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PATNA HIGH COURT
Hari Lal Agrawal and Krishna Ballabh Sinha JJ.
R.B.Mishra
Versus
State Of Bihar
Civil Writ Jurisdiction Case No. 915 of 1982 ;
Decided On : JANUARY 21, 1983
CONSOLIDATION OF HOLDINGS - VOIDABLE SALE - LIMITATION - JURISDICTION OF CONSOLIDATION AUTHORITIES - HINDU MINORITY AND GUARDIANSHIP ACT, 1956 - SECTIONS 8, 10-A - BIHAR CONSOLIDATION OF HOLDINGS AND PREVENTION OF FRAGMENTATION ACT, 1956 - SECTIONS 4(C), 10, 11, 12 - LIMITATION ACT, 1963 - ARTICLES 44, 60 - VOID AND VOIDABLE TRANSACTIONS - DISTINCTION - JURISDICTION OF CIVIL COURT - SALE DEED EXECUTED BY NATURAL GUARDIAN WITHOUT COURT PERMISSION - VOIDABLE TRANSACTION - LIMITATION FOR SETTING ASIDE - JURISDICTION OF CONSOLIDATION AUTHORITIES - CONSOLIDATION AUTHORITIES CANNOT CANCEL OR SET ASIDE VOIDABLE DOCUMENTS - JURISDICTION OF CIVIL COURT.
Fact of the Case:
Petitioner purchased land from respondent No. 5, the father of respondents 6, 7, and 8, acting as natural guardian of his minor sons. The sale deed was executed on 6-5-1959. In 1972, a notification under Sec. 3 of the Bihar Consolidation of Holdings and Prevention of Fragmentation Act, 1956, was published, and consolidation operations commenced. The petitioner's name was shown as the owner of the purchased land in the draft consolidation scheme. Respondents 6 to 8 filed an objection to the entries in the Chak Register in the name of the petitioner, alleging that they got knowledge about the transfer of the land for the first time on 1-2-1978. They challenged the transfer as being void, as no permission was obtained from the District Judge under the provisions of the Hindu Minority and Guardianship Act, 1956. The Consolidation Officer allowed the objection, and the petitioner filed an appeal and revision against the order.
Finding of the Court:
The Court held that the sale deed executed by respondent No. 5, although he was the natural guardian of respondents 6 to 8, was binding on the minors until set aside by a competent Court and a period of 3 years only was available for instituting such a suit, and no such suit having been instituted the transfer of the lands in favor of the petitioner became final and conclusive and was binding on the Consolidation authorities inasmuch as it was simply voidable and not void.
Issues: 1. Whether the sale deed executed by respondent No. 5, the natural guardian of respondents 6 to 8, was void or voidable? 2. Whether the respondents could challenge the transaction of sale in favor of the petitioner in the year 1978 before the Consolidation authorities? 3. Whether the consolidation authority was competent to decide the question of the validity of the sale deed?
Ratio Decidendi: 1. The Court held that the sale deed executed by respondent No. 5, although he was the natural guardian of respondents 6 to 8, was binding on the minors until set aside by a competent Court and a period of 3 years only was available for instituting such a suit, and no such suit having been instituted the transfer of the lands in favor of the petitioner became final and conclusive and was binding on the Consolidation authorities inasmuch as it was simply voidable and not void. 2. The Court held that the respondents could not challenge the transaction of sale in favor of the petitioner in the year 1978 before the Consolidation authorities as that right had been extinguished. 3. The Court held that the consolidation authority was not competent to decide the question of the validity of the sale deed.
Final Decision: The Court allowed the application and quashed the orders contained in Annexures 7, 8, and 9. The petitioner was also awarded costs.
Hari Lal Agrawal, J.
1. This application under Articles 226 and 227 of the Constitution of India has been filed for quashing the order of the Consolidation Officer, Dumraon, dated 18-10-1978 (Annexure 7) passed in Consolidation Case No. 38 of 1978, affirmed on appeal by the Deputy Director (respondent No. 3) and in revision by the Director of Consolidation, Bihar (respondent No. 2) by their orders contained in Annexures 8 and 9 respectively.
2. The area involved in this proceeding is about 40 bighas which was sold to the petitioner by respondent No. 5, the father of respondents 6, 7 and 8, namely, Maharaj Kumar Vishwanath Singh of Dumraon, acting as natural guardian of his aforesaid three minor sons, for a sum of Rs. 20,000.00 by a registered sale deed dated 6-5-1959 (Annexure 2). It is this property that the petitioner has lost in the consolidation proceeding.
3. Briefly stated, the facts giving rise to the proceeding are as follows. Maharaja Keshav Prasad Singh, the Maharaja of Dumraon, bad two sons, namely, Sri Ram Ran Vijay Prasad Singh and Maharaja Kumar Vishwanath Singh, respondent No. 5, Sri Ram Ran Vijay Prasad Singh had only one son, namely, Maharaja Kamal Singh, and Maharaja Kumar Vishwanath Singh, as already said earlier, had three sons.
Title Suit No. 75 of 1951 was filed by Kumar Vishwanath Singh for partition in respect of the Dumraon Raj in the Court of the Subordinate Judge, Arrah. Later on he was also allowed to add his three minor sons as co-plaintiffs, who were shown under the guardianship of Shri Kanhaiya Singh (who later on became an Hon ble Judge of this Court) as the next friend of the said minors. That title suit was ultimately compromised and respondent No 5 and his three minor sons (respondents 6 to 8) were given separate properties, the sons having been exclusively allotted 58 acres of land under Khata No. 21 in village Bhojpur under Dumraon police station.
It further appears from the order dated 19-11-1952 in the title suit that a sum of Rs. 90,000.00 was allowed to be received by the said next friend of the minor plaintiffs and to deposit the same in the fixed deposit in terms of the compromise. On this very date the suit was also decreed in terms of the compromise against defendant No. 1. It may be mentioned that Shri Kanhaiya Singh was discharged from the guardianship of the minors on 22-2-1957 on being appointed a Judge of this Court.
4. The case of the petitioner is that respondent No. 5, being father of respondent Nos. 6 to 8, automatically assumed the character of the natural guardian of the minor sons under the provisions of the Hindu Minority and Guardianship Act, 1956, but Nonetheless he made an application in the Court in the title suit on 3-5-1960 to act as such, which was allowed, as it appears from the copy of the relevant order sheet (Annexure 1). Thereafter respondent No. 5, the father of the minors, also applied for withdrawal of the interest on the sum of Rs. 90,000.00 deposited earlier for spending over the education and other matters of the minors, which prayer was allowed by order No. 68, dated 28-6-68. The petitioner has further asserted, and as no counter-affidavit has been filed his assertion remains uncontroverted, that he came in possession of the properties vended under the sale deed dated 6-5-1959 abovementioned, constructed boundary walls and buildings and was also mutated in Register II and dealt with part of the properties by selling to other persons. The final record of rights was also published on 30-3-1970 in his favour with respect to the aforesaid land.
5. It appears from an order dated 18-7-1967 (Annexure 3) passed in the title suit that an application was filed by one of the minor sons, namely, Divya Dip Singh, respondent No. 6 (plaintiff No. 2) to the effect that he had attained majority on 29-7-66 and a prayer was made to permit him to deal with the treasury deposits and savings certificates. The prayer was allowed but in spite of that, respondent No.
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