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High Court Of Madhya Pradesh
A.P. Sen, J.
SUKHSEN
Versus
SHRAVAN KUMAR
Decided On : Sep 23,1969
The law is well settled that Raj Gonds are not Hindus but the presumption is that they are governed by Hindu Law unless the contrary is shown. 32 MPLC 272 & ILR 1951 Nag. 873 relied on. [Para 3
(2) Hindu Law - co-parcenary - presumption - no presumption that there is joint property -- burden of proof.
The mere circumstance that the defendants constitute a joint Hindu family does not give rise to the presumption that a family, because it is joint, possesses joint property or any property. The law is that if a party contends that the property is joint family property, the burden of proving that it is so rests on the party asserting it. [Para 4
(3) Land Revenue Code, 1954 (M.P.) - Ss. 152 (2) & 14 (2) - permission given by Additional Collector - is valid.
The Additional Collector is an authority of concurrent jurisdiction so far as powers, functions and duties of the Collector are concerned under the Code.
Section 152 directs that the transfer shall be with the permission of a Revenue Officer not below the rank of a Collector.
The Additional Collector not only fulfils this requirement but, being a co-ordinate authority as the Collector, was entitled to deal with the matter. [Para 6
(4) Jurisdiction - delegation of power - sub-delegation - when permitted.
The normal rule is that there cannot be sub-delegation of his powers by a delegate under the maxim 'delegata potest as non potest delegari' unless there is a provision enabling further delegation. [Para 7
(5) Land Revenue Code, 1954 (M.P.) - S. 26 (2) - case transferred by Additional Collector for enquiry to the Sub-Divisional Officer - further transfer to Tahsildar for enquiry and report legal.
A case under section 152 (2) of the Code of 1954 was transferred by the Additional Collector fur enquiry and report to the Sub-Divisional Officer, who further transferred it to the Naib-Tahsildar. There being a statutory provision for such sub-delegation, the Sub-Divisional Officer was clearly entitled to remit the case to the Naib-Tahsildar for enquiry and report. [Para 7
(6) Land Revenue Code, 1954 (M.P.) - Ss. 236 & 152 (2) - exclusion of jurisdiction of Civil Courts - provisions of an Act not complied with - civil Court has jurisdiction to examine the order passed by a revenue Court.
The exclusion of jurisdiction of Civil Courts is not to be readily inferred but such exclusion must either be explicitly expressed or clearly implied. Even if jurisdiction is so excluded, the Civil Courts have jurisdiction to examine into cases where the provisions of the Act have not been complied with. AIR 1940 PC 105 relied on.
The plea in defence challenging the validity of the transfer, although it involves an enquiry whether the requirements of section 152 (2) had been complied with by the Additional Collector, does not require the Civil Court to decide whether sanction for such transfer should have been granted or not. That was, and is, a matter within the exclusive jurisdiction of the Collector. The section, in terms, does not apply to prevent an adjudication by the civil Court as regards the invalidity of the sanction, which renders the sale transactions a nullity due to non-fulfilment of conditions which are pre-requisites for the grant of such sanction under section 152 (2). 1964 RN 513=1964 JLJ 707 referred to. [Para 9
(7) Land Revenue Code, 1954 (M.P.) - S. 152 (2) - reasons for according permission not recorded - grant of permission is a nullity.
Failure of the Additional Collector to record reasons for granting permission under section 152 (2) of the Code of 1954 renders the permission a nullity. The transfer based on such permission is void and legally unenforceable. 1966 JLJ 543 = 900 RN 303 & AIR 1962 SC 1694 relied on. [Para 13
(8) Evidence Act, 1872 - S. 115 - estoppel - no estoppel against a statute - person seeking permission for transfer - permission a nullity - may set up a defence that the transfer is void for want of proper permission - Land Revenue Code, 1954 (M.P.) - S. 152 (2).
Where the defendant himself initiated proceedings for grant of permission to transfer, and the permission was granted, he is not estopped from challenging the validity of the transfer because there is no estoppel in statute. AIR 1937 PC 114 relied on. [Para 13
In case of a statute like section 152 (2) of the Madhya Pradesh Land Revenue Code, enacted for the benefit of a section of the public, that is, on grounds of public policy, where the statute imposes a duly of a positive kind like the recording of reasons in writing permitting transfer of his rights by a Bhumiswami belonging to an aboriginal tribe, which is a condition precedent to the validity of the transfer, the failure to perform that duty does not prevent the recipient of the permission from challenging its validity on the ground of nun-fulfilment of the terms of the section. [Para 13
(9) Contract Act, 1872 - S. 65 - contract of sale discovered to be void because of defective permission - consideration has to be returned - Land Revenue Code, 1954 (M.P.) - S. 152 (2).
Where the permission for sale granted under section 152 (2) of the Code of 1954 was discovered to be a nullity, the sale became void. In such a case section 65 of the Contract Act is attracted. The transferee cannot claim possession on the basis of such sale, but the transferor is bound to refund the consideration received by him. AIR 1943 PC 29 relied on. [Para 14
( 1. ) THIS is an appeal from the judgment and decree of the iiird Additional District Judge, Jabalpur, dated 14th August 1967, confirming the judgment and decree of the Civil Judge, Class II, Murwara, dated 16th august 1966, decreeing the plaintiffs claim for declaration and possession of the suit lands.
( 2. ) THE two questions canvassed in this appeal are (1) whether the defendants are governed by the Mitakshara School of Hindu Law and if so, if the suit lands formed their joint family property, having regard to the finding that they were joint in mess and estate; and (ii) whether the sale of the suit lands by the defendant No, 1 was in contravention of section 152 (2) of the Madhya Pradesh Land Revenue Code, 1954, and thus, being void and unenforceable, could not be the foundation of the plaintiffs title.
( 3. ) SO far as the first question is concerned, the learned counsel for the appellants rightly urges that the Additional District Judge has erred in holding that the parties are not governed by Hindu law. The law is well settled that Raj-Gonds are not Hindus but the presumption is that they are governed by Hindu law unless the contrary is shown. [rajah Chhattarsingh v. Diwan roshan Singh (1946 N L J 690=a I R 1946 Nag. 277= ILR 1946 Nag. 159.) and Dashrath Prasad v. Lalloo Singh (1951 N L J 616=a I R 1951 Nag. 343=i L R 1951 Nag. 873.)]. That the defendants are Raj-Gonds is an undisputed fact. [see, plaint, para 3 and the cause-title therein and Exs. P.- l, P.-2, P.-4 and P.-15]. Contrary to this admitted position, the plaintiffs father P. W. 1 Chetram tried to assert that they were gonds. The Additional District Judges assumption that the defendants were not Hindus because they worship Dulha Dev and Khermai proceeds on misplacing the burden of proof on them to establish that they had adopted Hindu law. In view of the plaintiffs own admission in the plaint that the defendants were Raj-Gonds, the presumption is that they are Hindus and, therefore, governed by Hindu law for all purposes unless the contrary is proved.
( 4. ) BUT the learned counsel is not right in suggesting that this gives rise to the inference that the suit lands were impressed with the character of being coparcenary property of the defendants and, therefore, the plaintiff being a stranger-purchaser was not entitled to be in exclusive possession thereof The mere circumstance that the defendants constitute a joint Hindu family does not give rise to the presumption that a family, because it is joint, possesses joint property or any property. The law is that if a party contends that the property is joint family property, the burden of proving that it is so rests on the party asserting it. The Courts below have found that the suit lands were the separate property of the defendant No. 1 Sukhsen. They have also found that there was no ancestral nucleus from which the property in question may have been acquired. These are findings of fact based upon appreciation of evidence and are binding on this Court in second appeal. That being so, the further submission that the plaintiff being a stranger-purchaser must work on his rights in a suit for partition does not arise.
( 5. ) IT remains for me now to deal with the second point which the learned counsel has pressed for my consideration. His contention is that even assuming that the suit lands were not coparcenary property of the defendants, the plaintiff would still not be entitled to a decree because the sale deed in his favour is hit by section 23 of the Contract Act, on the ground that the sale of the suit lands was in contravention of section 152 (2) of the Madhya Pradesh land Revenue Code, 1954. That section reads :
"152 (2 ). Notwithstanding anything in sub-section (1), the right of a tenure-holder belonging to a tribe which has been declared to be an aboriginal tribe by the State Government by a notification in that behalf for the whole or a part of the area to which this Code applies shall not be tran
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