Jiawan Pandey and Another vs Mahendra Rai

S.K. Choudhary, J.—This revision by the defendants is directed against the order dated 7th January, 1981, passed by the Additional Munsif, Arrah, in title suit No. 159 of 1979, holding that the suit has not abated u/s 4(c) of the Bihar Consolidation of Holdings and Prevention of Fragmentation Act, 1956 (Bihar Act 12 of 1956), (hereinafter referred to as ''the Act''). This revision was placed for hearing before a learned single Judge, but by order dated 20th November 1982, he referred the case to a Division Bench and that is how it has been placed before us for hearing. The aforesaid suit has been filed for a declaration that the deed of gift dated 6th April 1977 purported to have been executed by the plaintiff was illegal, null and void, fraudulent, fabricated and a collusive document and was without consideration and, therefore, had not affected the plaintiff.

The plaintiff''s case, in, short, is that the plaintiff had developed intimacy with the defendant and had full confidence upon him. It has been averred that taking advantage of the aforesaid situation, the plaintiff, who was a patient of Asthama, used to take medicine on the advice of the defendants, who helped him in his treatment. It has further been stated that, while the plaintiff used to take some drugs, on the advice of the defendants, he used to get relief of the pain of Asthama to some extent and used to develop intoxication. It is further stated that in that state of intoxication he used to loose his full senses of understanding and while he was in that state, the defendants got a deed of gift executed by him on 6th April, 1977. In substance, it is under these allegations that the plaintiff has sought for the aforesaid declaration. Thus the plaintiff who is the executant of the document wants to avoid it on the aforesaid allegations.

During the pendency of the suit, the defendants-petitioners filed an application in the court below under Sections 4(b) and 4(c) of the Act praying therein to hold that the suit has abated as a consolidation proceeding is going on in village Sundarpur Barza where the lands covered by the deed of gift are situate. A rejoinder was filed by the plaintiff-opposite party to the said application. The matter was heard by the court below and after hearing, the court below passed the impugned order by which it has held that the suit had not abated.

Mr. Binod Kumar Roy learned Counsel appearing in support of this application contended that the court below acted illegally and with material irregularity in exercise of its jurisdiction in holding that the suit had not abated u/s 4(c) of the Act. According to the learned Counsel, the present case is covered by a single Judge decision of this Court in the case of Paras Singh Vs. Baikunth Singh, : Paras Singh Vs. Baikunth Singh, Learned Counsel states that the proposition of law as put forward by him is fully supported by this decision.

Mr. D.N. Pandey, learned Counsel appearing for the opposite party, on the other hand, supported the impugned order and placed reliance upon the two decisions of this Court in the cases of Smt. Surajmani Devi Vs. Smt. Shanti Devi and Another, and Chhote Gope and others Vs. Kali Gope,

The only dispute, therefore, was as to whether the deed of gift in question which has been challenged in the suit by the plaintiff-opposite party is a void document or a voidable one. It has not been disputed at the Bar that if it is held that the document in question is a voidable one, then it requires adjudication of the court and the present suit has not abated. However, if, on the other hand, it is held that the document is a void document, then of course the suit has abated u/s 4(c) of the Act. It is in support of the argument of the learned Counsel for the respective parties that they cited the aforesaid decisions.

It will be appropriate in the first instance to deal with the two cases cited on behalf of the opposite party. In Surajmani v. Shanti Devi''s case (supra) the revision was preferred against the order of the court below holding that the suit and the appeal have abated u/s 4(c) of the Act. The said suit was for declaration that the registered deed of gift dated 30th November, 1973, executed jointly by the plaintiff-petitioner and defendant No. 2 in favour of defendant No. I, was illegal, void, fraudulent, invalid and for cancellation and also for a declaration of title after cancellation of the document. The submission of learned Counsel for the petitioner that the consolidation authority had no power to cancel the deed of gift on the ground of fraud was accepted. While referring to the case of Gorakh Nath Dube Vs. Hari Narain Singh and Others, the learned Judge has pointed out the distinction that has been made in the Supreme Court decision between the cases where a document is wholly or partially invalid so that it can be disregarded by any court or authority and the one where it has to be actually set aside before it can cease to have legal effect. The latter class of cases were held to be outside the scope of the provision relating to abatement of the suit. In the case under discussion the learned Judge has held that the case in question fall within the latter class of cases and as such the document is binding upon the parties unless set aside by the court. According to the learned Judge, such document was not void, ab initio, but was a voidable document. The revision application was Accordingly allowed and the order of abatement was set aside.

The other case cited on behalf of the opposite party is Chhote Gope v. Kali Gope (supra). It is a decision of a learned single. Judge of this Court in which the Supreme Court decision in Gorekh Nath Dubey''s cases (supra) has been followed. In this case also, the deed of gift dated 16th January, 1980 was sought to be declared as invalid, inoperative and not acted upon. The order of the court below holding that the suit has not abated u/s 4(c) of the Act was upheld.

It has come to our notice the Full Bench decision of this Court in the case of Mt. Rupia Vs. Bhatu Mahton and Others, That was of course a case under the court fees Act. The fact of that case was that one Mt. Rupia instituted a suit for declaration that certain sale-deeds executed by her were got up and fraudulent and they were executed by her practising fraud upon her and without letting her know the contents of the documents. Her case was that defendants Nos. 1, 3 and 5 brought her to Patna on pretexts and fraudulently got her to affix her thumb marks on two documents and to admit the execution of the same without letting her know the contents thereof and that the recitals in the documents-as regards the passing of the consideration and the existence of certain necessities and as to the relationship between her husband and defendants Nos. 7 to 10 were wholly false. It was held in that case that the sale-deeds on their very face had been duly executed and properly registered carrying with them the necessary legal consequence that title passed from the transferor to the transferee and, therefore, they would necessarily require to be cancelled in order to get rid of the legal consequences attaching to it, and though the relief for cancellation was not asked for explicitly, the same was implicit in the relief sought for. On the allegations of the plaintiff such a document would therefore be voidable and not void and that is why it required to be cancelled before any relief could be granted to the plaintiff. In these circumstances, it was held that ad valorem court fee was payable and Section 7(iv)(c) of the Court Fees Act would apply. In my view the principle laid down in the Full Bench case will apply in equal force to the present case.

Now it is necessary to discuss the single Judge decision cited by the learned Counsel for the petitioner in the case of Paras Singh Vs. Baikunth Singh, : Paras Singh Vs. Baikunth Singh, in support of his contention. It appears from the fact of that case that the plaintiff filed a suit challenging a deed of gift dated 2nd February, 1973, purported to have been executed in favour of the defendants by one Baliram Singh who, according to the plaintiff, died on 10th February, 1970. The plaintiff claimed title to the suit property under a registered deed of gift from the nearest heir of the said Baliram Singh. It was alleged that the said document under which the defendants claim was void and inoperative, on the ground that the deed of gift dated 2nd February, 1973 had never been executed by Baliram Singh and that at the time of execution Baliram Singh was not in a fit state of body and mind and was ailing since long and had lost his power of understanding. A further ground was that Baliram Singh was completely under the influence and coercion of the defendants at the time the deed is purported to have been executed and that it was not presented before the registering officer legally as the officer was also under the influence of the defendants.

It will be apposite to mention here that the main relief claimed as pointed out by the learned single Judge in his decision was "for declaration of his title as absolute owner of the lands in suit on declaration that the said ''deed of gift dated 2.2.1973'' purported to have been executed by the said Baliram Singh in favour of the defendants is illegal, void and inoperative and not binding on the plaintiff". This relief, it has been held, is clearly covered by Section 4(c) of the Act, and, therefore, the suit rightly abated. The Full Bench decision is Ramkrit Singh and Others Vs. The State of Bihar and Others, Ramkrit Singh and Others Vs. The State of Bihar and Others, was referred to by the learned single Judge in this connection and he pointed out that in a suit of composite nature if the relief or reliefs sought, is unconnected with the declaration and determination of title to the land., it would not abate u/s 4(c) of the Act in relation to the aforesaid independent relief or reliefs. Keeping this principle in mind the learned single Judge held that "the use of the words, ''declaration of title to the land on declaration that the said deed of gift was illegal, void and inoperative'' clearly indicates that the further declaration sought that the ''said deed of gift dated 2.2.1973, is illegal, void and inoperative and not binding on the plaintiff'' is in the nature of a finding which has to be recorded before the relief prayed for i.e. declaration of title to the deed can be granted". Keeping this principle in mind the learned single Judge held that the relief for declaration that the deed of gift dated 2.2.1973 was illegal, void and inoperative and not binding upon the plaintiff was not an independent and unconnected with the main relief, namely, the declaration of the plaintiff''s title as absolute owner in the suit land, and, therefore, it was held in that case that the suit abated u/s 4(c) of the Act.

The learned single Judge, however, further proceeded to discuss the law on the assumption that the two reliefs claimed in the suit were independent and separate and while deciding that question, the learned single Judge observed that the allegation of undue influence and coercion may make the deed of gift a voidable document, but the allegation that at the time the deed was executed by Baliram Singh, he was unconscious and had lost all powers of understanding if established, would make the deed void. This conclusion as already pointed out above, was based on the assumption that it was an independent relief to the principal relief claimed in the suit. However, in spite of such assumption and observation that if it is proved that Baliram Singh was unconscious and had lost all his power of understanding, then the deed of gift was a void document, the learned single Judge still upheld the decision of the trial court holding what the suit has abated as a whole. In his opinion, even if it would be a separate relief, still the suit for this relief would also be covered by Section 4(c) of the Act. I, therefore, fail to appreciate as to how this decision helps the petitioners. That apart, the aforesaid observation regarding the nature of the document by the learned single judge is obiter. As already indicated above, the present case is fully covered by the Full Bench decision in Mt. Rupia''s case (supra) and, therefore, it must be held that the document under consideration viz, the deed of gift executed by the plaintiff is a voidable document.

In view of the discussions made above. I am of the view that the trial court has rightly held that the suit has not abated u/s 4(c) of the Act.

In the conclusion, there is no merit in this revision application and it is, accordingly, dismissed, but without costs.