Calcutta High Court
Ritashree Basu vs State Of West Bengal And Ors. on 16 August, 2004
Equivalent citations: 2005(1)CHN7
Author: D.K. Seth
Bench: Dilip Kumar Seth
JUDGMENT D.K. Seth, J.
1. In this case the father of the appellant Ranjit Pal Chowdhury executed a registered deed of patta on 23rd March, 1953 settling certain lands (16.64 acres) in favour of her daughter who was then 5 years old represented by her mother and guardian. This document included the present lands in question measuring about 3.64 acres recorded as orchard (Bagan). In the return submitted by Ranjit Pal Chowdhury in 'B' Form under the West Bengal Estates Acquisition Act (WBEA Act), the entire 16.64 acres of land settled in favour of Ritashree Pal Chowdhury was retained by her father Ranjit Pal Chowdhury. On the strength of the retention, the land was recorded in the R. S. record-of- rights in the name Ritashree Pal Chowdhury. Mr. Mukherjee submits that Ritashree Pal Chowdhury was married on 12th December, 1970 (page 65 of the Supplementary Paper Book); viz : before the family ceiling introduced under the West Bengal Land Reforms (Amendment) Act, 1969 became effective i.e., 15th February, 1971.
2. It appears that a proceeding under Section 57 read with Section 44(2A) under the WBEA Act was initiated against Ranjit Pal Chowdhury being Case No. 193 of 1968. In the said proceeding, the record-of-right was corrected and the land was recorded within the estate of Ranjit Pal Chowdhury on the ground that the deed executed by Ranjit Pal Chowdhury in favour of Ritashree Pal Chowdhury was not acted upon. Mr. Mukherjee contends that this proceeding was initiated without any notice to the appellant.
3. It appears that a proceeding being Act VIII, Case No. 44 of 1955 was initiated before the Court of the Learned District Judge, Nadia by the mother of Ritashree for her appointment as guardian of the property of the minor. By an order dated 26th August, 1955, this application was allowed and the mother of Ritashree was appointed as guardian of the property of the minor (page 27 of the paper book).
4. Thus, it appears that the said deed executed on 23rd March, 1953 was acted upon as back as in 1955. Nothing has been produced before us to show that the Case No. 44 of 1955 was considered in the said Section 44(2A) proceedings under the WBEA Act. In any event the authority under Section 44(2A) is quasi-judicial authority and it has no jurisdiction to sit on appeal on an order passed by a competent Civil Court having jurisdiction. Once the Civil Court has appointed the mother as guardian in respect of the property of the minor assigned under the deed dated 23rd March, 1953, it clearly shows that the gift was accepted and the deed was acted upon. Therefore, the ground that the deed was not accepted nor acted upon, on which the record was corrected and which was the foundation of the proceeding under Section 44(2A), is non est. As such the decision in the proceedings under Section 44(2A) is void and a nullity.
5. Therefore, the property has to be treated at the hands of Ritashree Pal Chowdhury. If Ritashree was not married before 15th February, 1971, the land could have been vested in the proceeding under Section 7(A) being 7/Naba/Suo Moto/82 against Ranjit Pal Chowdhury. But Ritashree having been married on 12th December, 1970 before 15th February, 1971, this land cannot be treated as part of the estate of the Ranjit Pal Chowdhury. This is to be treated as the land of the Ritashree. Therefore, this land cannot be vested even if notices are served upon Ritashree or upon Ranjit Pal Chowdhury.
6. In the circumstances, the order of vesting cannot be sustained and is hereby quashed. The land shall be retained at the hands of Ritashree unless Ritashree and her family hold any land in excess of the ceiling under the West Bengal Land Reforms (Amendment) Act, 1969.
7. This appeal is, thus, allowed. No order as to costs.
8. At this stage Mr. Bose submits that he wants to make some more submission relying on some records, which he expected to be sent to him very soon. The matter is, therefore, treated as heard-in-part and be listed for orders on Monday (23.8.04) at 4.00 p.m. S.K. Gupta, J.
I agree.
23rd August, 2004 D.K. Seth, J.
9. This matter was adjourned in order to enable Mr. Bose to make his submission. Mr. Bose contends that from the deed, it appears that this deed was a unilateral one. There was no acceptance. According to him, the deed was at best a deed of gift in favour of the daughter by the father, requiring acceptance of the gift. Therefore, the title in the property did not pass by reason of execution of the document. Secondly, he contends that Ranjit Pal Chowdhury had reserved his sub-soil right, therefore, this was not a full-fledged transfer. The third point he urged, during the life-time of the father, the mother cannot be appointed as guardian and the appointment of the mother as guardian is not bona fide and invalid. In order to support this contention, he relied on Annie Besant v. G. Narayaniah & Anr. AIR 1914 PC 41. The fourth ground he has urged that the land having been included in 'B' Form under WBEA Act submitted by Ranjit Pal Chowdhury, Ranjit Pal Chowdhury had treated the land as his own land and had retained the same in 'B' Form under the WBEA Act. This very conduct shows that the deed was not acted upon. He drew our attention to the deed itself and the statements made in various paragraphs of the writ petition and the opposition.
10. So far as the first point is concerned, it appears that very appointment of the mother as the guardian of the property of the minor, itself indicates the fact of acting upon the said document. The deed is a registered one. It is described as a patta. Under the Bengal Tenancy Act, grant of patta conveyed title in the property in favour of the grantee. The mother as guardian of the minor had accepted the patta. Even if the document is treated as a deed of gift, acceptance whereof is one of the ingredients for its validity, even then Section 122 of the Transfer of Property Act does not require acceptance to be in writing and incorporated in the deed of gift. It can be accepted by or on behalf of the donee.
It need not be express. It can be inferred. Such a view was taken in Sumita Mahanty v. Banashree Banerjee (Chakraborty) 2002(4) ICC 800 (DB): 2003(1) CHN 645 (DB): 2003(1) WBLR (Cal) 208 (DB): 2002(1) ILD 291 (Cal) (DB) and Dulal Chandra Chatterjee v. Moni Mohan Mukherjee, F. A. No. 573 of 1978, disposed of on 9th June, 2004 by this Court. It can be accepted by conduct. It is not necessary that it is to be accepted immediately. It can be done during the life time of the donor. The acceptance may be by the donee or on his behalf. A guardian can accept the gift on behalf of the minor. In this case, on behalf of the minor, her guardian mother had accepted the same, which is apparent from the fact of her appointment as guardian of the minor's property in the Act VIII case.
11. The retention of the sub-soil right would not affect the transfer since, the principle of transfer affects only the surface right, it never affects sub-soil right. Sub-soil right always remains with the owner unless sub-soil right is specifically transferred. Therefore, the second point also does not help Mr. Bose.
12. So far as the question of appointment of guardian is concerned, it is an admitted proposition that during the life-time of the father, the mother cannot be the natural guardian. There is no conflict with the ratio laid down in Annie Besant (supra). This is a settled proposition of law. But if the father has an interest adverse to that of the minor, then he cannot be appointed as guardian of the minor. But we cannot be oblivion of the fact that a decision of the Privy Council has a persuasive value. It would not be binding on the Indian Courts after the establishment of the Supreme Court of India. However, the Supreme Court and the High Courts in India followed the principle laid down in Annie Besant (supra) until the Apex Court had laid down the principle in Githa Hariharan v. Reserve Bank India, , by a three-Judges Bench, holding that a mother can still be a guardian of the minor during the life-time of the father interpreting the word "after" in Section 6(a) of the Hindu Minority and Guardianship Act, 1956 to be read as meaning "in the absence of the father". Though this decision is based on the 1956 Act, yet this principle cannot be overlooked and avoided while interpreting such question in the light of the law existing prior to 1956 when the father had an interest adverse to that of the minor. Thus the appointment of the mother as guardian of the minor's property cannot be held to be invalid. In any event the State Government has no locus standi to challenge the appointment of guardian of the property of the minor. That too almost after 30 (thirty) years. Therefore, the third ground also does not help Mr. Bose.
13. So far as the retention of the land is concerned, if it is presumed that the father had sought to retain the land in Form 'B' then it would indicate that he had pursued interest adverse to the minor which he could not do. In any event the 'B' Form was submitted by the father after the execution of the deed since acted upon, as is apparent from the fact of initiation of the Act VIII case by the mother, guardian of the minor. Once the deed is acted upon, the retention of the same land in Form 'B' cannot have the effect of revocation of the deed. Inasmuch as once a deed of gift is accepted, it cannot be revoked. Then again a registered deed can be revoked only by a registered deed. Inclusion of the lands in return in 'B' Form cannot have the effect of revocation of the deed. At the same time, it is pleaded that in order to secure that the land remains at the hands of the minor, the father did not take any risk of excluding the land for being vested in the State. In order to see that the daughter can enjoy the property, so transferred, he could have retained the said land. In any event retention of another's land will not affect the interest of the other. The fourth point taken by Mr. Bose therefore also cannot be sustained.
14. Therefore, as discussed in the part of the order dictated on 16th August, 2004, we do not find any reason to hold otherwise. After having heard Mr. Bose, we are of the considered opinion that the deed was acted upon. Therefore, the denial of the right of the appellant on the ground that the deed was not acted upon cannot be sustained.
15. The appeal, therefore, succeeds. The order of the Revenue Officer is hereby quashed. The order of the learned Single Judge is hereby set aside.
16. Let there be a mandamus declaring that the lands transferred by virtue of patta dated 23rd March, 1953 in favour of the appellant was acted upon and was valid and conveyed the title in the said properties in favour of the holder of the patta and she is entitled to retain the land at her hand and cannot be included within the ceiling applicable to her father Ranjit Pal Chowdhury.
17. Let there be a writ of prohibition restraining the respondents from disturbing and interfering with the peaceful possession of the land by the appellant.
18. There will, however, be no order as to costs.
19. Urgent xerox certified copy of this order, if applied for, be given to the parties on priority basis.
S.K. Gupta, J.
20. I agree.