LexRAM SAKAL SINGH versus MOSAMAT MONAKE DEVI (DEAD) AND ORS.
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- RAM SAKAL SINGH v. MOSAMAT MONAKE DEVI (DEAD) AND ORS. FEBRUARY 21, 1997 [K. RAMASWAMY ANDS. SAGHIR AHMAD, JJ.) Bihar Consolidation of Holdings.and Prevention of Fragmentation Act, 1956: A Ss. 3 and 4(l)(c)-Voidable document-Jurisdiction of civil court to C adjudicate upon-Member of Joint Hindu Family executed a gift deed in favour of stranger to family-Later, gift deed cancelled and a sale deed executed-Purchaser filed suit for declaration that gift deed was obtained by fraud and was voidable-Pending suit Notification u/s. 3 of the Act is- sued-Objection raised that suit stood abated by operation of s. 4(1) ( c )-Trial Court upheld the contention but held that gift deed was obtained by D fraud-Appellate Court decreed the suit holding that gift deed was voidable and civil court alone could give the declaration-Held-The declaraiion by the appellate court that the gift deed was voidable is well justified-Civil Court had jurisdiction and suit had not abated-Declaration of voidability would be main relief and declaration of title under the sale deed is consequential to E main relief-Declaration of title. and consequential decree for possession are sequential to first declaration-Reliefs in suit are to be granted by civil court only-Gift deed being a voidable document, purchaser got the title under the sale deed. Gorakh Nath Dube v. Hari Narain Singh & Ors., [1974] 1 SCR 339, F relied on. Jiwan Pandey & Anr. v. Mahendra Rai, (1985) PLJ 686; Sheoratan Chamar & Ors. v. Ram Murat Singh ( 1985) BUR 33 45; Dharmanath Pandey & Ors. v. Dhumun Menjhu & Ors., (1985) BWR 33 110; Jaleshwar Tiwary & G Ors. v. Suresh Tiwary & Ors., (1986) BWR 34 378; Shivaju Rai v. Rajendra Rai & Anr., (1993) 1 Vol. 44 BWR 258, approved. Paras Singh v. Baikunth Singh, (1979) PWR Vol. 12 567; Tarkeshwar Upadhya & Anr. v. Mahesh Kehar & Ors., AIR (1981) Patna, 348, referred ~ H 357 358 SUPREME COURT REPORTS [1997] 2 S.C.R. A Code of Civil Procedure, 1908 : Order XXJI, Rule 4-Abatement of appeal-Three of the respondents died pending appeal-Application for deletion of their names filed-Interest held by them being joint and indivisible-Legal heirs of two of the deceased already 011 record as respondents-Held, if heir of deceased def endant/respon- B dent is already 011 record, what needs to be done is an intimation to the court by filing a fomial application or memo to tra1ispose the existing defen- dant/respondent as legal representative of deceased defendant/respon- dent-Misconception as to the procedure 011 the part of the counsel condoned; substitution ordered accordingly. c CIVIL APPELLATE JURISDICTION : Civil Appeal No. 1441 of 1986. From the Judgment and Order dated 7.U.84 of the Patna High Court in S.A. 635 of 1981. Ranjit Kumar and Ms. Anu Mohla for the Appellant. . Rakesh K. Khanna, Ms. Tameem Hashmi for Surya Kant for the Respondents. E The following Order of the Court was delivered : 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. F 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 son~ by name, Kirtarth Singh, Padarath Singh, Ujagir Singh, Sukhari Singh, Ratan Singh, Budhan Singh and Mangru Singh. We are concerned, in this litigation, with Sukhar~ Singh of this branch. It is now an admitted G 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 favbur of the first respondent on November 22, 1970. Therefore, H the first rl?spondent filed a suit in 1995 for a declaration that the gift deed - RAM SAKAL SINGH v. MOSAMA T MON AKE DEVI 359 dated December 4, 1959 was obtained by the appellant by playing fraud on A Sukhari Singh and, therefore, 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 Fragmentat
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