A suit for a declaration of invalidity of a voidable deed of gift does not abate under Section 4 (c) of the Bihar Consolidation of Holdings and Prevention of Fragmentation Act, 1956, as it requires adjudication by the court and is not a void document that can be disregarded without a court order.

S. K. Choudhuri, 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 under Section 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.

2. 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.

3. 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 defendant 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.

4. 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 Sunderpur Barn 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.

5. 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 under Section 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 v. Baikunth Singh (1979 Bihar Law JUDGMENT : 669 : 1979 PLJR 567). 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 Surajmani v. Shanti Devi (1981 B. B. C. J. 411 ) and Chote Gope v. Kali Gope (1983 B. B. C. J. 1244 : 1983 PLJR 357).

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 there sent 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 under Section 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.

6. It will be appropriate in the first instance to deal with the two cases cited