RAM SAKAL SINGH Vs. MOSAMAT MONAKO DEVI DEAD

JUDGEMENT

(1.) 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, therfore, 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, 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 Suikhari Singh had divested himself of the joint interest (he) 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 property. The sale made in favour of the respondent is valid. He further contends that pending appeal, the respondents Nos. 7, 8 and 15 have died and an application to delete them from the array havng been filed, the appeal stands abated.