RAM SAKAL SINGHversusMOSAMAT MONAKE DEVI (DEAD) AND ORS.

                         RAM SAKAL SINGH                                                A
                                v.
                MOSAMAT MONAKE DEVI (DEAD) AND ORS.

                                FEBRUARY 21, 1997

               [K. RAMASWAMY ANDS. SAGHIR AHMAD, JJ.)

            Bihar Consolidation of Holdings.and Prevention of Fragmentation Act,
    1956:

          Ss. 3 and 4(l)(c)-Voidable document-Jurisdiction of civil court to            C
    adjudicate upon-Member of Joint Hindu Family executed a gift deed in

-   favour of stranger to family-Later, gift deed cancelled and a sale deed
    executed-Purchaser filed suit for declaration that gift deed was obtained by
    fraud and was voidable-Pending suit Notification u/s. 3 of the Act is-
    sued-Objection raised that suit stood abated by operation of s. 4(1) (c)-Trial
    Court upheld the contention but held that gift deed was obtained by                 D
    fraud-Appellate Court decreed the suit holding that gift deed was voidable
    and civil court alone could give the declaration-Held-The declaraiion by
    the appellate court that the gift deed was voidable is well justified-Civil Court
    had jurisdiction and suit had not abated-Declaration of voidability would
    be main relief and declaration of title under the sale deed is consequential to     E
    main relief-Declaration of title. and consequential decree for possession are
    sequential to first declaration-Reliefs in suit are to be granted by civil court
    only-Gift deed being a voidable document, purchaser got the title under the
    sale deed.

          Gorakh Nath Dube v. Hari Narain Singh & Ors., [1974] 1 SCR 339,               F
    relied on.

          Jiwan Pandey & Anr. v. Mahendra Rai, (1985) PLJ 686; Sheoratan
    Chamar & Ors. v. Ram Murat Singh ( 1985) BUR 33 45; Dharmanath Pandey
    & Ors. v. Dhumun Menjhu & Ors., (1985) BWR 33 110; Jaleshwar Tiwary &               G
    Ors. v. Suresh Tiwary & Ors., (1986) BWR 34 378; Shivaju Rai v. Rajendra
    Rai & Anr., (1993) 1 Vol. 44 BWR 258, approved.

        Paras Singh v. Baikunth Singh, (1979) PWR Vol. 12 567; Tarkeshwar
    Upadhya & Anr. v. Mahesh Kehar & Ors., AIR (1981) Patna, 348, referred
    ~                                                                                   H
                                          357
    358                    SUPREME COURT REPORTS                  [1997] 2 S.C.R.

A           Code of Civil Procedure, 1908 :

         Order XXJI, Rule 4-Abatement of appeal-Three of the respondents
  died pending appeal-Application for deletion of their names filed-Interest
  held by them being joint and indivisible-Legal heirs of two of the deceased
  already 011 record as respondents-Held, if heir of deceased defendant/respon-
B dent is already 011 record, what needs to be done is an intimation to the court
  by filing a fomial application or memo to tra1ispose the existing defen-
  dant/respondent as legal representative of deceased defendant/respon-
  dent-Misconception as to the procedure 011 the part of the counsel condoned;
  substitution ordered accordingly.
c           CIVIL APPELLATE JURISDICTION : Civil Appeal No. 1441 of
    1986.

          From the Judgment and Order dated 7.U.84 of the Patna High Court
    in S.A. 635 of 1981.

            Ranjit Kumar and Ms. Anu Mohla for the Appellant.

        .Rakesh K. Khanna, Ms. Tameem Hashmi for Surya Kant for the
    Respondents.

E           The following Order of the Court was delivered :

           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.

F          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 son~ by name, Kirtarth Singh, Padarath Singh, Ujagir Singh, Sukhari
    Singh, Ratan Singh, Budhan Singh and Mangru Singh. We are concerned,
    in this litigation, with Sukhar~ Singh of this branch. It is now an admitted
G   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 favbur of the first respondent on November 22, 1970. Therefore,
H   the first rl?spondent filed a suit in 1995 for a declaration that the gift deed
               RAM SAKAL SINGH v. MOSAMAT MON AKE DEVI                    359

    dated December 4, 1959 was obtained by the appellant by playing fraud on A
    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 B
    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 cif the appellant on Decem-
    ber 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 C
    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 D
    gift deed was obtained by playing fraud and, therefore, it was a voidable
    document. Accordingly, the declaration 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.

           Shri Ranjit Kumar, learned counsel for the appellant, with his usual E
    thorough preparation and clarity of his submission, raises three-fold con-
    tention. 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 nJ right to p
    alienate the property by way of sale in favour of the respondent. So that
    sale deed itself is invalid in law. ~II these questions touch upon the
    properties held by Sukhari Singh which should be gone into by the con-
    solidation 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 G
    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 p:iatter. As a consequence, civil Court alone has
    the jurisdiction to decide the dispute and give the declaration, as sought H
    360                   SUPREME COURT REPORTS                    [1997) 2 S.C.R.

A 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 recorded. Therefore, the question cannot be gone
    into in this appeal. He has further stated that in view of the finding
    recorded by the appellate Court that the gift deed executed in favour of
                                                                                      -
    the appellant was voidable, Sukhari Singh had power to dispose of his
B   property. The sale made in favour of the respondent is valid. He further
    contends that pending appeal, the respondent Nos. 7, 8 and 15 have died
    and an application to delete them from the array having been filed, the
    appeal stands abated.

C         In view of the respective contentions, the primary question which
    arises for consideration is : whether the civil Court has jurisdiction to go
    into the question of declaration that the gift deed is void or voidable?
    Section 4 of the Act postulates thus :

             "The effect of notification under Section 3(1) of the Act - Upon
D            the publication of the notification under sub-section (1) of Section
             3 in the official Gazette the consequences, as hereinafter set forth,
             shall, subject to the provisions of this Act, from the date specified
             in the hotification till the close of the consolidation operation,
             ensue in the area to which the notification relates, namely :
E            ( c) every proceeding for the correction of records and every suit
             and proceeding in respect of declaration of rights or interest in
             any land lying in the area or for declaration or adjudication of any
             other right in regard to which proceedings can or ought to be taken
             under this Act, pending before any court or authority whether of
               <
F            the first instance or of appeal, reference or revision, shall on. an
             order being passed in that behaJ(by the court or authority before
             whom such suit or proceedings is pending stand abated."

          As a consequence of the publication of the notification under Section
  3(1) of the .Act, every proceedings for the correction of record and every
G suit and proceedings in respect of declaration of right or interest in any land
  lying in the area or for declaration of adjudication of any other right in regard
  to such proceedings can or ought to be taken under the Act, pending before
    any court or authority whether in the first instance or in appeal, reference
    or revision, shall, on an order being passed, in that behalf by the Court or
H   authority before whom such suit or proceedings is pending, stand abated.
               RAMSAKALSINGHv. MOSAMATMONAKEDEVI                              361

    Therefore, the prohibition of the civil Court to proceed further, after the A
    publication of the notification under Section 3(1), was in respect of the


-   declaration of a right or interest in any land lying in an area or for the
    declaration or adjudication of any other right in regard to which proceed-
    ings can or ought to be taken under the Act. All pending proceedings
    before the Court, either at the trial or in appeal or reference or revision, B
    shall stand abated, unlike in U.P. Act, only on an order being passed in
    that behalf by the concerned Court or authority before whom such suit or
    proceedings is pending. The next question is : as to when Consolidation
    authorities get jurisdiction to declare that a gift deed executed by a holder
    of a land under the Act is obtained by fraud or collusion etc.? This
    controversy was considered by this Court in Gorakh Nath Dube v. Hari C
    Narain Singh & Ors., [1974] 1 SCR 339. After consideration oflhe entire
    case law in that behalf, this Court had held thus :

             "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
                                                                                     D



             of power, invalid. An adjudication on the effect of such a pur-
             ported alienation would be necessarily implied in the decision of
             a dispute involving conflicting claims to rights or interests in land   E
             which are the subject matter of consolidation proceedings. 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     F


-
             in land, to declare 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.       G


          On the facts in that case since the declaration of one half share in
    the property was a matter within the jurisdiction of the Consolidation
    authority, this Court had held that the suit stood abated.                 H
    362                  SUPREME COURT REPORTS                   (1997] 2 S.C.R.

A         In Paras Singh v. Baikunth Singh, (1979) PUR (Vol. 12) 567 and
    Tarkeshwar Upadhya & Anr. v. Mahesh Kehar & Ors., AIR (1981) Patna
    348, the learned Single Judge had held that a suit for cancellation of the
    deed on the ground that they were executed by an insane person would
    stand abated. If the notification under Section 4 (c) of the Bihar Consolida-
                                                                                     -
B   tion of Holdings and Prevention of Fragmentation Act is already published,
    the civil court has no jurisdiction. A Division Bench in Jiwan Pandey & Anr.
    v. Mahendra Rai, (1985) PU 686 had held that the decree is voidable but
    not void, the suit does not get abated since the civil Court alone has to
    grant declaratory relief to avoid the decree. Later, a reference was made ;
    to the Full Bench decision of the Patna High Court for resolving the
C   conflict. Following the ratio in Gorakh Nath Dube's case (supra), the Full
    Bench inSheoratan Chamar& Ors. v. Ram Murat Singh, (1985) BUR (Vol.
    33) 45 had held in para 14 that all cases where lis is rested wholly on a
    document or transfer deed, the proceedings would abate if such document
                                                                                     --
    is void. But no such abatement would result if the same is voidable and the
D   same has to be set aside by the court for adjudication. Therein also the
    voidity or voidability of the gift deed was in question. Having found the gift
    deed voidable, the Full Bench held that the suit was not abated. The same
    view was reiterated by another Division Bench in Dhannanath Pandey &
    Ors. v. Dhumun Manjhu & Ors., (1985) BUR (Vol. 33) 110; Jaleshwar
    Tiwary & Ors. v. Suresh Tiwary & Ors., (1986) BUR (Vol. 34) 378 and
E   Shivaji Rai v, Rajendra Rai & Anr., (1993) 1 (Vol. 44) BUR 258).

        It is thus settled law 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 proceed-
F ings can or ought to be taken under the Act. Since we have in the present
  case proceeclings 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 was based upon a document where its validity
G 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 Con-
  solidation authorities under the Act have no power to cancel such deed.
  Therefore, the proceedings would not abate. As held, if the document is
H void, the proceedings pending in any court or authority stand abated.
.·~
                 RAMSAKALSINGHv. MOSAMATMONAKEDEVI                            363

            Therefore, the civil Court gets jurisdiction to declare the document A
      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 jurisdic-
      tion to deal with all questions relating to declaration of a right or interest B
      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.

           The appellate Court has gone into the question of           fraud and     C
      recorded the finding thus :

              "Having learnt about such a fraudulent deed of gift Sukhari singh
              cancelled it by another deed dated 4.4.1960. But, defendant No. 1
              somehow, obtained the deed. of gift to him. Defendant No. 1 never
              came in possession over the properties covered by the deed of gift     D
              and the same are coming in possession of the plaintiffs and the
              other defendants."

                  "...even if it is held that it is a voidable document because of
              fraud and undue influence practiced upon Sukhari Mahto, it must        E
              be held that the plaintiffs are entitled to get the deed of gift set
              aside and cancelled.

              That, although the scribe of the deed of gift and attesting witnesses
              Ram Prabesh are dead but the attesting witness Ram Bachan and
              the identifying witness Dukdama as also several other persons who F
              have been named by D.W. 2 and who are alive and who are said
              to have seen the Rasid Behi have not been examined and, there-
              fore, competent person who could have testified regarding the
              execution of the deed of gift and exchange of the equivalent have
              been purposely withheld, which in circumstance pointing at the G
              fraudulent nature of the deed of gift in question.

              In the instant case, I have already shown that the plaintiffs have
              alleged that the executant, ·namely, Sukhari was slow of under-
              standing, fraud was practiced in obtaining the deed of gift and he
              was subjected to cohesion, undue influence and misrepresentation H
    364                   SUPREME COURT REPORTS                    [1997] 2 S.C.R.

A           and had he known about the true nature of the document he would
            not have executed that deed. The plaintiffs have not denied that
            Sukhari had executed the deed of gift in suit. An alternative relief
            has been asked for the cancellation of the deed of gift in the suit
            as it is illegal and invalid. The appellants have cited 1981 Bihar
            Law Judgments page 112 (Srimati Surajmani Devi v. Srimati Janaki
B           Devi & Others) in support of their contention that the.re a suit has
            been filed for declaration of title on the ground that the registered
            deed of gift is illegal and void on account of fraud practiced upon
            the executant, it cannot be held to be void ab initio and it is
            voidable document and has to be set aside on the ground of fraud.
c           In my opinion, the facts of the case cited above are similar to the
            facts of the present suit under consideration, and, upon the al-
            legations in the plaint the deed of gift is not a void document rather
            it is a voidable document and it is held accordingly. That being so,
            the suit shall not abate under Section 4(1)(c) of the Bihar Con-
            solidation of Holdings and Prevention of Fragmentation Act, 1956
D
            as decided in the above quoted decision in Srimati Devi's case.
            Accordingly, it is held that the suit has not abated and the decision
            of the Additional Subordinate Judge in this regard is reversed and
            set aside.

E            In the result, the suit is decreed and the plaintiffs are entitled to
             recover possession of the suit lands. The deed of gift dated
             4.12.1959 is also hereby cancelled and it is held to be not binding
             on the plaintiffs and the defendants other than the contesting
             defendant No. 1. The title of the plaintiffs with respect to the suit
           . properties is hereby declared. Thus, the appeal is allowed on
F
             contest, but, in the circumstance of the case without cost of this
             appeal."

           In view of the above finding recorded after elaborate consideration,
    the District Judge held that the gift deed dated December 4, 1959 was
G   voidable. Therefore, the declaration that the gift deed is voidable is well
    justified. The contention that it is void is devoid of force. As a consequence,
    the civil Court had jurisdiction and the suit had not abated. The question
    whether Sukhari Singh had only undivided joint interest in the coparcenary
    and that he had denuded himself of the same after he had executed another
H   gift deed in favour of one of his agates, was not in issue before the trial
           RAMSAKALSINGHv. MOSAMATMONAKEDEVI                             365

Court or the appellate Court nor is any finding recorded to that effect. As A
a result, we cannot hijack the procedure and go into the question for the
first time. Therefore, 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 B
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 Con-
solidation authorities to decide a particular dispute in question. The sub-
stratum of the !is 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 C
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 D
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.

       The next question is : whether the appeal before this Court stand E
abated? It is true that an application came to be filed and an order came
to be passed deleting respondent Nos. 7, 8 and 15, who died pending
appeal. With regard to respondent No. 7, Smt. Kamala Devi, since she died
issueless, the question of abatement does not arise because if the appellant
succeeds, the share of her agates would get enlarged. Therefore, the appeal p
does not get abated. But with regard to respondent Nos. 8 and 15 the stand
taken by the appellant is not correct in law. Order XXII, Rule 4, CPC
postulates that in case one of the respondents on record dies, appeal does
not stand abated unless the interest held by them is joint and indivisible.
In this case, the interest held by them is joint and indivisible. It is true that,
in the application, it was stated that respondent Nos. 9 and 10 are already G
on record to replace respondent No. 8 and he was deleted on that premise.
Similarly, respondent No. 16, who is the son of respondent No. 15,
replaced him on his death pending appeal. The appellant has stated that
the respondent No. 16 was already on record and, therefore, the respon-
dent No. 15 was deleted. The procedure adopted is not correct. in law. The H
    366                   SUPREME COURT REPORTS                  [1997] 2 S.C.R.

A order of this Court is that the consequence of their deletion would be
  considered at the time of disposaL It is the mistaken perception of the
  counseL The deceased are not to be deleted but the legal representative
  who are not already on record are to be transposed as legal representatives
  of the respective deceased respondents. Order XXII, Rule 4(1), CPC
B postulates that where one of the two or more defendants/respondents dies
  and the right to sue does not survive .against the surviving defen-
  dants/respondents alone or a sole defendant/respondent, the Court, on an
  application made in that behalf, shall cause the legal representative of the
  deceased defendant to be made a party and shall proceed with the suit/ap-
  peaL Under sub-rule (5) if such an application is not made within the
C prescribed limitation, the suit/appeal, in consequence, gets abated under
  clause (b) of sub-rule (5). Only on an application made to set aside the
  abatement and for condonation of the delay showing sufficient cause for
  failure to make the application within the specified time, the court having
  regard to the facts of the case, may condone the delay and order abate-
D ment. The salutary principle to bring on record the legal repre-
  sentative/representatives is to have the estate of the deceased in the
  litigation represented. in the absence of which the Court would be unable
  to pronounce upon the rights of the deceased vis-a-vis parties to the suit.
  That is manifested by Rule 6 of Order XXII, CPC which provides that after
  hearing the case and before judgment is pronounced, if one of the parties
E dies, there would be no abatment by reason of such death. It is, therefore,
  one of the duties of the counsel to ensure proper representation by a iegal
  representative of the estate of the deceased. An application should be duly,
  and within limitation, filed and it is the duty of .the Court to pass order as
  per law.
F
          Shri Ranjit Kumar, obviously due to mistaken perception of the
    procedural part, has, instead of seeking transposition of the legal repre-
    sentatives to represent the estate of the deceased respondent Nos. 8 and
    15, sought deletion of the names of the deceased. Without there being
    already on record some persons eligible and entitled in law to represent
G the estate of the deceased, the deceased .defendants/respondents were
    deleted. The consequence of deletion is that the decree of the courts below
  .,as against the deceased becomes finaL If the decree is inseparable and the
    rights of the parties are indivisible between the contesting parties and the
    deceased, the consequence would be that the suit/appeal stands abated as
H a whole. But if oni:_of the respondent/respondents or defendant/defendants
           RAM SAKAL SINGH v. MOSAMAT MONAKE DEVI                    367

is already on record, what needs to be done is an intimation to the court A
by filing a formal application or memo to transpose the existing defen-
dant/defendants or respondent/respondents as legal representatives of the
deceased defendant/defendants or respondent/respondents. In view of the
mistake committed by the counsel, the Court has to consider the effect
thereof. On the facts, we think that cause of justice would get advanced if B
the misconception as to the procedure on the part of the counsel is
condoned and if respondent Nos. 8 and 15 instead of being deleted
respondent Nos. 9 and 10 are substituted and transposed as legal repre-
sentatives of the deceased respondent No. 8 and respondent No. 16 is
transposed as legal representative of respondent No. 15.

      However, in view of the above findings, on merits the appeal stands
                                                                            c
dismissed but, in the circumstances, without costs.

R.P.                                                   Appeal dismissed.