Sukhpal Singh v. State Of Rajasthan & Others

1. The instant writ petition has been filed against the judgment and order dated 29-11-1992 contained in Annexure-3 to this writ petition, which has been passed by the Board of Revenue (respondent No. 2) rejecting the revision filed by the petitioner against the order of the Revenue Authority dated 31-1-1992 contained in Annexure-P.2 to the petition passed on his application under Order 7, Rule 11 of the Code of Civil Procedure in the suit pending before the said authority.

2. The brief facts of the case, as revealed by the record, are that the petitioner-defendant arid respondent No. 3-plaintiff are real brothers and respondent No. 4 Smt. Gurdev Kaur is their sister, Their father Ishar Singh was holding a (sic) land in Chak No. 5-MLD (B), tehsil (sic) district Sri Ganganagar, who died on 12-11-1987. The petitioner-defendant got the mutation of the whole land in his favour on the strength of a Will purported to have been executed by his father Ishar Singh. The respondent No. 3 (plaintiff) filed a suit before the Revenue Authority under Section 53 read with Section 88 of the Rajasthan Tenancy Act, 1955 (hereinafter referred to as "the Tenancy Act"), wherein the allegations have been made as under :--

(i) after the death of their father, their sister Gurdeo Kaur has relinquished her share in favour of the said brothers;

(ii) partition took place between the petitioner-defendant and respondent No. 3 (plaintiff) which was verified and signed by the Tehsildar and it was attested by the witnesses;

(iii) the petitioner forged a Will on 21-5-1988 in his favour and it has been shown to have been made on 15-3-1987;

(iv) the said Will is forged and fabricated document as it was not executed by their father. In March, 1987 when the alleged Will is purported to have been made, his father was with him in Punjab;

(v) the Will was presented by the petitioner-defendant himself;

(vi) had the Will been a genuine document, it could have been disclosed on 30-11-1987 when the partition took place before the Tehsildar; and

(vii) no notice was given to the respondent No. 3-plaintiff at the time of mutation proceedings. The Prayer Clause reads as under:--

(a) declaration be made that the plaintiff was entitled for 1/3 share in the land in dispute and after getting it partitioned, he was entitled to possession over 1/3 share;

(b) he be put in possession of the said 1/3 share and mutation be made in his favour;

(c) award him the costs; and

(d) grant any other relief, to which the plaintiff was entitled.

3. During the pendency of the suit, the petitioner-defendant filed an application before the competent Revenue Authority that the suit may be dismissed as it did not disclose any cause of action and the order to be passed under Order 7, Rule 11, C.P.C. Moreover, the suit was not maintainable before the Revenue Authority and such a declaration can be made only by the Civil Court. Thus, the plaintiff be relegated to the Civil Court for the said relief. The competent authority rejected the said application vide order dated 31-1-1992 (Annexure-P.2). The revenue authority has clearly mentioned that the plaintiff had not sought a declaration of cancellation of the Will, rather it was a case of ignoring the Will being forged and fabricated document. Thus, the revenue authority was competent to proceed with the matter.

4. Being aggrieved and dissatisfied, petitioner-defendant filed a revision before the Board of Revenue respondent No. 2 -- under Section 230 read with Section 221 of the Tenancy Act, which has been rejected by the judgment and order dated 29-12-1992 (Annexure-P.3). Hence this writ petition.

5. Heard learned counsel for the parties and perused the record of the case.

6. Mr. H. Section Sidhu learned counsel for the petitioner has submitted that the ultimate relief sought by the respondent No. 3-plaintiff is to get a declaration that the Will in question is a forged document and, therefore, the matter can be decided only by a Civil Court and if such a declaration is made, only then the revenue Court will have the jurisdiction to decide the issue in question. On the other hand, learned counsel for the respondents have arged that the respondent No. 3-plaintiff is seeking only partition ignoring the Will being a forged and fabricated document, it is triable only by a revenue Court as after recording the evidence if the revenue authority comes to the conclusion that it is a forged document, the authorities have to ignore it and it is not necessary to declare the same as a forged and fabricated-document. Moreover, in case the revenue authority comes to the conclusion that the proprietary rights in respect of the land in dispute are involved and such questions have nut been previously determined by the Civil Court of competent jurisdiction, the Revenue Court itself can refer the matter to the Civil Court for adjudication on such issues as is required under Section 239 of the Tenancy Act.

7. The issue involved in this case has been considered from time and again before the Courts and basically the issue is to be decided after considering: whether the documents, the sanctity of which is under challenge, provides for a void or voidable transaction? The transaction may be void if not enforceable at law as being destitute to legal effect. It has no legal existence and, thus, ceases to be enforceable by law, as defined under Section 2(g) of the Indian Contract Act, 1872 and such, transactions are dealt with under the provisions of Sections 20, 23, 26, 27. 28 and 29 of the Contract Act. A transaction or document may be voidable but it remains enforceable at law at the option of one or more party thereto, but not at the option of any other stranger. It may include where an agreement is arrived at by coercion, undue influence, by playing fraud or misrepresentation and in such a case it is for the party seeking to avoid it to set up the defence and if it is not done, the agreement would be a binding contract, A document may be unenforceable for procedural reasons, i.e.. for deficiency of stamps, for want of registration or not being executed within the limitation; but in all such cases it does not become void, it may be merely voidable. Where an agreement in substance owing to flaws in the contract or incapacity of the parties or want of free consented., such agreements are valid unless they are impeached by the said party. (Vide : Shibha Prasad Singh v. Srish Chandra, AIR 1949 PC 297; Kalyanpur Lime Works Ltd. v. State of Bihar, AIR 1954 SC 165; and Dhanyalakshmi Rice Mills v. Commissioner of Civil Supplies, AIR 1976 SC 2243).

8. In Immani Appa Rao v. G. Ramahngamurthi, AIR 1962 SC 370, the Hon'ble Supreme Court has observed that while considering a case where a plea of fraud has been raised, the Court must be conditioned solely by consideration of public policy.

9. In Ammathyee alias Perumalakkal v. Kumaresan. AIR 1967 SC 569, the Hon'ble Supreme Court has held that the power of gift is much more circumscribed in case of ancestral property. A Hindu father or any other Managing Member has power to make a gift of ancestral immovable property within reasonable limits for pious purposes. In such a case where the gift is challenged on the ground of capacity to alienate by gift, it was found that it was beyond the capacity of the father-in-law to make a gift of such a share of immovable property in favour of the daughter-in-law specially when the father-in-law himself could not make such a gift and, therefore, the transaction was found to be invalid.

10. Any agreement which is opposed to Personal Law of the parties or opposed to public policy, is void (Vide: C.N. Arunachala Mudaliyar v. C.A. Muruganatha Mudaliar, AIR 1953 SC 495 and S.R. Nayak v. Union of India, AIR 1991 SC 1420).

11. In Yamuna Bai Anantrao Adhav v. Anantarao Shivram Adhav, (1988) 1 SCC 530 : (AIR 1988 SC 644), the term "void" was explained by the Hon'ble Supreme Court in reference to the Hindu Marriage Act, 1956 and it was held that a marriage, which is void under Section 11, can be held to be so without a formal declaration by a Court in a proceeding for the reason that the marriage can be treated as null and void from its very inception. In that case, the marriage was nullity as it was found to be in contravention of the provisions and conditions, specified in Clause (1)(iv) and (v) of Section 5 of the Hindu Marriage Act, 1955.

12. Any agreement providing for wagering is void as it is hit by public policy and would be hit by the provisions of Section 23 of the Contract Act. In Firm of Pratapchand Nopaji v. Firm of Kotrike Venkata Setty & Sons, AIR 1975 SC 1223, the Supreme Court has held as under :--

"If an agreement is merely collateral to another or constitutes an aid facilitating the carrying out of the object of other agreement, which, though void, is not in itself prohibited within the meaning of Section 23 of the Contract Act, it may be enforced as a collateral agreement. If, on the other hand, it is part of a mechanism meant to defeat what the law has actually prohibited, the Courts will not countenance a claim based upon the agreement because it will be tainted with an illegality of the object sought to be achieved which is hit by Section 23 of the Contract Act. It is well established that the object of an agreement cannot be said to be forbidden or unlawful merely because the agreement results in what is known as a "void contract." A void agreement, when coupled with other facts, may become part of a transaction which creates legal rights, but this is not so if the object is prohibited or "mala in se."

13. In Raghubachamani Prasad Naraih Singh v. Ambica Prasad Singh, AIR 1971 SC 776, the Hon'ble Supreme Court held that in any event a alienation by the Manager of the Joint Hindu Family even without legal necessity, is voidable and not void.

14. In Nawab Khan Abbas Khan v. State of Gujarat, AIR 1974 SC 1471, the Hon'ble Supreme Court has referred to and relied upon the judgment of the House of Lords in Ridge v. Baldwind (1963) 2 All ER 66, wherein it has been observed as under (para 10 of AIR):--

"Voidable acts are those which can be invalidated in certain proceedings; these proceedings are specially formulated for the purpose of directly challenging such act....... On the other hand, when an act is not merely voidable but void, it is a nullity and can be discarded and impeached in any proceeding, before any Court or Tribunal and whenever it is relied upon. In other words, it is subject to collateral attack..... When Court holds an act a nullity, is that it is not a declaration of nullity; it is a true annulment, an annulment with retroactive force."

15. Similar view has been taken by the Hon'ble Supreme Court in G. Annamalai Pillai v. District Revenue Officer (1993) 2 SCC 402 : (1993 AIR SCW 2618), wherein the Hon'ble Supreme Court placed reliance upon a catena of judgments and held that a void agreement must fail to receive legal recognition or sanction for the reason that the agreement was wholly destitute of legal efficacy. A voidable agreement stands on a different footing as it is not a nullity but its operation is conditional and not absolute.

16. The same view has been expressed by the Hon'ble Apex Court in State of Kerala v. ML K. Kunhikannan, (1996) 1 SCC 435 : (AIR 1996 SC 906), wherein the Supreme Court has held that there are no degrees in nullity.

17. The issue of applicability of this Rule 7, Order 11, C.P.C. was considered by the Hon'ble Supreme Court in T. Arivandandam v. T.V. Satyapal, AIR 1977 SC 2421, and it was observed that the Court must give a meaningful reading to the plaint and if it is manifestly vexatious or merit less and in the sense of not disclosing a clear right to sue, the Court may exercise its power under Order 7, Rule 11, C.P.C. However, the Court has to take care that the grounds mentioned therein must be fulfilled and while doing so, the Court does not have to decide the legal issues. However, in a case where the validity of a particular document itself is under challenge, the same cannot be considered and decided. The application under Order 7, Rule 11, C.P.C. cannot be allowed. (Vide: Bhagwan Das v. Goswami Brijesh Kumarji, AIR 1983 Raj 3).

18. In Gurucharan Singh v. Mst. Gurudayal Kaur, AIR 1982 Rajasthan 91, the Court held that while considering the issue of jurisdiction in view of the provisions of Section 9 of the Code of Civil Procedure, it is the substance of the plaint and true nature and object of the suit that has to be seen for deciding the said case. The judgment of the Full Bench of this Court in Badri Lal v. Moda, AIR 1979 Raj 142, was relied upon and it was held therein that for me purpose of seeing whether the suit is exclusively triable by a revenue Court and the Civil Court has no jurisdiction to try the same, the averments in the plaint are carefully to be looked into and all the allegations made in the plaint should be taken into consideration and not the relief alone claimed in the plaint, for the purpose of determining the jurisdiction

"as the substance of the plaint provides a good guide to find out the true nature of the object of the suit."

While deciding the case, reliance was, also, placed on a Full Bench judgment of Allahabad High Court in Ram Avalamb v. Jata Shanker, AIR 1969 Allahabad 526, wherein it has been held that while deciding the issue: whether the suit is solely cognizable by the Revenue Court or is impliedly cognizable by a Civil Court, the cause of action of the suit has to be strictly scrutinized and where on a definite cause of action two or more reliefs can be claimed, which of the relief is the main relief and which relief or other reliefs is/ are ancillary reliefs. Once the suit is maintainable for the main relief in the Civil Court then there is no bar for the Civil Court to grant all possible reliefs flowing from the same cause of action, and which is the main relief sought by the plaintiff, would depend upon the facts and circumstances of each case.

19. In Dwarka Singh v. District Judge, AIR 1996 All 325, it was held that where the suit for declaration that the sale deed of agricultural land was non est and no other relief was sought for, then the Civil Court, and not the Revenue Court, would have the jurisdiction to try the suit. While deciding the said case issue, reliance was placed on the judgment of the Apex Court in Ningawwa v. Byrappa Shiddappa Hireknrabar, AIR 1968 SC 956, wherein it was held that a contract induced by fraud is not void but only voidable at the option of the party defrauded and unless it is avoided, the transaction remains valid.

20. In Smt. Dularia Devi v. Janardan Singh, AIR 1990 SC 1173, the thumb impression of the executants -- an illiterate woman -- had been obtained on the sale deed by making her believe that she was executing the gift deed in favour of her daughter. The Apex Court held that "her mind never accompanied her thumb impression." It was a case of misrepresentation to the character of the document and not to its contents and thus the deed was found to be void and not voidable and, thus, the civil suit was not maintainable and the suit could be tried by the statutory authority. Moreover, it is, also, settled law that it is for the party, who seeks to ousts the jurisdiction of the Civil Court, to establish his contention. In Abdul Wahid Khan v. Bhawani, AIR 1966 SC 1718, the Apex Court has held that a statute ousting the jurisdiction of a Civil Court must be strictly construed. In fact, it is the pith and substance of the plaint which is to be seen to determine: whether the suit is maintainable in a Civil Court or before other competent authority, as the language might he used in such a way that it may oust the jurisdiction of a particular Court. The form of action in relation to void document or instrument regarding agricultural land depends on the real cause of action with reference to the facts averred.

21. In Smt. Bismillah v. Janeshwar Prasad, AIR 1990 SC 540, the Hon'ble Supreme Court has observed as under :--

It is true that the question of jurisdiction depends upon the allegations in the plaint and not the merits or the result of the suit. However, in order to determine the premise, the nature of action, the pleadings should be taken as a whole. ........ The real point is not the stray or loose explanation which abound in inartistically drafted plaint but the real substance of the case is gathered by construing the pleadings as a whole.

22. Mr. Sidhu has placed reliance upon the judgment of the Board of Revenue in Jasveer Kaur v. Sukhdeo, 1993 RRD (Raj) 326, wherein it has been held that a suit for partition and declaration under Ss. 53 and 88 of the Act can be heard and decided by a Revenue Court. It is, however, necessary that a voidable document should first be set aside by a Civil Court and then only relief should be claimed from the Revenue Court. In that case, the controversy was that the document, on which reliance was placed, had not been registered at the proper place as required under Section 28 of the Registration Act. The said judgment is of no help to the petitioner because the Board of Revenue itself proceeded with the presumption that it was a voidable document. In the instant case, it is alleged to be a void document.

23. He has further placed reliance upon the judgment of this Court in Amir Mohammed v. Gafoor Mohammed Khan, 1988 RRD (Raj) 170, wherein the Court has observed that the relief of cancellation of the sale deed cannot be granted by a Revenue Court and the suit was maintainable only before the Civil Court. In the present case, the petitioner is not claiming cancellation of the Will and his case has been that it is a void being a forged and fabricated document and, thus, the cases referred to by Mr. Sidhu are distinguishable.

24. It should, also, be made clear that the jurisdiction of the Civil Court is not concurrent with that of the Revenue Court in a matter of this nature and the facts and circumstances of each case have to be considered of its own.

25. If in the light of the above, the instant case is examined, it is abundantly clear that if the facts stated, the grounds and allegations and the averments made therein are taken into consideration in totality, it is abundantly clear in sum and substance that the respondent No. 3-plaintiff has made a grievance that the Will, on the basis of which the present petitioner-defendant has got the mutation, is void being a forged and fabricated document as it had never been executed by their father Ishar Singh. If the Revenue Court comes to the conclusion that it was never executed by late (Shri) Ishwar Singh, it is not necessary for the Revenue Court to declare it a nullity as it can be simply ignored and in that situation, by ignoring the said Will, the other reliefs claimed by the respondent No. 3-plaintift can be granted by the Revenue Court as according to the averments in the plaint, neither the body nor mind of Shri Ishar, Singh accompanied the alleged Will and the said instrument, being non est, is just to ,be ignored. Moreover, this petition has arisen only against an order passed on the application filed by the: petitioner-defendant under Order 7, Rule 11, C.P.C. and it is settled law that such an application cannot be entertained and allowed where the validity of a particular document is under challenge.

26. Thus, I find no force in this writ petition and the same is accordingly dismissed. The parties are left to bear their own costs.