse of time yet there are cases. . . . . where such considerations are outweighed by the special circumstances of the case". Their Lordships observed as correct the principles laid down in 11 B. L. R. 1042 wherein it was observed as follows:-". . . . . ALL amendments out to be allowed which satisfy the two conditions (a) of not working injustice to the other side and (b) of being necessary for the purpose of determining the real questions in controversy between the parties but I refrain from citing further authorities as in my opinion they all lay down precisely the same doctrine. That doctrine as I understand it is that amendments should be refused only where the other party cannot be placed in the same position as if the pleading had been originally correct but the amendment would cause him an injury which could not be compensated in costs. That doctrine as I understand it is that amendments should be refused only where the other party cannot be placed in the same position as if the pleading had been originally correct but the amendment would cause him an injury which could not be compensated in costs. It is merely a particular case of this general rule that where a plaintiff seeks to amend by setting up a fresh claim in respect of a cause of action which since the institution of the suit had become barred by limitation the amendment must be refused to allow it would be to cause the defendant an injury which could not be compensated in cost a by depriving him of a good defence to the claim. The ultimate test therefore still remains the same can the amendment be allowed without injustice to the other side or can it not ?"the provisions regarding amendment of plaints are contained in Order 6rule 17 of the C. P. Code and therefore the tests laid down in that provision must be applied. The other tests if any are to see whether the two tests stated in Order 6 Rule 17 are applicable or not. The test is not whether the claim made in the amendment application would be barred by limitation on the date of the amendment or not. But the test is whether it was necessary for the parties to amend or alter for the purpose of determining the real question in controversy between the parties and whether the result would be to work out injustice to other side. Therefore the question is really speaking not one of limitation but a question whether the claim made in the amendment application was a new claim or not. If it was an old claim made in the original plaint in a different form and if it was a part of the question in controversy between the parties the amendment should be allowed. If the claim is a new one which has nothing to do with the claim made in the original plaint then it would not be a question in controversy between the parties. But it would be entirely a new question different from the question in controversy between the parties as contained in the original plaint. If the claim is a new one which has nothing to do with the claim made in the original plaint then it would not be a question in controversy between the parties. But it would be entirely a new question different from the question in controversy between the parties as contained in the original plaint. In LIX B. L. R. 401 Their Lordships of the Supreme Court held that the claim made in the amendment application was not a new claim. In the original plaint in the case before Their Lordships there was a claim regarding goods worth Rs. 400. 00. The claim in the amendment application was with regard to Rs. 400. 00. Their Lordships therefore held that the claim sought to be made in the amendment application was not a new claim although the claim was then barred by limitation and that the amendment application was rightly allowed. Therefore the question is whether the claim sought to be made in the plaint was a new claim which was not part of the question in controversy between the parties in the original plaint. We find that there is an averment in paragraph second that the sale deed by the deceased in favour of his wife was included in the estate as the sale of the suit house is not binding on the plaintiff. The claim that the sale deed of the suit house was nominal and was the result of undue influence was therefore in controversy between the parties. By the amendment to the plaint a declaration was sought in respect of the sale deed of the suit house which they had not asked in the original plaint but which was already in controversy between the parties. I therefore hold that the claim made in the amendment application was not a new claim and that the claim was one of the real questions in controversy between the parties as stated in Order 6 Rule 17. 1 therefore holds that although the claim was barred by limitation the amendment application was rightly allowed. ( 17 ) THE next question whether the finding of the lower Court that the sale deed in question dated 14-8-47 was in fact sham and was vitiated in law. The learned counsel for the respondent contends that this question of fact cannot be canvassed in second appeal under section 100 of the C. P. Code. ( 17 ) THE next question whether the finding of the lower Court that the sale deed in question dated 14-8-47 was in fact sham and was vitiated in law. The learned counsel for the respondent contends that this question of fact cannot be canvassed in second appeal under section 100 of the C. P. Code. Section 100 C. P. Code reads as follows:- (1) Save where otherwise expressly provided in the body of this Code or by any other law for the time being in force an appeal shall lie to the High Court from every decree passed in. appeal by any Court subordinate to a High Courton any of the following grounds namely:-- (A) The decision being contrary to law or to some usage having the force of law; (B) the decision having failed to determine some material issue of law or usage having the force of law; (C) a substantial error or defect in the procedure provided by this Code or by any other law for the time being in force which may possibly have produced error or defect in the decision of the case upon the merits. (3) An appeal may lie under this section from an appellate decree passed ex parte. In this connection section 103 is also relevant and that section reads as follows :-"in any second appeal the High Court may if the evidence on the record is sufficient determine any issue of fact necessary for the disposal of the appeal which has not been determined by the lower appellate court or which has been wrongly determined by such Court by reason of any illegality omission error or defect such as is referred to in sub-sec. (1) of sec. 100". ( 18 ) IT is therefore clear that the questions of facts cannot be interfered with in second appeal unless there was no evidence to support the evidence of fact or unless the fact in issue has been wrongly determined by reason of any illegality omission error or defect such as is referred to in sub-section (1) of section 100. ( 18 ) IT is therefore clear that the questions of facts cannot be interfered with in second appeal unless there was no evidence to support the evidence of fact or unless the fact in issue has been wrongly determined by reason of any illegality omission error or defect such as is referred to in sub-section (1) of section 100. ( 19 ) A finding of fact is a finding of fact notwithstanding the fact that the finding is based on the appreciation of oral evidence or documentary evidence or of both or that the finding is based on inferences from other facts which are not inferences from mixed questions of facts and law. These principles are clearly laid down in A. I. R. 1957 S. C. 491959 S. C. 57 1959 S. C. 1204 1961 S. C. 1097 and 1963 S. C. 361. ( 20 ) THERE is also no doubt that the finding that the particular sale deed is sham or fictitious is a finding of fact. Sale is defined in sec. 54 of the Transfer of Property Act. Sale is a transfer of ownership in exchange for a price paid or promised or part-paid and part-promised. The document would not be a sale deed if there was no transfer of ownership or if no price was paid or promised or part-paid or part-promised. But it is open to a Court to say that notwithstanding execution and registration a sale deed does not affect transfer of ownership and that therefore it is not a sale within the meaning of the T. P. Act. It is also open to a court to say that the factor of a price paid or promised or part-paid and part-promised is absent and that therefore the document is not a sale. It is therefore open to hold that notwithstanding the execution and registration of a particular document purporting to be a sale deed there is in fact no sale in view of the definition of sale in sec. 54 of the T. P. Act. The consideration can be fully paid or partly paid or partly promised or fully promised. The idea that there can be no sale unless the consideration is fully paid is therefore contrary to the provisions of section 54 of the T. P. Act. 54 of the T. P. Act. The consideration can be fully paid or partly paid or partly promised or fully promised. The idea that there can be no sale unless the consideration is fully paid is therefore contrary to the provisions of section 54 of the T. P. Act. The learned appellate Judge has observed in his judgment that it has to be seen in the light of the surrounding circumstances whether the transaction is supported by consideration or whether it is a sham transaction. In other words the learned Judge is of the view that if the document is not supported by consideration it would be a sham transaction. . ( 21 ) THE learned appellate Judge has observed as follows:--IN this connection. it is to be noted that Mahmadali had no child and that he was desirous of providing for his wife and that he would have preferred the property to go to her rather than to his sisters sons. It is also to be borne in mind that prior to this sale he has already willed away the entire property in favour of his wife the defendant No 1. What seems to have exercise the old man was the feeling that he may not be able to pass the property to his wife under the will in view of the Mohmedan Law which prohibits any disposition beyond the third of the property. It is admitted by the defendant No 1 that it was she who had taken the sale and it was she who had suggested the idea to Mahmadali of selling the property to her. It is also admitted that the old man was ailing for a long time and that she was attending on him and that he died soon after the sale deed. The evidence has therefore to be viewed in this light and it has to be seen whether the defendant No. 1 paid any consideration for the document. In this connection it is to be noted that Mahmadali had no child and that he was desirous of providing for his wife and that he would have preferred the property to go to her rather than to his sisters sons. In other words it was the intention of the deceased that the property should go to defendant No. 1 in preference to his sisters sons. In other words it was the intention of the deceased that the property should go to defendant No. 1 in preference to his sisters sons. In other words the deceased had an intention to transfer the property to his wife. Therefore apart from the question of consideration the learned appellate Court was of the view that it was the intention of the deceased Mahmadali to transfer the ownership of the house to his wife in preference to his sisters sons. If there was an intention to transfer the ownership to the transferee we cannot call the transfer sham and bogus. But the learned Judge was in error as to what he thought regarding consideration. The deed recites the payment of consideration. On this point the learned Judge has observed as follows:--NOW the lady has stated that she had Rs. 5000/from her first husband out of which Rs. 2000/were given to her son from her first husband and that she was keeping the balance of Rs. 3000/in the house of her former husband which she paid as consideration to Mahmadali. There is no other evidence on the point of consideration. No attempt is made to examine any attesting witness of the sale deed to prove the Payment of consideration affirmatively. It is not likely that the lady would have sum of Rs. 3000/cash and that she was keeping the said amount in the house of her previous husband It also does not appear that her former husband was in such affluent circumstances as to give her a sum of Rs. 5000 It is admitted that he was running a small shop and he had to maintain 5 or 6 children. On the other hand it has been also admitted that the deceased Mahmadali was in affluent circumstances and that he had prior to the sale deed already disposed of shop goods some six months previously and received Rs. 1600 He would therefore not be in need of such large sum so as to be forced to sell the house. The lady has taken care to take a rent note exhibit 111 by which after having purchased the property from her husband Mahmadali she had rented it to the son from her previous husband. It is noteworthy that though the rent note was in respect of the whole house Mahmadali continued to be in possession and died in that very house. It is noteworthy that though the rent note was in respect of the whole house Mahmadali continued to be in possession and died in that very house. The learned Civil Judge has considered the case on this point and the evidence led by both the parties examined the surrounding circumstances and found that the sale deed was bogus and I have no hesitation in upholding that finding. It is true that the learned Judge has referred to the fact that Mahmadali continued in possession and died in that very house But he died in that very house about two months after the sale deed and we must remember that the sale deed was in favour of his wife. It is difficult to imagine that the wife would ask her husband to get out of the house because he had sold the house. Merely because the wife had allowed a sickly husband to continue to stay in the house it cannot be said that there was no intention to transfer the ownership of the house. The learned Judge has himself observed that it was the intention of Mahmadali that the house should go to his wife and not to his sisters sons. ( 22 ) THE learned Judge has observed that apart from the evidence of defendant No. 1 there is no evidence on the point of the consideration. He has also observed that no attempt is made to examine any attesting witness on the point of consideration. The learned Judge has also observed that it was not for defendant No. 1 to prove affirmatively that the transaction was genuine and it was a duty of the plaintiff to prove that the transaction was bogus. The learned Judge has also observed that it cannot be said that there was no duty cast on the person taking the property under the sale deed to show that the transaction was with consideration. In my opinion the learned Judge was wrong in making such observations. There is no burden on defendant No. 1 to prove affirmatively that the transaction was with consideration The learned Judge has not referred to any legal evidence to show that there was no consideration. The learned counsel for the respondent however says that there is evidence to show non-payment of consideration and he relies on the evidence of plaintiff No. 2 Ex. 96. The learned counsel for the respondent however says that there is evidence to show non-payment of consideration and he relies on the evidence of plaintiff No. 2 Ex. 96. According to this witness the Registrar had come to the house of deceased Mahmadali and the witness denied the suggestion which was put in cross-examination that he did not visit the house of his uncle before his death. The witness has himself not stated in his chief-examination that he was present at the time of payment of consideration. The evidence of this witness is therefore useless on the question of consideration There is also no other evidence on the point of consideration on the part of the witnesses of the plaintiff. The learned Judge however referred to the evidence of defendant No. 1 that she had Rs. 5000/and that she paid Rs. 2000/to her son out of that money as consideration. However her evidence has been rejected. Even if her evidence is rejected that does not mean that there is any evidence to show that the sale deed was without consideration. Moreover the deceased himself has made a recital in the document which he executed that he received the consideration. It is not necessary that the consideration should be paid in cash to the executant of the sale deed. The reference is also made above that deceased Mahmadali was in a affluent circumstances and that therefore he was not in need of Rs. 1500/to sell his shop. All these points are irrelevant on the question of payment of consideration. They will not be relevant even under section 11 of the Evidence Act because such facts would not make highly probable or improbable the payment of consideration and the non-payment of consideration. ( 23 ) WHAT has to be proved that there was no intention to transfer the ownership and that there was no transfer of ownership. Section 54 of the T. P. Act says that there can be a transfer of ownership without payment of consideration. In order to decide whether a document is a sale deed or not we have to look to the document to see whether there is transfer of ownership in the document whether the price is paid or promised or part-paid or part-promised. If both these considerations exist then we call the document a document of sale. In order to decide whether a document is a sale deed or not we have to look to the document to see whether there is transfer of ownership in the document whether the price is paid or promised or part-paid or part-promised. If both these considerations exist then we call the document a document of sale. A sale is only one kind of transfer of ownership. There can be a transfer of ownership even if there is no consideration. A gift is a transfer of ownership made voluntarily and without consideration. Therefore the question of presence or absence of consideration is immaterial on the question of transfer of ownership. ( 24 ) BEFORE we can transfer the ownership there must however be a registered document as per section 17 of the Indian Registration Act. If there is an intention to transfer the ownership and if there is a registered document expressing their intention to constitute a transfer of ownership and it is immaterial whether the document is called a sale deed or gift deed or something else. Therefore strictly speaking the burden was on the plaintiff to prove that there was no transfer and that there was no intention to transfer the ownership. On both these points the question of consideration is immaterial. As already observed above the lower court took a wrong view of the law. The lower appellate court thought that if the transaction was not supported by considerationit was a sham transaction because the lower appellate court has observed that it has to be seem in the light of the surrounding circumstances whether the transaction is supported by consideration or whether it is a sham transaction. It is also open to the transferor to treat consideration as paid when there is no payment. He may also treat a promise to pay as an actual payment. There can be transfer of ownership without consideration. There can be in fact a sale deed without payment of consideration. The finding of fact of both the lower courts is therefore vitiated in law with in the meaning of secs. 103 and 100 of the Civil Procedure Code. In Second appeal the Court is entitled to determine the question of fact if the evidence on record is sufficient. The question of bogus transaction was before the parties and both the parties had led evidence on the point. 103 and 100 of the Civil Procedure Code. In Second appeal the Court is entitled to determine the question of fact if the evidence on record is sufficient. The question of bogus transaction was before the parties and both the parties had led evidence on the point. The executant of the document is dead and he has stated in the sale deed that he has received the consideration. The transferee also says in evidence that she had paid consideration. The fact that it is not likely that she had money or it is not likely that she had received money the fact that the executant of the document was not in need of money are irrelevant under the evidence Act. There is no section in the Evidence Act whereby such facts are relevant. Section 11 of the Evidence Act has no application because section 11 requires high degree of probability or improbability. What the plaintiff has to prove is that there was no transfer of ownership or that there was no intention to transfer the ownership. There is no finding of the Courts below that there was no intention to transfer the ownership. On the contrary the finding of the appellate court is that there was an intention to transfer the ownership. 1 therefore hold that the document is a transfer of ownership to defendant No. 1 and that the suit house can no longer be treated as a part of the estate of the deceased on the date of the death of the deceased the ownership of the house having been transferred by him to his wife before he died. ( 25 ) IN view of my findings it is not necessary to decide the contention of the appellant as to the share of defendant No. 1 that she would be entitled to at least 1/3rd of the suit house under the provisions of the will executed by the deceased before his death. ( 26 ) THE next contention is relating to cash Rs. 1700. 00. The appellate court held that the deceased had left at the time of his death Rs. 1700. 00. Defendant No. 1 admitted in her evidence that the deceased had left Rs. 1700/at the time of his death. The contention regarding cash Rs. 1700/is therefore rejected. ( 27 ) THE last contention is regarding gold. 1700. 00. The appellate court held that the deceased had left at the time of his death Rs. 1700. 00. Defendant No. 1 admitted in her evidence that the deceased had left Rs. 1700/at the time of his death. The contention regarding cash Rs. 1700/is therefore rejected. ( 27 ) THE last contention is regarding gold. The trial court held that the deceased had left 30 tolas of gold at the time of his death. The appellate court however reduced the figure from 30 to 20 tolas and has observed in his judgment on this point as follows:--THE only dispute is with respect to the existence of ornaments. The learned Civil Judge has ordered administration in respect of 30 tolas of gold worth Rs. 3 0 It was the case of the plaintiffs that the deceased had left 30 to 35 tolas of gold ornaments. The plaintiffs could have no knowledge about because they were staying outside. The learned Civil Judge therefore considered the witness Kamaralito be reliable but Kamarali merely stated that the deceased might have had 25 to 30 tolas of gold in ornaments. It would seem that this is no evidence which the learned Civil Judge could consider reliable. It Seems however that the defendant No. 1 has admitted that her former husband had given her 20 tolas of gold. The defendant No. 1 however has stated that Mahmadali had taken back the gold ornaments from her. This is not likely. It would also appear from the will exhibit 122 that there is some mention of ornaments though the quantity is not given. Considering all these facts and circumstances I think that the proper finding would be that the defendant No. 1 had ornaments weighing 20 tolas of gold in her possession as estate of the deceased which required to be administered. It seems that the value of Rs. 100/per tola put by the lower court is reasonable and I accordingly find that 20 tolas of gold worth Rs. 2000/should be considered as the value of the ornaments to be administered as the estate of the deceased. THE learned Judge is right when he observes that the evidence of Kamarali that the deceased might have had 25 to 30 tolas of gold in ornaments cannot be considered reliable. 2000/should be considered as the value of the ornaments to be administered as the estate of the deceased. THE learned Judge is right when he observes that the evidence of Kamarali that the deceased might have had 25 to 30 tolas of gold in ornaments cannot be considered reliable. Defendant No. 1 had admitted in her deposition that her former husband had given her 20 tolas of gold and that deceased Mahamadali had taken back the gold ornaments from her. This would not be sufficient to come to a finding that on the date of the death of the deceased Mahamadali had 20 tolas of gold with him. The learned appellate Judge also observed that there is some mention of ornaments in the will executed in ex 122 although the quantity is not given. Merely because the ornaments are mentioned in the will that is not evidence of existence of gold on the date of the death of the deceased. The will was executed on 7-5-1946 and Mahamadali died on 5th October 1947 Although the reasons of the learned Judge are wrong when he came to the finding that the deceased had left 20 tolas of gold at the time of his death there is other evidence which has not been discussed by the learned appellate Judge to support that finding namely the evidence of Taherali Ex. 97 and the evidence of Fidaali Ex.-96. Taherali who is plaintiff No. 4 has deposed that he had seen box of gold ornaments with the deceased. He has given detailed description of the ornaments According to Fidaali his uncle deceased Mahmadali had 40 tolas of gold before his death. The witness Taherali was staying in a different `mohlla in the same town. It cannot therefore be said that the evidence of witness Taherali has been disbelieved on good grounds. There is also other evidence by which the finding could have been arrived at. I will not interfere with the finding of the learned appellate Judge that the deceased had left 20 tolas of gold to the time of his death as part of the estate and that the gold was a part of the estate of the deceased. 1 therefore confirm the finding of the lower appellate court that the deceased had 20 tolas of gold in his possession when he died. 1 therefore confirm the finding of the lower appellate court that the deceased had 20 tolas of gold in his possession when he died. It is also contended that the finding of the lower court that the gold of the deceased was in the possession of defendant No. 1 is wrong. But this contention was not urged before the first appellate court. ( 28 ) 1 therefore modify the decree of the first appellate Court by omitting any reference to the house of deceased Mahmadali in decree. No order as to costs. I also declare that the case is fit for appeal under clause 15 of the Letters Patent Act. Order accordingly .