Patna High Court
Awadh Kishore Tewary vs The State Of Bihar And Ors. on 27 April, 1993
Equivalent citations: 1994(42)BLJR371
Author: S.B. Sinha
Bench: S.B. Sinha
JUDGMENT S.B. Sinha, J.
1. This application is directed against an order dated 30th September, 199l passed by the respondent No. 2 and as contained in Annexure-1 to the writ application whereby and whereunder he has set aside the order dated 31-3-1989 passed by the Deputy Director of Consolidation, Muzaffarpur in Appeal No. 9 of 1989.
2. Short put the fact of the matter is as follows :
The lands in question which have been described in paragraph 3 of the wait application, were entered in the name of Radhika Tewary and Ramashray Tewary sons of Suraj Tewary and Bikram Tewary. The petitioner and the respondent No. 3 are sons of Radhika Tewary.
3. According to the petitioner there had been a parties amongst the Radhika Tewary and his brothers in the year 1974 wherein the disputed land was allotted in the share of Radhika Tewary. Radhika Tewary executed a deed of gift dated 26-4-1986 in favour of the petitioner. Allegedly before execution of the said deed, permission was obtained from the authorities under the Bihar Consolidation of Holdings and Prevention of Fragmentation Act, 1956 (hereinafter referred to for the sake of brevity' as the said Act) in case No. 347/86 wherein the respondent No. 3 although noticed, did not file any objection.
4. The petitioner filed an application for getting his name entered in the register of lands in respect of the said lands, in pursuance whereof a case being case No. 211/86 was instituted. In that proceeding also notice was issued to respondent No. 3 but he did not raise any objection and the Consolidation Officer passed an order in favour of the petitioner on 16-12-1987.
5. The respondent No. 3, thereafter, preferred an appeal before the Deputy Director of Consolidation alleging therein that he was entitled to 1 /3rd share in the said property. It was contended that the said deed of gift was a forged and fabricated document. The said appeal was dismissed by an order dated 31-3-1989.
6. The respondent No. 3 filed a revision application before the Director, Consolidation, who by reason of the impugned order (Annexure-1) allowed the same.
7. Mr. Sunil Kumar Singh, learned Counsel appearing on behalf of the petitioner submited that the Director, Consolidation misdirected himself as he has failed to take into consideration the fact that partition of the joint family properties amongst Radhik Tewary and his brother having been admitted, Radhika Tiwary acquired an absolute rights to execute a deed of gift of the properties which were otted in his share.
The learned Counsel submitted that the plea raised by the respondent 3 to the effect that the deed of gift forged and fabricated could not have been enquired into by the consolidation authorities inasmuch as, in order to adjudicate upon the said question, evidence were required to be led before the said authorities, which is impermissible.
8. The learned Counsel in support of this contentions relied upon, decisions of this Court in the case of Dhanbir Singh v. Chandra Shekhar 1983 Pat 355, Chhote Gope and,Ors. v. Kali Gope 1983 PLJR 357 andSmt. surajmani Devi v, Smt, Shanti Devi and Anr. 198J Patna 244.
9. Mr. Verma, the learned Counsel appearing on behalf of the respondent No. 3, on the other hand, submitted that, as the deed of gift was a manufactured documents the petitioner did not derive any title in terms thereof and thus the lands covered under the said deed of gift could not have been entered in the name of the petitioner alone.
10. It was further submitted that there had been no partition of the joint family properties. It was also submitted that infact no notice was issued to the respondent No. 3 in Case No. 347 of 1986.
11. In the counter-affidavit filed on behalf of the respondent No. 3, a submission was also made that the petitioner be directed to produce the original deed of gift.
12. The questions which have been raised before us as also before the consolidation authorities are essentially pure questions of fact. There is nothing to show from the records except the statements made by the petitioner that there had been a partition amongst Radhika Tewary and his co-sharers.
13. The deed of gift must fulfill the requirements laid down under Sections 122 and 123 of the Transfer of Property Act. If the deed of gift was a forged and fabricated document, there cannot be any doubt that the same would be a void one and thereby no title passed to the donee. Similarly if the deed of gift did not fulfill the requirements of law as contained in Sections 122 and 123 of the Transfer of Property Act, the same would be void.
14. It is now well-settled by various decisions of the Court that when the transaction are void, the consolidation authorities have jurisdiction to adjudicate, whereas in case of a voidable document, they will have no such jurisdiction.
15. It is now well-known that a coparcener cannot alienate a specific of the coparcenery property without the consent .of the other coparcence.
16. It is also well-known that a member of a Hindu Joint Mitakdura family cannot execute a deed of gift without the consent of the other coparceneries. Thus, in the event, if it be held that there had been no partition, Radhika Tewary could not have executed any deed of gift in relation to a specific portion of the coparcenary properties.
In Gorakh Nath v. Hart Narain Singh , it has been held as follows :-
There is distinction between cases where a document is wholly or partially invalid so that it can be disegarded by any Court or authority and one where it has to be ac. ally 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 purported alienation would be necessarily implied in the decision of a dispute involving conflicting claims to rights or interest inland which are the subject-matter of consolidation proceedings. But where there is a document the legal effect of which can only be taken away by setting it aside or its cancellation, it can be said 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,
17. This aspect of the matter has also been considered by a Full Bench of this Court in Ram Krit Singh and Ors. v. The State of Bihar and Ors. 1979 BBCJ 259, wherein it has been held as follows :-
It would be appropriate here to clarify that there are certain class of cases which are not covered by Section 4(c) of the Act. An illustration is provided by the observations in the case Gorakh Nath Dubey v. Han Narain Singh and Ors. There the claim of the plaintiff was that the sale of his half share by his uncle was invalid, inoperative and void. In the suit the plaintiff had prayed for cancellation of the sale deed executed by his uncle to the extent of his half share. It was held that the suit was covered by the relevant provisions of the U.P. Consolidation of Holdings Act and the claim had to be adjudicated upon by the consolidation courts. It was, however, pointed out that there is a distinction 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. The latter class of cases were held to be outside the scope of the provision relation to abatment of suits.
18. Thus, if the deed of gift executed by Radhika Tewary was invalid in law either on the ground that he did not have any authority to execute the same or the same is a manufactured document or on the ground that the same was violative of Sections 122 and 123 of the Transfer of Property Act, the matter would fell within the jurisdiction of the consolidation Courts as has been held by the apex Court in Gorakh Nath's case (supra). It is not a case where the document has actually to be set aside before it can cease to have any legal effect. In other words, only in relation to avoidable transaction the Consolidation Courts will have no jurisdiction.
In Ramsinghashan Pathak v. K.P. Sinha it has been held that the consolidation authorities are 'courts' and the proceedings before them are judicial proceedings. In view of Section 37-A of the said Act the authorities are deemed to be the courts of competent jurisdiction and in terms of Section 37-B of the said Act they have the powers and privileges as are vested in a Civil Court with regard to the matters enumerated therein.
19. In Dhanbir Singh Chandra Shekhar, AIR 1983 Patna 335, the learned Judge failed to take into consideration the decision of the Full Bench in Ram Krit Singh's case and with utmost respect. His Lordship does not appear to have considered the ratio of the Gorakh Nath's case in its proper perspective.
20. It is not relevant as to how the question as to whether a document is void or voidable can be abjudicated upon. Such a question has to be decided on the basis of the pleadings of the parties and the reliefs claimed in the suit or other proceedings. If on the basis of the pleading and reliefs claimed, a document may be held to be void one, evidently such a question can be adjudicated upon by the consolidation Courts and purpose, they being 'Courts' within the meaning of Section 3 of the Evidence Act; must be held to have the necessary jurisdiction to take evidences which may be adduced-by the parties in support of their respective pleas. It is for the Court to accept the case of one party and reject the case of other, A 'Court' has the power to take evidence to decide an issue, provided the same, falls within his jurisdiction. When an issue is triable by a Court, he has also the power to decide the jurisdictional fact and a portion in the same can be done only on the basis, of the materials brought on records by the parties to the lis.
The decision in Dhanbir Singh's case (supra), therefore, does not lay down a good law and must be overruled.
21. ln Chhote Gope and Ors. v. Kali Gope 1983 PLJR 357, it has been held that a suit for cancellation of deed of gift is triable by the Civil Court. This judgment appears to be contrary to a decision of S. Narayan J., in the case of Tarkeshwar Upadhyay v. Mahes Khar reported in 1982 PLJR 155.
22. However, that decision appears to have been rendered in the facts of that case as the pleadings of the parties and the reliefs claimed in the said proceeding cannot be deciphered from the judgment.
23. In Smt. Surajmani Devi v. Smt. Shanti Devi and Anr. , a prayer was made for cancellation of the document on the ground of grand and thus it had rightly been held in that case that case that the document being not void abnitio and being a voidable document, the same has to be set aside and only thereafter it will cease to have any legal effect. In that case, therefore, the transaction in question was pleaded to be a voidable one and not a void one.
24. In this view of the matter, the submissions of the learned Counsel appearing on behalf of the petitioner have to be rejected.
25. However, from a perusal of the impugned order, it does not appear that the Joint Director, Consolidation has taken into consideration all these aspects of the matter in his order. Interest of justice, therefore, demands that the impugned order be set aside and the matter remitted back to the Joint Director, Consolidation for a fresh decision in accordence with law upon taking into consideration the observations made hereinbefore.
26. The Director Consolidation may exercise his suo moto power of revision and allow the parties to lead their respective evidences on all the isuues which may be raised or may remand the matter to the consolidation Officer for the said purpose.
27. This application is, thus disposed of with the aforementioned directions.
28. However, in the facts and circumstances of the case, there will be no order as to costs.
R. M. PRASAD, J.
29. I agree.