Thommen, J. -
(1.)This appeal by special leave arises from the judgment of the Allahabad High Court in Second Appeal No. 2954 of 1979 whereby the learned Judge 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 Holdings Act, 1953 (hereinafter referred to as 'the Act'). Hence the present appeal by the plaintiff.
(2.)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. Defendant 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. Defendants Nos.3 and 4 readily agreed to make arrangements 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 purchased stamp papers in the name of the plaintiff. On two deeds, which had been prepared at the instance of the defendants, the plaintiff was made to put her thumb impressions. 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 executed 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 conspired 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. Accordingly, 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 defendants second appeal, the High Court held that the plaintiff was totally deceived as to the character of the document which she executed and the document was, therefore, void and of no effect whatsoever. Accordingly, the suit was barred under S. 49 of the Act under which consolidation proceedings had been pending at the time of the institution of the suit in respect of the property in question.
(3.)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 vitiated by fraud, the transaction was voidable, but not void, and, therefore, the suit to set aside the sale was rightly instituted by her and the bar of S. 49 was not attracted. The appellant contends that the suit is perfectly maintainable and the High Court was wrong in holding to the contrary.