judgement:
ivil Appeal No. 3678 of 1984.
From The Judgment and Order dated 5.1.1982 of the Delhi High Court in Civil Writ Petition No. 2923 of 1981.
R.B. Dattar, section Wasim Qadi for the Appellants.
V.C. Mahajan, K.K. Venugopal, G. Viswanatha lyer, R.B. Mishra, Ms. A. Subhashini, Mrs. Baby Krishnan, C.B. Vaidya nathan, K.V. Mohan, Dilip Pillai, P. Kesava Pillai and N. Sudhakaran for the Respondents.
The Judgment of the Court was delivered by SINGH, J.
The two appellants, S/Sh.
Virendra Nath Gupta and Mohammad Aslam Kidwai are teachers in the Kerala Educa tion Society Senior Secondary School, New Delhi.
They chal lenged the appointment of T.N. Vishwanathan Nair, respondent No. 5 as VicePrincipal of the Institution by means of a writ petition before the Delhi High Court under Article 226 of the Constitution of India.
The High Court by its order dated January 5, 1982 dismissed the petition in limine.
Hence this appeal by special leave.
The Kerala Education Society (hereinafter referred to as 'the Society ') is a Society registered under the Societies Registration Act, XXI of 1960.
The Society is running the Kerala Education Society Senior Secondary School in New Delhi.
The Delhi Administration as 808 well as the Education Authorities have recognised the Insti tution as a linguistic minority school.
The Institution is aided and recognised by the Delhi Administration.
The ob jects of the Society are: (i) to provide facility for the education of children in the Union Territory of Delhi by making provision for suitable institutions; (ii) to promote the study of Malayalam.
A sizable number of persons belong ing to State of Kerala who speak Malayalam are residents in Delhi and they constitute a linguistic minority.
The Ma layalees have their own language, script and culture, and in order to preserve the same they established the Institution which is administered by the linguistic minority, with the primary purpose of promoting the study of Malayalam and also for preserving their culture, dance, music and other Kerala articles Teaching of Malayalam in the aforesaid Institution is compulsory from Classes I to V, as the medium of instruction is Malayalam.
However, Malayalam is an optional subject in VI to XII standard.
The school has 1700 students and more than 60% of parents and guardians belong to the lower income group of Malayalam speaking community.
The Institution is regulated by the provisions of the Delhi School Education Act 1973 (hereinafter referred to as the Act) and the Rules framed thereunder, namely, Delhi School Education Rules 1973 (hereinafter referred to as the Rules.) One post of Vice Principal was created in the Insti tution in the pay scale of Rs.650 1200 with effect from 1.10. 1980.
In March, 1981 a Departmental Promotion Commit tee (hereinafter referred to as DPC) was constituted to make selection for appointment to the post of Vice Principal in accordance with the recruitment rules made under Section 8(1) of the Act read with Rule 100 of the Rules issued on 25.2.
1980 and published in the Delhi gazette Extraordinary dated 7.4.
The DPC made selection from amongst the teachers of the Institution to fill up the post of Vice Principal by promotion in accordance with the aforesaid Rules.
The DPC recommended the name of T.N. Vishwanathan Nair, respondent No. 5 for promotion to the post of Vice Principal although he did not fall within the zone of con sideration as he was junior to the appellants at Sl.
No. 10 in the seniority list.
The Management of the Institution accepted the recommendation of the DPC and forwarded papers to the Director of Education for approval.
Meanwhile, the appellants made representation to the Director of Education against the selection and appointment of respondent No. 5.
The Director of Education rejected the Management 's proposal and refused to approve the selection and appointment of respondent No. 5 on the ground that he did not fall within the zone of consideration according to the Rules and further he did not possess the essential qualification of five years experience as 809 Post Graduate Teacher as required by the Recruitment Rules.
Since no suitable candidate was available for promotion within the zone of consideration the Director of education permitted the Managing Committee to advertise the post for filling the same by direct recruitment.
Thereafter, adver tisement was published on 24.9.1981 inviting applications for the post of Vice Principal.
The advertisement stated the essential qualifications being Master 's Degree with second division, five years ' teaching experience as Post Graduate Teacher or ten years ' teaching experience as Trained Gradu ate Teacher, and also ability to speak and write Malayalam.
Since the knowledge of Malayalam was prescribed as an essen tial qualification, the appellants were not eligible for selection or appointment as they could not speak or write Malayalam.
On the recommendation of the Selection Committee respondent No. 5 was appointed as a direct recruit to the post of Vice Principal and the Director of Education ap proved his appointment.
Learned counsel for the appellants assailed the validity of the appointment of respondent No. 5 on three grounds; (i) since under the Rules post of Vice Principal was a promo tional post, no direct recruitment was permissible; (ii) respondent No. 5 did not possess the essential qualification of Master 's Degree in second division; (iii) the Management malafide introduced knowledge of Malayalam as an essential qualification with a view to favour respondent No. 5 and to oust the appellants even though the Rules did not permit knowledge of Malayalam as an essential qualification.
We will deal with these submissions in seriatim.
There is no dispute that the recruitment/appointment to the post of Vice Principal in the Government aided schools and recognised schools in the Union Territory of Delhi is regulated by the Rules published on 7.4.1980, a copy of which has been placed before us, farmed under Section 8(1) of the Act read with Rule 100.
Since the Institution is an aided and recognised school the aforesaid Rules were ap plicable for the purpose of recruitment to the post of Vice Principal.
According to the Rules recruitment to the post of Vice Principal is to be made by selection.
The Rules prescribe educational and other qualifications.
The Rules provide that the post of Vice Principal should be filled by promotion failing which by direct recruitment as stated in Col. 8 of Annexure B to the Rules.
As noticed earlier the Management made attempt to fill the post of promotion and the DPC had con .
sidered the case of teachers of the Insti tution for promotion to the post ' of Vice Principal and it recommended respondent No. 5, but the same was not approved by the Director of Education.
The selection Com 810 mittee, had considered the appellants also but it did not find them suitable for promotion, instead it recommended respondent No. 5 for promotion but the recommendation of the Selection Committee was not approved by the Director of Education.
The Director of Education by his letter dated 2.5.1981 directed the Management of the Institution to fill the post by direct recruitment.
Pursuant to that direction the Management issued advertisement for making the recruit ment.
The Rules thus contain express provision for direct recruitment to the post of Vice Principal and as such we find no merit in the submission made on behalf of the appel lants.
Admittedly, respondent No. 5 did not possess Master 's Degree in second division, which was an essential qualifica tion but Column No. 5 to Annexure B to the Rules which prescribes essential qualifications, states: "Condition of second division relaxable in case of candidates belonging to the same school and also in case of Scheduled Castes/Sched uled Tribes.
" The Rules further contain a note;"Competent authority may relax the essential qualifications in excep tional cases of the candidates of the same school, after recording reasons therefor".
The Selection Committee as well as the competent authority granted relaxation to respondent No. 5 as he belonged to the same school.
Further he had ten years ' experience as .Trained Graduate Teacher and as such he was eligible for direct recruitment under the Rules.
The appellant 's plea that since the Management was interested in appointing respondent No. 5 to the post of Vice Principal, it manipulated to get his selection made for appointment to the said post, is without any foundation.
The Selection Committee consisted five members out of which three were representatives of the Education Department appointed by the Director of Education.
The Selection Committee made the selection in accordance with the Rules and found respondent No. 5 suitable for appointment to the said post.
In this view there is no merit in the second submission made on behalf of the appellants.
The third submission made on behalf of the appellants is that the additional essential qualification regarding knowl edge of Malayalam was prescribed in contravention of the Rules and this was done with a view to oust the appellants who were the senior teachers fully equipped with other essential qualifications for appointment to the post of police Principal.
While considering this question we cannot over look fact that the Institution is a linguistic minority institution, its object , to promote the study of Malayalam and to promote and preserve malayalee dance, culture and article Article 29 of the Constitution of 811 India guarantees fight of linguistic minorities having a distinct language, script and culture of their own and, it also protects their fight to conserve the same.
Article 30 of the Constitution guarantees the right of minorities whether based on religion or language to establish and administer educational institutions of their choice.
A linguistic minority has not only the right to establish and administer educational institution of its choice, but in addition to that it has further constitutional right to conserve its language, script and culture.
In exercising this fight a linguistic minority may take steps for the purpose of promoting its language, script or culture and in that process it may prescribe additional qualification for teachers employed in its institution.
The rights conferred on linguistic minority under Artides 29 and 30 cannot be taken away by any law made by the Legislature or by rule made by executive authorities.
However, the Management of a minority institution has no right to mal administer the institution, and it is permissible to the State to prescribe syllabus, curriculum of study and to regulate the appoint ment and terms and conditions of teachers with a view to maintain a minimum standard of efficiency in the educational institutions.
This is the consistent view of this Court, as held in a number of decisions where the scope and extent of minority 's fight to manage its institutions were considered.
See "In Re The Kerala Education Bill, 1957.
Reference under Article 143(D of the Constitution of India, [1959] SCR 995; The Ahmedabad St. Xaviers College Society & Anr.
vs State of Gujarat & Anr.
, ; ; Lilly Kurian vs Sr.
Lewina and Ors.
, ; ; Frank Anthony Public School Employees ' Association vs Union of India & Ors., ; ; Mrs. Y. Theclamrna vs Union of India & Ors., ; and All Bihar Christian Schools Association vs State of Bihar; , Though minority 's right under Articles 29 and 30 is subject to the regulatory power of the State, but regulatory power cannot be exercised to impair the minority 's fight to conserve its language, script or culture while administering the educational institutions.
An institution set up by the religious or linguistic minori ty is free to manage its affairs without any interference by the State but it must maintain educational standards so that the students coming out of that institution do not suffer in their career.
But if the recognised minority institution is recipient of Government aid, it is subject to the regulatory provisions made by the State.
But these regulatory provi sions cannot destroy the basic fight of minority institu tions as embodied under Article 29 and 30.
The Kerala Education Society is a recognised and aided institution, it is subject to the regulatory provisions contained in the Delhi 812 School Education Act 1973 and the Rules made thereunder.
The question is whether the Management of the Institution could validly prescribe knowledge of Malayalam as an essential qualification for the post of Vice Principal.
Admittedly, the Institution is for promotion of Malayalam language and as Malayalam is compulsory for students upto Vth standard and it is one of the optional subjects from VIth to XIIth standard, it is not only proper but desirable that the incumbent holding the office of Principal or Vice Principal being administrative in nature should have knowledge of speaking and writing Malayalam.
The requirement of knoweldge of Malayalam is closely connected with the fight of the linquistic minority to subserve its script, language and culture.
The Management of the Institution acted within its fight in prescribing an additional essential qualification regarding knowledge of Malayalam and no exception can be taken to the same as it is the constitutional right of the linguistic minority to insist on the knowledge of the lan guage, on the basis of which the linguistic minority is recognised.
The provisions of the Act and the Rules are subject to the guarantees of constitutional rights of the minorities ' institutions.
In our opinion, the Management acted within its constitutional right in insisting the knowledge of Malayalam as an essential qualification for the post of Vice Principal.
The Education Department of Delhi Administration did not raise any objection to the Manage ment 's action; on the other hand, the Selection Committee constituted by the Director of Education made its recommen dation on the basis of the qualifications prescribed in the advertisement and the Director of Education approved the appointment of respondent No. 5.
In this view we find no merit in the appellants ' submission that the knowledge of Malayalam was prescribed mala fide with a view to oust them from consideration.
In view of the above discussion we find no legal infirm ity in the appointment of respondent 'No. 5 as Vice Princi pal.
It appears that during the pendency of the appeal a vacancy arose in the post of Principal to which respondent No. 5 was promoted.
Consequently there was a vacancy in the post of Vice Principal to which K.D. Antony, another teacher of the School was appointed.
The appellants filed an appli cation for impleading K.D. Antony to the appeal but no relief was claimed against him.
The application for implead ing K.D. Antony is accordingly rejected.
The appeal fails and it is accordingly dismissed.
There will be no order as to costs.
Y. Lal Appeal dismissed.

summary/full:
The appellants are teachers in the Kerala Education Society Senior Secondary School, New Delhi.
They challenged the appointment of Respondent No. 5 as Vice Principal by filing a writ petition in the Delhi High Court.
The circum stances that led to the filing of writ petition are: The Kerala Education Society is a recognised and aided Society.
Its primary objects are to promote the study of Malayalam language and to provide facilities for the educa tion of children and to conserve Malayalam language, script and culture.
In furtherance of these objectives, the Society is running Senior Secondary School in New Delhi.
Delhi Administration as also the educational authorities have recognised the Institution, as a linguistic minority school.
The institution is.
regulated by the provisions of the Delhi School Education Act and the rules framed thereunder.
One post of Vice Principal was created in the school w.e.f. 1.10.80.
In March 1981, Departmental Promotion Committee was constituted to make selection for the appointment to the post of Vice Principal in accordance with the recruitment rules.
The Departmental Promotion Committee made selection from amongst the teachers of the institution to fill up the post of Vice Principal by promotion in accordance with the Rules.
The Departmental Promotion Committee recommended the name of Respondent No. 5 for promotion to the post of Vice Principal though he did not fall within the zone of consid eration being junior to the appellants.
The management of the school accepted the recommendation of the Departmental Promotion Committee and forwarded the papers to the Director of Education for necessary approval.
The appellants made representations to the Director of Education against the selection and appointment of Respondent No. 5.
The Director of Education rejected the proposal of the 806 management and declined to approve the selection and ap pointment of Respondent No. 5 on the ground that he did not fail within the zone of consideration and further that he did not possess the necessary qualification of five years experience as Post Graduate Teacher as required by the recruitment rules.
The Director of Education however permit ted the management to advertise the post for filling the same by direct recruitment.
The management then issued advertisement prescribing the necessary qualifications for the post which included Master 's Degree with second divi sion; five years teaching experience as Post Graduate Teach er or 10 years experience as trained graduate teacher and ability to speak Malayalam as an essential qualification.
The appellants were straightaway not eligible for appoint ment as they were not able to speak or write Malayalam.
On the recommendation of the selection committee, respondent No. 5 was appointed as direct recruit to the post of Vice Principal and the Director of Education approved the ap pointment.
Thereupon the appellants, as stated earlier filed writ petition in the High Court challenging the appointment of Respondent No. 5 and the writ petition was dismissed.
Hence this appeal by special leave.
Dismissing the appeal, this Court, HELD: An institution set up by the religious or linguis tic minority is free to manage its affairs without any interference by the State but it must maintain educational standards so that the students coming out of that institu tion do not suffer in their career.
But if the recognised minority institution is recipient of Government aid, it is subject to the regulatory provisions made by the State.
The regulatory provisions however cannot destroy the basic right of minority institutions as embodied under Articles 29 and 30.
[811F G] The Kerala Education Society is a recognised and aided institution.
It is subject to the reguIatory provisions contained in the Delhi School Education Act, 1973 and the rules made thereunder.
[811H] The institution is for promotion of Malayalam language and as Malayalam is a compulsory subject for students upto Vth standard and it is an optional subject for Vlth to XIIth standard.
In the circumstance it is not only proper but desirable that the incumbent holding the office of Principal or Vice Principal being administrative in nature should have knowledge of speaking and writing Malayalam.
[812B] The management of the institution acted within its right in pre 807 scribing an additional essential qualification regarding knowledge of Malayalam and no exceptional can be taken to the same as it is the constitutional right of the linguistic minority to insist on the knowledge of the language, on the basis of which the linguistic minority is recognised.
[812C] The Kerala Education Bill, 1957 Reference under Article 143 of the Constitution, [1959] SCR 995; The Ahmedabad St. Xaviers College Society and Anr.
vs State of Gujarat and Anr.
, ; ; Lilly Kurian vs Sr.
Lewina and Ors.
, ; ; Frank Anthony Public School Employees ' Association vs Union of India & Ors., ; ; Mrs. Y. Theclamma vs Union of India and Ors., ; and All Bihar Christian Schools Association vs State of Bihar, ;


judgement:
Appeal No. 233 of 1954.
Appeal from the judgment and decree dated August 22, 1950, of the Bombay High Court in Appeal No. 80 of 1946 from original decree, arising out of the judgment and decree dated October 19, 1945, of the Court of Civil Judge, Senior Division, Dharwar, in Special Suit No. 64 of 1943.
A. V. Viswanatha Sastri and M. section K. Sastri, for the appellants.
A. section R. Chari, Bawa Shivcharan Singh and Govindsaran Singh, for respondents Nos. 2 4. 1958.
September 24.
The judgment of Imam and Kapur JJ. was delivered by Kapur J. Sinha J. agreed to the order proposed.
KAPUR J. This is an appeal against the judgment and decree of the High Court of Bombay varying the decree of the trial Court decreeing the plaintiff 's suit for possession by partition of joint family property.
The facts of the case lie in a narrow compass.
M. B. Jakati, defendant No. 1, was the Managing Director of Dharwar Urban Co operative Bank Limited which went into liquidation, and in that capacity he was receiving a yearly remuneration of Rs. 1,000.
As a result of certain proceedings taken against defendant No. 1, M. B. Jakati, by the liquidator of the Bank, a payment order for Rs. 15,100 was made by the Deputy Registrar of Co operative Societies on April 21, 1942.
In execution of this payment order a bungalow belonging to M. B. Jakati, defendant No. 1, was attached by the Collector under the Bombay Land Revenue Code on July 27, 1942.
Notice for sale was issued on November 24, 1942, and the proclamation on December 24, 1942.
The sale was fixed for February 2, 1943.
On January 16, 1943, M. B. Jakati defendant No. 1 applied for postponing the sale which was rejected.
The auction sale was held on February 2, 1943, and was confirmed on June 23, 1943, the purchaser was section N. Borkar, defendant No. 7, now respondent No. 1.
On February 10, 1944, respondent No. 1 sold the property to defendants 8 to 10 who are respondents 2 to 4.
1387 The following pedigree table will assist in understanding the case: Madhavarao Balakrishan Jakati Deft. 1 Bhimabai 2 Krishnaji Shriniwas Shantibai Indumati Plff.
1 Plff.
1(a) daughter daughter Deft.
No. 3 Deft.
No. 4 On January 15, 1943, Krishnaji a son of defendant No. 1 brought a suit for partition of the joint family property and possession of his separate share alleging inter alia that the purchase by respondent No. 1 of the bungalow was not binding on the joint family as "it was not liable to be sold for the illegal and immoral acts on the part of defendant No. 1 which were characterised as misfeasance "; that the auction sale was under section 155 of the Bombay Land Revenue Code under which only " the right, title and interest of the defaulter " could be sold and therefore the right, title and interest of only the father, defendant No. 1 was sold and not that of the other members.
The plaintiff claimed 1/4 share of the property and also alleged that he was not on good terms with his father who had neglected his interest; that he was staying with his mother 's sister and was not being maintained by his father and mother.
On January 12, 1944, appellant No. 1 filed his written statement supporting the claim for partition and claiming his own share.
He supported the claim of the then plaintiff that the sale in favour of respondent No. 1 was not binding on the joint family.
Defendant No. 2, now appellant No. 2, the mother, also supported the plaintiff 's claim and on the death of Krishnaji, she claimed his i share as his heir.
After the death of the original plaintiff Krishnaji, Shriniwas appellant No. 1 was substituted as plaintiff on June 28, 1944.
The suit was mainly contested by respondents 1 to 4.
Respondent No. 1 pleaded that plaintiff 's suit for partition was collusive having been brought at the instance of the defendant No. 1, M. B. Jakati, and it was not bona fide; that defendant No. 1 was made 1388 liable at the instance of the liquidator of the Dharwar Urban Co operative Bank Ltd., for misfeasance because he acted negligently in the discharge of his duties as managing director of the Bank; that the debt was binding on the family as defendant No. 1, M. B. Jakati, had been receiving a yearly remuneration from the Bank and the properties were sold in payment of a debt binding on the family and therefore the sale in execution of the payment order could not be challenged as the sons were under a pious obligation under the Hindu law to discharge the debts of their father; that the sale could only be challenged on proof of the debt of defendant No. 1 being for an " immoral or illegal purpose.
These pleadings gave rise to several issues.
The learned Civil Judge, held that the suit was collusive; that the liability which defendant No. 1 incurred was avyavaharika and was therefore not binding on the sons and thus appellant No. 1 would have 1/3 share in the joint family property, defendant NO.
1 1/3 and appellant No. 2 also 1/3.
He therefore declared the shares as above in the whole of the joint family property including the bungalow which is the only property in which the respondents are interested and which is in dispute in this appeal.
On appeal the High Court held that the debt was not avyavaharika as there was no evidence to support the finding of the trial Court, the order of the Deputy Registrar being in the nature of a judgment to which neither the sons nor the auction purchasers were parties and therefore it was not " evidence of anything except the historical fact that it was delivered".
In regard to the question as to what interest passed to the auction purchaser on a sale under section 155 of the Bombay Land Revenue Code, it held that the whole estate including the share of the sons was sold in execution of the payment order and therefore qua that property the sons had no interest left.
The High Court varied the decree to this extent and the plaintiffs have come up in appeal to this Court by certificate of the High Court of Bombay.
The case of the appellants is (1) that the debt was avyavaharika and therefore in an auction sale the S.C.R. SUPREME COURT REPORTS 1389 interest of the sons and other members of the joint family did not pass to the auction purchaser; (2) that even if the debt was not avyavaharika the institution of the suit for partition operated as severance of status between the members of the family and therefore the father 's power of disposition over the son 's share had come to an end and consequently in the auction sale the share of the sons did not pass to the auction purchaser; and (3) that what could legally be sold under section 155 of the Bombay Land Revenue Code was the right, title and interest of the defaulter i. e. of the father alone which could not include the share of the other members of the joint family.
The first question for decision is whether the debt of the father was avyavaharika.
This term has been variously translated as being that which is not lawful or what is not just or what is not admissible under the law or under normal conditions.
Colebrooke translated it as " a debt for a cause repugnant to good morals ".
There is another track of decision which has translated it as meaning " a debt which is not supported as valid by legal arguments ".
The Judicial Committee of the Privy Council in Hem Raj alias Babu Lal vs Khem Chand (1) held that the translation of the term as given by Colebrooke makes the nearest approach to the true conception of the term used in the Smrithis texts and may well be taken to represent its correct meaning and that it did not admit of a more precise definition.
In Toshanpal Singh vs District Judge of Agra (2) the Judicial Committee held that drawings of monies for unauthorised purposes, which amounted to criminal breach of trust under section 405 of the Indian Penal Code, were not binding on the sons, but a civil debt arising on account of the receipt of monies by the father which were not accounted for could not be termed avyavaharika.
In the case now before us the appellants have empted to prove that the debt fell within the term avyavaharika by relying upon the payment order and (1)(1943) L.R. 70 I.A. 171, 176.
(2) (1934) L.R. 61 I.A. 350.
1390 the findings given by the Deputy Registrar in thepayment order where the liabity was inter alia based on a breach of trust.
Any opinion given in the order of the Deputy Registrar as to the nature of the liability of defendant No.1, M. B. Jakati, cannot be used as evidence in the present case to determine whether the debt was avyavaharika or otherwise.
The order is not admissible to prove the truth of the facts therein stated and except that it may be relevant to prove the existence of the judgment itself, it will not be admissible in evidence.
Section 43 of the Indian Evidence Act, the principle of which is, that judgments excepting those upon questions of public and general interest, judgment in rem or when necessary to prove the existence of a judgment, order or decree, which may be a fact in issue, are irrelevant.
It was then submitted that the pleadings of respondent No. 1 himself show that the debt was of an immoral or illegal nature.
In his written statement, respondent No. 1 had pleaded that the liquidator of the Bank had charged defendant No. 1 with misfeasance because he was grossly negligent in the discharge of his duty and responsibility as managing director and that after a thorough enquiry the Deputy Registrar held misfeasance proved and ordered a contribution of Rs. 15,100 by him.
As we have said above the translation given by Colebrooke of the term avyavaharika is the nearest approach to its true concept i. e. " any debt for a cause repugnant to good morals ".
The managing director of a Bank of the position of defendant No. 1 who should have been more vigilant in investing the monies of the Bank cannot be said to have incurred the liability for a cause " repugnant to good morals ".
We are unable to subscribe to the proposition that in the modern age with its complex institutions of Banks and Joint Stock Companies governed by many technicalities and complex system of laws the liability such as has arisen in the present case could be called avyavaharika.
The debt was therefore binding on the sons.
The effect of severance of status brought aboutthe filing of the suit on January 25, 1943, made the basis of the argument that only the share of the father could be seized in execution of the payment order made against him.
This would necessitate an examination into the rights and liabilities of Hindu sons in a Mitakshara coparcenary family where the father is the karta.
In Hindu law there are two mutually destructive principles, one the principle of independent coparceiiary rights in the sons which is an incident of birth, giving to the sons vested right in the coparcenary property, and the other the pious duty of the sons to discharge their father 's debts not tainted with immorality or illegality, which lays open the whole estate to be seized for the payment of such debts.
According to the Hindu law givers this pious duty to pay off the ancestors ' debts and to relieve him of the death torments consequent on nonpayment was irrespective of their inheriting any property, but the courts rejected this liability arising irrespective of inheriting any property and gave to this religious duty a legal character.
Masit Ullah vs Damodar Prasad (1).
For the payment of his debts it is open to, the father to alienate the whole coparconary estate including the share of the sons and it is equally open to his creditors to proceed against it; but this is subject to the sons having a right to challenge the alienation or protest against a creditor proceeding against their shares on proof of illegal or immoral purpose of the debt.
These propositions are well settled and are not within the realm of controversy.
(Panna Lal vs Mst.
Naraini (2); Girdharee Lal vs Kantoo Lal and Mudhan Thakoor vs Kantoo Lal (3) ; Suraj Bansi Koer vs Sheo Prasad Singh (4); Brij Narain vs Mangla Prasad (5).
In the last mentioned case the Privy Council said: " Nothing clearer could be said than what was said by Lord Hobhouse delivering the judgment of the Board in Nanomi Babusin vs Modun Mohan (6) already quoted: " Destructive as it may be of the principle of (1) (1926) L.R. 53 I.A. 204.
(2) ; , 552, 553, 556, 5 59.
(3) (1874) L.R. 1 I.A. 321, 333.
(4) (1878) L.R. 6 I.A. 88, 101.
(5) (1923) L.R. 51 I.A. 129, 136.
(6) (1885) L.R. 13 I.A. 1, 17, 18.
177 1392 independent coparcenary rights in the sons, the decisions have for sometime established the principle that the sons cannot set up their rights against their father 's alienation for an antecedent debt, or against his creditor 's remedies for their debts, if not tainted with immorality.
On this important question of the liability of the joint estate, their Lordships think that there is no conflict of authority ".
There is no discrepancy of judicial opinion as to the pious duty of Hindu sons.
In Panna Lal vs Mst.
Naraini (1) this Court approved the following dictum of Suleman A. C. J. in Bankeylal vs Durga Prasad (2): The Hindu Law texts based the liability on the pious obligation itself and not on the father 's power to sell the sons ' share ".
So great was the importance attached to the payment of debts that Hindu law givers gave the non payment of a debt the status of sinfulness and such non payment was wholly repugnant to Hindu concept of son 's rights and liabilities.
In Bankeylal vs Durga Prasad (2) Lal Gopal Mukherji J. said at p. 896: " A perusal of text books of Smriti dealing with debts will show that under the Hindu Law the nonpayment of a just debt was regarded as a very heinous sill.
" The liability of the Hindu son based on his pious obligation again received the approval of this Court in Sudheshwar Mukherji vs Bhubneshwar Prasad Narain Singh (3), where the following observation made in Panna Lal 's case (1) (at p. 184): " The father 's power of alienating the family property for payment of his just debts may be one of the consequences of the pious obligation which the Hindu law imposed upon the sons; or it may be one of the means of enforcing it, but it is certainly not the measure of the entire obligation was reiterated.
And again at p. 183 Mukherjea J. (as he then was) said:., " It is a special liability created on purely religious (1) ; , 552, 553, 556, 559.
(2) All. 868, 896.
(3) ; , 183, 184.
1393 grounds and can be enforced only against the sons of the father and no other coparcener.
The liability, therefore, has its basis entirely on the relationship between the father and the son ".
Therefore unless the son succeeds in proving that the decree was based on a debt which was for an immoral or illegal purpose the creditor 's right of seizing in execution of his decree the whole coparcenary property including the son 's share remains unaffected because except where the debt is for an illegal or immoral purpose it is open to the execution creditor to sell the whole estate in satisfaction of the judgment obtained against the father alone.
Sripat Singh vs Tagore (1).
The necessary corollary which flows from the pious obligation imposed on Hindu sons is that it is not ended by the partition of the family estate unless a provision has been made for the payment of the just debts of the father.
This again is supported by the authority, of this Court in Pannatal 's case (2) where Mukherjea J. said at p. 559: " Thus, in our opinion, a son is liable, even after partition for the pre partition debts of his father which are not immoral or illegal and for the payment of which no arrangement was made at the date of the partition ".
The liability of the sons is thus unaffected by partition because the pious duty of the sons to pay the debt of the father, unless it is for an immoral or illegal purpose, continues till the debt is paid off and the pious obligation incumbent on the sons to see that their father 's debts are paid, prevents the sons from asserting that the family estate so far as their interest is concerned is not liable to purge that debt.
Therefore even though the father 's power to discharge his debt by selling the share of his sons in the property may no longer exist as a result of partition ' the right of the judgment creditor to seize the erstwhile coparcenary property remains unaffected and undiminished because of the pious obligation of the sons.
There does not seem to be any divergence of judicial opinion in regard (1) (1916) L.R. 44 I.A.1.
(2) ; , 552, 553, 556, 559. 1394 to the Hindu son 's liability to pay the debts of his father after partition, and by the mere device of entering into partition with their father, the sons cannot get rid of this pious obligation.
It has received the approval of this Court in Panna Lal vs Mst.
Naraini (1) and Sidheshwar Mukherji vs Bubneshwar Prasad Narain Singh (2) where Mukherjea J. observed in the latter case at p. 184: " It is settled law that even after partition the sons could be made liable for the pre partition debts of the father if there was no proper arrangement for the payment of such debts at the time when the partition was effected, although the father could have no longer any right of alienation in regard to the separated share of the sons The question then arises how the liability of the sons is to be enforced.
Another principle of Hindu law is that in a coparcenary family the decree obtained against the father is binding on the sons as they would be deemed to have been represented by the father in the suit: Kishan Sarup vs Brijraj Singh (3).
As was pointed out in Sidheshwar Mukherji 's case (2), the sons are not necessary parties to a money suit against the father who is the karta, but they may be joined as defendants.
The result of the partition in a joint family is nothing more than a change in the mode of enjoyment and what was held jointly is by the partition held in severalty and therefore attachment of the whole coparcenary estate would not be affected by the change in the mode of enjoyment, because the liability of the share which the sons got on partition remains unaffected as also the attachment itself which is not ended by partition (section 64 C. P. C. is a useful guide in such circumstances.
Dealing with the question as to how the interest of the sons in joint family property can be attached and sold, Mukherjea J. as he then was, observed at p. 185 in Sidheshwar Mukherji 's case (2): Be that as it may, the money decree passed against the father certainly created a debt payable by (1) ; , 552, 553, 556, 559.
(2) ; , 183, i84.
(3) All. 932.
1395 him.
If the debt was not tainted with immorality, it was open to the creditor to realise the dues by attachment and sale of the sons ' coparcenary interest in the joint property on the principles discussed above.
As has been laid down by the Judicial Committee in a series of cases, of which the case of Nanomi Babuasin vs Modun Mohun (1) may be taken as a type, the creditor has an option in such cases.
He can, if he likes, proceed against the father 's interest alone but he can, if he so chooses, put up to sale the sons ' interest also and it is a question of fact to be determined with reference to the circumstances of each individual case whether the smaller or the larger interest was actually sold in execution ".
But it has contended that a partition after the decree but before the auction sale limited the efficacy of the sale to the share of the father even though the sale in fact was of the whole estate, including the interest of the sons, because after the partition the father no longer possessed the right of alienation of the whole coparcenary estate to discharge his debts.
But this contention ignores the doctrine of pious obligation of the sons.
The right of the pre partition creditor to seize the property of the erstwhile joint family in execution of his decree is not dependent upon the father 's power to alienate the share of his sons but on the principle of pious obligation on the part of the sons to discharge the debt of the father.
The pious obligation continues to exist even though the power of the father to alienate may come to an end as a result of partition.
The consequence is that as between the sons ' right to take a vested interest ' jointly with their father in their ancestral estate and the remedy of the father 's creditor to seize the whole of the estate for payment of his debt not contracted for immoral or illegal purpose, the latter will prevail and the sons are precluded from setting tip their right and this will apply even to the divided property which, under the doctrine of pious obligation continues to be liable.
for the debts of the father.
Therefore where the joint ancestral property including the share of the sons has (1) (1885) L.R. 13 I. A. 1, 17, 18.
1396 passed out of the family in execution of the decree on the father 's debt the remedy of the sons would be to prove in appropriate proceedings taken by them the illegal or immoral purpose of the debt and in the absence of any such proof the sale will be screened from the sons ' attack, because even after the partition their share remains liable.
Girdhareelal vs Kantoolal (1), Suraj Bansi Koer vs Sheo Prasad Narain Singh(2) Mussamat Nanomi Babuasin vs Modwn Mohun (3) Chandra Deo Singh vs Mata Prasad (4) which was approved by the Privy Council in Sahu Ram Chander vs Bhup Singh (5), Pannalal vs Naraini (6) and Sidheshwar Mukherji 's case (7).
Our attention was drawn to two decisions, one by the High Court of Bombay in Ganpatrao vs Bhimrao (8) that in order to make the share of the sons liable after partition they should be brought on the record and the other of the Madras High Court in Kameshwaramma vs Venkatasubba Row(9) that the creditor has to bring another suit against the sons, obtain a decree against them limited to the shares allotted to them on partition and then attach and sell their share unless the partition was not bona fide in which case the decree could be executed against the joint family property.
But the decision in these cases must be confined to their own facts.
It is true that the right of the father to alienate for payment of personal debt is ended by the partition, but as we have said above, it does not affect the pious duty of the sons to discharge the debt of their father.
Therefore where after attachment and a proper notice of sale the whole estate including the sons ' share, which was attached, is sold and the purchaser buys it intending it to be the whole coparcenary estate, the presence of the sons eonomine is not necessary because they still have the right to challenge the sale on showing the immoral or illegal purpose of the debt.
In our opinion where the pious obligation exists and partition takes place after the decree and (1) (1874) L.R. i I.A. 321.
(2) (1878) L.R. 6 I.A. 88, 101.
(3) (1885) L.R. 13 I.A. Y. (4) All. 176, 196.
(5) (1916) L.R. 44 I.A. 1.
(6) ; , 552, 553, 556, 559.
(7) ; , 183, Bom.
(9) Mad.
1397 pending execution proceedings as in the present case, the sale of the whole estate in execution of the decree cannot be challenged except on proof by the sons of the immoral or illegal purpose of the debt and partition cannot relieve the sons of their pious obligation or their shares of their liability to be sold or be a means of reducing the efficacy of tile attachment or impair the rights of the creditor.
Reliance is placed on the judgment in Khiarajmal vs Daim (1) where the Privy Council held that the sale cannot be treated as void on the ground of mere irregularity but the Court has no jurisdiction to sell the property of persons " not parties to the proceedings or properly represented on the record ".
There two such persons were Alibux and Naurex.
As against Alibux there was no decree.
He was not a party to the suit, and it was held by the Privy Council that his interest in the property " seems to have been ignored altogether ".
He was not even mentioned as a debtor in the award on the basis of which the decree, which was executed was made.
Similarly Naurez was not represented in either of the suits and therefore there was no decree against him and the sale of his property also was therefore without jurisdiction and null and void.
This case cannot apply to sons in a joint Hindu family where a father represents the family and the decree is executable against the shares of the sons while the coparcenary continues and the liability of their shares continues after partition.
Sat Narain vs Das (2) is equally inapplicable to the present case.
There the Privy Council was dealing with the father 's power of disposal of property before and after partition which power vests in the Official Assignee on his bankruptcy, the question of the right of the judgment creditor to proceed in execution against the divided shares of sons which had been attached before partition was not a point in controversy.
There was no decision on the powers of an executing court to proceed against the shares of the sons but the question related to voluntary alienations by a father for payment of his debts not incurred for an immoral or illegal purpose.
(1) (1904) L.R. 32 I.A. 23.
(2) (1936) L.R. 63 I.A. 384.
1398 In cases where the sons do not challenge the liability of their interest in the execution of the decree against the father and the Court after attachment and proper notice of sale sells the whole estate and the auction purchaser purchases and pays for the whole estate, the mere fact that the sons were eo nomine not brought on the record would not be sufficient to defeat the rights of the auction purchaser or put an end to the pious obligation of the sons.
As was pointed out by Lord Hobhouse in Malkarjun Bin Shidramappa Pasare vs Narhari Bin Shivappa (1): " Their Lordships agree with the view of the learned Chief Justice that a purchaser cannot possibly judge of such matters, even if lie knows the facts; and that if he is to be held bound to enquire into the accuracy of the Court 's conduct of its own business, no purchaser at a Court sale would be safe.
Strancers to a suit are justified in believing that the Court has done that which by the directions of the Court it ought to do.
" In Mussamat Nanomi Babuasia vs Modun Mohun Lord Hobhouse said at p. 18: " But if the fact be that the purchaser has bargained and paid for the entirely, he may clearly defend his title to it upon any ground which would have justified a sale if the sons had been brought in to oppose the executing proceedings.
" The question which assumes importance in an auction sale of this kind therefore is what did the court intend to sell and did sell and what did the auction purchaser purport to buy and did buy and what did he pay for.
One track of decision of which Shambu Nath Pandey vs Golab Singh(3) is an instance, shows when the father 's share alone passes.
In that case the father alone was made a party to the proceedings.
The mortgage, the suit of the creditor and the decree and the sale certificate all purported to affect the rights of the father and his interest alone.
It was therefore held that whatever the nature of the debt, only the father 's (1) (1900) L.R. 27 I.A. 216, 225.
(2) (1885) L.R. 13 I.A. i. (3) (1887) L.R. 14 I.A. 77.
1399 right and interest was intended to pass to the auction purchaser.
In Meenakshi Naidu vs Immudi Kanaka Rammaya Kounden(1) which represents the other track of decision, the Privy Council held that upon the documents the court intended to sell and did sell the whole of the coparcenary interest and not any partial interest.
The query in decided cases has been as to what was put up for sale and was sold and what the purchaser had reason to think he was buying in execution of the decree.
Mussamat Nanomi Babuasin vs Modun Mohun (2) (supra), Bhagbut Persad vs Mussamat Girja Koer (3), Meenakshi Naidu vs Immudi Rammaya Kounden (1) and Rai Babu Mahabir Persad vs Rai Markunda Nath Sahai (4) and Daulat Ram vs Mehr Chand (5).
In the present case the payment order was made by the Deputy Registrar on April 21, 1942, and after the order had been sent to the Collector for recovery, the property was attached on April 24, 1942, and notice of sale was issued on November 24, 1942, and was published under sections 165 and 166 of the Bombay Land Revenue Code.
The proclamation of sale was dated December 12, 1942.
The property put up for sale was plot No. 36 D measuring 6 acres and one guntha and its value was specified as 13,000 rupees.
There was a note added : " No guarantee is given of the title of the said defendant or of the validity of any of the rights, charges or interests claimed by third parties ".
The order confirming the sale also shows that the whole bungalow was sold.
It was valued at Rs. 16,000 and there was a mortgage of Rs. 2,000 against it and what was sold and confirmed by this order was the whole bungalow.
The sale certificate was in regard to the whole bungalow i. e. City Survey No. 67 D measuring 6 acres and one guntha the sale price being Rs. 13,025.
There is little doubt therefore that what was put up for auction sale was the whole bungalow 2,0.6 (1) (1888) L.R. 16 I.A. i. (3) (1888) L.R. 15 I.A. 99.
(5) (1889) L.R. 14 I.A. 187.
178 (2) (1885) L.R. 13 I.A. i. (4) (1889) L.R. 17 I.A. 11, 16.
1400 and what the auction purchaser purported to buy and paid for was also the whole bungalow and not any fractional share in it.
It is a case where not only was the payment order passed before the partition but the attachment was made and the sale proclamation was issued before the suit for partition was filed and the sale took place of the whole property without any protest or challenge by the sons and without any notice to the Collector or the judgment creditor of the filing of the suit for partition.
In such a case respondent No. 1 is entitled to defend his title upon the grounds which would have justified the sale had the appellants been brought on record in execution proceedings.
The binding nature of the decree passed on the father 's debts not tainted with immorality or illegality, and the pious obligation imposed on the sons under the Mitakshara law would be sufficient to sustain the sale and defeat the sons ' suit in the same way and on the same grounds as in the case of execution proceedings.
Nanomi Babuasin vs Modun Mohun (1).
Consequently whether the sons were made parties to the execution proceedings or brought a suit challenging the sale of their shares the points for decision are the same the nature of the debts and liability of the sons under Hindu law, and these are the determining factors in both the cases i.e. the sons being parties to the execution proceedings or their suit challenging the sale of their shares.
The effect of attachment on the severance of status by the filing of a suit by one of the members of the coparcenary whose share was liable in execution of the decree has not been debated at the bar and how exactly it would affect the rights of the parties need not therefore be decided in this case.
As a consequence it would not be necessary to discuss the pronouncements of the Privy Council in Suraj Bansi Koer vs Sheo Prasad Singh (2) ; Moti Lal vs Karrabuldin (3) Ragunath Das vs Sundar Das Khetri (4); Ananta Padmanabha Swami vs Official Receiver, Secunderabad (5).
(1) (1885) L.R. 13 I.A. i. (3) (1897) L.R. 24 I.A. 170.
(2) (1878) L.R. 6 I.A. 88, 101.
(4) (1914) L.R. 41 I.A. 251.
(5) (1933) L.R. 60 I.A. 167, 174 5.
1401 The argument based on the interpretation of the words I right, title and interest of the defaulter ' in section 155 of the Bombay Land Revenue Code was that it was only the share of the defaulter himself which was and could be put up for auction sale.
That the whole of the property was put up for sale, was sold and was purchased as such is shown by the documents to which reference has already been made viz., the notice of November 24, 1942, proclamation of sale of Decem ber 24, 1,942, the order of confirmation of sale dated June 28, 1943, and the sale certificate issued by the Collector.
The Civil Procedure Code at the time of the enactment of the Bombay Land Revenue Code required that the property sold in execution should be described as " right, title and interest of the judgment debtor " and the same words have been used in section 155 of the Bombay Land Revenue Code.
It is a question of fact in each case as to what was sold in execution of the decree.
In Rai Babu Mahabir Prasad vs Markunda Nath Sahai (1) Lord Hobhouse observed as follows at p. 16 : " It is a question of fact in each case, and in this case their Lordships think that the transactions of the 4th and 5th of January, 1875, and the description of the property in the sale certificate, are conclusive to shew that the entire corpus of the estate was sold.
" Similarly in Meenakshi Naidu vs Immudi Kanaka Rammaya Kounden (2) the whole interest of the coparcenary was held to be sold taking into consideration the evidence which had been placed on the record.
Lord FitzGerald at p. 5 pointed out the difference where only the father 's interest was intended to pass: "In Hurdey Narain 's case" (Hurdey Narain vs Rooder Perkash (3)) " all the documents shewed that the Court intended to sell and that it did sell nothing but the father 's share the share and interest that he would take on partition, and nothing beyond it and this tribunal in that case puts it entirely upon the ground (1) (1889) L.R. 17 I.A. 11, 16.
(2) (1888) L.R. 16 I.A. i. (3) (1883) L. R. 11 I. A. 26, 29. 1402 that everything shewed that the thing sold was "whatever rights and interests, the said judgment debtor had in the property " and nothing else ".
In Sripat Singh vs Tagore (1) the "right, title and interest of the judgment debtor" were sold and there also it was held to convey the whole coparcenary estate and it was remarked that it was of the utmost importance that the substance and not merely the technicality of the transaction should be regarded.
What is to be seen is what was put up for sale what the court intended to sell and what the purchaser was intending to buy and what he purported to buy.
Counsel for the appellants relied on Shambu Nath Panday vs Golab Singh(2) where it was held that right and interest of the father meant personal interest but in that case as we have pointed out, the documents produced all showed that the father 's interest alone was intended to pass.
In Mulgund Co operative Credit Society vs Shidlingappa Ishwarappa (3) it was held that the sale under the Bombay Land Revenue Code has the same effect as the sale by the Civil Court.
The language used in the Bombay Land Revenue Code and the then existing Civil Procedure Code is similar i.e. " the right, title and interest of the defaulter " in one case and " of the judgment debtor " in the other.
This is supported by the observation of the Privy Council in Rai Babu Mahabir Prasad vs Markunda Nath Sahai (4) and as to what passed under the sale does not become any different merely because the sale is held under section 155 of the Bombay Land Revenue Code rather than the Code of Civil Procedure.
The effect in both cases is the same.
We hold therefore (1) that the liability of the sons to discharge the debts of the father which are not tainted with immorality or illegality is based on the pious obligation of the sons which continues to exist in the lifetime and after the death of the father and which does not come to an end as a result of partition of the joint family property.
All that results from partition is that the right of the father to make an (i) (1916) L.R. 44 I.A. i. (3) A.I.R. 194i Bom.
(2) (1887) L.R. 14 I.A. 77.
(4) (1880) L.R. 17 I.A. 11, 16.
1403 alienation comes to an end.
(2) Where the right, title and interest of a judgment debtor are set up for sale as to what passes to the auction purchaser is a question of fact in each case dependent upon what was the estate put up for sale, what the Court intended to sell and what the purchaser intended to buy and did buy and what he paid for.
(3) The words di right, title and interest " occurring in section 155 of the Bombay Land Revenue Code have the same connotation as they had in the corresponding words used in the Code of Civil Procedure existing at the time the Bombay Land Revenue Code was enacted.
(4) In execution proceedings it is not necessary to implead the sons or to bring another suit if severance of status takes place pending the execution proceedings because the pious duty of the sons continues and consequently there is merely a difference in the mode of enjoyment of the property.
(5) The liability of a father, who is a managing director and who draws a salary or a remuneration, incurred as a result of negligence in the discharge of his duties is not an avyavaharika debt as it cannot be termed as " repugnant to good morals ".
In the result the appeal fails and is dismissed with costs.
SINHA J.
I agree to the order proposed.
Appeal dismissed.

dataset_name: IN-Abs

summary/full:
j was the managing director of a Co operative Bank getting a yearly remuneration of Rs. 1,000.
The Bank went into liquidation and an examination of the affairs having showed that the monies of the Bank were not properly invested and that J was negligent in the discharge of his duties, a payment order for Rs. 15,100 was made by the Deputy Registrar of Co operative Societies against him.
On July 27, 1942, for the realisation of the amount, an item of property belonging to the joint family of J was attached by the Collector and brought to sale under section 155 of the Bombay Land Revenue Code, and purchased at auction by the first respondent.
This sale was held on February 2, 1943, and confirmed on June 23, 1943.
In the meantime on January 15, 1943, one of the sons of J instituted a suit for partition and separate possession of his share in the joint family properties, and contended, inter alia, that the sale in favour of the first respondent was not binding on the joint family.
The sale was challenged on the grounds (1) that the liability which J incurred was avyavaharika and therefore the interest of his sons could not be sold for the realisation of the debt, (2) that even if the debt was not avyavaharika, the institution of the suit for partition operated as severance of status between the members of the family and, therefore, the father 's power of disposition over the son 's share had come to an end and, consequently, at the auction sale the share of the ' sons did not pass to the auction purchaser, and (3) that what could legally be sold under section I55 1385 of the Bombay Land Revenue Code was the right, title and interest of the defaulter, i. e., the father alone, which could not include the share of the other members of the joint family.
The evidence consisting of the notice for sale, the proclamation of sale and the sale certificate showed that the whole of the property was sold, and not the share of the father alone.
Held, that the liability which J incurred was not avyava harika and that the sale of the joint family property, including the share of the sons, for the discharge of the debt, was valid.
Held, also, that, Colebrooke 's translation of the term avyavaharika as "any debt for a cause repugnant to good morals,", was the nearest approach to the true concept of the term as used in the Smrithi texts.
Hem Raj alias Babu Lal vs Khem Chand, (1943) L. R. 70 I. A. 171, relied on.
Per Imam and Kapur jj. (1) The liability of the sons to discharge the debts of the father which are not tainted with immorality or illegality is based on the pious obligation of the sons which continues to exist in the lifetime and after the death of the father and which does not come to an end as a result of partition of the joint family property.
All that results from partition is that the right of the father to make an alienation comes to an end.
(2) Where the right, title and interest of a judgment debtor are set up for sale, as to what passes to the auction purchaser is a question of fact in each case dependent upon what was the estate put up for sale, what the Court intended to sell and what the purchaser intended to buy and did buy and what he paid for.
(3) The words "right, title and interest " occurring in section I55 of the Bombay Land Revenue Code have the same connotation as they had in the corresponding words used in the Code of Civil Procedure existing at the time the Bombay Land Revenue Code was enacted.
(4) In execution proceedings it is not necessary to implead the sons or to bring another suit if severance of status takes place pending the execution proceedings because the pious duty of the sons continues and consequently there is merely a difference in the mode of enjoyment of the property.
(5) The liability of a father, who is a managing director and who draws a salary or a remuneration, incurred as a result of negligence in the discharge of his duties is not an avyavaharika debt as it cannot be termed as " repugnant to good morals Case Law discussed.
Panna Lal vs Mst.
Naraini, ; and Sudhashway Mukherjee vs Bhubneshwar Prasad Narain Singh, [1954] S.C.R. 177, followed.
Khiarajmal vs Daim, (1904) L.R. 32 I.A. 23 and Sat Narain vs Das, (1936) L.R. 63 I.A. 384, distinguished.
Mulgund Co operative Credit Society vs Shidlingappa Ishwa rappa, A.I.R. 1941 Bom.
381, approved. 1386


judgement:
Criminal Appeal No. 128 of 1990.
From the Judgment and Order dated 19.8.1989 of the Patna High Court in Criminal Miscellaneous No. 2314 of 1989.
A.D. Sikri, Ranjan Mukherjee and D. Goburdhan for the Appellant.
R.K. Garg and A. Sharan for the Respondents.
The Judgment of the Court was delivered by FATHIMA BEEVI, J.
Special leave granted.
790 The legality of the order of the High Court dated 19.8.
1989 passed on an application made under section 482 Cr.
P.C. is challenged in this appeal.
In a case instituted on a private complaint by the appellant for offences under sec tions 452 and 323 I.P.C., the Judicial Magistrate First Class, Patna, in exercise of power under section 192(2) Cr.
P.C. transferred the case for enquiry under section 202 of the Code.
The Court of the Second Class Magistrate, after examining witnesses, by order dated 22.3.
1985 issued proc ess to the two accused, the respondents herein.
The order of the Magistrate issuing process was challenged by the re spondents under section 482 before the High Court.
The main ground urged before the High Court was that the First Class Magistrate had transferred the case without taking cogni zance of the offence and the subsequent proceedings were, therefore, illegal.
The High Court, by its order dated 20.8.88, dismissed the petition.
It was found that there was no such illegality.
The respondents again made Crl.
Petition 2314/89 under section 482 Cr.
P.C. before the High Court alleging, inter alia, that the record of the proceed ings on close scrutiny would indicate that the case had not been taken cognizance of before the transfer.
The learned Single Judge accepted the case of the respondents and quashed the proceedings by the impugned order.
The learned counsel for the appellant contended before us that the second application under section 482 Cr.
P.C. was not entertainable, the exercise of power under section 482, on a second application by the same party on the same ground virtually amounts to the review of the earlier order and is contrary to the spirit of section 362 of the Cr.
P.C. and the High Court was, therefore, clearly in error in having quashed the proceedings by adopting that course.
We find considerable force in the contention of the learned counsel.
The inherent power under section 482 is intended to prevent the abuse of the process of the Court and to secure ends of justice.
Such power cannot be exercised to do something which is expressly barred under the Code.
If any considera tion of the facts by way of review is not permissible under the Code and is expressly barred, it is not for the Court to exercise its inherent power to reconsider the matter and record a conflicting decision.
If there had been change in the circumstances of the case, it would be in order for the High Court to exercise its inherent powers in the prevailing circumstances and pass appropriate orders to secure the ends of justice or to prevent the abuse of the process of the Court.
Where there is no such changed circumstances and the decision has to be arrived at on the facts that existed as on the date of the earlier order, the exercise of the power to reconsider the 791 same materials to arrive at different conclusion is in effect a review, which is expressly barred under section 362.
In the present case, there had been a definite finding that the complaint was taken cognizance of by the Magistrate before he transferred the proceedings under section 192(2) for enquiry under section 202 Cr.
This finding has been arrived at after perusal of the record of the proceedings before the Magistrate and on a consideration of the report of the concerned Magistrate.
A reappraisal of the facts on record to determine whether such cognizance had been taken of in a subsequent proceeding is not, therefore, warranted.
The only ground on which relief was claimed is the alleged irregularity in the transfer of the proceedings.
It was not open to the parties to reagitate the question by a fresh application nor was the court empowered under section 482 to reconsider the matter.
Section 362 of the Code expressly provides that no court when it has signed its judgment or final order disposing of a case, shall alter or review the same except to correct a clerical or arithmetical error save as otherwise provided by the Code.
Section 482 enables the High Court to make such order as may be necessary to give effect to any order under the Code or to prevent abuse of the process of any Court or otherwise to secure the ends of justice.
The inherent pow ers, however, as much are controlled by principle and prece dent as are its express powers by statute.
If a matter is covered by an express letter of law, the court cannot give a go by to the statutory provisions and instead evolve a new provision in the garb of inherent jurisdiction.
In Superintendent & Remembrancer of Legal Affairs vs Mohan Singh, , this Court held that section 561A preserves the inherent power of the High Court to make such orders as it deemed fit to prevent abuse of the process of the Court or to secure the ends of justice and the High Court must therefore exercise its inherent powers having regard to the situation prevailing at the particular point of time when its inherent jurisdiction is sought to be invoked.
In that case the facts and circumstances obtaining at the time of the subsequent application were clearly different from what they were at the time of the earlier application.
The question as to the scope and ambit of the inherent power of the High Court vis a vis an earlier order made by it was, therefore, not concluded by this decision.
The inherent jurisdiction of the High Court cannot be invoked to override bar of review under section 362.
It is clearly stated in Sooraj 792 Devi vs Pyare Lal, ; that the inherent power of the court cannot be exercised for doing that which is specifically prohibited by the Code.
The law is therefore clear that the inherent power cannot be exercised for doing that which cannot be done on account of the bar under other provisions of the Code.
The court is not empowered to review its own decision under the purported exercise of inherent power.
We find that the impugned order in this case is in effect one reviewing the earlier order on a reconsideration of the same materials.
The High Court has grievously erred in doing so.
Even on merits, we do not find any compelling reasons to quash the proceedings at that stage.
We allow the appeal and set aside the order of the High Court.
G.N. Appeal allowed.

summary/full:
A case was instituted on a private complaint by the appellant for offences under Sections 323 and 452 IPC before the Judicial Magistrate First Class, who transferred the case to Second Class Magistrate for enquiry.
The Second Class Magistrate issued process to the respondents, which was challenged under Section 482 Cr.
P.C., on the ground that the First Class Magistrate transferred the case without taking cognizance and that the subsequent proceedings were illegal.
The High Court dismissed the petition.
Again the respondents approached the High Court under Section 482 Cr.
P.C. alleging that the case had not been taken cognizance of, before it was transferred.
This time the High Court accepted the plea and quashed the proceedings.
This appeal, by special leave, challenges the High Court 's order on the grounds that the second application under Section 482 Cr.
P.C. ought not to have been entertained as it amounted to review of the earlier order and it was contrary to the spirit of section 362 Cr.
Allowing the appeal, this Court, HELD: 1.1 The inherent power under Section 482 Cr.
P.C. is intended to prevent the abuse of the process of the Court and to secure ends of justice.
Such power cannot be exer cised to do something which is expressly barred under the Code.
If any consideration of the facts by way of review is not permissible under the Code and is expressly barred, it is not for the Court to exercise its inherent power to reconsider the matter and record a conflicting decision.
If there had been change in the circumstances of the case, it would be in order for the High Court to exercise its inher ent power in the prevailing circumstances and pass appropri ate orders to secure the ends of justice or to 789 prevent the abuse of the process of the Court.
Where there is no such changed circumstance and the decision has to be arrived at on the facts that existed as on the date of earlier order, the exercise of the power to reconsider the same materials to arrive at different conclusion is in effect a review, which is expressly barred under section 362.
[790F H; 791A] 1.2 Ira matter is covered by an express letter of law, the court cannot give a go by to the statutory provisions and instead evolve a new provision in the garb of inherent jurisdiction.
The inherent jurisdiction of the High Court cannot be invoked to override bar of review under Section 362 Cr.
P.C. [791E H] Sooraj Devi vs Pyare Lal, ; , relied on.
Superintendent & Rememberancer of Legal Affairs vs Mohan Singh, , referred to. 2.
In the instant case, there had been a definite find ing that the complaint was taken cognizance of by the Magis trate before he transferred the proceedings under section 192(2) Cr.
P.C. for enquiry under section 202 Cr.
This finding has been arrived at after perusal of the record of the proceedings before the Magistrate and on a consideration of the report of the concerned Magistrate.
A reappraisal of the facts on record to determine whether such cognizance had been taken in a subsequent proceeding is not, therefore, warranted.
It was not open to the parties to reagitate the question by a fresh application nor was the court empowered under section 482 to reconsider the matter.
[791 B C]


judgement:
ivil Appeal No. 1349 of 1990 From the Judgment and Order dated 18.8.1988 of the Kerala High Court in E.S.A. No. 23 of 1987.
section Padmanabhan and R.N. Keshwani for the appellant.
The Judgment of the Court was delivered by K. JAGANNATHA SHETTY, J.
Special leave granted.
An extent of 80 cents of land which is in dispute in this appeal was agreed to be sold in favour of the appellant under an agreement dated October 9, 1978.
Before the sale deed was executed, a third party in execution of a decree got the property attached on November 16, 1978.
The sale deed was executed on November 23, 1978.
The question is: Does the sale prevail over the attachment? The High Court of Kerala in the judgment under appeal has held that the sale would be subject to attachment.
This appears from the following observation: "The sale deed was executed at a time when the property was already under attachment.
It is true that even before af fecting attachment there was an agreement for sale by Saroj ini Ramakrishnan in favour of the appellant.
But the agree ment for sale will not create any interest in the property.
The fact that Ext.
A 12 Sale deed was executed on the basis of an agreement executed before the attachment will not place the appellant in any better position.
He could take the 80 cents under Ext.
A 12 only subject to the attachment.
" 834 The correctness of the view taken by the High Court has been called into question in this appeal.
We may first draw attention to some of the relevant statutory provisions bearing on the question.
Order 38 Rule 10 of the Code of Civil Procedure provides that attachment before judgment shall not affect the rights existing prior to the attachment of persons not parties to the suit.
Under Section 40 of the Transfer of Property Act, a purchaser under a contract of sale of land is entitled to the benefit of an obligation arising out of that contract and it pro vides that that obligation may be enforced inter alia against a transferee with notice.
Section 91 of the Trusts Act also recognises this principle that the transferee with notice of an existing contract of which specific performance can be enforced must hold the property for the benefit of the party to the contract.
These are equitable rights though not amounting to interest in immovable property within the meaning of Section 54 of the Transfer of Property Act which declares that a contract of sale does not create an interest in the property.
On this line of reasoning it has been held by the Madras High Court that the purchaser of an antecedent agreement gets good title despite attachment.
See Paparaju Veeraraghavayya vs Killaru Kamala Devi & Ors., AIR 1935 Mad. 193, Veerappa Thevar & Ors.
C.S. Venkataramma Aiyar & Ors., AIR 1935 Mad. 872 and Angu Pillai
M.S.M. Kasiviswa nathan Chettiar, There is a useful parallel from the decision of the Calcutta High Court in Purna Chandra Basak vs Daulat Ali Mollah, AIR 1973 Cal.
432 wherein it was observed that the attaching creditor attaches only the right, title and inter est of the debtor and attachment cannot confer upon him any higher right than the judgment debtor had at the date of attachment.
Hence, if under a contract of sale entered into before attachment, the conveyance after attachment in pursuance of the contract passes on good title inspite of the attachment.
To the same effect are the decisions of the Bombay High Court in Rango Ramachandra vs Gurlingappa Chinnappa, AIR 1941 Bom.
198 and Yashvant Shankar Dunakhe vs Prayarji Nurji Tamboli, AIR 1943 Bom.
The High Court of Travancore Cochin in Kochuponchi Varughese vs Quseph Lonan, AIR 1952 Travancore Cochin 467 has also adopted the same reasoning.
The Punjab & Haryana High Court however, has taken a con 835 trary view in Mohinder Singh and Anr.
vs Nanak Singh and Anr., AIR 1971 Pb. & Haryana 381.
It has been held that a sale in pursuance of a pre attachment agreement is a private afienation of property and must be regarded as void against the claim ot the attaching creditor.
In support of this proposition, Section 64 of the Code of Civil Procedure was relied upon which according to the High Court was intended to protect the attaching creditor against private aliena tion.
This was also the observation of the Lahore High Court in Buta Ram & Ors.
vs Sayyed Mohammad, AIR 1935 Lahore 71.
In our opinion, the view taken by the High Courts of Madras, Bombay, Calcutta and Travancore Cochin in the afore said cases appears to be reasonable and could be accepted as correct.
The agreement for sale indeed creates an obligation attached to the ownership of property and since the attach ing creditor is entitled to attach only the right, title and interest of the judgment debtor, the attachment cannot be free from the obligations incurred under the contract for sale.
64 CPC no doubt was intended to protect the attaching creditor, but if the subsequent conveyance is in pursuance of an agreement for sale which was before the attachment, the contractual obligation arising therefrom must be allowed to prevail over the rights of the attaching creditor.
The rights of the attaching creditor shall not be allowed to override the contractual obligation arising from an antecedent agreement for sale of the attached property.
The attaching creditor cannot ignore that obligation and proceed to bring the property to sale as if it remained the absolute property of the judgment debtor.
We cannot, there fore, agree with the view taken by the Punjab and Haryana High Court in Mohinder Singh 's case AIR 1971 Pb. & Haryana 381.
In the conclusion that we have reached, this appeal must beallowed and is accordingly allowed.
The order of the High Court is reversed and that of the trial court is restored.
In the circumstances of the case, we make no order as to costs.
P.S.S. Appeal allowed.

summary/full:
The land in dispute was agreed to be sold in favour of the appellant under an agreement.
Subsequently, a third party in execution of a decree got the property attached.
The sale deed was executed thereafter.
A question arose as to the validity of the sale.
The High Court held that the sale would be subject to attachment.
Allowing the appeal by special leave, the Court, HELD: The agreement for sale creates an obligation attached to the ownership of the property.
The attaching creditor is entitled to attach only the right, title and interest of the judgment debtor.
Hence, if an agreement for sale is entered into before attachment, the attachment cannot be free from the obligation so incurred, and the attaching creditor will not get any right higher than the judgment debtor had on the date of the attachment.
He cannot ignore that obligation and proceed to bring the property to sale as if it remained the absolute property of the judgment debtor.
[835C, 834F, 835E] Accordingly, though section 64 CPC is intended to protect the attaching creditor, but if the subsequent conveyance is in pursuance of an agreement for sale which was entered into before the attachment, the contractual obligation arising therefrom must be allowed to prevail over the rights of the attaching creditor.
The rights of the attaching creditor shall not be allowed to override the contractual obligation arising from the antecedent agreement for sale of the at tached property.
[835D E] Paparaju Veeraraghavayya vs Killaru Kamala Devi & Ors., AIR 1935 Mad. 193; Veerappa Thevar & Ors.
C.S. Venkataram ma Aiyar & Ors.
, AIR 1935 Mad. 872; Angu Pillai vs
M.S.M. Kasiviswanathan Chettiar, ; Puma Chandra Basak vs Daulat Ali Mollah, AIR 1973 Cal. 432; Rango Rama chandra vs Gurlingappa 833 Chinnappa, AIR 1941 Bom.
198; Yashvant Shankar Dunakhe vs Prayarji Nurji Tamboli, AIR 1943 Bom.
145 and Kochuponchi Varughese vs Quseph Lonan, AIR 1952 Travancore Cochin 467, approved.
Mohinder Singh & Anr.
vs Nanak Singh & Anr., AIR 1971 Pb. & Haryana 381, overruled.
The sale in the instant case would not thus be subject to the attachment.
The purchaser would get good title de spite attachment.
[833F, 834D]


judgement:
ivil Appeal No. 2998 of 1980.
From the Judgment and Order dated 17.11.1980 of the Aliahabad High Court in S.A. No. 2954 of 1979.
M.S. Gujral and Mohan Pandey for the Appellant.
Satish Chandra, Praveen Swarup and Pramod Swarup for the Respondent.
The Judgment of the Court was delivered by 801 THOMMEN, J.
This appeal by special leave arises from the judgment of the Allahabad High Court in Second Appeal No. 2954 of 1979 whereby the learned Judges 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 Hold ings Act, 1953 (hereinafter referred to as 'the Act ').
Hence the present appeal by the plaintiff.
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.
Defendants 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.
Defendant Nos. 3 and 4 readily agreed to make arangements 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 pur chased stamp papers in the name of the plaintiff.
On two deeds, which had been prepared at the instance of the de fendants, the plaintiff was made to put her thumb impres sions.
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 exe cuted 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 con spired 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.
Accord ingly, 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 defendant 's second appeal, the High Court held that the plaintiff was totally deceived as to the character of the document which she executed and the docu ment was, therefore, void and of no effect whatsoever.
Accordingly, the suit was barred under section 49 of the Act under which consolidation proceedings had been pending at the time of the 802 institution of the suit in respect of the property in ques tion.
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 vitiat ed by fraud, the transaction was viodable, but not void, and, therefore, the suit to set aside the sale was rightly instituted by her and the bar of section 49 was not attract ed.
The appellant contends that the suit is perfectly main tainable and the High Court was wrong in holding to the contrary.
Mr. Satish Chandra, appearing for the respondents, rightly, in our view, submits that two principles enunciated by this Court in Gorakh Nath Dube vs Hari Narain Singh & Ors., ; and Ningawwa vs Byrappa & 3 Ors.; , squarely apply to the facts of this case and the document in question evidenced a void transaction, and not a mere voidable transaction, and no suit was, there fore, maintainable in view of the bar contained in section 49 of the Act.
In Gorakh Nath Dube, (supra), this Court held that the object of the relevant provision of the Act was to remove from the jurisdiction of any civil court or revenue court all disputes which could be decided by the competent author ity under the Act during the consolidation proceedings.
Questions relating to the validity of a sale deed or a gift deed and the like had to be examined in proceedings before the statutory authorities.
The Court, however, drew a dis tinction between void and voidable documents and said a voidable document was one which remained in force until set aside, and such a document could be set aside only by a competent civil court, and a suit for that purpose would, therefore, be maintainable.
On the other hand, a claim that a transaction was void was a matter which could be adjudi cated upon by the consolidation courts.
This is what this Court stated: "We think that a distinction can be made between cases where a document is wholly or partially invalid so that it can be disregarded by any court or authority and one where it has to be actually set aside before it can cease to have legal effect.
An alienation made in excess of power to transfer would be, to the extent of the excess of power, invalid.
An adjudication on the effect of such a purported alienation would be necessarily implied in the decision of a dispute involving conflicting claims to rights or interests in 803 land which are the subject matter of consolidation proceed ings.
The existence and quantum of rights claimed or denied will have to be declared by the consolidation authorities which would be deemed to be invested with jurisdiction, by the necessary implication of their statutory powers to adjudicate upon such rights and interests in land, to de clare such documents effective or ineffective, but, where there is a document the legal effect of which can only be taken away by setting it aside or its cancellation, it could be urged that the consolidation authorities have no power to cancel the deed, and, therefore, it must be held to be binding on them so long as it is not cancelled by a court having the power to cancel it.
In the case before us, the plaintiffs claim is that the sale of his half share by his uncle was invalid, inoperative, and void.
Such a claim could be adjudicated upon by consolidation courts." (emphasis supplied) In Ningawwa vs Byrappa & 3 Ors., (supra), this Court referred to the well established principle that a contract or other transaction induced or tendered by fraud is not void, but only voidable at the option of the party defraud ed.
The transaction remains valid until it was avoided.
This Court then said: "The legal position will be different if there is a fraudu lent 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 misrepresenta tion as to the contents thereof.
With reference to the form er, it has been held that the transaction is void, while in the case of the latter, it is merely voidable.
In Foster vs Mackinon, , the action was by the endorsee of a bill of exchange.
The defendant pleaded that he endorsed the bill on a fraudulent representation by the acceptor that he was signing a guarantee.
In holding that such a plea was admissible, the Court observed: 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 804 contract to which his name is 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." (emphasis supplied) From the facts narrated above, about which, as stated earlier, there is no dispute, it is clear that this is a case where the plaintiffappellant was totally ignorant of the mischief played upon her.
She honestly believed that the instrument which she executed and got registered was a gift deed in favour of her daughter.
She believed that the thumb impressions taken from her were in respect of that single document.
She did not know that she executed two documents, one of which alone was the gift deed, but the other Was a sale of the property in favour of all the defendants.
This was, therefore, a case of fraudulent misrepresentation as to the character of the document executed by her and not merely as to its contents or as to its legal effect.
The plaintiff appellant never intended to sign what she did sign.
She never intended to enter into the contract to which she unknowingly became a party.
Her mind did not accompany her thumb impressions.
This is a case that fails within the principle enunciated in Ningawwa vs Byrappa & 3 Ors., (supra) and it was, therefore, a totally void transaction.
Accordingly, as stated in Gorakh Nath Dube (supra), the suit is not maintainable by reason of the bar contained in the Act.
The High Court has, in our view, rightly held that the remedy of the plaintiff lies in the proceedings pending before the consolidation authorities and it is open to the parties to approach them for appropriate relief.
In the circumstances, we see no merit in this appeal.
It is, ac cordingly, dismissed, but we make no order as to costs.
P.S.S. Appeal dismissed.

summary/full:
Section 49 of the U.P. Consolidation of Holdings Act, 1953 puts a bar on the civil and revenue courts in respect of disputes in regard to which proceedings could or ought to have been taken under the Act.
The plaintiff appellant, an illiterate lady, wanted to make a gift of her properties in favour of her daughter.
Defendant Nos. 3 and 4, who undertook to make arrangements to execute and register the necessary deed, however, prac tised a fraud on her.
They made her put her thumb impression on two documents which she had been told and she honestly believed were the gift deed in favour of her daughter.
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 the defendants.
Later when she tame to know of the facts, she filed a suit for cancellation of the sale deed.
Consoli dation proceedings were then pending in respect of the property in question.
The suit was decreed by the trim court and that decree was confirmed in appeal by the First Appellate Court.
The High Court, however, found that the plaintiff was totally deceived as to the character of the document which she had executed and the document was, therefore, void and of no effect whatsoever.
Accordingly, it held that the suit was barred by reason of section 49 of the Act.
In the appeal by special leave it was contended for the appellant that since it was a case of the document having been vitiated by fraud, the transaction was voidable but not void and, therefore, the bar of section 49 of the Act was not attracted.
Dismissing the appeal, the Court, HELD: 1.1 A voidable document is one which remains in force 800 until set aside and such a document can be set aside only by a competent civil court.
A suit for that purpose would, therefore, be maintainable.
A claim that a transaction is void is, however, a matter which can be adjudicated upon by the consolidation authorities.
[802E F] Gorakh Nath Dube vs Hari Narain Singh & Ors., ; , referred to. 1.2 In the instant case, the plaintiff appellant was totally ignorant of the mischief played upon her.
She hon estly believed that the instrument which she executed and got registered was a gift deed in favour of her daughter.
She believed that the thumb impressions taken from her were in respect of that single document.
She did not know that she had executed two documents, one of which alone was the gift deed, but the other was a sale of the property in favour of the defendants.
This was, therefore, a case of fraudulent misrepresentation as to the character of the document executed by her and not merely as to its contents or as to its legal effect.
The plaintiff appellant never intended to sign what she did sign.
She never intended to enter into the contract to which she unknowingly became a party.
Her mind did not accompany her thumb impressions.
It was thus a totally void transaction.
[804C E] Ningawwa vs Byrappa & Ors., ; , applied.
No suit was, therefore, maintainable by reason of the bar contained in section 49 of the Act.
[804E] 2.
The remedy of the plaintiff lies in the proceedings pending before the consolidation authorities and it is open to the parties to approach them for appropriate relief.
[804F]