A minor tenure-holder's application for restoration of possession under Section 38 of the Tenancy Act should be considered on the merits of the case, irrespective of any imprudent transactions made by the minor's guardian.

Headnote:
TENANCY ACT - SECTION 38 - SALE OF LAND BY GUARDIAN WITHOUT PERMISSION OF COURT - EFFECT ON MINOR'S APPLICATION FOR RESTORATION OF POSSESSION - HINDU MINORITY AND GUARDIANSHIP ACT, 1956 - SECTION 8.
Fact of the Case:

A minor tenure-holder applied for restoration of possession of land under Section 38 of the Tenancy Act. The application was rejected on the ground that the minor's father had sold a portion of the land without obtaining permission from the court as required under Section 8 of the Hindu Minority and Guardianship Act, 1956.
Finding of the Court:

The court held that the sale of the land by the minor's father was voidable at the instance of the minor and that the minor was entitled to avoid the sale on attaining majority. The court further held that the sale of the land did not affect the minor's right to apply for restoration of possession under Section 38 of the Tenancy Act.
Issues: Whether the sale of the land by the minor's father without obtaining permission from the court affected the minor's right to apply for restoration of possession under Section 38 of the Tenancy Act.
Ratio Decidendi: The court held that the sale of the land by the minor's father was voidable at the instance of the minor and that the minor was entitled to avoid the sale on attaining majority. The court further held that the sale of the land did not affect the minor's right to apply for restoration of possession under Section 38 of the Tenancy Act. The court reasoned that the minor was deprived of the benefit of the property sold by his father and that it would be unfair to punish the minor for the imprudent transaction of his father.
Final Decision: The court allowed the petition and set aside the orders of the Tribunal, the appellate authority, and the Naib Tahsildar. The matter was remanded for a fresh enquiry and disposal of the application according to law.

ORDER

1. The petitioner is a minor and tenure-holder of survey No. 17/1 area 14 acres and 30 gunthas, land-revenue Rs. 38-50 of village Rasulpur, in taluq and District Amravati. Even in these proceedings, he is represented by his natural and legal guardian Surajmal who is his father. On 26-4-1960 an application was made on behalf of Shri Premprakash for restoration of the field from the opponent Maroti on the ground that he needed the land bona fide for his own cultivation. Prior to that a notice under Section 38 was given according to law. This field and some other field as detailed in a copy of the family partition deed of 1950 was owned by the petitioner.

2. The opponents Maroti and shamrao resisted the application principally on the ground that Premprakash was not the owner of the family property but the joint family continued to be in possession and the owner was Surajmal, the father of the petitioner. This was really the sole basis of the defence in resisting the application. The petitioner proved the partition by examining his brother Nathmal. On behalf of the opponents, Maroti entered the witness box. During cross-examination of Nathmal, he was asked about a sale transaction in respect of survey No. 20 belonging to the petitioner. In reply to this question, the witness Nathmal stated that survey No. 20 was sold by their father in 1960-61 for Rs. 1500. He also stated that he did not know whether the father had taken permission for sale of the field. Before sale, the field was in personal cultivation at home and that it yielded an income of Rs. 200 to 300 after deducting expenses.

3. The Naib Tahsildar held that the partition was a sham transaction and there was no compelling necessity for the petitioner to cultivate the land personally. On these findings, the application was rejected.

4. When the matter came before the appellate authority at the instance of the petitioner, the appellate authority reversed the findings of the first Court and held that the partition was bona fide and was acted upon and could not be challenged. The appellate authority has also observed that it was not shown that the petitioner had income from any other source, and that he was dependent on the income from the field. Having so held, the appellate authority observed that it is to be noted that the landlord sold 20 acres of land after proceedings for possession of the suit land for personal cultivation were started. It was also observed that the land did not appear to have been sold when there was necessity for payment of medical charges and there was no satisfactory explanation for sale in 1961, and in the absence of tangible explanation for sale of the land after proceedings were started, it should not be held that the landlord bona fide needs the land for his personal cultivation.

5. Against the order of the appellate authority the petitioner preferred a revision application before the Maharashtra Revenue Tribunal . In paragraph 3 of its order, the Tribunal has observed as follows:-

"The record of the case shows that the applicant got 50 acres and 4 gunthas of land as a result of partition effected on 9-3-1950 between himself, his father and other brothers. The applicant filed resumption application before the original Court on 26-4-1960 and during the pendency of the proceedings he held 20 acres 10 gunthas of land on 5-1-1961. which was under his personal cultivation. The father of the applicant did not offer any explanation for the sale of the above field. It was open to him to show that the sale was warranted by compelling circumstances but he failed to do so. In view of this position, it cannot be said that the application for resumption has been made in good faith and that the applicant needs the land bona fide for personal cultivation. Nonetheless the fact remains that it is very hard to believe that the application bona fied wants the suit land for personal cultivation when 20 acres and 10 gunthas of land which was under his personal culti

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