Orissa High Court
Brundaban Mohanty vs Abakash Rout And Ors. on 10 September, 1992
Equivalent citations: I(1993)DMC596
Author: G.B. Patnaik
Bench: G.B. Patnaik
JUDGMENT G.B. Patnaik, J.
1. The order of the Consolidation Commissioner, annexed as Annexnre-2, is being challenged in this writ application, inter alias. on the ground that the sale by the father of a, Hindu minor without permission of the Court being voidable and has to be avoided, the Consolidation authorities have no jurisdiction to set aside the sale deed and not to give effect, to the sale in question.
2. The disputed land measuring Ac. 0.06 decimals appertaining to plot No. 206, Khata No. 27 of Sabak Khata which corresponds to Hal Khata No. 6 and Hal Plot No. 333 of mauza Godajanga in the district of Pan Sunei Bewa, the owner of the Sand, gifted the same under a registered gift deed dated 24-5-1901 in favour of opp. party No. 1, a minor. The father of said opp. party No. 1 said the land to the petitioner under a registered sale deed dated 6-7-1966 for a consideration of Rs. 100/- and according to the petitioner's case, the sale was for purchase of another place of land. Notwithstanding the aforesaid sale by the father-guardian of opp. party No. 1, the draft Record-of-Rights was prepared in the name of opp. party No. 1. Notification under Section 4 of the Orissa Consolidation of Holdings and Prevention of Fragmentation of Land Act (hereinafter referred to as the ''Consolidation Act") was made in respect or the area where the disputed land situates in the year 1979 and in the Land Register, the name of opp. party No. 1 stood recorded. The petitioner, therefore, filed an objection under Section 9(3) of the Act before the Assistant Consolidation Officer which was registered as Objection Case No. 354 of 1979. The Assistant Consolidation Officer referred the matter to the Consolidation Officer. The Consolidation Officer rejected the objection of the petitioner.
3. The petitioner preferred an appeal against the said order of rejection which was registered as Consolidation Appeal No. 42 of 1980. Tha Deputy Director by his order dated 26-2-1980 allowed the appeal and set aside the order of the Consolidation Officer and directed that the land should be recorded in the name of the petitioner, but possession of opp. party No. 1 should be noted. This direction was given on a finding that opp. party No. 1 continues to be in possession of the disputed land notwithstanding the sale by the father in favour of the petitioner.
4. The petitioner preferred a revision against this order of the Deputy Director which was registered as Revision Case No. 250 of 1980 to delete the direction regarding nothing of possession of opp. party No. 1. Opp. party No. 1also preferred a revision which was registered as Revision Case No. 258 of 1980 to set aside the order of the Deputy Director directing recording of the land in the name of the petitioner. The Commissioner heard both these revisions together and by his common judgment dated 26-8-1986 dismissed the petitioner's revision and allowed the revision of opp. party No. 1 and it is against this order, the present writ petition has been filed. '' J
5. The sole contention urged by the learned Counsel for the petitioner is that the sale by the father of a minor's property without permission of the Court being voidable as provided under Sub-section (3) of Section 8 of the Hindu Minority and Guardianship Act, the sale has to be avoided by the minor on attaining his majority and the sale not having been avoided by the minor, the consolidation authorities have no jurisdiction to get that sale avoided in the Consolidation Proceedings and, therefore, the Commissioner committed' gross error of law in directing that the land should be recorded in the name of the minor opp. party No. 1.
6. The learned Counsel appearing for opp. party No. 1, on the other hand, contends that no doubt, the sale of a minor's property without permission of the Court is voidable and has to be avoided by the minor, but' that avoidance may not necessarily be by filing a suit and it can be avoided in several ways including by remaining in possession of the property by the minor himself. In that view of the matter and in view of the findings that the minor has never been dispossessed of the property and is continuing his possession, the minor has avoided the sale and, therefore, the Consolidation Commissioner has rightly disposed of the matter.
7. In view of the rival submissions at the Bar, the first question that requires our consideration is what is the effect of a sale of minor's property by the guardian without permission of the Court. Section 8 of the Hindu Minority & Guardianship Act deals with the question of power of natural guardian of a minor in dealing with the minor's property. Sub-section (2) of Section 8 of the said Act prohibits any transfer by way of sale, gift or exchange of the minor's property without previous permission of the Court. Sub-section (3) thereof provides that any disposal of immovable property by natural guardian in contravention of Sub-Section (2) is voidable at the instance of minor or any person claiming under him. But what is the real meaning of the expression "voidable" under Section 8(3) has now been considered and determined by several High Courts, the best exposition being that of Justice Krishna lyer, J. (as he then was) of Kerala High Court in the case of Iruppakkat Veettil Viswanathans wife Santha v. Deceased Kandan's L.Rs. Wife Cherukutty and Others, A.I.R. 1972 Ker. 71. The learned Judge after discussing elaborately the provisions of law as well as several decisions of other High Courts came to the conclusion that the transfer of a minor's property by his natural guardian without sanction of the Court is voidable at the instance of the minor and the minor can avoid it by his unilateral conduct without filing a suit. The learned Judge followed the earlier Full Bench decision of the Kerala High Court reported in A.I.R. 1962 Ker. 164 (Chacko Mathew v. Ayyappankutty) wherein Madhavan Nair, J., after a survey of all the precedents in the High Courts had stated the law thus :-
"It is not always necessary that a party entitled to avoid a transactio'n not binding on him should sue for its rescission. He can himself avoid it by an unequivocal act repudiating it."
Justice Krishna lyer, J. in the aforesaid Kerala case ultimately came to hold :-
"......when a minor is entitled to avoid a transfer effected by his guardian on the ground of absence of permission of the Court it becomes a nullity on his unilateral act. He can merely avoid it by his conduct and there is no need to file a suit for avoiding the transfer..."
A learned Single Judge of this Court has considered this question in a recent case of Chaniram Sahu v. Samaru Nag (name deleted) and after him Murali Nag and Others, 65(1988) C.L.T. 56, wherein, it has been held that the transfer of a minor's property by the guardian without permission of the Court as required under Section 8(2) of the Hindu Minority and Guardianship Act is voidable under Section 8(3), but not in the sense that it is binding on the minor until he sets it aside. The minor can avoid it on attaining his majority and the move of avoidance may be by a unilateral act or conduct like transferring the property to somebody else or by remaining in possession of the property.
8. In an unreported decision of this Court in O.J.C. No. 1035 of 1980. (Prasanna Kumar Pradhan v. Gopal Ch. Sahoo and Ors.) disposed of on 1st September, 1987, Chief Justice Agrawal, concluded the matter by holding that the deed executed by natural guardian of the minor is voidable so far as it related to the share and interest of the minor and was duly avoided by him by his conduct in filing objection before the Assistant Consolidation Officer and it was not necessary for him to institute a suit for setting aside the voidable sale and for correction of the Record-of-Rights. The aforesaid writ application, in fact, arose out of a proceeding under the Consolidation Act and the revisional authority had taken the view that since no suit has been filed for avoiding the voidable sale, he had no jurisdiction to avoid the same. relying upon the decision of the Supreme Court in the case of GorakhNath Dube v. Hari Narain Singh and Ors.: A.I.R. 1973 S.C. 2451. The Division Bench, however, came to the conclusion that the order of the revi&ional authority was bad in law since the minor has himself avoided the voidable transaction by his act and conduct.
9. This being the position of law and the revisional authority having recorded a finding :-
"...It is evident that the suit land is the residential house of the petitioner Abakash Rout (minor). Although his father has executed the registered sale deed in favour of the opp. party Brundaban Mohanty, possession of the same was not delivered and at present the petitioner is residing in that house."
it must be held that the minor has avoided the vaidable sale and, therefore the Consolidation Commissioner was fully justified in directing recording of the land in the name of Abakash, opp. party No. 1 in the present writ application. In the circumstances, we do not find any error of law apparent on the face of the order of the Consolidation Commissioner so as to be interfered with by this Court in this application.
The writ application accordingly fails and is dismissed, but in the circumstances, there will be no order as to costs.
K.C. Jagadeb Roy, J.
I agree.