Patna High Court
R.B. Mishra vs State Of Bihar And Ors. on 21 January, 1983
Equivalent citations: AIR1983PAT250, AIR 1983 PATNA 250, 1983 BLJR 441 (1983) BLJ 197, (1983) BLJ 197
JUDGMENT Hari Lal Agrawal, J.
1. This application under Articles 226 and 227 of the Constitution has been filed for quashing the order of the Consolidation Officer, Dumraon, dated 18-10-1978 (Annexure 7) passed in Consolidation Case No. 38 of 1978, affirmed on appeal by the Deputy Director (respondent No. 3) and in revision by the Director of Consolidation, Bihar (respondent No. 2) by their orders contained in Annexures 8 and 9 respectively.
2. The area involved in this proceeding is about 40 bighas which was sold to the petitioner by respondent No. 5, the father of respondents 6, 7 and 8, namely, Maharaja Kumar Vishwanath Singh of Dumraon, acting as natural guardian of his aforesaid three minor sons, for a sum of Rs. 20,000/- by a registered sale deed dated 6-5-1959 (Annexure 2). It is this property that the petitioner has lost in the consolidation proceeding.
3. Briefly stated, the facts giving rise to the proceeding are as follows. Maharaja Keshav Prasad Singh, the Maharaja of Dumraon, had two sons, namely, Shri Ram Ran Vijay Prasad Singh and Maharaja Kumar Vishwanath Singh, respondent No. 5. Shri Ram Ran Vijay Prasad Singh had only one son, namely, Maharaja Kamal Singh, and Maharaj Kumar Vishwanath Singh, as already said earlier, had three sons.
Title Suit No. 75 of 1951 was filed by Kumar Vishwanath Singh for partition is respect of the Dumraon Raj in the Court of the Subordinate Judge, Arrah. Later on he was also allowed to add his three minor sons as co-plaintiffs, who were shown under the guardianship of Shri Kanhaiya Singh (who later on became an Hon'ble Judge of this Court) as the next friend of the said minors. That title suit was ultimately compromised and respondent No. 5 and his three minor sons (respondents 6 to 8) were given separate properties, the sons having been exclusively allotted 58 acres of land under Khata No. 21 in village Bhojpur under Dumraon Police Station.
It further appears from the order dated 19-11-1952 in the title suit that a sum of Rs. 90,000/- was allowed to be received by the said next friend of the minor plaintiffs and to deposit the same in the fixed deposit in terms of the compromise. On this very date the suit was also decreed in terms of the compromise against defendant No. 1, It may be mentioned that Shri Kanhaiya Singh was discharged from the guardianship of the minors on 22-2-1957 on being appointed a Judge of this Court.
4. The case of the petitioner is that respondent No. 5, being father of respondents Nos. 6 to 8, automatically assumed the character of the natural guardian of the minor sons under the provisions of the Hindu Minority and Guardianship Act, 1956, but nonetheless he made an application in the Court in the title suit on 3-5-1960 to act as such, which was allowed, as it appears from the copy of the relevant order sheet (Annexure 1). Thereafter respondent No. 5, the father of the minors, also applied for withdrawal of the interest and the sum of Rs. 90,000/- deposited earlier for spending over the education and other matters of the minors, which prayer was allowed by order No. 68, dated 28-6-1968.
The petitioner has further asserted, and as no counter-affidavit has been filed his assertion remains uncontroverted, that he came in possession of the properties vended under the sale deed dated 6-5-1959 abovementioned, constructed boundary walls and buildings and was also mutated in Register II and dealt with part of the properties by selling to other persons The final record of rights was also published on 30-3-1970 in his favour with respect to the aforesaid land.
5. It appears from an order dated 18-7-1967 (Annexure 3) passed in the title suit that an application was filed by one of the minor sons, namely, Divya Dip Singh, respondent No. 6 (plaintiff No, 2) to the effect that he had attained majority on 29-7-1966 and a prayer was made to permit him to deal with the treasury deposits and savings certificates. The prayer was allowed but in spite, of that respondent No. 6 took no step in regard to the setting aside of the sale deed; rather as it would appear from a copy of the petition of appeal (Annexure 5) preferred against an order of the Certificate Officer in Certificate Case No. 8 of 1975-76, before the Collector of Bhojpur at Arrah, by the three sons (respondents 6 to 8) and their father (respondent No. 5) in the year 1975, that the fact of the sale of the land to the petitioner was admitted. The relevant recital may be extracted as follows :--
"..... the land for the development of which the loan was taken was later on sold to one Shri Ram Bachan Mishra of Dhananjaypur, P. S. Simri, District Bhojpur and others, vide various sale deeds. Ram Bachan Mishra took the land with the undertaking and the full knowledge that he would pay Rs. 4,000/- and the interest thereon towards the aforesaid loan."
Thus their personal liability for the certificate debt was denied.
6. Some time in the year 1972 a notification under Section 3 of the Bihar Consolidation of Holdings and Prevention of Fragmentation Act, 1956 (for short 'the Act') was published and the consolidation authorities started the consolidation operations in accordance with the provisions of the Act including publication of registers prepared under Sub-section (2) of Section 9 and the statement of principles prepared under Section 9-A as required by Section 10 of the Act, showing the name of the petitioner over the lands purchased by him.
Sub-section (2) of Section 10 prescribes a time limit of 45 days from the date of publication of the register under Sub-section (1). to file any objection in respect thereof disputing the correctness and nature of entries in the Records of Rights etc. Section 10-A creates a bar for raising any dispute which might or ought to have been raised under Section 10 at any subsequent stage of the consolidation proceeding. No such step was taken by the respondents under the Act.
Section 11 of the Act then contemplates preparation of a draft scheme for consolidation of holdings in the notified area in accordance with the procedure indicated therein. We are not, however, concerned with the details of the procedure. And then the draft scheme has to be published under Section 12 in the unit and given a general notice. Thirty days' time limit has again been prescribed to file objections against the draft consolidation scheme which also has to be similarly disposed of.
7. A long time thereafter, when the period of filing objections expired, an objection petition was filed on behalf of respondents 6 to 8 objecting to the entries in the Chak Register in the name of the petitioner, alleging therein that they got knowledge about the transfer of the land in favour of the petitioner by their father for the first time on 1-2-1978. They challenged the said transfer as being void, as no permission was obtained from the District Judge under the provisions of the Hindu Minority and Guardian-ship Act, 1956. Accordingly it was prayed that their names should be entered as owners of the said Chaks instead of the petitioner. The Consolidation Officer by his order (Annexure 7) allowed the prayer of the respondents and the petitioner also failed in appeal and revision against the said order as already said earlier.
The findings of the Consolidation authorities may be briefly noted to appreciate the long drawn argument advanced in their challenge by Mr. Shanker Das Banerji and, if I may say so, they may give rise to the consideration of some nice questions of law, namely, (1) the sale deed executed by respondent No. 5, although he was the natural guardian of respondents 6 to 8, must be treated to be void as he could not be better than a stranger in the absence of any authority of the District Judge, (2) with the appointment of a guardian by the Court, the father (respondent No. 5) was permanently ousted and disqualified to act as a natural guardian of his minor sons even after he was discharged inasmuch as the natural guardian once superseded remained superseded for all times to come, (3) the sale deed was also invalid as it was executed by one Gunjeshwari Prakash Singh and not by their father himself and, therefore, the document was bad in view of the maxim delegatus non potest delegate.
The limitation for setting aside the transfer by the father was 12 years from the date of the attainment of the majority, and the respondents 6 to 8 derived the knowledge of the transaction for the first time on 1-2-1978.
8. The argument advanced on behalf of learned counsel for the petitioner was that the sale deed executed by respondent No. 5 acting as the natural guardian of his minor sons was binding on the minors until set aside by a competent Court and a period of 3 years only was available for instituting such suit, and no such suit having been instituted the transfer of the lands in favour of the petitioner became final and conclusive and was binding on the consolidation authorities inasmuch as it was simply voidable and not void.
9. It has already been stated that the respondents have not chosen to file any counter-affidavit and, therefore, the allegations made by the petitioner remained unchallenged. On the facts stated above, it appears so apparent particularly in view of the fact that in the certificate proceeding the sale of the land in favour of the petitioner was the very plea of defence to the liability for the certificate dues. The plea of the respondents that they derived knowledge of the transaction for the first time on 1-2-1978 cannot be accepted.
10. The main question that fails for consideration and which was argued by learned counsel for both the parties with some vehemence, is the effect of the appointment of Shri Kanhaiya Singh as the next friend in the title suit and the consequential disability on that account of the natural guardian of the minors, or on account of any provisions of the Hindu Minority and Guardianship Act, 1956 or the Guardians and Wards Act, 1890 to deal with the property of the minors. The consolidation authorities have referred to a Bench decision of the Calcutta High Court in Jiban Krishna Dutta v. Sailendra Nath Shee, (AIR 1946 Cal 272) where on reference to the various provisions of the Guardians and Wards Act it has been held that appointment of a person other than the natural guardian under Section 7 (1) of the said Act implies under Sub-section (2) thereof the removal of the natural guardian, a permanent cessation of his powers under Section 41. The natural guardian or de facto guardian and a guardian once superseded cannot become clothed with the capacity to act as guardian again merely because the guardian appointed by the Court goes off the scene by reason of death or removal.
11. It has already been said that this decision is the basis of the finding of the consolidation authorities and Mr. Banerji, learned counsel for the petitioner, made strenuous efforts to show that although it was a Division Bench decision, one of the learned Judges constituting the Bench, namely, Biswas, J. had given a note of dissent to this view expressed by his brother Judge Das, J.
Apart from the fact that this argument was of no consequence whatsoever to us as the implications of this argument could have a bearing, if at all, before a single Judge of the Calcutta High Court alone, reading the judgment of Biswas, J. it is not possible to accept the contention of Mr. Banerji. Biswas, J. has simply indicated his apprehensions but ultimately he refused to note a dissent. The view expressed in the above decision is a debatable question but the facts of this case do not require any discussion of that question inasmuch as this case and the other cases on this line, i. e., cases under the Guardians and Wards Act, must be brushed aside on the simple ground that appointment of a guardian under the provisions of this Act has got a different complexion altogether as was the position in that case, but the appointment of a guardian or, for that matter, a next friend, under Order 32 of the C. P. C is entirely different. Rule 1 of Order 32 deals with a suit by a minor plaintiff and says that it shall be brought in his name by a next friend. Similarly Rule 3 provides for the appointment of a guardian for the suit by a Court for a minor defendant. Sub-rule (1) of Rule 3 clearly mentions that the appointment of such a guardian shall be only for the suit for such minor, who shall continue to be a guardian, unless his appointment is terminated by retirement or removal, throughout all proceedings and including any proceeding in appellate or revisional Courts or the execution of a decree.
It is, therefore, obvious that the powers of a person accepted by the Court either as a next friend or guardian of the minor, are only limited to that legal proceeding and not beyond that. A learned single Judge of this Court in the case of Narain Singh v. Supurna Kuer, (AIR 1968 Pat 318) has also made a similar observation. It is, therefore, manifest that the authority of Shri Kanhaiya Singh, the next friend of the minor plaintiffs, was confined only to the proceedings of the title suit, which automatically came to an end after the disposal of the suit which ended into a compromise. If it becomes a matter of relevance, then it has already been seen that the Court had appointed the father of the minors in place of Shri Kanhaiya Singh after his elevation to the Bench, but I do not want to derive any point in support of my reasonings in the matter.
12. Now I may come to the Hindu Minority and Guardianship Act, 1956, which is a supplemental Act to the 1390 Act, but it deals only with the powers, rights and duties of the guardians of the Hindu minors and has nothing to do with their appointment and declaration of guardian, a matter still covered by the 1890 Act. This Act does not contemplate appointment of a guardian for the minors' undivided interest in joint family property. The present Act also makes special provisions in addition to the 1890 Act which lays down certain restrictions on the right of natural and testamentary guardians and provides that in certain dealings of im-moveable properties of minors, the said guardians must apply to Court for permission before dealing with such property. A natural guardian prior to the 1956 Act, while had power in the management of a minor's estate to mortgage or sell any part thereof, in the case of any necessity or for the benefit of the estate, he has been deprived of this power under the said Act to do so without the previous permission of the Court and his position is reduced to that of a guardian appointed by the Court. Section 8 of the 1956 Act prescribes the powers of natural guardian and they are to do all acts which are necessary and reasonble and proper for the benefit of the minor or for the realisation, protection or benefit of the minor's estate, but Sub-section (2) thereof debars him to mortgage or charge or transfer by sale, gift, exchange or otherwise any part of the immovable property of a minor or even lease any part thereof for a term exceeding five years, without the previous permission of the Court.
Sub-section (3) of Section 8 makes any disposal of immovable property by a natural guardian in contravention of Sub-sections (1) and (2), voidable at the instance of the minor or any person claiming under him.
13. It was on the basis of this provision that Mr. Bauerji argued that the respondents were bound to take steps within the period of limitation for setting aside the sale deed, which was only three years under Article 60 of the Limitation Act.
The argument of Mr. Balbhadra Prasad Singh, on the other hand, was that although Sub-section (3) of Section 8 treated such a transaction to be voidable, in the eye of law it must be deemed to be void and the minor was not bound to take any legal proceeding and could simply avoid it. In support of his contention he placed reliance upon a Bench decision in Shyam Behari Singh v. Rameshwar Prasad Sahu, (AIR 1942 Pat 213). That was a case under the Chota Nagpur Encumbered Estates Act Section 12-A thereof requires the previous sanction of the Commissioner for making alienation or charging an encumbered estate. It was held that if an alienation or charge was made without such previous sanction by a person not competent to mate it, then it was void and subsequent sanction could not be sufficient to validate it. Mr. Singh tried to derive support from this decision that a provision in similar terms being contained in Section 8 also, making any alienation would make the transaction void.
14. There is no warrant for this argument in law inasmuch as Sub-section (3) of Section 12-A itself lays down that "every alienation and charge made or attempted in contravention of Sub-section (1) shall be void". It was on the basis of this provision that this Court had taken the said view.
The legal distinction between the expression "void" and "voidable" is now no more obscure; rather their apparent distinction has been expressed in the Contract Act in distinguishing the void and voidable contracts. In the Constitution of India also two Articles, namely, Articles 13 and 254, have used the expression "void". I may quote the words of Wanchoo, J. in the case of Mahendra Lal Jaini v. State of U. P , 1963 Supp (1) SCR 912 : (AIR 1963 SC 1019) with respect to the meaning given to the expression "void" in Article 13 of the Constitution :
"The meaning of the word 'void' for all practical purposes is the same in Article 13 (1) as in Article 13 (2) namely, that the laws which were void were ineffectual and nugatory and devoid of any legal force of binding effect."
It is, therefore, clear that whereas a transaction which is void is inoperative and negatory, a voidable transaction remains in force and effect until it is declared to be otherwise in accordance with law.
Mr. Balbhadra Prasad Singh, however, placed reliance upon the meaning of the word "void" given in the Stroud's Judicial Dictionary to show that it was always an ambiguous term and not an easy word, I do not find any merit in this argument as the Indian Legislature has been using these words to indicate their definite and clear distinction, as discussed above.
15. Same argument was also advanced that is was not always essential to institute a suit to avoid, a voidable transaction as election to firm may be indicated by conduct Similarly a voidable contract may be avoided by indication or conduct of the person concerned. Prima facie this proposition may appear to be acceptable, but it cannot be of universal application and must depend upon the circumstances and vary from case to case.
16. I may usefully refer to a single Judge decision of the Kerale High, Court rendered by V. R. Krishna Iyer, J. (as he then was) in the case of Iruppakket Veettil Viswa-nathan's wife Santha v. Deceased Kandan's L. Rs. wife Cherukutty (AIR 1972 Ker 71) which was referred to by teamed counsel for both the parties. This was a case raider the Hindu Minority and Guardianship Act, 1956, where a minor's property was transferred by his natural guardian without sanction of the Court. The learned Judge reviewed a large number of authorities on the question and held that the contract was voidable at the instance of the minor even without a suit.
Whereas Mr. Banerji placed reliance upon this decision for the principle that such a contract was voidable, Mr. Singh referred it for the other proposition that such a contract could be avoided even by a conduct and without a suit. The situation in this case was that the guardian of a minor daughter had transferred the share white the partition suit was pending, and when the final decree was under execution the husband of the daughter raised the plea that the decree could not be executed without setting aside the transfer. The learned Judge has referred to a Full Bench decision of the Madras High Court in the case of Sankaranarayana Pillai v. Kandasamia Pillai (AIR 1956 Mad 670) where it was held that the separate property of a minor if alienated by a guardian, it required to be set aside. Proceeding further, the learned Judge made a distinction, after consideration of his own earlier judgment and of some other High Courts, that when a transaction has been entered into with a person with limited powers and the law states that it is voidable at the instance of any ether person, that other person can avoid the transaction or affirm, and the aid of the process of Court is unnecessary. However, in certain transactions which may thus be rendered void or invalid by the act of an individual the assistance of the Court may be required where, for instance, the possession is with the alienee, as he cannot get the possession without the aid of the Court. The learned Judge has, no doubt, laid down that where a minor was entitled to avoid the transfer effected by his guardian on the ground of absence of permission of the Court, it became a nullity on his unilateral ad and "he can merely avoid it by his conduct and there was no need to file a suit for avoiding these transactions".
Even assuming for the sake of argument that this view could be acceptable, it does not help the respondents inasmuch as the petitioner has filed several documents to show that the conduct of the minor was just to the contrary and instead of avoiding it they have ratified it.
Then again, it has also been shown that the petitioner had come into possession and, therefore, mere avoidance by conduct without the aid of the Court was not sufficient on the facts of the case in hand".
Apart from distinguishing this case on facts, I would also venture to record my disagreement with the proposition of law laid down by the learned Judge. I may cut short this argument by reference to a Bench decision of the Kerala High Court, itself in Beeyyathumma v. Moidin Haji (AIR 1959 Ker 125) which, perhaps, was not brought to the notice of Justice Iyer, where it was very clearly laid down that such transactions by a legal guardian of a minor which were voidable and not void must be set aside by the minor under Article 44 (1908 Act) within the prescribed time, and when they were not set aside under Article 44, the minor's right became extinguished under Section 28 of the Limitation Act. The relevant Article of the new Limitation Act is Article 60 and it specifically provides a limitation of three years for a suit by the ward alter attaining majority to set aside transfer of property made by his guardian.
I have already said earlier about the authority of the father as the manager of a Hindu family to deal with the undivided interest of a minor and the separate property. In the case of a transfer by a person acting as the guardian in respect of a property of a minor in a joint Hindu Mitakshara family, it is 'not binding on a minor and no suit need be brought by him under this Article. He can simply bring a suit for possession under Article 65 (old Art, 144), but where the alienation is not void but voidable only, the minor must sue to set it aside within the prescribed period of three years, otherwise his right to the property will be extinguished by operation of Section 28 and the new Section 27 of the Act.
17. The conclusion to which I reach on the foregoing discussion is that the respondents could not challenge the transaction of sale in favour of the petitioner in the year 1978 before the Consolidation Authorities as that right had been extinguished.
18. Then there is yet another angle from which the matter can be looked into. The transaction of sale being voidable the respondents could not have agitated this question before the Consolidation Authority. In other words, the Consolidation Authority was not competent to decide this question even if it could have been raised before it within the period of limitation prescribed under Article 60 of the new Limitation Act and they were bound to take recourse to a civil suit.
In the case of Gorakh Nath Dube v. Hari Narain Singh (AIR 1973 SC 2451) the Supreme Court while considering the analogous provisions of the U. P. Consolidation of Holdings Act (5 of 1954) categorically laid down that "where there is a document the legal effect of which can only be taken away by setting it aside or its cancellation, it can be said 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". This case, as it was bound to have been considered, was followed on several occasions by this Court. A Special Bench in the case of Ram Krit Singh v. State of Bihar, 1979 BLJR 384 : (AIR 1979 Pat 250) while considering the question of abatement of a suit under Section 4 (c) of the Bihar Consolidation Act, indicated the distinction 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 was to be actually set aside before it could cease to have legal effect.
Then again, a Division Bench in the case of Janak Sahi v. Jamuna Sahi, 1980 BBCJ (HC) 544 : (AIR 1981 Pat 62), held that the suit for redemption was outside the purview of Section 4 (c) of the Act and the. forum was only the Civil Court.
19. With respect to the finding of the Consolidation Authority regarding the execution of the sale deed by one Gunjeshwari Prakash Singh and not by respondent No. 5, it may be stated that respondent No. 5, the father of the minors, has stated in the margins of the sale deed that be was executing, the sale deed, and the purported execution of Gunjeshwari Prakash Singh was scored through although he was described in the category of the vendors. Gunjeshwari Prakash Singh simply appears to have acknowledged the execution on behalf of Maharaj Kumar Vishwanath Singh before the Registrar, and in any event in the petition of appeal before the Collector of Bhojpur the respondents 6 to 8 had said that the sale deed was executed by their father.
20. Learned Standing Counsel No. 4, who appeared for the official respondents, practically did not make any argument and simply stated that he would adopt the arguments of the learned counsel for the contesting respondents.
21. Therefore, on consideration of the arguments advanced before us, I find that the Consolidation Authorities have completely misdirected themselves in allowing the objection of the respondents 6 to 8 and their orders cannot be sustained.
22. I would accordingly allow this application and quash the orders contained in Annexures 7, 8 and 9. Let an appropriate writ issue accordingly. The petitioner would also get his costs. Hearing fee, however, is assessed only at Rs. 500/-.
K.B. Sinha, J.
23. I agree.