The main legal point established in the judgment is the distinction between void and voidable documents, and the implications of this distinction on the abatement of suits under the Bihar Consolidation of Holdings and Prevention of Fragmentation Act, 1956.

S. N. Jha & Aflab Alam, JJ. - This application by the plaintiffs is directed against the order abating their suit under section 4 (c) of the Bihar Consolidation of Holdings and Prevention of Fragmentation Act, 1956 (hereinafter referred to as 'the Act'). The plaintiffs instituted the suit claiming a number of reliefs including declaration that the deed dated 23.10.86 executed by one Shankar Tiwary was illegal, void, inoperative and not binding upon either Shankar Tiwary or the plaintiffs. The Court below has held in its impugned order dated 8.12.87 that on the own pleadings of the plaintiffs the said transfer deed is void and, therefore, the consolidation authorities are competent to adjudicate upon the issues and the suit is fit to be abated under section 4 (c) of the Act.

2. The distinction between void and voidable document is well known. Equally well known is the legal position that while a suit seeking declaration in respect of a void transfer deed abates under the Act, the one in respect of voidable document does not. The following observations in the leading case of Gorakh Nath Dube vs. Hari Naraln Singh & ors. (AIR 1973 Supreme Court, 2451) succinctly illustrate the point:-

"We 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 interest in land which are the subject matter of consolidation proceedings- ...... 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."

A Full Bench of this Court in Sheoratan Chamar & ors. Vs. Ram Murat Singh @ Kishori Ram Singh & ors. (1985 BBCJ 73 : 1985 PLJR 86 (FB)) following Gorekh Nath Dube's case (supra) summed up the legal position in the following words:-

"To conclude, following the ratio in Gorakh Nath Dube's case ((supra) it is held that under section 4 (c) of the Act, all cases where the lis is rested wholly on a document or transfer deed the proceeding would abate if document is void, but no such abatement would result, if the same is voidable and to be set aside by the court after adjudication."

3. We have carefully examined the pleadings, particularly those made in paragraphs 17 and 18 of the plaint. It would appear that the transfer deed dated 23.10.86 has been impugned on the ground that Shankar Tiwary was not in a disposing state of mind and at time of execution of the deed he was under the influence of liquor given to him by the transferees. It is also averred that the execution of the document was result of fraud practised upon Shankar Tiwary. It is well settled that allegations regarding fraud have not only to be pleaded but also proved. Such an allegation does not render the transfer deed void ab initio unless it relates to the character of the document and not merely as to its contents (See-AIR 1990 Supreme Court, 1173). It is also well settled that the nature of the suit is determined not merely on the basis of the reliefs claimed but on reading of the plaint as a whole. The fact that the plaintiffs themselves characterised the transfer deed as void and sought a declaration to that effect, therefore, cannot be said to be conclusive. We are satisfied, on averments made in the plaint, that the impugned transfer deed is not void but voidable the legal effect of which can be taken away only by adjudication and decree to that effect by the civi