Devi Vs. Janardan Singh & Ors  INSC 74 (2 March 1990)
T.K. (J) Thommen, T.K. (J) Sharma, L.M. (J)
1990 AIR 1173 1990 SCR (1) 799 1990 SCC Supl. 216 JT 1990 (1) 417 1990 SCALE
Consolidation of Holdings Act, 1953: S. 49 Void sale deed--Suit for
cancellation of--Whether barred when consolidation proceedings are pending.
49 of the U.P. Consolidation of Holdings Act, 1953 puts a bar on the civil and
revenue courts in respect of disputes in regard to which proceedings could or
ought to have been taken under the Act.
plaintiff-appellant, an illiterate lady, wanted to make a gift of her
properties in favour of her daughter.
Nos. 3 and 4, who undertook to make arrangements to execute and register the
necessary deed, however, prac- tised a fraud on her. They made her put her
thumb impression on two documents which she had been told and she honestly
believed were the gift deed in favour of her daughter. She had in fact executed
two deeds, one of which was a gift in favour of her daughter and the other a
sale deed in favour of the defendants. Later when she tame to know of the
facts, she filed a suit for cancellation of the sale deed. Consoli- dation
proceedings were then pending in respect of the property in question.
suit was decreed by the trim court and that decree was confirmed in appeal by
the First Appellate Court. The High Court, however, found that the plaintiff
was totally deceived as to the character of the document which she had executed
and the document was, therefore, void and of no effect whatsoever. Accordingly,
it held that the suit was barred by reason of s. 49 of the Act.
appeal by special leave it was contended for the appellant that since it was a
case of the document having been vitiated by fraud, the transaction was voidable
but not void and, therefore, the bar of s. 49 of the Act was not attracted.
the appeal, the Court,
1.1 A voidable document is one which remains in force 800 until set aside and
such a document can be set aside only by a competent civil court. A suit for
that purpose would, therefore, be maintainable. A claim that a transaction is
void is, however, a matter which can be adjudicated upon by the consolidation authorities.
[802E-F] Gorakh Nath Dube v. Hari Narain Singh & Ors.,  1 SCR 339,
the instant case, the plaintiff-appellant was totally ignorant of the mischief
played upon her. She hon- estly believed that the instrument which she executed
and got registered was a gift deed in favour of her daughter.
believed that the thumb impressions taken from her were in respect of that
single document. She did not know that she had executed two documents, one of
which alone was the gift deed, but the other was a sale of the property in favour
of the defendants. This was, therefore, a case of fraudulent misrepresentation
as to the character of the document executed by her and not merely as to its
contents or as to its legal effect. The plaintiff-appellant never intended to
sign what she did sign. She never intended to enter into the contract to which
she unknowingly became a party. Her mind did not accompany her thumb
impressions. It was thus a totally void transaction. [804C-E] Ningawwa v. Byrappa
& Ors.,  2 SCR 797, applied.
suit was, therefore, maintainable by reason of the bar contained in s. 49 of
the Act. [804E]
remedy of the plaintiff lies in the proceedings pending before the
consolidation authorities and it is open to the parties to approach them for
appropriate relief. [804F]
APPELLATE JURISDICTION: Civil Appeal No. 2998 of 1980.
the Judgment and Order dated 17.11.1980 of the Aliahabad High Court in S.A. No.
2954 of 1979.
and Mohan Pandey for the Appellant.
Chandra, Praveen Swarup and Pramod Swarup for the Respondent.
Judgment of the Court was delivered by 801 THOMMEN, J. This appeal by special
leave arises from the judgment of the Allahabad High Court in Second Appeal No.
of 1979 whereby the learned Judges of the High Court, allowing the defendants'
appeal set aside the decrees of the courts below. The High Court held that the
suit was barred by reason of Section 49 of the U.P. Consolidation of Hold- ings
Act, 1953 (hereinafter referred to as 'the Act'). Hence the present appeal by
plaintiff is an illiterate person. Her daughter Rameshwari Devi is the wife of
the 6th defendant, Yogendra Prasad Singh. Arjun Singh and Janardan Singh,
defendant Nos. 3 and 4, are the brothers of the 6th defendant. Defendants Nos.
3 and 4 had gained the confidence of the plaintiff and she confided in them her
desire to make a gift of her entire properties in favour of her daughter.
Defendant Nos. 3 and 4 readily agreed to make arangements to execute and
register the necessary deed. On 18.9.1971, these defendants took the plaintiff
to the Office of the Sub-Registrar. The plaintiff paid the amount needed for
expenses. The defendants pur- chased stamp papers in the name of the plaintiff.
On two deeds, which had been prepared at the instance of the de- fendants, the
plaintiff was made to put her thumb impres- sions. Being an illiterate person,
she could not read the contents of the documents or understand their character.
She had been told, and she honestly believed, that she was executing a gift
deed in favour of her daughter, as desired by her, in respect of her
properties. She had in fact exe- cuted two deeds, one of which was a gift in favour
of her daughter and the other a sale deed in favour of all the defendants. The
consideration for the sale shown in the document was Rs. 14,000. This was a
clear case of fraud practised upon her by the defendants. The defendants and
the Sub-Registrar as well as the document-writer had all con- spired together
to perpetrate the fraud. The plaintiff did not know that she had executed a
sale deed in favour of the defendants in respect of her property until 25th June, 1974 when she found defendant Nos. 3 and
4 interfering with her possession of the property. They told her that she had
executed a sale deed in their favour. It was only on 2nd July, 1974 that she came to know of the full
facts. Accord- ingly, she filed a suit for cancellation of the sale deed.
suit was decreed by the trial court and that decree was confirmed in appeal by
the first appellate court. Setting aside the decree in the defendant's second
appeal, the High Court held that the plaintiff was totally deceived as to the
character of the document which she executed and the docu- ment was, therefore,
void and of no effect whatsoever.
the suit was barred under section 49 of the Act under which consolidation
proceedings had been pending at the time of the 802 institution of the suit in
respect of the property in ques- tion.
facts are not in dispute. It is not disputed that the documents in question
came to be executed in the manner alleged by the plaintiff. The appellant,
however, contends that since it was a case of the document having been vitiat-
ed by fraud, the transaction was viodable, but not void, and, therefore, the
suit to set aside the sale was rightly instituted by her and the bar of section
49 was not attract- ed. The appellant contends that the suit is perfectly main-
tainable and the High Court was wrong in holding to the contrary.
Chandra, appearing for the respondents, rightly, in our view, submits that two
principles enunciated by this Court in Gorakh Nath Dube v. Hari Narain Singh
& Ors.,  1 SCR 339 and Ningawwa v. Byrappa & 3 Ors.,  2 SCR
797 squarely apply to the facts of this case and the document in question
evidenced a void transaction, and not a mere voidable transaction, and no suit
was, there- fore, maintainable in view of the bar contained in section 49 of
Nath Dube, (supra), this Court held that the object of the relevant provision
of the Act was to remove from the jurisdiction of any civil court or revenue
court all disputes which could be decided by the competent author- ity under
the Act during the consolidation proceedings.
relating to the validity of a sale deed or a gift deed and the like had to be
examined in proceedings before the statutory authorities. The Court, however,
drew a dis- tinction between void and voidable documents and said a voidable
document was one which remained in force until set aside, and such a document
could be set aside only by a competent civil court, and a suit for that purpose
would, therefore, be maintainable. On the other hand, a claim that a transaction
was void was a matter which could be adjudi- cated upon by the consolidation
courts. This is what this Court stated:
think that a distinction can be made between cases where a document is wholly
or partially invalid so that it can be disregarded by any court or authority
and one where it has to be actually set aside before it can cease to have legal
effect. An alienation made in excess of power to transfer would be, to the
extent of the excess of power, invalid. An adjudication on the effect of such a
purported alienation would be necessarily implied in the decision of a dispute
involving conflicting claims to rights or interests in 803 land which are the
subject matter of consolidation proceed- ings. The existence and quantum of
rights claimed or denied will have to be declared by the consolidation
authorities which would be deemed to be invested with jurisdiction, by the
necessary implication of their statutory powers to adjudicate upon such rights
and interests in land, to de- clare such documents effective or ineffective,
but, where there is a document the legal effect of which can only be taken away
by setting it aside or its cancellation, it could be urged that the
consolidation authorities have no power to cancel the deed, and, therefore, it
must be held to be binding on them so long as it is not cancelled by a court
having the power to cancel it. In the case before us, the plaintiffs claim is
that the sale of his half share by his uncle was invalid, inoperative, and
void. Such a claim could be adjudicated upon by consolidation courts." (emphasis
supplied) In Ningawwa v. Byrappa & 3 Ors., (supra), this Court referred to
the well-established principle that a contract or other transaction induced or
tendered by fraud is not void, but only voidable at the option of the party
defraud- ed. The transaction remains valid until it was avoided. This Court
legal position will be different if there is a fraudu- lent misrepresentation
not merely as to the contents of the document but as to its character. The
authorities make a clear distinction between fraudulent misrepresentation as to
the character of the document and fraudulent misrepresenta- tion as to the
contents thereof. With reference to the form- er, it has been held that the
transaction is void, while in the case of the latter, it is merely voidable.
Foster v. Mackinon,  4 CP 704, the action was by the endorsee of a bill
of exchange. The defendant pleaded that he endorsed the bill on a fraudulent
representation by the acceptor that he was signing a guarantee. In holding that
such a plea was admissible, the Court observed:
(signature) is invalid not merely on the ground of fraud, where fraud exists,
but on the ground that the mind of the signer did not accompany the signature;
in other words, that he never intended to sign, and therefore in contemplation
of law never did sign, the 804 contract to which his name is appended ..... The
defendant never intended to sign that contract or any such contract.
never intended to put his name to any instrument that then was or thereafter
might become negotiable. He was deceived, not merely as to the legal effect,
but as to the 'actual contents' of the instrument." (emphasis supplied)
From the facts narrated above, about which, as stated earlier, there is no
dispute, it is clear that this is a case where the plaintiff appellant was
totally ignorant of the mischief played upon her. She honestly believed that
the instrument which she executed and got registered was a gift deed in favour
of her daughter. She believed that the thumb impressions taken from her were in
respect of that single document. She did not know that she executed two
documents, one of which alone was the gift deed, but the other Was a sale of
the property in favour of all the defendants. This was, therefore, a case of
fraudulent misrepresentation as to the character of the document executed by
her and not merely as to its contents or as to its legal effect. The
plaintiff-appellant never intended to sign what she did sign. She never
intended to enter into the contract to which she unknowingly became a party.
Her mind did not accompany her thumb impressions. This is a case that fails
within the principle enunciated in Ningawwa v. Byrappa & 3 Ors., (supra)
and it was, therefore, a totally void transaction.
as stated in Gorakh Nath Dube (supra), the suit is not maintainable by reason
of the bar contained in the Act.
High Court has, in our view, rightly held that the remedy of the plaintiff lies
in the proceedings pending before the consolidation authorities and it is open
to the parties to approach them for appropriate relief. In the circumstances,
we see no merit in this appeal. It is, ac- cordingly, dismissed, but we make no
order as to costs.