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IN THE HIGH COURT OF ORISSA
K.C. Jagadeb Roy, G.B. Patnaik, JJ.
BRUNDABAN MOHANTY - APPELLANT
Versus
ABAKASH ROUT AND OTHERS - RESPONDENT
O.J.C. No. 103 of 1989
Decided On : 10-09-1992
HINDU MINORITY AND GUARDIANSHIP ACT - SECTION 8 - SALE OF MINOR'S PROPERTY WITHOUT PERMISSION OF COURT - VOIDABLE - AVOIDANCE BY MINOR - UNILATERAL ACT OR CONDUCT - CONSOLIDATION PROCEEDINGS - JURISDICTION OF CONSOLIDATION AUTHORITIES.
Fact of the Case:
A father sold his minor son's property without the court's permission. The minor, upon reaching majority, challenged the sale in consolidation proceedings. The consolidation commissioner directed that the land be recorded in the minor's name, but possession should be noted for the purchaser. The minor filed a writ petition challenging this order.
Finding of the Court:
The court held that the sale of a minor's property by the guardian without permission of the court is voidable at the instance of the minor and can be avoided by the minor's unilateral act or conduct without filing a suit. The court found that the minor had avoided the sale by remaining in possession of the property and, therefore, the consolidation commissioner was justified in directing that the land be recorded in the minor's name.
Issues: 1. Whether the sale of a minor's property by the guardian without permission of the court is void or voidable. 2. Whether the minor can avoid the sale by a unilateral act or conduct without filing a suit. 3. Whether the consolidation authorities have jurisdiction to avoid the sale in consolidation proceedings.
Ratio Decidendi: 1. The court held that the sale of a minor's property by the guardian without permission of the court is voidable at the instance of the minor under Section 8(3) of the Hindu Minority and Guardianship Act. 2. The court held that the minor can avoid the sale by a unilateral act or conduct without filing a suit, relying on the decisions of the Kerala High Court in Iruppakkatt Veettil Viswanathan's wife Santha Vs. Deceased Kandan's L.Rs. Wife Cherukutty and Others and Chacko Mathew Vs. Ayyappan Kutty. 3. The court held that the consolidation authorities have jurisdiction to avoid the sale in consolidation proceedings, relying on the decision of this Court in Prasanna Kumar Pradhan v. Gopal Ch. Sahoo and Ors.
Final Decision: The court dismissed the writ petition, holding that the consolidation commissioner was justified in directing that the land be recorded in the minor's name.
JUDGMENT :
G.B. Patnaik, J. - 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 u/s 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 u/s 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 prope
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