(Per: HONOURABLE MR. JUSTICE NAVIN SINHA)

The present Appeal arises from order dated 24.9.2010 dismissing CWJC no. 2938 of 1991, declining interference with the order dated 5.9.1990 of the Joint Director Consolidation, Gaya, in Revision case no. 283 of 1989 preferred by respondents no. 5 to 7. The Revisional Court held that the sale deed executed by Siya Ram Pandey in favour of the Appellants was a void document and set aside the order of the Consolidation officer dated 23.2.1989 rejecting the claim of Respondents 5 to 7.

A deed of gift was executed on 17.11.1959 by Most. Khubsoorat Kuer in favour of her grandson Jai Ram Pandey only by name. Siya Ram Pandey, the younger brother is stated to have been a minor at the time. Jai Ram Pandey is stated to have gone missing. Siya Ram Pandey executed a sale deed on 1.5.1967 in favour of the Appellants, describing himself as a joint owner and karta of the lands, on behalf of himself and as guardian of respondents 5 to 7, minor sons of Jai Ram Pandey (hereinafter referred to as the respondents). The sale deed recited it was executed for the benefit of the education of the minors, treatment of the ailing wife of Jai Ram Pandey and to redeem a land mortgaged by the Pandey brothers. The wife of Jai Ram Pandey was deceased in 1974. During the Revisional Survey, the Appellants are stated to have filed objections leading to entry of their name in the Khatian. On 29.9.1975 Register of Land and Statement of Principles was prepared under section 9 and section 9 A of the Consolidation Act (hereinafter referred to as the Act) mentioning the name of the Appellants. No objections were filed under Section 10 (2) of the Act by Respondents 5 to 7. The draft scheme was then published under Section 12 of the Act inviting objections under Section 12 (2). Respondents filed objections on 15.9.1980. On 23.2.1989 the Consolidation Officer held that no objections having been filed earlier under Section 10 A after draft publication objections could be entertained only with regard to allocation of Chak under section 12(2). No corrections with regard to Khatian entries could be made leaving it for the respondents to challenge the sale deed before an appropriate Civil Court. The respondents preferred Revision Case no. 283 of 1989 before the Joint Director Consolidation under Section 35 of the Act. The Joint Director held that under the gift deed dated 17.11.1959 Jai Ram Pandey was the sole named beneficiary. Siya Ram Pandey had no right or title to dispose off the property standing exclusively in the name of his brother Jai Ram Pandey. No evidence had been produced that Siya Ram Pandey was a member of the joint family and was acting as karta while executing the sale deed or that the gift deed was intended for his benefit also though not named. He was not competent to execute the sale deed on behalf of the minor nephews as natural guardian especially when their mother was alive. Her signature was not obtained on the sale deed. No permission from the District and Sessions Judge was obtained before executing the sale deed on behalf of the minors. We notice that no objection was raised by the Appellants before either Authority regarding non-impleadment of Siya Ram Pandey. In the writ petition also the Appellants did not implead Siya Ram Pandey as party respondent or question the orders as bad for non-impleadment of Siya Ram Pandey.

The Learned Single Judge held that the sale deed was a void document as Siya Ram Pandey was not a named beneficiary of the gift deed. He could not act as the natural guardian of the minors and execute the sale deed on their behalf while the mother, the natural guardian, was alive. Eight years, as prescribed under Section 108 of the Evidence Act, had not elapsed from the disappearance of Jai Ram Pandey to create a presumption of death and the right to sell after four years only. Mere recital of legal necessity of sale for the benefit of the minors was not sufficient in the facts