Ram Sakal
Singh Vs. Mosamat Monako Devi & Ors [1997] INSC 213 (21 February 1997)
K.
RAMASWAMY, S. SAGHIR AHMAD
ACT:
HEAD NOTE:
O R D
E R
This appeal by special leave arises from the judgement of the Patna High
Court, 1984, dismissing the second appeal in limine at the admission stage.The
undisputed facts are that one Sheo Charan Singh, the common ancestor, left
behind him two sons, Lal Singh and Shanker Singh. Shanker Singh left behind his
son Banjhoo Singh who died issueless. Lal Singh had seven sons by name, Kirtarth
Singh, Padarath Singh, Ujagir Singh, Sukhari Singh, Ratan Singh, Budhan Singh
and Mangru Singh. We are concerned, in this litigation, with Sukhari Singh of
this branch. It is now an admitted case that Sukhari Singh had executed a gift
deed with respect to the properties mentioned in Schedule A of the plaint in favour
of the appellant, a stranger to the family, on December 4, 1995.
Thereafter,
he cancelled the gift deed by another deed on April 4, 1960. He thereafter exceed a sale deed in favour of the first
respondent on November
22, 1970. Therefore,
the first respondent filed a suit in 1995 for a declaration that the gift deed
dated December 4, 1959 was obtained by the appellant by
playing fraud on Sukhari Singh and, therefore, it was voidable. He also sought
a declaration that Sukhari Singh had validly executed , after its cancellation,
the sale deed in his favour. He also sought decree for possession of the
Schedule-A properties. Pending the suit, the notification under Section 3 of
the Bihar Consolidation of Holding and Prevention of Fragmentation Act, 1956
(for short, the 'Act') was issued in the year 1974-75 and, thereafter, an
objection was raised, a part from the other pleading, that the suit stood
abated by operation of Section 4(1)(c) of the Act. It was also pleaded that Sukhari
Singh had validly executed gift deed i n favour of the appellant on December 4, 1959 and, therefore, the sale in favour
of the respondent was not binding on him. The trial Court upheld the contention
of the appellant but issue No.4 on the question of fraud, was decided against
the appellant. On appeal, the District Judge decided both the points against
the appellant and held that the document, the gift deed December 4, 1959, is voidable and that the civil
Court alone could give declaration. As a result, the suit had not abated. The
appellant Court also recorded a finding that gift deed was obtained by playing
fraud and, therefore, it was voidable document. Accordingly, the declarations
came to be made. The suit was decreed on that basis. As stated earlier, the
High Court has dismissed the second appeal in limine. Thus, this appeal by
special leave.
Shri Ranjit
Kumar, learned counsel for the appellant, with his usual thorough preparation
and clarity of his submission, raises three-fold contention. Under Section 4(1)(c)
of the Act, the suit stands abated and, therefore, the civil Court was devoid
of jurisdiction to proceed with the trial to decree the suit. He also contends
that Sukhari Singh, having gifted over the undivided share in the joint family
property, had no right to alienate the property by way of sale in favour of the
respondent. So that sale deed itself is invalid in law. All these questions
touch upon the properties held by Sukhari Singh which should be gone into by
the consolidation authorities but not by the civil court.
The
contentions are resisted by Shri Rakesh K. Khanna, learned counsel for the
respondents. He argues that the consistent view of the Patna High Court is that
if a document is wholly void, the civil Court has no jurisdiction to go into
its legality. But if the document is voidable, unless the civil Court gives a
declaration that the document is voidable, Consolidation authorities get no
jurisdiction to decide the matter. As a consequence, civil Court alone has the
jurisdiction to decide the dispute and give the declaration, as sough for. He
also contends that the question whether Sukhari Singh had divested himself of
the joint interest had in the joint family, was not an issue nor is any finding
in this behalf recorded. Therefore, the question cannot be gone into in this
appeal. He has further stated that in view of the finding recorded by the
appellate court that the gift deed executed in favour of the appellant was voidable,
Sukhari Singh had power to dispose of his property. The sale made in favour of
the respondent is valid. He further contends that pending appeal, the
respondent Nos. 7,8 and 15 have died and an application to delete them from the
array having been filed, the appeal stands abated.
In
view of the respective contentions, the primary question which arises for
consideration is: whether the civil Court has jurisdiction to go into the
question of declaration that the gift deed is void of voidable? Section 4 of
the Act postulates thus:
"The
effect of notification under Section 3(1) of the Act- Upon the publication of
the notification under sub-section (1) of Section 3 in the official Gazette the
consequences, as hereinafter set forth, shall, subject to the provisions of
this Act, from the date specified in the notification till the close of the
consolidation operation, ensue in the area to which the notification relates,
namely :- (c) every proceedings for the correction of records and every suit
and proceedings in respect of declaration of rights or interest in any land
lying in the area or for declaration or adjudication of any other right in
regard to which proceedings can or ought to be taken under this Act, ending
before any court or authority whether of the first instance or of appeal,
reference or revision, shall, on an order being passed in that behalf by the
court or authority before whom such suit or proceedings is pending stand
abated." As a consequence of the publication of the notification under
Section 3(1) of the Act, every proceedings for the correction of record and
every suit and proceedings in respect of declaration of right or interest in
any land lying in the area or for declaration of adjudication of any other
right in regard to such proceedings can or ought to be taken under the Act,
pending before any court or authority whether in the first instance or in
appeal, reference or revision , shall, on an order being passed, in that behalf
by the Court or authority before whom such suit or proceedings is pending, stand
abated. Therefore, the prohibition of the civil court to proceed further, after
the publication of the notification under Section 3(1), was in respect of the
declaration of a right or interest in any land lying in an area or for the
declaration or adjudication of any other right in regard to which proceedings
can or ought to be taken under the Ac. All pending proceedings before the
Court, either at the trial or in appeal or reference or revision, shall sand
abated, unlike in U.P.
Act,
only on an order being passed in that behalf by the concerned Court or
authority before whom such suit or proceedings is pending. The next question
is: as to when Consolidation authorities get jurisdiction to declare that a if
deed executed by a holder of a land under the Act is obtained by fraud or
collusion etc.? This controversy was considered by this Court in Gorakh Nath Dube
vs. Hari Narain Singh & Ors. [(1974) 1 SCR 339]. After consideration of the
entire case law in that behalf, this court had held thus:
"We
think that a distinction can be made between cases where a document is wholly
or partially invalid so that if 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
adjudication on the effect to such a purported alienation would be necessarily
implied in the decision of a dispute involving conflicting claims to rights or
interests in land which are the subject matter of consolidation proceedings.
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 declare 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.
On the
facts in that case since the declaration of one half share in the property was
matter within the jurisdiction of the Consolidation authority, this Court had
held that the suit stood abated.
In Paras
Singh V/s. Baikunth Singh [1979 PLJR (Vol.12) 567] and Tarkeshwar Upadhya Anr. V/s.
Mahesh kehar & Ors. [AIR 1981 Patna 348], the learned Single Judge had held that a suit for cancellation of
the deed on the ground that they were executed by an insane person would stand
abated. If the notification under Section 4(c) of the Bihar Consolidation of
Holdings and Prevention of Fragmentation Act is already published, the civil
court has no jurisdiction. A Division Bench in Jiwan Pandey & Anr. vs, Mahendra
Rai [1985 PLJ 686] had held that when the decree is voidable but not void, the
suit does not get abated since the civil Court alone has to grant declaratory
relief to avoid the decree. Later, a reference was made to the Full bench
decision of the Patna High Court for resolving the conflict. Following the
ratio in Gorakh Nath Dube's case (supra), the full Bench in Sheoratan Chamar
& Ors. V/s. Ram Murat Singh [1985 BLJR (Vol.33) 45] had held in para 14 that
all cases where lis is rested wholly would abate if such document is void. But
no such abatement would result if the same is voidable and the same has to be
set aside by the court for adjudication.
Therein
also the voidity or voidability of the gift deed was in question. Having found
the gift deed voidable, the full bench held that found the gift deed voidable.
The same view was reiterated by another Division Bench in Dharmanath Pandey
& Ors. V/s. Dhumun Manjhu & Ors. [1985 BLJR (Vol.33) 110]; Jaleshwar Tiwary
& Ors. V/s. Suresh Tiwary & Ors. [1986 BLJR (Vol.34)378] and Shivaji Rai
vs. Rajendra Rai & Anr. [(1993) 1(Vol.44) BLJR 258].
It is
thus settled law that if the document is invalid, it can be disregarded by the
court or the authority and it may proceed to consider declaration or
adjudication of any other right in regard to which proceedings can or ought to
be taken under the Act. Since we have in the present case proceedings before
the Consolidation authorities, it would necessarily imply in the adjudication
of a dispute involving conflicting claims in respect of rights or interests in
land which is subject matter of the proceedings before the Consolidation
authorities but if a dispute relating to the land was in respect of the land
and was based upon a document where its validity is impugned, it is for the
court to declare such document effective or ineffective and the legal effect
would hinge upon such a declaration. Based thereon, if the document requires to
be set aside or cancelled, the Consolidation authorities under the Act have no
power to cancel such deed. Therefore, the proceedings would not abate. As held,
if the document is void, the proceedings pending in any court or authority
stand abated.
Therefore,
the civil Court gets jurisdiction to declare the document to be voidable. In
consequence, the notification under Section 3(1) does not have the effect of
abatement under Section 4(1)(c) of the Act. If the document is void, there
would be no need to set aside or cancel the document/deed. Then the
Consolidation authorities get exclusive jurisdiction to deal with all questions
relating to declaration of a right or interest in any land or for declaration
or adjudication of any other right in regard to such proceedings. The Court or
authority before whom any suit etc. is pending should record that the suit or
proceedings have abated leaving it to the parties to avail of the remedy under
the Act.
The
appellate Court has gone into the question of fraud and recorded the finding
thus:
"Having
learnt about such a fraudulent deed of gift Sukhari Singh cancelled it by
another deed dated 4.4. 1960. But, defendant No.1 somehow, obtained the deed of
gift to him. Defendant No.1 never came in possession over the properties
covered by the deed of gift properties covered by the deed of gift and the same
are coming in possession of the plaintiffs and the other defendants.'
".......even if it si held that it is a voidable document because of fraud
and undue influence practiced upon Sukhari mahto, it must be held that the
plaintiffs are entitled to get the deed to gift set aside and cancelled.
That,
although the scribe of the deed of gift and attesting witnesses Ram Prabesh are
deed but the attesting witness Ram Bachan and the identifying witness Dukdama
as also serval other person who have been named by D.W. 2 and who are alive and
who are said to have seen the Rasid Behi have not been examined and, therefore,
competent person who could therefore, competent person who could therefore,
competent person who could have testified regarding the execution of the deed
of gift and exchange of the equivalent have been purposely withheld, which in
circumstances pointing at the fraudulent nature of the deed of gift in
question.
In the
instant case, I have already shown that the plaintiffs have alleged that the executant,
namely, Sukhari was slow of under standing, fraud was practiced in obtaining
the deed of gift and he was subjected to cohesion, undue influence and
misrepresentation and had he known about the true nature of the document he
would not have executed that deed. The plaintiffs have not denied that Sukhari
had executed the deed of gift in suit.
An
alternative relief has been asked for the cancellation of the deed of gift in
the suit as it is illegal and invalid. The appellants have cited 1981 Bihar Law
Judgments page 112 (Srimati Surajmani Devi in support of their contention that
there a suit has been filed of r declaration of title on the ground that the
registered deed of gift is illegal and void on account of fraud practiced upon
the executant, it cannot be held to be void ab initio and it si voidable
document and has to be set aside on the ground of fraud. In my opinion, the
facts of the case cited above are similar to the facts of the present suit
under consideration, and, upon the allegations in the plaint the deed of gift
is not a void document rather it is voidable document and it is held
accordingly. That being so, the suit shall not abate under Section 4(1)(c) of
the Bihar Consolidation of Holdings and prevention of Fragmentation Act, 1956
as decide in the above quoted decision in Srimati Devi's case.
Accordingly,
it is held that the suit has not abated and the decision of the Additional
Subordinate Judge in this regard is reversed and set aside.
In the
result, the suit is decreed and the plaintiffs are entitled to recover
possession of the suit lands. The deed of gift dated 4.12.1959 is also hereby
cancelled and it is held to be not binding on the plaintiffs and the defendants
other than the contesting defendant No.1. The title of the plaintiffs with
respect to the suit properties is hereby declared. Thus, the appeal is allowed
on contest, but, in the circumstances of the case without cost of this
appeal." In view of the above finding recorded after elaborate consideration,
the District Judge held that the gift deed dated December 4, 1959 was voidable. Therefore, the declaration that the gift deed
is voidable is well justified. The contention that it is void is devoid of
force. As a consequence, the civil Court had jurisdiction and the suit had not
abated. The question whether Sukhari Singh had only undivided joint interest in
the coparcenary and that he had denuded himself of the same after he had
executed another gift deed in favour of one of his agates, was not in issue
before the trial Court or the appellate Court nor is any finding recorded to
that effect. As a result, we cannot hijack the procedure and go into the
question for the first time. Therefore, Sukhari Singh having, admittedly,
cancelled the gift deed axecuted in favour of the appellant, which was found to
be a voidable document, the respondent had got the title to the property under
the sale deed. As such the declaration of title granted in his favour is legal
and valid. It is true that the trick of the pleading and camouflaging of the
relief cannot conclusively confer the jurisdiction on the civil Court or the
Consolidation authorities to decide a particular dispute in question. The
substratum of the lis has to be considered and decided on the basis of the
pleadings and evidence on record. In this case, the relief of declaration of
title, as asked for, was the first relief in the plaint and declaration of
title was only consequential to the declaration of the voidability of the gift
deed executed in favour of the appellant. Unless the document was avoided, Sukhari
Singh could not get any title to alienate the property by a sale deed to the
respondent.
Therefore,
the declaration of the voidability would be the main relief and the declaration
of the title on the basis of the sale deed is consequential to the primary
relief.
Therefore
decree for possession are sequential to the first declaration. The reliefs in
the suit, as a whole, are to be granted by the civil Court only.
The
next question is: whether the appeal before this Court stands abated? It is
true that an application came to be filed and an order came to be passed
deleting respondent Nos. 7,8 and 15, who died pending appeal. With regard to
respondent No.7, Smt. Kamala Devi, since she died issuless the question of
abatement does not arise because if the appellant succeeds, the share of her
agates would get enlarged. Therefore, the appeal does not get abated. But with
regard to respondent Nos. 8 and 15 the stand taken by the appellant is not
correct in law. Order XXII, Rule 4, CPC postulates that in case one of the
respondents on record dies, appeal does not stand abated unless the interest
held by them is joint and indivisible. In this case, the interest held by them
is joint and indivisible. It is true that, in the application, it was stated
that respondent Nos.9 and 10 are already on record to replace respondent no.8
and he was deleted on that premise. Similarly, respondent No.16, who is the son
of respondent No.15, replaced him on his death pending appeal. The appellant
has stated that the respondent No. 16 was already on record and, therefore, the
respondent No.15 was deleted. The procedure adopted is not correct in law. The
order of this Court is that the consequence of their deletion would be considered
at the time of disposal.
It is
the mistaken perception of the counsel. The deceased are not to be deleted but
the legal representatives who are not already on record are to be transposed as
legal representatives of the respective deceased respondents.
Other
XXII, Rule 4(1), CPC posiulates that where one of the the two or more
defendants/ respondents dies and the right to sue does not survive against the
surviving defendants/respondents alone or a sole defendant/respondent, the
Court, on an application made in that behalf, shall cause the legal
representative of the deceased defendant to be made a party and shall proceed
with the suit/appeal.
Under
sub-rule (5) if such an application is not made within the prescribed
limitation, the suit/appeal, in consequence, gets abated under clause (b) of
sub-rule (5). Only on an application made to set aside the abatement and for condonation
of the delay showing sufficient cause for failure to make the application with
in the specified time, the court having regard to the facts of the case, may
condone the delay and order abatement. The salutary principle to bring on
record the legal representative/representatives is to have the estate of the
deceased in the litigation represented in the absence of which the Court would
be unable to pronounce upon the rights of the deceased vis-a-vis parties to the
suit. That is manifested by Rule 6 of Order XXII, CPC which provides that after
hearing the case and before judgement is pronounced, if one of the parties
dies, there would be no abatment by reason of such death. It is, therefore, one
of the duties of the counsel to ensure proper representation by a legal
representative of the estate of the deceased. An application should be duly,
and within limitation, filed and it is the duty of the court to pass order as
per law.
Shri Ranjit
Kumar, obviously due to mistaken perception of the procedural part, has,
instead of seeking transposition of the legal representatives to represent the
estates of the deceased respondents Nos.8 and 15, sought deletion of the names
of the deceased. Without there being already on record some persons eligible
and entitled in law to represent the estate of the deceased, the deceased
defendants/ respondents were deleted. The consequence of deletion is that the decree
of the courts below as against the deceased decree of the courts below as
against the deceased becomes final. If the decree is inseparable and the rights
of the parties are indivisible between the contesting parties and the deceased,
the consequence would be that the suit/appeal stands abated as a whole. But it
one of the respondent/respondents or defendant/defendats is already on record,
what needs to be done is an intimation to the court by filing a formal
application or memo to transpose the existing defendant/defendats or
respondent/respondents as legal representatives of the deceased
defendant/defendants or representatives of the deceased defendant/defendants or
respondent/respondents. In view of the mistake committed by the counsel, the
Court has to consider the effect thereof.
On the
facts, we think that cause of justice would get advanced if the misconception
as to the procedure on the part of the counsel is condoned and if respondent
Nos.8 and 15 instead of being deleted respondent Nos.9 and 10 are substituted
and transposed as the legal representatives of the deceased respondent No.8 and
respondent No.16 is transposed as legal representative of respondent No.15.
However,
in view of the above findings, on merits the appeal stands dismissed but, in
the circumstances, without costs.
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