The right to sue for a declaration that a gift was induced by fraud and misrepresentation survives to the legal representatives of the donor.

1. This revision petition by the defendants is directed against an order of the learned Senior Subordinate Judge, Hamirpur, allowing a substitution application.

2. A suit was brought by one Smt. Ambo for a declaration that she was the owner of the property possessed by her and that the gift executed by her on February 3, 1969 was vitiated by fraud and misrepresentation and, therefore, should be set aside. During the pendency of the suit Smt. Ambo died. An application was made by her daughters sons praying that they be substituted as legal representatives. By an order dated February 27, 1976, the learned Senior Subordinate Judge, Hamirpur, has held that on the death of Smt. Ambo the right to sue survives to her legal repre­sentatives, and accordingly he has direct­ed their substitution in place of the de­ceased.

3. By this revision petition, the peti­tioner challenges the validity of that order.

4. It is urged by learned counsel for the petitioner that the right to sue for a declaration that the gift deed was in­duced by fraud and misrepresentation was a right personal to Smt. Ambo, the donor of the gift, and as that right could not be transferred or inherited the right to sue for the declaration did not sur­vive. It is the truth of this proposition that must now be examined.

5. Section 126 of the Transfer of Pro­perty Act provides that inter alia "a gift may also be revoked in any of the cases (save want or failure of considera­tion) in which, if it were a contract, it might be rescinded". A gift may, there­fore, be revoked for coercion, fraud, misrepresentation or undue influence much as a contract may be rescinded. The right to revoke a gift on those grounds is a right conferred by statute. It does not flow from any personal contract between the parties to the case. It is not a right which is confined in point of time to the individual self of the donor. It is not a right which dies with him. On the death of the donor, the cause of action survives to his legal representa­tives. In Ghumna v. Ram Chandra Rao, AIR 1925 All 437, a Division Bench of the Allahabad High Court repelled the contention that a voidable gift could not be avoided by the donors heirs. It was observed : (at p. 438) "It is not quite correct to say that the right of exercising such an option is like a personal contract which does not sur­vive to the heirs of the promisor. The right is given to the promisor under statute." A further reason for that view lies in the nature of the transaction, that the gift is more than a mere contract, that it is a conveyance. And so it was said by the same learned Judges: (at p. 438) "The present plaintiffs can claim that there was no absolute transfer of the property at all, but it was a qualified transfer, that is subject to the right of the transferor to avoid it if he chose to do so. The plaintiffs, therefore, can claim the property by avoiding the deed of gift which could have been avoided by their predecessor. There does not seem to be any valid ground for the saying that the right does not survive to the present plaintiffs."

6. Marten, C. J. of the Bombay High Court, referred to the provisions in the Indian Contract Act which contemplated that in certain cases the benefit and burden of promises should devolve on legal repre­sentatives. Referring to Section 19 and Section 19-A of the Contract Act, he said in Shravan Goba v. Kashiram Devji, AIR 1927 Bom 384 (at pp. 387, 388) "In this connexion it may be pointed out that the appellant is forced in argument to go this length that the represen­tatives cannot take advantage of either branch of Section 19. The result, there­fore, would be that if a man was de­frauded or induced to enter into a con­tract by fraud and died the next day, his representatives could not avoid the con­tract under the first part of Section 19. Nor could they even under the second branch insist that the contract should be performed on the basis that the repre­sentations made were true. On what princip