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1997(3) Supreme 340
SUPREME COURT OF INDIA
K. Ramaswamy & S. Saghir Ahmad, JJ.
Ram Sakal Singh -Appellant
versus
Mosamat Monako Devi (Dead) & Ors. -Respondents
Civil Appeal No. 1441 of 1986
Decided on 21-2-1997
Counsel for the Parties :
For the Appellant : Ranjit Kumar and Ms. Anu Mohla, Advocates.
For the Respondents : Rakesh K. Khanna, (Ms. Tameem Hashmi), Advocate for Surya Kant, Advocate.
Held 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. (Para 6)
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. (Para 7)
Further held, Sukhari Singh having, admittedly, cancelled the gift deed executed 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, the declarations of the title and the consequential 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. (Para 9)
(ii) Civil Procedure Code, 1908-Order XXII, Rule 4-Appeal-Death of one of respondents-Appeal does not stand abated unless interest held by them is joint and indivisible-Deceased are not to be deleted-Legal representative who are not already on record are to be transposed as legal representatives of respective deceased respondents-Duty of counsel to ensure proper representation by a legal representative of estate of deceased. (Paras 10 & 11)
ORDER
This appeal by special leave arises from the judgment of the Patna High Court, 1984, dismissing the second appeal in limine at the admission stage.
2. 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, 1959. Thereafter, he cancelled the gift deed by another deed on April 4, 1960. He thereafter executed 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 Holdings and Prevention of Fragmentation Act, 1956 (for short, the Act ) was issued in the year 1974-75 and, thereafter, an objection was raised , apart from the other pleadings, 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 in 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 dated December 4, 1959, is voidable and that the civil Court alone could give declaration. As a result, the suit had not abated. The appellate Court also recorded a finding that gift deed was obtained by playing fraud and, therefore, it was a 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.
3. 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 sought 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
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