Punjab-Haryana High Court
Sandeep Singh S/O Late S. Mohan Singh And ... vs Baljit Singh And Others on 21 December, 2013
Author: K. Kannan
Bench: K. Kannan
C.R. No.No.2356 of 2005 -1-
IN THE HIGH COURT FOR THE STATES OF PUNJAB AND HARYANA AT
CHANDIGARH
C.R. No.No.2356 of 2005
Date of Decision.21.12.2013
Sandeep Singh s/o late S. Mohan Singh and another .......Petitioners
Versus
Baljit Singh and others ......Respondents
Present: Mr. B.S. Guliani, Advocate
for the petitioners.
Mr. B.R. Mahajan, Advocate
for the respondents.
CORAM:HON'BLE MR. JUSTICE K. KANNAN
1. Whether Reporters of local papers may be allowed to see the
judgment ? No
2. To be referred to the Reporters or not ? No
3. Whether the judgment should be reported in the Digest? No
-.-
K. KANNAN J. (ORAL)
1. The revision petition is filed at the instance of the quondam minor who finds the order passed by the District Judge allowing for sanction for sale of the property by the mother as a natural guardian as untenable and could not have been passed in the manner ordered. The order in challenge was passed on 07.10.1996 and the civil revision has been filed under Article 227 of the Constitution in the year 2005. The petitioner has an explanation to give that between the year December, 2002 upto December 2005, he had been in jail in some criminal case and therefore, he could not file the case. Further contention is that the petitioner is challenging an illegal order passed by the Court and therefore, the Court will not fetter itself by the normal law of limitation which would be applicable for other proceedings. The Court in its Kamboj Pankaj Kumar 2014.01.14 12:19 I attest to the accuracy and integrity of this document Chandigarh C.R. No.No.2356 of 2005 -2- jurisdiction under Article 227 of the Constitution, according to the petitioner, would secure an appropriate redressal at any time.
2. Some more details are necessary to get the whole hang of the case. The mother of the petitioner Charanjit Kaur had applied to the District Court at Gurdaspur for sanction to sell the property of two of her minor children to the petitioner herein. Yet another person who has not joined the petition was a sister of the petitioner. The daughter and son were born respectively on 23.04.1981 and 20.05.1982. The mother had sought for permission to sell the property contending that all other shares belonging to other major brothers and sisters including her own share will be sold and it will be only appropriate that the property of the minors is also sold. The Court passed an order on 07.10.1996 allowing for the sale to take place at the prevailing market rate within a period of six months and that after the sale, the entire sale consideration belonging to the minors must be put in fixed deposit and that the guardian shall give a surety to the extent of ` 75,000/-. The petitioner has an objection before this Court pointing out to each one of the directions given by the Court as having been flouted by the guardian. The Court itself was in error in not stipulating the market price for which the property must have been sold and the Court had also not ensured that minor's interest was sufficiently protected by taking the sale consideration brought through the sales to be deposited to the Court in the manner recognized by law.
3. I have no difficulty in seeing that the manner of exercising the jurisdiction by the District Court on 07.10.1996 was wholly inappropriate and grossly faulty. This observation will have to be seen Kamboj Pankaj Kumar 2014.01.14 12:19 I attest to the accuracy and integrity of this document Chandigarh C.R. No.No.2356 of 2005 -3- only in the context of objection taken by the respondent of whether it will become possible for the plaintiff to have the property restored to his benefit. The counsel appearing for the respondent points out to me some more facts which would be relevant to predicate the share of the property which the quondam minor was entitled to. The property had belonged to Bur Singh petitioner's grandfather and Mohan Singh petitioner's father as members of joint family. Bur Singh had his half interest in the joint family property bequeathed by means of Will in favour of his three grand children born through Mohan Singh. Consequently, the petitioner became entitled to 1/3rd of one half share of Bur Singh. As regards the half share of Mohan Singh obtained by notional partition with his father fell to be divided equally amongst his widow namely the petitioner's mother and three sons and two daughters. The widow became entitled to 1/12 share, each of the daughters became entitled to 1/12th share and each of the sons became entitled to 1/4th (1/2 x 1/3 + 1/12). The petitioner himself was, therefore, entitled to 1/4th share in all the properties and yet another sister who was a minor at that time when the petition was filed was entitled to 1/12th share.
4. Learned counsel also points out that when the sale had taken place on 14.11.1996 if it were to be taken that the permission granted by the Court was invalid, it was still to be seen that the sale was being made by the mother acting as guardian on behalf of the minor children and therefore, the transaction was not void but voidable. When it was voidable then the same ought to have been set aside within three years from the date when the minor attained majority. Kamboj Pankaj Kumar 2014.01.14 12:19 I attest to the accuracy and integrity of this document Chandigarh C.R. No.No.2356 of 2005 -4- Admittedly, the minor attained majority on 25.05.2000 and the suit must have been filed to set aside the sale within three years from thereon i.e. before 25.05.2003. If the petitioner had been imprisoned on 20.12.2002, there is no provision of law for stopping the limitation and the provision of Section 5 of the Limitation Act itself is not applicable for suits but only to applications. Consequently, the suit for recovery of possession of property after setting aside the sale could not have been instituted beyond 25.05.2003 and what could not have been done through a suit cannot be done through a petition challenging an order.
5. I see the weight of argument in this, for we are not merely at the stage of setting aside the order passed by the Court where the Court would be exercising jurisdiction under Article 227 of the Constitution without being fettered by the law of limitation. Again if there is a provision for appeal to assail an order which is passed by the Court, then there is normal procedure to be adopted under the Civil Procedure Code to assail an order passed by the Court. The jurisdiction under Article 227 of the Constitution must itself be restricted only to cases where there is a patent illegality. If I must take the order passed by the District Judge to be an order which was untenable, in that it did not set down the actual market value for which the property was to be sold and it took no care to see that the sale consideration was realized and put in Court deposit for protection of the minor, the Court was exercising a jurisdiction and passing an order which was contrary to law which must still be taken to be an order passed by a Court of competent jurisdiction but not in any manner which the law would recognize. Kamboj Pankaj Kumar 2014.01.14 12:19 I attest to the accuracy and integrity of this document Chandigarh C.R. No.No.2356 of 2005 -5- Unless an order passed by a particular Judge lacking complete jurisdiction or power, such an order cannot be taken as illegal order. It should only be taken to be an order which was not lawful which will again be subject to a revisional jurisdiction as contemplated under Section 115 CPC. If the order, therefore, was to be challenged as not competent, the order which was passed by the Court on 07.10.1996 was itself an order which was revisable. Section 8 (5) of the Hindu Minority and Guardianship Act, 1956 states that the Guardian and Wards Act, 1890 shall be applied to an application for obtaining permission of the Court under sub-section 2 in all respects as if it were an application for obtaining permission of the Court under Section 29 of the Act. In this case since a permission had been granted, the order would become final as per the provisions of the Guardian and Wards Act. An order which is final for which no provision for an appeal is possible could be only subject of revision under Section 115 CPC. I have already observed that an intervention under Article 227 would be grossly improper in a situation where the provision of CPC could still be attracted. I will not, therefore, take this case as a extraordinary situation of an order as having been passed by a Judge without jurisdiction. The revision was not competent and the appropriate remedy would have been only under Section 115 CPC and that remedy shall also not available at such a length of time.
6. If it was merely an issue where the order of the Court if it was set aside would secure the relief, I would have gone as far as to make room for such an intervention but in this case even setting aside the order will not take us anywhere for even without reference to the Kamboj Pankaj Kumar 2014.01.14 12:19 I attest to the accuracy and integrity of this document Chandigarh C.R. No.No.2356 of 2005 -6- order, if the mother has sold the property, the transaction was only voidable. There is no escape from the law of limitation which would be applicable that a sale which is made by the guardian will require to be set aside within a period of three years from the date of attaining majority. If that period has gone and if the sale could not be assailed other than through a proceeding to set aside an order passed by the District Judge, it cannot secure what is relevant for the plaintiff in this case. Setting aside an order can only be to render the permission granted by the Judge to be invalid. In such an eventuality, the sale that has actually taken place must be taken as a sale without reference to an authority and therefore, voidable. The decisions which the learned counsel refers to me are decisions where intervention was possible under Section 227 of the Constitution without a fetter of limitation. I do not find any reason to reproduce them, for we are considering the situation of requirement of assailing the sale which is not done in the manner required by law.
7. Learned counsel for the petitioner would cite to me a circumstance when his own major brothers and sisters filed a suit to assail the sale deed which had taken place where they were contending that a fraud had been committed by taking a sale from them. The said suit resulted in compromise where some portion of property which had been purchased was given to the brothers. What was obtained to them could not be secured by the petitioner. His grievance is that if the brothers filed a suit and secured the relief which was appropriate remedy and the petitioner himself did not take any such steps but would file a petition to challenge the order passed by the Court then I am Kamboj Pankaj Kumar 2014.01.14 12:19 I attest to the accuracy and integrity of this document Chandigarh C.R. No.No.2356 of 2005 -7- afraid it is not possible to secure to him what the brothers and sister could obtain. They obtained what was possible in law. The petitioner will not be able to secure what is not otherwise possible in law.
8. Learned counsel for the petitioner contends that even the point of limitation must be understood that will give him a right to challenge the sale from the date of his knowledge. This argument is only stated to be rejected, for a period of limitation has nothing to do with knowledge. It is a sale which took place that constitutes knowledge. The registration is knowledge as per explanation of Section 3 of the Transfer of Property Act and soon after the sale, the registration took place. Learned counsel wants a luxury of observation from this Court that he shall be given liberty to file a fresh suit and the time taken by the petitioner to prosecute the case must be considered for exclusion. The petitioner's right of what he assumes that he has will not be piloted through Court's observation. He shall be at liberty to indulge in such litigation as he decides to do.
9. The revision petition is dismissed.
(K. KANNAN) JUDGE December 21, 2013 Pankaj* Kamboj Pankaj Kumar 2014.01.14 12:19 I attest to the accuracy and integrity of this document Chandigarh