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PETITIONER: SMT. DULARIA DEVI

       Vs.

RESPONDENT: JANARDAN SINGH & ORS.

DATE OF JUDGMENT02/03/1990

BENCH: THOMMEN, T.K. (J) BENCH: THOMMEN, T.K. (J) SHARMA, L.M. (J)

CITATION:  1990 AIR 1173            1990 SCR  (1) 799  1990 SCC  Supl.  216     JT 1990 (1)   417  1990 SCALE  (1)431

ACT:     U.P.  Consolidation of Holdings Act, 1953: S.  49   Void sale  deed--Suit  for cancellation of--Whether  barred  when consolidation proceedings are pending.

HEADNOTE:     Section  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.     The  plaintiff-appellant, an illiterate lady, wanted  to make  a  gift of her properties in favour of  her  daughter. Defendant  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.     The  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.     In the 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. Dismissing the appeal, the Court, HELD: 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

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void is, however, a matter which can be adjudicated upon  by the consolidation authorities. [802E-F]     Gorakh  Nath Dube v. Hari Narain Singh & Ors., [1974]  1 SCR 339, referred to.     1.2  In  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. She 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., [1968] 2 SCR 797, applied.     No  suit was, therefore, maintainable by reason  of  the bar contained in s. 49 of the Act.  [804E]     2.  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. [804F]

JUDGMENT:     CIVIL  APPELLATE JURISDICTION: Civil Appeal No. 2998  of 1980.     From  the  Judgment and Order dated  17.11.1980  of  the Aliahabad High Court in S.A. No. 2954 of 1979. M.S. Gujral and Mohan Pandey for the Appellant.     Satish Chandra, Praveen Swarup and Pramod Swarup for the Respondent. The 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. 2954  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 the plaintiff.     The  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

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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. The 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. Accordingly, 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.     The  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.     Mr.  Satish  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.,  [1974]  1 SCR 339 and Ningawwa v. Byrappa &  3  Ors., [1968]  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 the Act.     In  Gorakh 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. Questions 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: "We think that a distinction can be made between cases where a document is wholly or partially invalid so that it can  be

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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 then said: "The 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. In Foster  v. Mackinon, [1869] 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: It (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. He  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 plaintiffappellant 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,

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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. Accordingly, as stated in Gorakh Nath Dube (supra), the suit is  not maintainable by reason of the bar contained  in  the Act.     The  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. P.S.S.                                                Appeal dismissed. 805