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Allahabad High Court · body

2015 DIGILAW 3995 (ALL)

DHARAM DEI v. DEPUTY DIRECTOR OF CONSOLIDATION

2015-12-16

ANJANI KUMAR MISHRA

body2015
JUDGMENT Hon’ble Anjani Kumar Mishra, J.—Heard Shri Arun Kumar, learned counsel for the petitioner, Shri D.P. Singh, learned Senior Counsel for the respondent and perused the material available on record. 2. This writ petition arises out of an objection under Section 9(2) U.P. Consolidation of Holdings Act and seeks quashing of the revisional Court’s order dated 31.12. 1986. 3. The facts of the case briefly stated are that the petitioner filed a suit for cancellation of a sale-deed, allegedly executed by her in favor of Tribhuwan Nath (nephew). This suit was filed on the allegation that she was a Pardanasheen lady, living in a joint family, being the widow of the younger brother of Indra Bahadur father of Tribhuwan. She relied upon him as he managed her half share in the joint khata. She was adviced by Indra Bahadur that since the Government was proposing to bring legislation regarding ceiling on land holdings, it would be appropriate for her to dispose of certain land by executing a gift deed in favor of her daughter. She, in fact wanted to execute a gift deed in favor of her daughter, but, since she was illiterate, the respondents got a sale-deed executed in their favor. 4. This suit for cancellation of the sale-deed was abated on the start of consolidation operation on an application filed by the contesting respondent. 5. The petitioner, thereafter, filed an objection under Section 9(2) on identical allegations. 6. The Consolidation Officer dismissed the objection. Aggrieved, the petitioners filed an appeal. The Settlement Officer Consolidation vide order dated 16.9.1972, allowed the appeal and held the sale-deed in favor of the contesting respondent to be a void document in as much as the sale was without consideration. 7. The consequential revision filed by the contesting respondent was allowed by the Deputy Director of Consolidation. 8. Against the order of the Deputy Director Consolidation, Allahabad the petitioner preferred a writ petition No. 10610 of 1975. The writ petition was allowed, holding that the revisional Court has erred in holding the sale-deed in question to be a voidable document especially in view of the finding of the appellate Court that the sale-deed was without consideration and therefore, a void document, which finding was neither considered or reversed. The writ petition was allowed, holding that the revisional Court has erred in holding the sale-deed in question to be a voidable document especially in view of the finding of the appellate Court that the sale-deed was without consideration and therefore, a void document, which finding was neither considered or reversed. The matter, therefore, was remanded back to the Deputy Director of Consolidation to consider the finding of the S.O.C., that the sale was without any consideration having passed and upon an appreciation of the evidence available on record. 9. Upon remand, the Deputy Director of Consolidation by the impugned order has again allowed the revision returning a finding that sale consideration had actually passed and therefore, the sale was a valid transaction. It is this order which is impugned in the instant writ petition. 10. The contention of learned counsel for the petitioner is that the sale-deed in question was a void document as no consideration was actually paid. Further, the sale-deed had been obtained by exercising undue influence and by misrepresentation. It is further submitted that since the petitioner was a Pardanasheen lady, the onus of proving that the document in question was a valid transaction, was upon the respondent and that this onus has been wrongly cast upon the petitioner. It is next submitted that fraud had been practiced as regard as the nature of the document being executed. The petitioner had signed upon the document under the impression that she was signing gift deed in favor of her daughter while in fact it was a sale-deed in favor of respondent. It is established on record that there was a fiduciary relationship between the petitioner and Indra Bahadur, the father of the respondent Tribhuwan, the vendee in the sale-deed. This fiduciary relationship as also the dependence of the petitioner upon the vendee and his father, who were part of a joint family, was utilized for getting this fraudulent sale-deed executed in the garb of it being a gift deed in favor of the petitioners’ daughter. 11. It is lastly submitted that the alleged admission made by the petitioner in her written statement filed in the mutation case was never proved by producing the original admission and the finding of the Appellate Court in this regard has not been specifically set aside by the Deputy Director of Consolidation in the impugned order. 12. 11. It is lastly submitted that the alleged admission made by the petitioner in her written statement filed in the mutation case was never proved by producing the original admission and the finding of the Appellate Court in this regard has not been specifically set aside by the Deputy Director of Consolidation in the impugned order. 12. Learned counsel for the petitioner has also placed reliance upon the decision of the Apex Court in the case of Smt. Dularia Devi v. Janardan Singh and others, AIR 1990 SC 1173 , wherein it has been held that a fraudulent misrepresentation, as to the nature of the document, renders the transaction, totally void. He submits that this authority squarely applies to the facts of the instant case wherein the petitioner had alleged that her signature was obtained on sale-deed in favor of the respondent while she was under the impression that she was executing a registered gift deed in favor of her daughter. 13. The contention of Shri D.P. Singh, learned Senior counsel for the respondent is that this Court had earlier remanded back the matter to the D.D.C to consider the finding of the Settlement Officer Consolidation, that consideration had not passed and, therefore, the sale-deed was void. The Deputy Director of Consolidation upon remand has examined this aspect in detail and has returned a categorical finding that the petitioner had been paid the consideration mentioned in the sale-deed and, therefore, the sale was not void. 14. He lastly submits that this categorical finding of fact cannot be interfered by this Court in exercise of jurisdiction under Article 226 of the Constitution of India. 15. I have considered the submissions made by learned counsel for the parties and have perused the entire material available on record. 16. It is true that the earlier order of the Deputy Director of Consolidation, passed in favor of the respondent have been set aside by this Court and the matter remanded on the ground that the finding returned by the Settlement Officer Consolidation that no consideration had passed had not been considered or reversed by the Deputy Director of Consolidation and, therefore, was vitiated. But in my considered opinion, the matter has not been remanded back for consideration on this point only. But in my considered opinion, the matter has not been remanded back for consideration on this point only. The operative portion of the judgment of the High Court is as follows : “I, therefore, allow the petition and quash the order of the Deputy Director of Consolidation and direct that the revision shall be heard on merits in the light of the observations made above.” 17. Since the matter was to be considered on its merits, it was for the Deputy Director of Consolidation to consider as to whether the sale-deed in question as a void document or not. It could be a void document since no consideration was paid. It could be void for other reasons also. 18. The submission of learned counsel for the petitioner, apart from other points argued by him is that there was fraud and misrepresentation regarding the nature of the document itself. The intention of the petitioner was to execute a gift deed but infact a sale-deed was got executed and registered. 19. This argument was also raised before the Settlement Officer of Consolidation who had refused to consider it on the ground that since no consideration has been paid, the sale-deed was void and, therefore, liable to be ignored. The S.O.C observed that there was no justification for considering the submission as regard as the nature of the document. This categorical observation is evident from a perusal of the order passed by the Settlement Officer of Consolidation himself. 20. It is true that a finding of fact has been returned by the D.D.C on the question of payment of consideration. However the document in question was void document or not since there was fraud or misrepresentation as regards its nature, has not been considered. 21. I am of the considered opinion that this question was necessarily required to be considered because it was a relevant consideration in view of the specific allegations made by the petitioner. Not only has the Settlement Officer of Consolidation refused to consider this submission, even the Deputy Director of Consolidation has not adverted to this aspect of the matter. 22. I am of the considered opinion that this question was necessarily required to be considered because it was a relevant consideration in view of the specific allegations made by the petitioner. Not only has the Settlement Officer of Consolidation refused to consider this submission, even the Deputy Director of Consolidation has not adverted to this aspect of the matter. 22. In view of the decision of the Apex Court in the case of Smt. Dulari Devi (supra), the impugned order deserves to be set aside and the matter is liable to be remanded back to the Deputy Director of Consolidation for consideration of only this aspect of the matter. 23. Accordingly and in view of the above, this writ petition is allowed. The impugned order dated 31.12.1986 is set aside and the matter is remanded back to the Deputy Director of Consolidation to consider as to whether the sale-deed was a void document or not, on account of the plea of the petitioner that her intention was to execute a gift deed in favor of her daughter and not a sale-deed in favor of the respondent. 24. It is further provided that the Deputy Director of Consolidation may decide the matter afresh in the light of directions/observations contained herein above expeditiously and preferably within a period of four months from the date of certified copy of this order is filed before him. ——————