Orissa High Court
Santosh Kumar Patra vs Dhirendra Kumar Patra And Ors. on 21 April, 1993
Equivalent citations: 1993(II)OLR115
Author: A. Pasayat
Bench: A. Pasayat
JUDGMENT A. Pasayat, J.
1. Detailed reference to the factual aspects is not necessary because the fate of this writ application depends primarily upon adjudication of questions of law.
2. Bare facts necessary are as follows :
Petitioner and Dhirendra Kumar Patra (opposite party No. 1) are related to each other as would be evident from the following genealogy.
Nabaghana |
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| |
Baishab Adwaita
| |
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| | | |
Arjuna Surendra Arjuna Ramesh
| | |
Uhsamani | Dhirendra
| | (Opp. party No. 1)
Antaryami |
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| | |
Santosh Dayanidhi Anam
(petitioner)
When operations under the Orissa Consolidation of Holdings and Prevention of Fragmentation of Land Act, 1972 (in short, the 'Consolidation Act') were commenced, opposite party No. 1 filed objection case No. 3044/110 to record his name in the land register of hal plot No, 1614 under hal khata No. 1126 and to correct the area from 4 decimals to 8 decimals. Objection Case No, 2953 was filed by the petitioner to correct the area of the same plot. Both the objection cases were disposed of by a common order by the Consolidation Officer, Balianta (opposite party No. 2) on 9-2-1982. Opposite party No. 1 claimed to have purchased the disputed property by registered sale deed No. 559 dated 23-1-1980 executed by his father Arjuna as uncle guardian of petitioner. Opposite party No. 1 in the said sale deed was described as a minor represented by his mother guardian Ushamani. Petitioner claimed that the property originally belonged to one Haramani Dei. By sale deed No. 4667 dated 1-7-1977 Haramani sold the property to the petitioner who was minor then. According to the petitioner the sale deed executed by Arjuna as uncle guardian of the petitioner in favour of his son opp. party No. 1 is illegal. With reference to the provisions of the Hindu Minority and Guardianship Act, 1956 (in short, the 'Act') it was contended that his father Surendra being the natural guardian and the sale deed having not been executed by the natural guardian, had no validity in the eye of law. Opp. party No. 2 by order vide Annexure-1 rejected both the objection cases. Opp. party No. 1 preferred Consolidation Appeal No. 124 of 1982 before the Deputy Director of Consolidation, Range II, Bhubaneswar, who dismissed the appeal and confirmed the order dated 9-2-1982. Opposite party No. 1 filed Consolidation Revision No. 283 of 1982, which was re-numbered as Revision Case No. 3227 of 1983 before the Commissioner, Consolidation (opp. party No. 4). The revision application was accepted by the opp. party No. 4 with the conclusion that the sale deed executed in favour of the petitioner was a benami one and the original owner was Arjuna who was competent to execute the sale deed dated 23-1-1980 in favour of his son (opp. party No. 1). The said order dated 18-12-1936 which is annexed as Annexure-3 to the writ application is assailed in this writ application.
3. According to Mr. M. N. Das, learned counsel for petitioner, the conclusion of the Commissioner, Consolidation that the transaction of sale in favour of petitioner was a banami one is not tenable in law, the sale was void and therefore, the conclusion that the sale was voidable at the best is also indefensible. The learned counsel for petitioner also submitted that after promulgation of Banami Transcations Act (in short, the 'Benami Act') the conclusions are also not tenable. Mr. B. L. N. Swamy, learned counsel appearing for opp. party No. 1, however, submitted with reference to Section 6 of the Act that the transaction is valid and in any event payment of consideration having been made by Arjuna as evident from the sale deed itself there, is nothing wrong in his conveyance of the property to opp. party No. 1.
4. Before the Hindu Laws were condified and the Act was enacted and became operative with effect from 25-8-1956, minors and guardians were governed by the traditional Hindu Law. According to such law, age of majority was fifteen years in Eastern and Southern India, and sixteen years in rest of the country. The first natural guardian of the person, minor children of either sex. and his separate property, was the father, and next to him, the same position was assigned by law to the mother. However, she could be replaced and some other person could be appointed as guardian by the Will of the father. The Indian-Majority Act, 1875 was the first enactment to directly affect rules of Hindu Law relating to age of majority. The personal law of Hindus was also affected indirectly by Courts of Wards Act, enacted locally in different parts of India in the subsequent years. The Guardians and Wards Act, 1890 empowered Courts to appoint and declare guardian of a person and property and laid down detailed law relating to its power in this regard. This was a general law applicable to all guardians in respect of personal law. However, in terms of Section 17 of the said Act the Courts were directed by the Act itself to act ordinarily in accordance with the personal law of the parties in certain matters. Rules relating to guardians ad item and next friends to represent minor parties to civil proceedings as contained in the Civil Procedure Code, 1908 were made applicable to Hindu minors as well. In 1976 there has been significant modification in the law relating to guardianship ad .litem under Civil Procedure Code. 1908. No minor can now act without such a guardian in any matter without any prejudice to the provisions of Section 2 of the Indian Majority Act, 1875 [Order XXXII, Rule 1 explanation (as modified in 1976)]. Section 4(b) of the Act defines 'guardian' to mean a person having the care of the person of a minor or his property or of both his person and property and includes ;
(i) a natural guardian ;
(ii) a guardian appointed by the Will of the minor's father or mother ;
(iii) a guardian appointed or declared by a Court; and
(iv) a person empowered to act as such by or under any enactment relating to any Court of wards.
'Natural guardian' has been defined in Clause (c) of Section 4 to mean any of the guardians mentioned in section. Section 6 has relevance so far as this case is concerned and the same reads as follows :
"6. NATURAL GUARDIAN OF A HINDU MINOR :
The natural guardian of a Hindu minor, in respect of the minor's person as well as in respect of the minor's property (including or excluding his or her undivided interest in joint family property) are -
(a) in the case of a boy or an unmarried girl- the father and after him, the mother; provided that the custody of a minor who has not completed the age of five years shall ordinarily be with the mother ;
(b) in the case of an illegitimate boy or an illegitimate unmarried girl- the mother, and after her, the father ;
(c) in the case of a married girl- the husband : provided that no person shall been titled to act as the natural guardian of a minor under the provisions of this section ;
(i) if he has cassed to be a Hindu, or
(ii) if he has completely and finally renounced the world by becoming a hermit (Vanaprastha) or an ascetic (Yati or Sanyasi) EXPLANATION : In this section, the expressions 'father' and 'mother' do not include a step-father and a step-mother."
5. A conjoint reading of Sections 4 and 6 makes it clear that Arjuna could not be termed as a natural guardian of petitioner Santosh during his minority. Section 8(3) provides that any disposal of immovable property by a natural guardian in contravention of Sub-section (1) or Sub-section (2) is voidable at the instance of the minor or any person claiming under him. A detailed reference to Sub-sees (1) and (2) is not necessary here because undisputedly Arjuna is not the natural guardian. The stand of opp. party No. 1 that the transaction made in violation of Sub-sees. (1) and (2) is voidable at the instance of minor has no substance, so far as the case at hand is concerned. The transation becomes voidable when disposal of the property is by a natural guardian and none else. Since the transfer of property was by Arjuna, who is not the natural guardian, the same did not have the sanction of law and therefore, the transaction itself was invalid and ineffective. The conclusion of the Commissioner that it was voidable is indefensible.
6. We shall now deal with applicability of provisions of the Benami Act. The settled distinction between invalidity and nullity is now well brought out in the decision in Dhirendra Nath Gorai v. Sudhir Chandra Ghosh ; AIR 1964 SC 1304. 1304, where their Lord- ships had gone into this material question as to whether an act in breach of the mandatory provision is per force a nullity. The passage in "Macnamara on Nullities and Irregularities", referred to in Ashutosh Sikdar v. Bihari Lal Kirtania : (1907) 1LR 35 Cal. 61 (FB), at page 72 was in terms relied upon as under :
"......no hard and fast line can be drawn between a nullity and an irregularity ; but this much is clear, that an irregularity is a deviation from a rule of law which does not take away the foundation or authority for the proceeding, or apply to its whole operation, whereas a nullity is proceeding that is taken without any foundation for it, or is so essentially defective as to be of no avail or effect whatever, or is void and incapable of being validated.
Whether a provision falls under one category or the other, is not easy of discernment, as in the ultimate analysts, it depends upon the nature, scope and object of the particular provision. Their Lordships in .Dhirendra's cse ((supra) in terms approved a workable test laid down by Justice Coleridge in Holmes v. Russel : (1841) 9 Dewi 487 as under :
"It is difficult sometimes to distinguish between an irregularity and a nullity : but the safest rule to determine what is an irregularity and what is a nullity is to see whether the party can waive the objection : if he can waive it,, it amounts to an irregularity; if he cannot, it is 'a nullity."
A waiver is an intentional relinquishment of a known right, but obviously an objection to jurisdiction cannot be waived, for consent cannot give a Court jurisdiction where there is none. Even if there is inherent jurisdiction, certain provisions cannot be waived. What can be waived would be only those prvisions which are for the privata benefit and protection of an individual in private capacity, which might be dispensed with without infringing any public right or public policy. In Nazir Ahmed v. King Emperor : AIR 1936 PC 253, it was observed that when it is obligated to act in a certain manner, one must act in that manner alone and not in any other manner. Other methods of peformance are necessarily forbidden.
In Mithilesh Kumars and Anr. v. Prem Behari Khare :AIR 1989 SC 1247, it was observed that Section 4 of the Benami Act envisages past benami transactions also in its retroactivity. The said Act was held to be a penal and disqualifying statute. In case of a qualifying or disqualifying statute it may be necessarily retroactive. When an Act is declaratory in nature the presumption agaist retrospectivity is not applicable, Acts of this kind only declare. A statute in effect declaring the benami transactions to be unenforceable belongs to this type. The presumption against taking away vested right will not apply in this case inasmuch as under law it is the benamidar in whose name the property stands, and law only enabled the real owner to recover the property from him which right has now been eliminated by the Act. In one sense there was a right to recover or resist in the real owner against the benamidar. Ubl jus ibi remedium, where there is a right, there is a remedy. Where the remedy is barred, the right is rendered unenforceable. In this sense the Benami Act is a disabling statute. All the real owners are equally affected by the disability provision irrespective of the time of creation of the right. A right is a legally protected interest. The real owner's right was hitherto protected and the Benami Act has resulted in removal of that protection. When the law nullifies the defences available to the real owner in recovering the benami property from the benamidar the law must apply irrespective of the time of the benami transactions. As defined in Section 2(a) of the Benami Act "benami transaction means any transaction in which property is transferred to one person for a consideration paid or provided by any other person. A transaction must, therefore, be benami irrespective of its date of creation. Section 4 of the said Act clearly provides that so suit, claim of action to enforce any light in respect of any property held benami against the person in whose name the property is held or against any other person small lie, by or on behalf of a person claiming to be real owner of such property. This naturally relates to past transactions as well.
7. it is submitted on behalf of opp. party No. 1 that in reality there was no benami transaction because his father being the real owner could transfer the property though the sale deed had been executed in the name of the petitioner. It is submitted that Arjuna had exercised his right as the real owner while transferring the property in favour of his son. We do not think it necessary to decide whether in law Arjuna can do so. As undisputedly the transfer has been made purportedly while acting as uncle guardian, the plea has no leg to stand.
Looked at any angle, the petition is bound to succeed. The writ application is allowed, but without any order as to costs.
S.K. Mohanty, J.
I agree.