R.S. Pathak, C.J.
1. This revision petition by the defendants is directed against an order of the learned Senior Subordinate Judge, Hamirpur, allowing a substitution application.
2. A suit was brought by one Smt. Ambo for a declaration that she was the owner of the property possessed by her and that the gift executed by her on February 3, 1969 was vitiated by fraud and misrepresentation and, therefore, should be set aside. During the pendency of the suit Smt. Ambo died. An application was made by her daughter's sons praying that they be substituted as legal representatives. By an order dated February 27, 1976, the learned Senior Subordinate Judge, Hamirpur, has held that on the death of Smt Ambo the right to sue survives to her legal representatives, and accordingly he has directed their substitution in place of the deceased,
3. By this revision petition, the petitioner challenges the validity of that order.
4. It is urged by learned counsel for the petitioner that the right to sue for a declaration that the gift deed was induced by fraud and misrepresentation was a right personal to Smt. Ambo, the donor of the gift, and as that right couldnot be transferred or inherited the Bight to sue for the declaration did not survive. It is the truth of this proposition that must now be examined.
5. Section 126 of the Transfer of Property Act provides that inter alia 'a gift may also be revoked in any of the cases (save want or failure of consideration) in which, if it were a contract, it might be rescinded'. A gift may, therefore, be revoked for coercion, fraud, misrepresentation or undue influence much as a contract may be rescinded. The right to revoke a gift on those grounds is a right conferred by statute. It does not flow from any personal contract between the parties to the case. It is not a right which is confined in point of time to the individual self of the donor. It is not a right which dies with him. On the death of the donor, the cause of action survives to his legal representatives. In Ghumna v. Ram Chandra Rao, AIR 1925 All 437, a Division Bench of the Allahabad High Court repelled the contention that a voidable gift could not be avoided by the donor's heire. It was observed: (at p. 438)
'It is not quite correct to say that the right of exercising such an option is like a personal contract which does not survive to the heirs of the promisor. The right is given to the promisor under statute.'
A further reason for that view lies in the nature of the transaction, that the gift is more than a mere contract, that it is a conveyance. And so it was said by the same learned Judges: (at p. 438)
'The present plaintiffs can claim that there was no absolute transfer of the property at all, but it was a qualified transfer, that is subject to the right of the transferor to avoid it if he chose to do so. The plaintiffs, therefore, can claim the property by avoiding the deed of gift which could have been avoided by their predecessor. There does not seem to be any valid ground for the saying that the right does not survive to the present plaintiffs.'
6. Marten, C. J. of the Bombay High Court, referred to the provisions in the Indian Contract Act which contemplated that in certain cases the benefit and burden of promises should devolve on legal representatives. Referring to Section 19 and Section 19-A of the Contract Act, he said in Shravan Goba v. Kashiram Devji, AIR 1927 Bom 384 (at pp. 387, 388)
'In this connexion it may be pointed out that the appellant is forced argument to go this length that the representatives cannot take advantage of either branch of Section 19. The result, therefore, would be that if a man was defrauded or induced to enter into a contract by fraud and died the next day, his representatives could not avoid the contract under the first part of Section 19. Nor could they even Under the second branch insist that the contract should be performed on the basis that the representations made were true. On what principle of justice or equity that construction should be put on Section 19 or on the corresponding Section 19-A I entirely fail to see. No authority going to this length has been cited to us, and speaking for myself, I decline to be the first Judge to adopt what seems to me a forced, unnatural and unjust construction of this Act.'
Under the English Law it is deemed clearly settled that in equity not only may a party to a contract himself bring a suit to set it aside but also that his legal representatives may do so after his death. Reference may be made to All card v. Skinner, (1887) 36 Ch D 145, Mitchell v. Homfray, (1881) 8 QBD 587, Morley v. Loughnan, (1893) 1 Ch 736, Gresley v. Mousley, (1859) 28 LJ Ch 620 and Holman v. Loynes, (1854) 4 De GM & G 270.
7. Learned counsel for the petitioner relies on the following passage in Baijnath Singh v. Brijraj Kuar, AIR 1922 Pat 514 (at p. 525):
'I agree that if this were a voidable contract and not void ab initio it would have to be set aside before a suit for possession could be maintained and further that Bhagela Kuer could not transfer the mere right to sue.....'
While making this observation, Dawson Miller, C. J. of the Patna High Court can be said to have expressed himself obiter only, because he found in fact that the transaction was void inasmuch as there was never any consent to the gift within the meaning of Section 19, of the Indian Contract Act. Reliance was also placed on the following observation in Mt. Azizunnissa v. Siraj Husain, AIR 1934 All 507 (at p. 51-1):
'The right of revocation which is given by Section 126, T. P. Act, appears to us to be a right which is personal to the donor.'
This observation, when read in context, is plainly intended to refer to the mode in which a donor can revoke a gift. Inany event, on the considerations already mentioned, I am unable to subscribe to the view that a gift cannot be revoked by the heir of a donor. In my opinion, if a gift has been induced by fraud and misrepresentation, the right to sue for a declaration that the gift is invalid survives the death of the donor.
8. The order of the learned Senior Subordinate Judge is plainly right.
9. The revision petition fails and is dismissed with costs.