SHRAVAN GOBA MAHAJAN Vs. KASHIRAM DEVJI

JUDGEMENT

(1.) [His Lordship first examined the question of fact and agreed with the trial Court in its conclusions that the sale-deed in suit was nominal and that it was obtained by defendant No. 1 by misrepresentation and next dealt with the law point as follows.-] That being then our finding on the question of fact, what is the position in law ? Now here it has been strongly urged upon us by counsel for the appellants that this is in effect a suit to set aside a document on the ground of fraud or undue influence within the moaning of the Indian Contract Act, Section 16, 17 or 18, and that as Dashrath is dead, the right to sue does not devolve on his personal representatives, as the relief given by Secs.19 and 19A must be confined to the actual party, who has been defrauded, or on whom the undue influence has been exercised. In support of that proposition, certain cases were cited which, I think, are all, or nearly all, distinguishable on this simple ground, viz., that the party alleged to have been defrauded had, by his own conduct in his own life-time, put it out of his power to bring a suit to set aside the document in question, and that, accordingly, his legal representatives could be in no better position.

(2.) Thus, the first case cited by Diwan Bahadur Rao was an unreported case before Sir Basil Scott and Mr. Justice Batchelor in Mahmed Allibhai V/s. Udesingji (1917) First Appeal No. 254 of 1915, decided by Scott C.J. and Batchelor J., on August 29, 1917 (Unrep.). That was a case where the defence to an agreement of March 7, 1873, was that it had been obtained by undue influence practised on one Ganpatsingji. But the judgment points out that Ganpatsingji, for at least twenty-five years after this particular document, was paying money under it, and took no steps whatever to endeavour to set it aside. It is consequently not surprising that the Court in that case refused to allow his sons after his death to set up any case of that description. Speaking for myself, I cannot accept a stray sentence or two in that judgment as meaning that if Ganpatsingji had died, say, within a week after his agreement, his representatives could not have brought a suit to have it set aside on the ground of undue influence.

(3.) Rangnath Sakharam V/s. Govind Narasinv (1904) I.L.R. 28 Bom. 639, s.c. 6 Bom. L.R. 592 was a case before Sir Lawrence Jenkins and Mr. Justice Aston. There the Court pointed out that, under the Indian Contract Act, a fraud rendered a contract voidable but not void. That, of course, is a proposition which we accept. But with reference to the case of Jugaldas v. Ambashankar, (1888) I.L.R. 12 Bom. 501 which was there cited (a decision of Sir Charles Sargent and Mr. Justice Nanabhai), that was a case where a tenant tried to set up a defence to a suit which his landlord by his own conduct was barred from raising. The landlord had sold the land in question to the plaintiffs but afterwards complained that the sale was fraudulent. Consequently at that date he knew the facts entitling him to bring a suit for rescission of the conveyance, He did nothing. Years passed by, and the landlord's claim was barred by limitation. Naturally, therefore, the appellate Court held that as the landlord himself was barred, the tenant, a mere third party and at most claiming through the landlord, could be in no batter position than the landlord. That case also is no authority for the proposition that a contract can only be set aside by the actual party to it.