BHUKHAN SAHU Vs. BHARAT CHANDRA SAHU AND ORS.

JUDGEMENT

(1.) THE substantial question of law that has arisen for an answer in this Second Appeal is: whether a deed of transfer executed under fraud and misrepresentation, is void or voidable?

(2.) ADMITTEDLY , the Plaintiff was the owner of the disputed property. The father of the Defendants, a resident of Bihar, came to village Laing -the village of the Plaintiff -a decade and a half before and after taking shelter in the house of some villagers approached the Plaintiff for accommodation. He, however, did not, though an assurance was given to the Plaintiff that he would shift from the cowshed, which he was allowed to occupy, after the rainy season. On some pretext or other he deferred. In the year 1970, the Plaintiff was requested by one Dutia Gartia to act as an attesting witness in a deed of mortgage which was being executed by one Sukhram Sahu in his favour. He was taken to Rajgangpur and was made to sign on a document. The Plaintiff was an illiterate ignorant man. He put his left thumb impression at the place where he was required to. When preliminary parcha in respect of the lands was not granted to him at the, attestation camp of the settlement but to Defendants 1 and 2 instead he made enquiry and learnt that they bad obtained a gift deed from him playing fraud and deceit. It was recited therein that the Defendants were the sons and daughter of the Plaintiff. He thereupon executed a registered document on 5 -8 -1970 cancelling the deed of gift. When the Defendants forcibly trespassed upon some of his properties, a proceeding under Section 145 of the Code of Criminal Procedure was started and his possession was found. Though the Defendants moved this Court in revision they lost. However, the Defendants continued to occupy the house despite is protest. During the settlement proceedings, their names were recorded in respect of .8 decimals appertaining to plot No. 1767. He thereupon instituted a suit for declaration of title and for ejectment of the Defendants. The Defendants controverted the allegations. They averred that the Plaintiff had married the mother 's sister of Defendant No. 3, their mother. As such, Defendants 1 and 2 are the grand -sons of the Plaintiff and the Plaintiff had brought up the father of Defendants 1 and 2 and all of them had been living in his house. In 1951, the Plaintiff executed a deed of adoption acknowledging Tena Sahu, the father of Defendants 1 and 2, as his adopted SOD. The deed of gift was executed by the Plaintiff out .of affection and voluntarily. The other averments are not relevant. The trial Court decreed the suit holding that the deed of gift (Ext. B) had been obtained from the Plaintiff by exercise of fraud and misrepresentation. The Plaintiff was entitled to revoke the same which he did by executing the deed of cancellation and hence there is no impediment on his way in obtaining the relief sought. In appeal, the lower appellate Court upon a consideration of the materials, confirmed the finding of the trial Court that the gift deed had been obtained from the Plaintiff by practising fraud and under misrepresentation. It, however, held that the document being a voidable one, the Plaintiff was obliged to avoid the same by seeking a specific declaration to that effect and in as much as the Plaintiff was aware of the deed of gift since 5 -8 -1970" the date of execution of the deed of cancellation, a suit for avoidance of the deed of gift was barred by limitation under Article 59 of the Limitation Act the suit having been filed in 1976. The Plaintiff was not therefore entitled to obtain the relief sought and the decree granted. It, therefore, reversed the judgment of the trial Court and dismissed the suit.

(3.) MRS . Padhi, the learned Counsel for the Respondents, on the other hand contended that the Plaintiff having alleged exercise of fraud and deceit and obtaining of the document through misrepresentation, the document was a voidable one and had to be avoided before the Plaintiff was entitled to any relief. She supported the decree passed by the lower appellate court.