1. This appeal, by the heirs and legal representatives of the plaintiff, Darbari Upadhyay, is directed against the judgment and decree of the lower appellate court, by which the lower appellate court reversing the judgment and decree of the trial court has dismissed the suit.
2. The principal relief claimed in the suit was a declaration that the several deeds of gift described in Schedules 2 and 3 and Danpatra mentioned in Schedule 4 of the plaint were illegal, fraudulent and not binding on the plaintiff and that they were never acted upon. Admittedly, all the deeds of gift, which are the subject matter of the suit have been executed on 5-12-1950 by Raktu Upadhyaya. One of them. Ext.-A is in favour of Mahesh Kahar. The second, Ext. E-1 is in favour of defendant No. 6, Dwarika Pandey and third. Ext. A-1 is in favour of the defendant No. 1 Ram Subhag Pandey. The plaintiff brought this suit for declaration on the footing that he was the nearest heir of the deceased Raktu Upadhaya and that Raktu Upadhaya had lost all powers of understanding and he was insane and of unsound mind at the time he is alleged to have executed these various deeds. The case of the plaintiff was that in spite of the execution of the aforesaid deeds of gift. Raktu Upadhyay continued to be in possession of the lands which are the subject matter of the gift and after his death, the plaintiff was in possession of the lands covered by the various deeds of gift.
3. The defendants, in whose favour the aforesaid deeds of gift have been executed, resisted the suit on the ground that Raktu Upadhayay at the time of the execution of the said deeds was in sound mind and not insane and that he had executed these deeds of gift on account of love and affection as these defendants used to look after Raktu Upadhaya and served him in his old age and he had executed the same in favour of the defendants out of his free will. They further denied that the plaintiff Darbhari Upadhaya was the nearest heir of Raktu Upadhaya. According to them, he was a stranger to the family of Raktu Upadhaya.
4. The trial court accepted the plaintiff's case and further held that there was no evidence that the deeds of gift had been executed by Raktu Upadhaya and it, accordingly, decreed the suit on contest with costs against the contesting defendants. On appeal, the learned Subordinate Judge held that the plaintiff was not the nearest agnate of Raktu Upadhaya and he has failed to establish that at the time of the execution of the aforesaid deeds Raktu Upadhyaya was insane and of unsound mind and that it appeared that Raktu Upadhaya executed the aforesaid deeds after thoroughly understanding their contents and further that the deeds of gift were acted upon.
5. Before the appellate court, the plaintiff filed a petition stating that the lands, which were the subject matter of the various deeds of gift, were comprised in areas in which consolidation operations were going on and prayed that it may be declared that the appeal had abated in terms of the provision of S. 4(c) of the Bihar Consolidation of Holdings and Prevention of Fragmentation Act, 1956 (hereinafter called ‘the Act’). The learned Subordinate Judge held that the suit was not within the mischief of S. 4(c) of the Act as the suit was filed in the year 1975 and the Act had got no retrospective effect and that the suit was not barred by S. 37 of the Act. He accordingly, rejected the contention of the appellants that the appeal had abated. The learned Subordinate Judge, as already stated above, dismissed the suit and allowed the appeal with costs.
5A. At the time of admission of this appeal, this court while admitting the appeal by its order dated 23-11-1977 framed the following questions of law for decision in the appeal:
“(1) Whether a finding of fact recorded by court of appeal below without consideration of the oral evidence adduced by the parties can be held to be binding on this Court?
“(2) Whether an appeal filed by the defendants-respondents in the court bellow abated because of S. 4(c) of the Bihar Consolidation of Holdings and Prevention of Fragmentation Act, 1956 (Bihar Act No. 22 of 1956). If the answer is that it did abate, whether only the appeal abated or even the suit filed on behalf of the plaintiffs-appellants also abated?
6. Mr. A. Ojha on behalf of the appellants has contended that the finding of the appellate court that Raktu Upadhaya executed the deeds of gift etc. after thoroughly understanding the consequence of the registration of the deeds of gift and also the finding that the deeds of gift were never acted upon are illegal because they have been arrived at without consideration of the oral evidence on the point. I do not say that there is no force in this contention. But in my opinion, in view of the provisions of S. 4(c) of the Act, the appeal and the suit out of which the appeal arises, must be held to have abated. It is not in dispute that the lands, which are the subject matter of the deeds of gift, are comprised in areas in which consolidation operation under the Act is in progress. It is well settled that a suit for cancellation of deeds of gift on the ground that they are void and not merely voidable is a suit covered by S. 4(c) of the Act and abates. In the case of Gorakh Nath Dube v. Hari Narain Singh, (AIR 1973 SC 2451), the Supreme Court held that a suit for cancellation of some deeds to the extent of half share damped by the plaintiff in certain tenancy plots on the ground that the vendor, his uncle, had no right to execute the sale deeds in respect of lands involved in dispute, raised a question which could be entertained by the Consolidation Authorities under the U.P Consolidation of Holdings Act, 1954 and, therefore, the suit in the civil court had abated. In that case it was pointed out “We think that a distinction can be made between eases 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 land which are the subject matter of consolidation proceedings. 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 declare 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”. Though the aforesaid decision was given with respect to the provisions of the corresponding U.P Act, the principle laid down is applicable in cases covered by the Act. See the decision of a Special Bench of this Court in Ram Krit Singh v. State of Bihar, (1979 BBCJ (HC) 259) : (at p. 262) : (AIR 1979 Patna 250 at p. 251) provision of S. 4(c) of the Act relating to abatement of suit.
6A. It is, therefore, manifest that the question of cancellation of the deeds of gift, in respect of lands which are under consolidation operation on the ground that the deeds are void and not merely voidable can be entertained by the Consolidation Authorities and, therefore, a suit in which such claim is made and has been instituted shall abate. Now, if cannot be disputed that the grounds on which the plaintiff sought to cancel the deeds of gift rendered the deeds void and not merely voidable. According to the plaintiff, the same had been executed by the person who was not of sound mind at the time of execution of the sale deeds. Such a person is not at all competent to transfer any property, belonging to him (sec. S. 7 of the Transfer of Property Act). A person of unsound mind, is in view of the provisions of S. 11 of the Indian Contract Act not competent to contract and, therefore, in view of S. 7 of the Transfer of Property Act, not competent to transfer any property by a deed of gift etc. a transfer by him would, therefore, be void ab initio. A dispute of this nature can only be tried by the Consolidation Authorities and, therefore, the suit instituted prior to the notification under S. 3 of the Act must abate.
7. Shri Ojha, however, attempted to argue that after evidence has been adduced in the case a question whether the suit abates or not must be decided not with reference to the pleadings of the parties, but with reference of the findings arrived at by the Court. In my opinion, this contention is completely untenable. S. 4(b) of the Act lays down “no suit or other legal proceedings in respect of any land in such areas shall be entertained in any court” (emphasis supplied) and S. 4(c) of the Act provides for abatement of such suits, which have also been instituted in such areas prior to the issue of the notification under S. 3 of the Act. Whether the court has jurisdiction to entertain a suit, must be decided with reference to the pleadings of the parties and the question whether the suit had abated or not must, accordingly, also be decided with reference to the pleadings, namely, the nature of the dispute. That this is the correct legal position is clear from the decision of the Supreme Court in Gorakh Nath's case (AIR 1973 SC 2451) (supra) as also from the decision of this Court in Ram Krit Singh's case (AIR 1979 Patna 250) (FB) (supra). In deciding the (question whether a dispute raised by the suit could be adjudicated upon by the Consolidation Court, the Supreme Court speaking through Beg, J., as he then was in Gorakh Nath's case stated that in the case before them “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”. So according to the Supreme Court the question to be determined is whether the claim could be adjudicated upon by the Consolidation Courts, not whether the claim was justified by the evidence on record or not. Their Lordships of the Supreme Court referred to the object of the corresponding provision of the U.P Act as stated in the earlier decision of the Supreme Court in Ram Adbar Singh v. Ram Rood Singh (AIR 1968 SC 714) and observed (at p. 2453 of AIR 1973 SC 24511 “the whole object of this provision of the Act was to remove from the jurisdiction of the ordinary civil and revenue courts, for the duration of consolidation operations, all disputes which could be decided in the course of consolidation proceedings before special courts governed by special procedure”. In deciding whether a suit abates or not, therefore, what has to be determined is whether the disputes could be decided in the course of consolidation proceedings before the Special Courts or whether the claim could be adjudicated upon by the civil court. In Ram Krit's case (supra) a Special Bench of this Court came to the conclusion that the suit was a suit of the first category i.e it was for cancellation of the deed which was void and not merely voidable and thus hit by S. 4(c) of the Act and gave the following reason for the conclusion: (at p. 256 of AIR 1979 Pat):
“A perusal of the plaint, gist whereof has been given, makes it abundantly dear that the suit is in respect of declaration of right and interest in lands which are subject matter of consolidation proceedings. The deed executed by the first party in favour of the second party, according to the claim in the suit, is not binding unless set aside by the Court of competent jurisdiction. The present suit is a suit of the first category, and not the second category mentioned, in Gorakh Nath Dubey's case (supra)”. The decision whether the suit was of the first category or of the second category mentioned in Gorakh Nath Dubey's case was arrived at on a perusal of the plaint in that case and not with reference to the evidence adduced in the case.
8. Shri Ojha attempted to distinguish these decisions on the ground that in those cases the evidence does not appear to have been adduced on the question. I do not think that the distinction is tenable. Mr. Ojha concedes that the question whether the suit is of the category referred to in S. 4(c) of the Act, has at the initial stage, to be determined on the basis of the pleadings of the parties. Why the decision of the same question at a later stage must be made not with reference to the pleadings, with reference to the evidence in the case and the findings if point is raised at a later stage is not easy to comprehend. Further, it must be remembered that in Ramadhar Singh's case (AIR 1968 SC 714) the question of abatement of the suit had been raised after the decision of the suit which was the subject matter of the appeal at the Supreme Court stage and the question was decided with reference to the nature of the suit without any consideration of the evidence adduced on the findings recorded in the suit or appeal. This contention must, therefore, fail. On the pleadings of the parties, as I have already held, there is no doubt that the suit is a suit of the first category and not the second category in the Gorakh Nath Dubey's case (AIR 1973 SC 2451) (supra) and the claim of the plaintiff is one which could be entertained by the Consolidation Court and, therefore, the suit must be held to have abated in view of the provision of S. 4(c) of the Act. I accordingly, hold that the appeal as well as the suit out of which the dispute arises stand abated during the period in which the consolidation operation is in progress in the areas in which the lands are situated and I order accordingly. The appeal is accordingly disposed of. In the circumstances of the case, there shall be no order as to costs of this appeal.
Order accordingly.