Judgment Case ID: 6372

Judgment:
ivil Appeal No. 2998 of 1980. From the Judgment and Order dated 17.11.1980 of the Aliahabad High Court in S.A. No. 2954 of 1979. M.S. Gujral and Mohan Pandey for the Appellant. Satish Chandra	 Praveen Swarup and Pramod Swarup for the Respondent. The Judgment of the Court was delivered by 801 THOMMEN	 J. This appeal by special leave arises from the judgment of the Allahabad High Court in Second Appeal No. 2954 of 1979 whereby the learned Judges of the High Court	 allowing the defendants ' appeal set aside the decrees of the courts below. The High Court held that the suit was barred by reason of Section 49 of the U.P. Consolidation of Hold ings Act	 1953 (hereinafter referred to as 'the Act '). Hence the present appeal by the plaintiff. The plaintiff is an illiterate person. Her daughter Rameshwari Devi is the wife of the 6th defendant	 Yogendra Prasad Singh. Arjun Singh and Janardan Singh	 defendant Nos. 3 and 4	 are the brothers of the 6th defendant. Defendants Nos. 3 and 4 had gained the confidence of the plaintiff and she confided in them her desire to make a gift of her entire properties in favour of her daughter. Defendant Nos. 3 and 4 readily agreed to make arangements to execute and register the necessary deed. On 18.9.1971	 these defendants took the plaintiff to the Office of the Sub Registrar. The plaintiff paid the amount needed for expenses. The defendants pur chased stamp papers in the name of the plaintiff. On two deeds	 which had been prepared at the instance of the de fendants	 the plaintiff was made to put her thumb impres sions. Being an illiterate person	 she could not read the contents of the documents or understand their character. She had been told	 and she honestly believed	 that she was executing a gift deed in favour of her daughter	 as desired by her	 in respect of her properties. She had in fact exe cuted two deeds	 one of which was a gift in favour of her daughter and the other a sale deed in favour of all the defendants. The consideration for the sale shown in the document was Rs. 14	000. This was a clear case of fraud practised upon her by the defendants. The defendants and the Sub Registrar as well as the document writer had all con spired together to perpetrate the fraud. The plaintiff did not know that she had executed a sale deed in favour of the defendants in respect of her property until 25th June	 1974 when she found defendant Nos. 3 and 4 interfering with her possession of the property. They told her that she had executed a sale deed in their favour. It was only on 2nd July	 1974 that she came to know of the full facts. Accord ingly	 she filed a suit for cancellation of the sale deed. The suit was decreed by the trial court and that decree was confirmed in appeal by the first appellate court. Setting aside the decree in the defendant 's second appeal	 the High Court held that the plaintiff was totally deceived as to the character of the document which she executed and the docu ment was	 therefore	 void and of no effect whatsoever. Accordingly	 the suit was barred under section 49 of the Act under which consolidation proceedings had been pending at the time of the 802 institution of the suit in respect of the property in ques tion. The facts are not in dispute. It is not disputed that the documents in question came to be executed in the manner alleged by the plaintiff. The appellant	 however	 contends that since it was a case of the document having been vitiat ed by fraud	 the transaction was viodable	 but not void	 and	 therefore	 the suit to set aside the sale was rightly instituted by her and the bar of section 49 was not attract ed. The appellant contends that the suit is perfectly main tainable and the High Court was wrong in holding to the contrary. Mr. Satish Chandra	 appearing for the respondents	 rightly	 in our view	 submits that two principles enunciated by this Court in Gorakh Nath Dube vs Hari Narain Singh & Ors.	 ; and Ningawwa vs Byrappa & 3 Ors.; 	 squarely apply to the facts of this case and the document in question evidenced a void transaction	 and not a mere voidable transaction	 and no suit was	 there fore	 maintainable in view of the bar contained in section 49 of the Act. In Gorakh Nath Dube	 (supra)	 this Court held that the object of the relevant provision of the Act was to remove from the jurisdiction of any civil court or revenue court all disputes which could be decided by the competent author ity under the Act during the consolidation proceedings. Questions relating to the validity of a sale deed or a gift deed and the like had to be examined in proceedings before the statutory authorities. The Court	 however	 drew a dis tinction between void and voidable documents and said a voidable document was one which remained in force until set aside	 and such a document could be set aside only by a competent civil court	 and a suit for that purpose would	 therefore	 be maintainable. On the other hand	 a claim that a transaction was void was a matter which could be adjudi cated upon by the consolidation courts. This is what this Court stated: "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 of power	 invalid. An adjudication on the effect of such a purported alienation would be necessarily implied in the decision of a dispute involving conflicting claims to rights or interests in 803 land which are the subject matter of consolidation proceed ings. 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 in land	 to de clare 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. In the case before us	 the plaintiffs claim is that the sale of his half share by his uncle was invalid	 inoperative	 and void. Such a claim could be adjudicated upon by consolidation courts." (emphasis supplied) In Ningawwa vs Byrappa & 3 Ors.	 (supra)	 this Court referred to the well established principle that a contract or other transaction induced or tendered by fraud is not void	 but only voidable at the option of the party defraud ed. The transaction remains valid until it was avoided. This Court then said: "The legal position will be different if there is a fraudu lent misrepresentation not merely as to the contents of the document but as to its character. The authorities make a clear distinction between fraudulent misrepresentation as to the character of the document and fraudulent misrepresenta tion as to the contents thereof. With reference to the form er	 it has been held that the transaction is void	 while in the case of the latter	 it is merely voidable. In Foster vs Mackinon	 	 the action was by the endorsee of a bill of exchange. The defendant pleaded that he endorsed the bill on a fraudulent representation by the acceptor that he was signing a guarantee. In holding that such a plea was admissible	 the Court observed: It (signature) is invalid not merely on the ground of fraud	 where fraud exists	 but on the ground that the mind of the signer did not accompany the signature; in other words	 that he never intended to sign	 and therefore in contemplation of law never did sign	 the 804 contract to which his name is appended . . The defendant never intended to sign that contract or any such contract. He never intended to put his name to any instrument that then was or thereafter might become negotiable. He was deceived	 not merely as to the legal effect	 but as to the 'actual contents ' of the instrument." (emphasis supplied) From the facts narrated above	 about which	 as stated earlier	 there is no dispute	 it is clear that this is a case where the plaintiffappellant was totally ignorant of the mischief played upon her. She honestly believed that the instrument which she executed and got registered was a gift deed in favour of her daughter. She believed that the thumb impressions taken from her were in respect of that single document. She did not know that she executed two documents	 one of which alone was the gift deed	 but the other Was a sale of the property in favour of all the defendants. This was	 therefore	 a case of fraudulent misrepresentation as to the character of the document executed by her and not merely as to its contents or as to its legal effect. The plaintiff appellant never intended to sign what she did sign. She never intended to enter into the contract to which she unknowingly became a party. Her mind did not accompany her thumb impressions. This is a case that fails within the principle enunciated in Ningawwa vs Byrappa & 3 Ors.	 (supra) and it was	 therefore	 a totally void transaction. Accordingly	 as stated in Gorakh Nath Dube (supra)	 the suit is not maintainable by reason of the bar contained in the Act. The High Court has	 in our view	 rightly held that the remedy of the plaintiff lies in the proceedings pending before the consolidation authorities and it is open to the parties to approach them for appropriate relief. In the circumstances	 we see no merit in this appeal. It is	 ac cordingly	 dismissed	 but we make no order as to costs. P.S.S. Appeal dismissed.

Summary:
Section 49 of the U.P. Consolidation of Holdings Act	 1953 puts a bar on the civil and revenue courts in respect of disputes in regard to which proceedings could or ought to have been taken under the Act. The plaintiff appellant	 an illiterate lady	 wanted to make a gift of her properties in favour of her daughter. Defendant Nos. 3 and 4	 who undertook to make arrangements to execute and register the necessary deed	 however	 prac tised a fraud on her. They made her put her thumb impression on two documents which she had been told and she honestly believed were the gift deed in favour of her daughter. She had in fact executed two deeds	 one of which was a gift in favour of her daughter and the other a sale deed in favour of the defendants. Later when she tame to know of the facts	 she filed a suit for cancellation of the sale deed. Consoli dation proceedings were then pending in respect of the property in question. The suit was decreed by the trim court and that decree was confirmed in appeal by the First Appellate Court. The High Court	 however	 found that the plaintiff was totally deceived as to the character of the document which she had executed and the document was	 therefore	 void and of no effect whatsoever. Accordingly	 it held that the suit was barred by reason of section 49 of the Act. In the appeal by special leave it was contended for the appellant that since it was a case of the document having been vitiated by fraud	 the transaction was voidable but not void and	 therefore	 the bar of section 49 of the Act was not attracted. Dismissing the appeal	 the Court	 HELD: 1.1 A voidable document is one which remains in force 800 until set aside and such a document can be set aside only by a competent civil court. A suit for that purpose would	 therefore	 be maintainable. A claim that a transaction is void is	 however	 a matter which can be adjudicated upon by the consolidation authorities. [802E F] Gorakh Nath Dube vs Hari Narain Singh & Ors.	 ; 	 referred to. 1.2 In the instant case	 the plaintiff appellant was totally ignorant of the mischief played upon her. She hon estly believed that the instrument which she executed and got registered was a gift deed in favour of her daughter. She believed that the thumb impressions taken from her were in respect of that single document. She did not know that she had executed two documents	 one of which alone was the gift deed	 but the other was a sale of the property in favour of the defendants. This was	 therefore	 a case of fraudulent misrepresentation as to the character of the document executed by her and not merely as to its contents or as to its legal effect. The plaintiff appellant never intended to sign what she did sign. She never intended to enter into the contract to which she unknowingly became a party. Her mind did not accompany her thumb impressions. It was thus a totally void transaction. [804C E] Ningawwa vs Byrappa & Ors.	 ; 	 applied. No suit was	 therefore	 maintainable by reason of the bar contained in section 49 of the Act. [804E] 2. The remedy of the plaintiff lies in the proceedings pending before the consolidation authorities and it is open to the parties to approach them for appropriate relief. [804F]