B.L.Yadav - (1.) BY means of this petition under Article 226 of the Constitution impugned orders dated 14-8-1987 and 2-8-1986 passed by IVth Additional District Judge and Ilnd Upper Munsif Mohammadabad respectively are sought to be quashed.
(2.) IT appears that respondent no. 3 Smt. Duija filed a suit for cancellation of the gift deed dated 8-2-1983, and for permanent injunction alleging that the alleged gift deed was got executed by playing fraud on the plaintiff. The suit was contested by the petitioner denying plaint allegations and alleging that the suit was cognizable by Revenue Court and not by the Civil Court. In the written statement (vide paras 5, 6 and 9) it was also alleged that the plaintiff respondent no. 3 is very wise lady and the contents of the gift deed were explained to her by the Registrar at the time of registration and being fully conversant with the facts stated in the gift deed, she made signatures and no fraud was committed on her. Preliminary issue was framed whether the suit for cancellation of the gift deed was maintainable in the civil court or in the revenue court. By the impugned orders it was held that the suit was maintainable in the Civil Court. Hence present petition. Learned counsel for the petitioner urged that the gift deed was void hence it required no cancellation and in respect of agricultural land suit was maintainable in the revenue court for declaration of bhumidhari rights. Reliance was placed on Kamani Rai v. Distt. Judge Budaun, 1983 ACJ 617, Mohd. Umar Khan v. Idris Mohd. Ghani, AIR 1980 Allahabad 89 and Jagdamba Prasad Singh v. Prahlad Singh, 1981 AWC 328. Learned counsel for the respondents on the other hand urged that in view of the provisions of Section 31 of Specific Relief Act, 1963 any person against whom a written instrument is void or voidable, and who has reasonable apprehension that such instrument, if left may cause him serious injury, may sue to have it adjudged void or voidable; and the court may, in its discretion, so adjudge it and order it to be delivered up and cancelled. It was for the plaintiff herself to decide as to whether the document of gift deed creates an apprehension that such instrument may cause her serious injury, and it is not for the defendant the present petitioner to advice her in the matter. Relevant paragraphs in the written statement lead to the conclusion that the defendant has filed written statement indicating that the document is perfectly genuine and valid and the same was signed by the respondent no. 3 after understanding the contents of the same.
(3.) HAVING heard learned counsel for the parties main point for determination is whether civil court has jurisdiction against the cause of action to the effect that the gift deed has been executed as alleged by the plaintiff respondent no. 3 by playing fraud on her and in view of the allegations in the written statement the said deed was valid and genuine. The next point is whether for cancellation of such a deed the suit was maintainable in the civil court or the deed may be taken to be void and the same need not be cancelled rather it may be ignored by plaintiff. In such matters it is not only the allegations made in the plaint which would decide the forum rather the cumulative effect of the allegations in the plaint and the allegations in the written statement including additional pleas and also the allegations in the replica have to be taken into account to infer as to whether such deed would require cancellation by the plaintiff or it was of such a nature which can be ignored. In view of section 31 of Specific Relief Act, plaintiff has right to file a suit against an instrument either the same is void or voidable provided the plaintiff has reasonable apprehension that such instrument may cause him or her injury In the instant case on the basis of allegations made in the plaint fraud was committed on the plaintiff whereas on the basis of the written statement no such fraud was committed and document was perfectly genuine. The document was not taken to be void or voidable. In such situation if the document is not cancelled, when the defendant alleges in the written statement that the document is genuine, it would certainly cause injury to the plaintiff in future. For this purpose the Parliament has enacted Section 31 of the Specific Relief Act and I am of the view that the apprehension in the mind of the plaintiff was well founded and the suit for cancellation of the said document which was voidable on the basis of fradulent nature of the same was maintainable in the Civil Court.;