Allahabad High Court
Babu Khan And Others vs Rajendra Prasad on 3 March, 2023
Author: Vivek Chaudhary
Bench: Vivek Chaudhary
HIGH COURT OF JUDICATURE AT ALLAHABAD [A.F.R.] [Reserved] In Chamber Case :- SECOND APPEAL No. - 947 of 1995 Appellant :- Babu Khan And Others Respondent :- Rajendra Prasad Counsel for Appellant :- S.N.Srivastava,Naresh Chandra Tripathi Counsel for Respondent :- J.H. Khan,W.H. Khan Hon'ble Vivek Chaudhary,J.
1. By the present second appeal, appellants are challenging the judgment and order dated 24.04.1995 passed by the learned Additional District Judge, Karvi in Civil Appeal No. 5 of 1990 (Babu Khan and others vs. Atul Prakash) and judgment and order dated 30.04.1990 passed by learned Munsif-Magistrate, Karvi, Banda in Original Suit No. 79 of 1988 (Atul Prakash vs. Babu Khan and others).
2. The suit was filed by the plaintiff-respondent Atul Prakash for cancellation of sale deed dated 28.04.1988 executed by defendant-appellant nos. 1 to 3 in favour of defendant-appellant nos. 4 to 8 and for permanent injunction restraining the defendants-appellants from raising any construction or interfering in possession of the plaintiff over the property in dispute. The Trial Court at the very initial stage, on 16.05.1988, granted an injunction order restraining the defendants-appellants from creating any hindrances. The suit was decreed and the appeal against the same was dismissed.
3. Brief facts of the case are that Rustam Khan was the owner of the property in question. He, unfortunately, died in the year 1964 leaving behind his widow and five sons, namely, Ramzan Khan (eldest), Nazir Khan, Babu Khan, Chand Khan and Nasim Khan. The widow of Rustam Khan also died sometime later, after which Ramzan Khan the eldest of the siblings took care of the interests of the brothers, who were all minors at that time. Ramzan Khan and Nazir Khan executed sale deed dated 28.07.1977 of the property in dispute on their behalf as well as in their capacity as de-facto guardian on behalf of remaining three minor brothers (first set of defendant-appellant) in favour of plaintiff-respondent. By entry dated 13.10.1982, name of the plaintiff-respondent was duly mutated in the revenue records and no objections against the same were filed by defendant-appellants first set, even after attaining majority. In 1987, on becoming major, defendant-appellant No. 1 and 2 filed a suit under Section 229B of the Uttar Pradesh Zamindari Abolition and Land Reforms Act, 19501 challenging the sale deed dated 28.07.1977. Written statements were also filed. However, during the pendency of the said suit, defendant-appellant first set executed a sale deed dated 28.04.1988, for the sale of their share in the property in question, in favour of the second set of defendant-appellants (some of them have been substituted by their legal representatives in the proceedings). They also permitted the proceedings initiated under Section 229-B to be dismissed for non-prosecution. Respondent herein filed the present Original Suit No. 79 of 1988 against both sets of appellants praying for cancellation of the said sale deed dated 28.04.1988 and for relief of permanent prohibitory injunction restraining defendants-appellants from interfering in his peaceful possession over the property in question. The suit was filed on the ground that the demised property was already sold by defendant-appellant first set in favour of plaintiff-respondent by sale deed dated 28.07.1977. The suit was decreed in favour of the plaintiff-respondent. Aggrieved by the judgment and decree dated 30.04.1990, defendants-appellants filed a first appeal, which was also dismissed on 24.04.1995. Thus, they preferred present second appeal.
4. Learned counsel for the appellants assails the judgment of both Courts on the ground, that, Ramzan Khan being a brother was not legal or de-jure guardian of defendant-appellant first set under the Mohammedan law, therefore, the sale deed dated 28.07.1977 executed by him for the sale of shares of his minor brothers is void. Since the sale deed dated 28.07.1977 is void to the extent of the shares of the defendant-appellant first set, therefore ignoring its consequences, defendant-appellant first set could legally execute the sale deed dated 28.04.1988 in favour of defendant-appellants second set for sale of their shares in the property. In such circumstances, plaintiff-respondent never had any legal claim to the 3/5th of the property, sold vide sale deed dated 28.07.1977, and thus suit was liable to be dismissed to the said extent.
5. Learned counsel for the defendants-appellants further submits that both the courts have also wrongly applied provisions of the U.P. Z.A. & L.R. Act. As the first set of defendants-appellants are adherents of Islam, therefore, the aforesaid statute has no applicability in this case. In support of his arguments, learned counsel for the defendant-appellants has relied upon the following judgments:
(i) Madhegowda (D) by L.Rs. vs. Ankegowda (D) by L.Rs. and others2
(ii) Mushamat Anto vs. Reoti Kaur3
(iii) Meethiyan Sidhiqu vs. Muhammed Kunju Pareeth Kutty and others4
(iv) Mohd. Amin and others vs. Vakil Ahmad and others5
(v) Prem Singh and others vs. Birbal and others6
6. Learned counsel for the plaintiff-respondent supports the judgments of both the Trial Court and the First Appellate Court. He submits that the land in dispute being agricultural land has to be governed by the provisions of the Guardianship and Wards Act, 18907 and U.P. Z.A. & L.R. Act and Mohammedan law has no applicability in the present dispute. He further submits that it was necessary for the first set of appellants to get the sale deed dated 28.07.1977 cancelled. He supports the finding of the Court regarding estoppel by relying on Sections 4(2), 4(3) and 30 of the Guadianship and Wards Act, 1890 and Article 60 of the Schedule to the Limitation Act, 1963. He argues that even the youngest of the three brothers attained majority in the year 1982 and, therefore, they should have filed a suit for getting the sale deed dated 28.07.1977 cancelled, no later than the year 1985. But the suit under Section 229-B of U.P. Z.A. & L.R. Act was only filed in 1987 and that too was not contested properly, thus dismissed for default and never restored. Thus, now they are estopped from challenging the sale deed. In support of his arguments, learned counsel for the plaintiff-respondents has placed reliance upon the following judgments:
(i) Utha Moidu Haji vs. Kuningarath Kunhabdullah & Ors.8
(ii) Mashkoor Alam vs. Kumari Amir Bano & Ors.9
(iii) Murugan & Ors. vs. Kesava Gounder (dead) & Ors.10
(iv) Bailochan Karan vs. Basant Kumari Naik & Anr.11
(v) Lalloo & Ors. vs. Board of Revenue & Ors.12
7. Learned counsel for the appellants presses for the following substantial questions of law:
(i)Whether in the facts and circumstances of the case elder brother was competent to alienate the interests of the defendant-appellant first set, who were minor brothers?
(ii)Whether Muslim minors, whose property is sold by a de-facto but not de-jure guardian by executing a sale deed on their behalf during their minority, need to get the sale deed cancelled by filing a civil suit on attaining majority or is the sale deed void, non-est in law, and therefore the minor need not even repudiate it?
(iii)Whether the First Appellate Court erred in applying the U.P. Z.A. & L.R. Act and law on adverse possession vis-a-vis the Muslim Personal law in the facts and circumstances of the present case, where the first set of appellants are adherent of Islam?
8. Heard counsels for the parties and perused the record with their assistance.
9. Since both the substantial question of law number one and two deal with similar issues therefore they are being decided together. The learned Trial Court has framed issue no. 2 and 3 with regard to the eligibility of Ramzan Khan for transferring the shares of his minor brothers vide sale deed dated 28.07.1977. Trial Court has held that since the mother of the defendant-appellant first set died, therefore, Ramzan Khan aged about 21 years at that time, as the eldest brother, assumed the role of de-facto guardian under Mohammedan law and was also competent to sell the properties of his minor brothers. The same was affirmed by the First Appellate Court. the First Appellate Court has applied the law settled by this Court in Ram Sunder vs. Board of Revenue13 and held that if a minor fails to challenge the sale deed on attaining majority the sale deed was binding on the minor. It has further held that even if the sale deed dated 28.07.1977 was void to the extent of the shares of the defendant-appellant first set, they required a declaration to that effect from Court. In Ram Sunder (Supra) facts were that a hindu mother acting as a guardian sold her minor child's property without describing herself as a guardian. On attaining majority, the son failed to challenge the sale deed and it was held that the sale is now binding on him. Both the Trial Court and the First Appellate Court have held that since the mutation proceedings were over by 13.10.1982, and Babu Khan, one of the defendant-appellant from the first set, had become major by then and did not object to the mutation of names of plaintiff-respondent in the revenue records, therefore it must be understood that defendant-appellants first set have ratified the sale deed dated 28.07.1977.
10. So far as the judgment relied upon by Trial Court and Appellate Court is concerned, Ram Sunder (supra) is a case arising out of Hindu Law and has no applicability to the present facts where parties are governed by Mohammadan Law. With regard to other case laws relied upon by counsel for plaintiff-respondent in the case of Utha Moidu Haji (supra), in paragraph 14 it is clearly stated that no issue was ever framed with regard to the status of the guardianship and eligibility of the acting guardian. Therefore, it is also distinguishable from the facts of the present case and of no help to the plaintiff-respondent. The judgment in the case of Murugan (supra) is also distinguishable from the facts of the present case as in the said case the issue was with regard to limitation in case a minor dies before attaining majority and also in the said case the parties were governed by the Hindu Minority and Guardianship Act, 1956. The plaintiff-respondent also can not claim any benefit from Bailochan Karan (supra) and Lalloo (supra), as both these cases pertain to parties belonging to non-Muslim faith.
11. Under Muslim personal law, interests of minor is well protected. Muslim Law distinguishes between the status of a de facto guardian and a legal/de jure guardian. Any decision with regard to the devolution of the property of a Muslim minor can be only by a legal guardian and that too only on limited grounds. The law in this regard is well settled and suffice would to refer to the paragraph 5 of the Meethiyan Sidhiqu (supra), where the Supreme Court held:
"5. Mulla's "principle of the Mohammadan Law" [Nineteenth Edition] by Justice M. Hidayatullah, former Chief Justice of this Court and Arshad Hidayatullah, deals with legal property guardians of a muslim minor in Section 359. In the order, only father, executor appointed by the father's will, father's father and the executor appointed by the will of the father's father, are legal guardians of property. No other relation is entitled to be the guardian of the property of a minor as of right; not even the mother, brother or uncle but the father or the paternal grand-father of the minor may appoint the mother, brother of uncle or any other person as his executor or executrix of his will in which case they become legal guardian and have all the powers of the legal guardian as defined in Sections 362 and 366 of the above Principles. The Court may also appoint any one of them as guardian of the property of the minor in which case they will have all the powers of a guardian appointed by the court, as stated in Sections 363 to 367."
In light of the law settled both the First Appellate Court and the Trial Court are wrong in holding that being a de facto guardian of the Muslim minors, their brother Ramzan Khan could execute a valid sale deed on their behalf. Admittedly there is no appointment of guardian of minors under the Guardianship and Wards Act.
12. It has long been settled by a Full Bench of this Court in Mushamat Anto (supra), that any transfer of property by a de facto guardian of a Muslim minor is void and non-est, it cannot be ratified by the minor upon his attainment of majority. Even when the transaction has been ratified by the minor after he has attained majority, it can subsequently be challenged by him or by his transferees. The relevant paragraph of the Mushamat Anto (supra) reads;
"Two questions have been referred to this Full Bench by the Bench before which the case came up for disposal. They are as follows:
(1) Can a transaction amounting to an alienation of an immovably property belonging to a Muhammadan minor by the de facto guardian of the minor be ratified by the latter upon his attainment of majority?
..........
Dealing with the third proposition, their Lordships examined the text of the Hedayah and the Fatwa-i-Alamgiri and came to the conclusion that the Hanafi doctrine relating to a sale by an unauthorised person remaining dependent on the sanction of the owners refers to a case where such owner is sui juris possessed of the capacity to give the necessary sanction to make the transaction operative, and that they did not find any reference in these doctrines relating to fazuli sales, so far as they appear in the Hedayah or the Fatwa-i-Alamgiri, to dealings with the property of minors by persons who happen to have charge of the infants and their property, in other words, the de facto guardians. In their Lordships' opinion the doctrine about fazuli sales appears clearly to be based on the analogy of an agent who acts in a particular matter without authority, but whose act is subsequently adopted or ratified by the principal which has the effect of validating it from its inception. The idea of agency in relation to an infant is as foreign, their Lordships conceived, to Mahomedan law as to every other system.
.....
Our answer to the first question referred to us is in the negative, as the transaction being void there is no question of ratification. The answer to the second question is that there can be no valid ratification and therefore there can be no estoppel on account of any such ratification."
13. In light of the law settled by the Full Bench of this Court, both the courts erred in holding that once the mutation proceedings are over with no objections from the defendant-apellants, they are estopped from questioning the validity of the sale deed dated 28.07.1977. Instead, as per the Mushamat Anto (supra), since there is no concept of subsequent ratification of an illegal/void act under Mohammedan law, it can be concluded that a Muslim minor can not ratify a void ab initio act after attaining majority, even if he wants to.
14. With regard to substantial question of law number three i.e., application of Muslim Law vis-a-vis U.P. Z.A. & L.R. Act, the learned First Appellate Court in its judgment has simply brushed off the issue by saying that "I do not want to enter into the controversy as to whether Mohammedan personal law was involved or the U.P.Z.A. Act was involved.". On the other hand, in its judgment the First Appellate Court has also dismissed the applicability of Full Bench judgment of this court in the case of Mushamat Anto (Supra), holding that the said case is from before the enactment of the U.P. Z.A. & L.R. Act, and is, therefore, not applicable. The First Appellate Court has also referred to the judgment of Ram Chander Dubey and Ors. vs. The Deputy Director of Consolidation, Deoria and Ors.14 but did not state as to why the same would not apply. In Ram Chander Dubey (supra) this court in pargraphs 15 has held;
"15. Judged in the light of what has been said above, it will be found that U. P. Act I of 1951 does not crystallise or declare the existing law upon the land tenure system but deliberately departs from the old law in respect of various matters. It supersedes prior law and lays down the whole of the law of succession, transfer, bequest etc. Therefore, in cases governed by the Act reference to the previous rule of Hindu law or Mohammadan law cannot be made as it is not permissible, but the Hindu law can certainly be resorted to in respect of matters for which no provision is made in U. P. Act No. I of 1951. Matters saved from the operation of the Act, of course, continue to be governed by the personal law to the extent the same is applicable. The Act does not touch or affect the law of joint family, hence the Hindu law continues to operate in this matter."
15. Thus, personal law would apply even to land covered by the provisions of U.P. Z.A. & L.R. Act to the extent the same is not ousted by U.P. Z.A. & L.R. Act. There is no provision in U.P. Z.A. & L.R. Act, contrary to the Mohammadan Personal Law, that validates a sale deed by de facto guardian of a muslim minor, which is void ab initio and can not be ratified even on attaining majority by the minor under Mohammadan Law. Thus, the sale deed dated 28.07.1977 executed by the de facto guardian of minors is void to the extent of share of minors.
16. Had the matter been only with regard to the personal law of Mohammadan, it could be concluded with the aforesaid, but, the provosions of the U.P. Z.A. & L.R. Act are also applicable. In present case, bhumidhars were minor muslim boys whose agricultural land was sold by de-facto guardian. There is no dispute that the minors were ousted from the property in dispute by the sale deed dated 28.07.1977 executed in favour of plaintiff-respondent. Both the Trial Court and the First Appellate Court have given specific finding of fact that the plaintiff-respondent is in possession of the property in dispute since the date of sale deed. Section 189(c), Section 193, Section 209 and Section 210 of the U.P. Z.A. & L.R. Act deals with right of the bhumidhar who stands dispossessed from his land. The said sections reads:-
"189. Extinction of the interest of a bhumidhar with transferable rights.--The interest of a bhumidhar with transferable rights in his holding or any part thereof shall be extinguished--
..
(c) when he has been deprived of possession and his right to recover possession is barred by limitation."
Thus, when a bhumidhar with transferable rights is deprived of his possession and his right to recover possession is barred by limitation, his right in the holding is extinguished. Section 193 provides with consequences of extinction of the interest. It reads:-
"193. Rights and liabilities of a sirdar or asami on extinction of his interest.--When the interest of a bhumidhar or asami is extinguished he shall vacate his holding, and he shall, except in cases where his interest has extinguished under or in accordance with the provisions of any law for the time being in force relating to the acquisition of land, have in respect of removals of standing crops and any construction existing on the holding the same right as he would have upon ejectment under the provisions of this Act."
209. Ejectment of persons occupying land without title. - A person taking or retaining possession of land otherwise than in accordance with the provisions of the law for the time being in force; and-
(a) where the land forms part of the holding of a bhumidhar, [* * *] or asami without the consent of such bhumidhar, [* * *] or asami;
(b) where the land does not form part of the holding of a bhumidhar, [* * *] or asami without consent of the [Gaon Sabha], shall be liable to ejectment on the suit in cases referred to in Clause (a) above of the bhumidhar, [* * *] or asami concerned and in cases referred to in Clause (b) above of the [Gaon Sabha] [* * *] and shall also be liable to pay damages.
[(2) To every suit relating to a land referred to in Clause (a) of sub-section (1) the State Government shall be impleaded as a necessary party.]"
"210. Consequence of failure to the suit under Section 209. - If a suit for eviction from any land under Section 209 is not instituted by a bhumidhar or asami, or a decree for eviction obtained in any such suit is not executed within the period of limitation provided for institution of such suit or the execution of such decree, as the case may be, the person taking or retaining possession shall-
(a) where the land forms pail of the holding of a bhumidhar with transferable rights, become a bhumidhar with a transferable rights of such land and the right, title and interest of an asami, if any, in such land shall be extinguished;
(b) where the land forms part of the holding of a bhumidhar with non-transferable rights, become a bhumidhar with non-transferable rights I and the right, title and interest of an asami, if any, in such land shall be I extinguished;
(c) where the land forms part of the holding of an asami on behalf of the Gaon Sabha, become an asami of the holding from year to year.
[Provided that the consequences mentioned in Clauses (a) to (c) shall not ensue in respect of any land held by a bhumidhar or asami belonging to a Scheduled Tribe.]"
17. Consequences under the civil law, in case a person fails to take possession of his property within the statutory period of limitation is, that, the other side gets rights as adverse possession. However, under the above provisions of U.P. Z.A. & L.R. Act, when a bhumidhar fails to file suit for possession, against a person holding possession of his bhumidhari land against law and without his consent, within period of limitation prescribed, rights of bhumidhar from the land are extinguished and the person holding possession becomes bhumidhar. As per Section 341 of the U.P. Z.A. & L.R. Act, provisions of the Limitation Act are made applicable to proceedings under the U.P. Z.A. & L.R. Act, unless otherwise expressly provided. Limitation for filing a suit for possession is 12 years as per entry 65 of Schedule I of the Limitation Act. Since, it is admitted that property sold belonged to minors, thus, Section 6 and 7 of the Limitation Act would come into play and the starting date of period of limitation would be from the date they become major. In the suit, all the three minor brothers, namely, Chand Khan, Babu Khan and Nisar Khan were made defendants as major. None of them were made party through any guardian. In their written statement also it was not claimed that any of them was minor. Thus, admittedly in the year 1982, all three brothers were major. Thus the limitation for initiating proceedings for recovery of possession, at best, expired in the year 1994 on expiry of 12 years. Sole proceedings which were initiated under Section 229-B for declaration and/or possession by the said brothers were admittedly permitted by them to be dismissed for want of prosecution. In his oral statement Babu Khan admitted that they never filed any application for restoration. Till date, there is no claim that those proceedings under Sectio 229-B were restored or contested any further. Thus, no proceedings were initiated for possession by the brothers, as minors or on becoming major, and the earlier filed proceedings under Section 229 B of U.P. Z.A. & L.R. Act were also permitted to be dismissed for default. The Trial Court as well as the First Appellate Court have given a categorical finding that the plaintiff-purchaser-respondent has been in possession of the property in dispute on the basis of sale deed dated 28.07.1977. The ex-parte injunction granted in favour of plaintiff initially by order dated 16.05.1988 continued throughout the suit.
19. From the above, it is clear that the plaintiff respondents-purchaser were throughout in possession of the property in dispute since the sale deed dated 28.07.1977 and the defendant-appeallants first set after becoming major permitted the proceedings under Section 229-B to be dismissed and never initiated any other proceedings for possession of the property in dispute. Thus, as per joint reading of Section 189(c), Section 193, Section 209 and Section 210, rights of defendants-respondents first set from the property in dispute stand extinguished and the plaintiffs-respondents have become bhumidhar. Same is position with regard to defendant-appellants second set who purchased the property in dispute from the defendant-appellants first set. They also never took any proceedings for possession at any stage whatsoever. Thus, both sets of appellants have lost any right in their favour, even presuming they had any either under the Mohammedan law or by virtue of the sale deed dated 28.04.1988, due to the application of Section 189(c), Section 193, Section 209 and Section 210 of the U.P. Z.A. & L.R. Act.
20. In the aforesaid circumstances since appellants now do not have any right in the property in dispute, no relief in the present second appeal can be granted to them. The second appeal is dismissed.
Order Date :- 3.3.2023 Arti/-
[Vivek Chaudhary,J.]