9911796707
TMI Blog1983 (1) TMI 290X X X X Extracts X X X X X X X X Extracts X X X X ..... Vishwanath Singh of Dumraon, acting as natural guardian of his aforesaid three minor sons, for a sum of ₹ 20,000/- 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, had two sons, namely, Shri Ram Ran Vijay Prasad Singh and Maharaja Kumar Vishwanath Singh, respondent No. 5. Shri Ram Ran Vijay Prasad Singh had only one son, namely, Maharaja Kamal Singh, and Maharaj Kumar Vishwanath Singh, as already said earlier, had three sons. Title Suit No. 75 of 1951 was filed by Kumar Vishwanath Singh for partition is 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 pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of appeal (Annexure 5) preferred against an order of the Certificate Officer in Certificate Case No. 8 of 1975-76, before the Collector of Bhojpur at Arrah, by the three sons (respondents 6 to 8) and their father (respondent No. 5) in the year 1975, that the fact of the sale of the land to the petitioner was admitted. The relevant recital may be extracted as follows :-- ..... the land for the development of which the loan was taken was later on sold to one Shri Ram Bachan Mishra of Dhananjaypur, P. S. Simri, District Bhojpur and others, vide various sale deeds. Ram Bachan Mishra took the land with the undertaking and the full knowledge that he would pay ₹ 4,000/- and the interest thereon towards the aforesaid loan. Thus their personal liability for the certificate debt was denied. 6. Some time in the year 1972 a notification under Section 3 of the Bihar Consolidation of Holdings and Prevention of Fragmentation Act, 1956 (for short 'the Act') was published and the consolidation authorities started the consolidation operations in accordance with the provisions of the Act including publication of registers prepared under ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... natural guardian of respondents 6 to 8, must be treated to be void as he could not be better than a stranger in the absence of any authority of the District Judge, (2) with the appointment of a guardian by the Court, the father (respondent No. 5) was permanently ousted and disqualified to act as a natural guardian of his minor sons even after he was discharged inasmuch as the natural guardian once superseded remained superseded for all times to come, (3) the sale deed was also invalid as it was executed by one Gunjeshwari Prakash Singh and not by their father himself and, therefore, the document was bad in view of the maxim delegatus non potest delegate. The limitation for setting aside the transfer by the father was 12 years from the date of the attainment of the majority, and the respondents 6 to 8 derived the knowledge of the transaction for the first time on 1-2-1978. 8. The argument advanced on behalf of learned counsel for the petitioner was that the sale deed executed by respondent No. 5 acting as the natural guardian of his minor sons was binding on the minors until set aside by a competent Court and a period of 3 years only was available for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... J. Apart from the fact that this argument was of no consequence whatsoever to us as the implications of this argument could have a bearing, if at all, before a single Judge of the Calcutta High Court alone, reading the judgment of Biswas, J. it is not possible to accept the contention of Mr. Banerji. Biswas, J. has simply indicated his apprehensions but ultimately he refused to note a dissent. The view expressed in the above decision is a debatable question but the facts of this case do not require any discussion of that question inasmuch as this case and the other cases on this line, i. e., cases under the Guardians and Wards Act, must be brushed aside on the simple ground that appointment of a guardian under the provisions of this Act has got a different complexion altogether as was the position in that case, but the appointment of a guardian or, for that matter, a next friend, under Order 32 of the C. P. C is entirely different. Rule 1 of Order 32 deals with a suit by a minor plaintiff and says that it shall be brought in his name by a next friend. Similarly Rule 3 provides for the appointment of a guardian for the suit by a Court for a minor defendant. Sub-rule ( ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cribes the powers of natural guardian and they are to do all acts which are necessary and reasonable and proper for the benefit of the minor or for the realisation, protection or benefit of the minor's estate, but Sub-section (2) thereof debars him to mortgage or charge or transfer by sale, gift, exchange or otherwise any part of the immovable property of a minor or even lease any part thereof for a term exceeding five years, without the previous permission of the Court. Sub-section (3) of Section 8 makes any disposal of immovable property by a natural guardian in contravention of Sub-sections (1) and (2), voidable at the instance of the minor or any person claiming under him. 13. It was on the basis of this provision that Mr. Bauerji argued that the respondents were bound to take steps within the period of limitation for setting aside the sale deed, which was only three years under Article 60 of the Limitation Act. The argument of Mr. Balbhadra Prasad Singh, on the other hand, was that although Sub-section (3) of Section 8 treated such a transaction to be voidable, in the eye of law it must be deemed to be void and the minor was not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ure has been using these words to indicate their definite and clear distinction, as discussed above. 15. Same argument was also advanced that it was not always essential to institute a suit to avoid, a voidable transaction as election to firm may be indicated by conduct Similarly a voidable contract may be avoided by indication or conduct of the person concerned. Prima facie this proposition may appear to be acceptable, but it cannot be of universal application and must depend upon the circumstances and vary from case to case. 16. I may usefully refer to a single Judge decision of the Kerala High, Court rendered by V. R. Krishna Iyer, J. (as he then was) in the case of Iruppakket Veettil Viswa-nathan's wife Santha v. Deceased Kandan's L. Rs. wife Cherukutty (AIR 1972 Ker 71) which was referred to by teamed counsel for both the parties. This was a case raider the Hindu Minority and Guardianship Act, 1956, where a minor's property was transferred by his natural guardian without sanction of the Court. The learned Judge reviewed a large number of authorities on the question and held that the contract was voidable at the instance of the minor ev ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cts, I would also venture to record my disagreement with the proposition of law laid down by the learned Judge. I may cut short this argument by reference to a Bench decision of the Kerala High Court, itself in Beeyyathumma v. Moidin Haji (AIR 1959 Ker 125) which, perhaps, was not brought to the notice of Justice Iyer, where it was very clearly laid down that such transactions by a legal guardian of a minor which were voidable and not void must be set aside by the minor under Article 44 (1908 Act) within the prescribed time, and when they were not set aside under Article 44, the minor's right became extinguished under Section 28 of the Limitation Act. The relevant Article of the new Limitation Act is Article 60 and it specifically provides a limitation of three years for a suit by the ward alter attaining majority to set aside transfer of property made by his guardian. I have already said earlier about the authority of the father as the manager of a Hindu family to deal with the undivided interest of a minor and the separate property. In the case of a transfer by a person acting as the guardian in respect of a property of a minor in a joint Hindu Mitakshara famil ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... C) 544 , held that the suit for redemption was outside the purview of Section 4 (c) of the Act and the forum was only the Civil Court. 19. With respect to the finding of the Consolidation Authority regarding the execution of the sale deed by one Gunjeshwari Prakash Singh and not by respondent No. 5, it may be stated that respondent No. 5, the father of the minors, has stated in the margins of the sale deed that be was executing, the sale deed, and the purported execution of Gunjeshwari Prakash Singh was scored through although he was described in the category of the vendors. Gunjeshwari Prakash Singh simply appears to have acknowledged the execution on behalf of Maharaj Kumar Vishwanath Singh before the Registrar, and in any event in the petition of appeal before the Collector of Bhojpur the respondents 6 to 8 had said that the sale deed was executed by their father. 20. Learned Standing Counsel No. 4, who appeared for the official respondents, practically did not make any argument and simply stated that he would adopt the arguments of the learned counsel for the contesting respondents. 21. Therefore, on consideration of the arguments ad ..... X X X X Extracts X X X X X X X X Extracts X X X X
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