- (1.) IN this second Appeal, plaintiff-appellant, Deo Nandan, has moved an application stating that consolidation proceedings have commenced in the village and as such the suit and the appeal arising therefrom deserve to abate. On March 10, 1981 three weeks' time was allowed to the learned Counsel for respondent to file a counter-affidavit. No counter-affidavit has been filed but he has appeared to oppose the application orally.
(2.) ON behalf of the respondent, it is not disputed that consolidation proceedings have commenced in the village. The only point raised on his behalf is that the suit and this second appeal arising therefrom cannot be said to have abated under Section 5, U. P. Consolidation of Holdings Act. Since the Sale Deed, relating to agricultural land was impugned by the plaintiff on the ground that it was fraudulent. It is submitted that a sale deed which is alleged to have been obtained by practising fraud is voidable and not void. In these circumstances, it is contended that the Civil Court alone is competent to finally adjudicate the controversy between the parties. ON behalf of the appellant, however, it is urged that on the allegations made in the plaint, the sale deed is ab initio void and not voidable. Learned Counsel for the appellant submits that the question as to whether the sale deed impugned in the suit was void or not can only be gone into by the consolidation authorities. Thus the short controversy between the parties is whether on the facts alleged m the plaint, the sale deed is claimed to be void or only voidable. Parties are agreed that if the allegations made in the plaint amount to an averment that the sale deed is void, then the only course open for this Court is to record an order that the suit and the second appeal arising therefrom has abated. Plaintiff-appellant, in his statement of claim, disclosed that he had no male issue and that his daughters were married. Defendant-respondent was a brother of his wife and had been asked by the plaintiff to assist him in his agricultural operations and the defendant had acceded to that request. It was further stated that the defendant persuaded the plaintiff to execute a will in his favour so that the defendant may become the owner of the holding in dispute after the death of the plaintiff. Plaintiff agreed to do so Plaintiff went along with the defendant for the purpose of executing a will but somehow or the other, the defendant obtained his thumb impressions on a document which purported to be a sale deed of the holding, Plaintiff thus repudiated the character of the document which was relied upon by the defendant as a sale deed. Plaintiff also disclosed that the document which the defendant claimed to be a sale deed was wholly without consideration. Learned Counsel for the plaintiff-appellant contended that the true legal position which has to be taken into account in disposing of the application moved by him is whether the allegations made in the plaint amount to an averment of fraud pure and simple or they go a step further and should be construed to mean fraudulent misrepresentation not merely as to the contents of the document but also as to its character. He submitted that on a fair reading of the plaint, the conclusion is inescapable that the plaintiff's allegation was that he wanted only to execute a will in favour of the defendant and that by using unfair means, the defendant has obtained a sale deed from him and that too without consideration. According to the learned counsel, the charge made out by the plaintiff was against the character of the document and not against its contents. In support of his submission, he relied on Ningawwa v. Byrappa Shiddappa Hirekurabar, AIR 1968 SC 956 and Smt. Marachi v. Deputy Director of Consolidation, 1978 Rev Dec 79 : (AIR 1978 NOC 92 (All ).
(3.) IN the former case, the Supreme Court was considering the question of limitation. It cited with approval the following passage from the decision in Foster v. Mackinnon, (1869) 4 CP 704 (Para 5 of AIR) : "it (signature) is invalid not merely on the ground of fraud, where fraud exists, but on the ground that the mind of the signer did not accompany the signature; in other words, that he never intended to sign, and therefore in contemplation of law never did sign the contract to which his name in appended. . . . . . . . . . . The defendant never intended to sign that contract or any such contract. He never intended to put his name to any instrument that then was or thereafter might become negotiable. He was deceived, not merely as to the legal effect, but as to the 'actual contents' of the instrument". While approving the observations in. Foster's case Ramaswami, J. speaking for the court stated thus (Para 5): "the legal position will be different if there is a fraudulent misrepresentation not merely as to the contents of the document but as to its character. The authorities make a clear distinction between fraudulent misrepresentation as to the character of the document and fraudulent misrepresentation as to the contents thereof. With reference to the former, it has been held that the transaction is void, white in the case of the latter, it is merely voidable".;