The present writ petition under Article 226 of the Constitution has been filed by the plaintiffs-petitioners challenging the validity of the order dated 16.4.2004 passed by the Board of Revenue U.P. At Allahabad in Second Appeal No. 06 of 2002-2003 (Dashrath & Ors Vs. Panna Lal & Ors) whereby the second appeal filed by respondent nos. 7 to 11 was allowed and the judgment and decree dated 7.6.2003 passed by the Commissioner, Vindhyachal Division Mirzapur as well as order dated 22.10.2002 passed by the Assistant Collector /Upziladhikari, Gyanpur, Badohi were set aside.
The relevant facts for consideration in the present case are; that plot no. 47 having area of 2 bighas situate in Village Bhatpura, Tehsil Aurai, District- Sant Ravidan Nagar is the disputed land and said land is also part of Khata No. 40.
The mother of the plaintiffs-petitioners namely Smt. Kalawati Devi and defendant -respondent no. 12 Panna Lal s/o Lalloo Yadav executed a registered sale-deed dated 10.7.1970 in favour of Ram Pyare Singh (father of respondent nos. 2 to 5) and Lal Pratap Singh, (father of defendant respondent no.6). On the strength of said sale-deed, the names of Ram Pyare Singh- father of respondent nos. 2 to 5 and Lal Pratap Singh- father of respondent no.6, were mutated in the revenue record. Subsequently, Shiv Ram Singh and others (Sons of Ram Pyare Singh and Late Lal Pratap Singh respondent nos. 2 to 6), executed a registered sale-deed dated 11.2.1988 in favour of respondent nos. 7 to 11 (Dashrath & Ors), who got their names mutated in the revenue record on the strength of said sale-deed.
The plaintiffs-petitioners filed a suit on 14.6.1988 being Suit No. 293 of 1989 under Section 229-B of U.P. Z.A & L.R. Act before the Assistant Collector/Upziladhikari, Gyanpur at Badohi, praying that decree be passed declaring the plaintiffs/petitioners and defendant-respondent No.12 (Panna Lal) as bhumidhar of the land in dispute and the sale-deed executed by their mother and their brother Panna Lal (respondent no.12) be declared to be a void document on the ground that on the date of execution of the said sale-deed, the plaintiffs were minors and said deed has been executed without taking prior permission from the District Judge in terms of the provisions of Hindu Minority & Guardianship Act, 1956 (hereinafter referred to as the "Act of 1956").
The suit filed by the plaintiffs-petitioners was contested by the father of respondent nos. 2 to 5, father of respondent no.6 and father of respondent nos. 7to 11 that the sale-deed has rightly been executed by the mother and brother of the plaintiffs in their favour and sale-deed dated 10.7.1970 is not void document and the suit filed by the plaintiffs-petitioners cannot be decreed by the revenue court and the same is also not maintainable.
Both the parties in support of their respective claims adduced the oral evidence and filed documentary evidence.
The trial court partly decreed the suit of the plaintiffs-petitioners vide judgment and decree dated 22.10.2002.
Aggrieved by the judgment and decree passed by the trial court, the defendants-respondents no. 7 to 11 filed an appeal registered as Appeal No. 87 of 2003 before the Commissioner, Vindhyachal Division, Mirzapur which was dismissed by the Commissioner vide judgment and order dated 7.6.2003. The respondent nos. 7 to 11 filed a second appeal being Second Appeal No. 6 of 2002-03 before the Board of Revenue U.P. At Allahabad against the judgment and decree dated 22.10.2002 and 7.6.2003. The Board of Revenue vide judgment and order dated 16.4.2004 has allowed the second appeal filed by the respondent nos. 7 to 11, setting aside the judgment and decree dated 7.6.2003 and 22.10.2003 of the trial court and appellate court. It is the judgment and order dated 16.4.2004 which is impugned in the present writ petition.
I have heard Sri Ashutosh Srivastava, learned counsel for the petitioners and Sri N.B. Nigam, learned counsel for the respondents and perused the record.
Contention of learned counsel for the petitioners is that the Board of Revenue has committed manifest error in law while allowing the second appeal by holding that the sale-deed in question is not a void document and the suit filed by the plaintiffs-petitioners for declaration before the revenue court is not maintainable, in absence of any relief for cancellation of sale-deed. Learned counsel for the petitioner while elaborating his argument submits that the relief claimed in the suit is for declaration of rights by unrecorded tenure holder and the said declaration can only be made by the revenue court, even if it is admitted that the sale-deed is voidable in view of Section 8 (3) of the Act of 1956.
It is further argued by learned counsel for the petitioner that at the time of execution of the sale-deed, the petitioners were minors and in absence of natural guardians, de-facto guardians could not deal with the minors property in view of Section 11 and 12 of the Act of 1956. In support of his contention, he relied upon the following judgments in the cases of Punni Lal Vs. Rajender Singh & Anr. 1993 (SC) 1117, Prem Singh Vs. Birbal (2006) 5 SCC 353, Kamla Prasad & Ors Vs. Krishna Kant Pathak & Ors (2007) 4 SCC 213 and Tej Bhan Singh Anr. Vs. IX ADJ Jaunpur & Ors. 1994 RD 496 On the other hand, learned counsel for the respondents submits that in view of Section 8(3) of the Act, the sale-deed dated 10.7.1970 cannot be said to be a void document and it is merely a voidable document.
Counsel for the respondent further contends that since the sale-deed is a voidable document and admittedly the name of respondent no.7 to 11 have been mutated in the revenue records, therefore, the suit for declaration under Section 229-B of the U.P. Z.A. & L.R. Act is not maintainable, the remedy available to the plaintiffs-petitioners was to get the sale-deed cancelled. In support of his contention, he relied upon the following judgments in cases of Ram Awalamb Anr Vs. Jata Shanker & Ors AIR 1969 ALL 526 (F.B.), Vishwambhar & Anr Vs. Laxmi Narayana (Dead) through Lrs. & Ors. AIR 2001 SC 2607, Sursati Devi Vs. Joint Director of Consolidation, Basti & Ors 1983 ALL L.J. 1473 (Parag 53) and Ram Padarath and Ors Vs. Second ADJ & Ors 1989 (1) AWC 290 (F.B.).
I have considered the rival submissions so raised by the learned counsel for the parties and perused the record.
The suit for declaration of title under Section 229-B of U.P. Act No.1 of 1951 in respect of agricultural land was filed by the plaintiffs-petitioners on the ground that the petitioners were minor at the time of execution of sale-deed dated 10.7.1970 and same was executed without taking permission from the competent authority (District-Judge of the concerned District) and therefore, the said deed is void ab initio having no binding effect upon the petitioners and therefore, the declaration be made in their favour.
The Board of Revenue vide impugned judgment and decree had formulated the following substantial questions of law:
(a) Whether sale-deed of agricultural land executed by the natural guardian on behalf of minors requires a necessary permission of the competent authority (District-Judge).
(b) Whether sale-deed executed by guardian of the minors without permission or with permission is void or voidable.
(c) Whether the suit for mere declaration is maintainable in revenue court unless the voidable sale deed executed by the guardian of the minor is cancelled by the competent civil Court and whether without the prayer of setting aside the sale deed the suit is maintainable.
(d) Whether after the expiry of limitation of three years a minor can sue for setting aside a voidable sale deed and regain property and whether in case of two sons/respondents having attained majority more than three years ago and have not filed suit within three years, the suit to the extent of those sons/respondents is barred by limitation.
The Board of Revenue came to the conclusion that no permission is required under Section 8 of Guardianship and Wards Act in respect of sale of agricultural land of minors by his guardians and the sale-deed executed by the mother and brother of the petitioners is not void but a voidable document. Secondly, the suit was filed on 14.6.1988 i.e. after 18 years from the date of execution of the sale-deed and all the petitioners attained the majority as provided in Article 60 of the Schedule of Indian Limitation Act, the limitation for minors for filing the suit for cancellation of sale-deed is three years appears to be barred by limitation and thirdly, the name of the respondents have already mutated in the revenue record and said mutation has not been challenged by the petitioners after they had attained majority and further in view of Section 31 of Specific Relief Act 1966 the suit without seeking the cancellation of the sale-deed dated 10.7.1970 is not maintainable.
In the present petition, the questions that arises for consideration are as under;
(1) Whether the sale-deed dated 10.7.1970 executed by the mother and brother of the petitioners is void or voidable instrument.
(1) The natural guardian of a Hindu minor has power, subject to the provisions of this section, to do all acts which are necessary or reasonable and proper for the benefit of the minor or for the realisation, protection or benefit of the minor's estate; but the guardian can in no case bind the minor by a personal covenant.
(2) The natural guardian shall not, without the previous permission of the court,--
(a) mortgage or charge, or transfer by sale, gift, exchange or otherwise, any part of the immovable property of the minor; or
(b) lease any part of such property for a term exceeding five years or for a term extending more than one year beyond the date on which the minor will attain majority.
(3) Any disposal of immovable property by a natural guardian, in contravention of sub-section (1) or sub-section (2), is voidable at the instance of the minor or by any person claiming under him.
(4) No court shall grant permission to the natural guardian to do any of the acts mentioned in sub-section (2) except in the case of necessity or for an evident advantage to the minor.
(5) The Guardians and Wards Act, 1890 (8 of 1890), shall apply to and in respect of an application for obtaining permission of the court under sub-section (2) in all respects as if it were an application for obtaining the permission of the court under section 29 of that Act, and in particular--
(a) proceedings in connection with the application shall be deemed to be proceedings under that Act within the meaning of section 4A thereof;
(b) the court shall observe the procedure and have the powers specified in sub-sections (2), (3) and (4) of section 31 of that Act; and
(c) an appeal shall lie from an order of the court refusing permission to the natural guardian to do any of the acts mentioned in sub-section (2) of this section to the court to which appeals ordinarily lie from the decisions of that court.
(6) In this section "court" means the city civil court or a district court or a court empowered under section 4A of the Guardian and Wards Act, 1890 (8 of 1890), within the local limits of whose jurisdiction the immovable property in respect of which the application is made is situate, and where the immovable property is situate within the jurisdiction of more than one such court, means the court within the local limits of whose jurisdiction any portion of the property is situate...."
From the perusal of the aforesaid section, it is apparent that the previous permission of the competent authority (District-Judge of the concerned district) is required in case of transfer of immovable property by the natural guardian. Admittedly, as per the plaint, no permission was taken by the natural guardian of the petitioners while making the transfer and, hence, in view of Section 8 (3) of the aforesaid Act of 1956 any disposal of immovable property by natural guardians in contravention sub-section (1) or sub-section (2), of the the Act is voidable at the instance of minors or any person claimed under him and therefore, the sale-deed dated 10.7.1970 is voidable document and even the learned counsel appearing on behalf of the petitioners conceded the said position.
Now coming to the second question, whether the suit is cognizable by the civil court or the revenue court a suit for cancellation of instrument, is based on provisions of Section 31 of Specific Relief Act which is quoted as under:-
"31. When cancellation may be ordered.--
(1) Any person against whom a written instrument is void or voidable, and who has reasonable apprehension that such instrument, if left outstanding may cause him serious injury, may sue to have it adjudged void or voidable; and the court may, in its discretion, so adjudge it and order it to be delivered up and cancelled.
(2) If the instrument has been registered under the Indian Registration Act, 1908 (16 of 1908), the court shall also send a copy of its decree to the officer in whose office the instrument has been so registered; and such officer shall note on the copy of the instrument contained in his books the fact of its cancellation."
Thus, the Section 31 of Specific Relief Act refers to both void and voidable instrument and it is the discretional relief.
It is true that as per the Full Bench decision of this Court in the case of Ram Padarat (supra) even a suit for cancellation of void sale-deed in respect of agricultural land may be maintainable before the civil court. The decision of the said Full Bench decision has been upheld by the Hon'ble Apex Court in the case of Smt. Bismilla Vs. Janeshwar AIR 1990 SC 504; the Hon'ble Apex Court has held that if the plaintiff is of opinion that without getting the offending deed set aside, he cannot get proper reliefs, then the bar is not attracted and the plaintiff is at liberty to file suit before the Civil Court.
In Shri Ram & Anr. Vs. Ist Additional Judge, 2001 (92) RD 241 (SC), the Apex Court also held that the recorded tenure holder is not required to approach the Revenue Court for declaration of rights and can challenge the sale-deed purported to have been executed before the civil court.
The paragraphs Nos. 7 and 41 of the Full Bench decision of this Court in the case Ram Padarat (supra) which has been approved by the Apex Court in the Case of Smt. Bismilla (supra) read as under:
"7. So far as voidable documents like those obtained by practising coercion, fraud, misrepresentation, undue influence etc., are concerned, their legal effect cannot be put to an end without its cancellation. But a void document is not required to be cancelled necessarily. Its legal effect if any can be put to an end to by declaring it to be void and granted some other relief instead of canceling it. Once it is held to be void it can be ignored by any court or authority being of no legal effect or consequence. A document executed without free consent or one which is without consideration or the object of which is unlawful or executed by a person not competent to contract like a minor or in excess of authority would be a void document. In case it is in excess of authority it would be void to that extent only. There is presumption of due registration of a document and correctness of the facts mentioned in the same, but the said presumption is not conclusive and be dislodged.
"41..... Suit or action for cancellation of void document will generally lie in the Civil court and a party cannot be deprived of his right getting this relief permission under lad except when a declaration of right or status of a tenure holder is necessarily needed in which even relief for cancellation will be surplusage and redundant. A recorded tenure- holder having prima facie title in his favour can hardly be directed to approach the Revenue Court in respect of Seeking relief for cancellation of a void document which made him to approach the Court of law and in such case he can also claim ancillary relief even through the same can be granted by the Revenue Court."
In view of the aforesaid decision of the Full Bench of this Court as well as Hon'ble Apex Court; a person who question the sale deed executed or purported to be executed by him in respect of agricultural land can file a suit for its cancellation before the civil court if the sale is void or voidable on the ground of fraud coercion, undue influence, misrepresentation or impersonation.
This Court in the case of Sursati Devi (supra), has also taken a similar view to the effect that in view of provision contained in sub section (3) of Section 8 of the Act of 1956, any alienation made by the guardians of the minor rendered it voidable and the said alienation cannot be ignored by the revenue/consolidation courts. Paragraph 53 of the said judgment is quoted hereunder:
"53. The sale deed in question has not been dubbed as a void document. Opposite party No. 4 had asserted that since no permission of the District Judge was obtained as was required by S. 8 of Act No. 32 of 1956 while making transfer of the land in question by his father and as such he was not bound by the said transfer being void in law. Learned counsel for the opposite party No. 4, however, conceded that on the aforesaid ground the impugned sale deed cannot be said to be void but he asserted that it was voidable in view of the provisions contained under Sub-sec (3) of S. 8 of the H. M. & G. Act. The consolidation authorities, therefore, could not ignore the said document while treating it to be a void document as has been held by them. The impugned orders passed by the consolidation authorities thus suffer from a manifest error of law."
The Apex Court in the case of Vishwambhar (supra) has also taken same view, which applies in the present case on its four corners. Relevant portion of the said judgment i.e. paragraph nos. 9 and 10, are quoted hereunder:
"9. On a fair reading of the plaint, it is clear that the main fulcrum on which the case of the plaintiffs was balanced was that the alienations made by their mother-guardian Laxmibai were void and therefore, liable to be ignored since they were not supported by legal necessity and without permission of the competent court. On that basis the claim was made that the alienations did not affect the interest of the plaintiffs in the suit property. The prayers in the plaint were inter alia to set aside the sale deeds dated 14.11.1967 and 24.10.1974, recover possession of the properties sold from the respective purchasers, partition of the properties carving out separate possession of the share from the suit properties of the plaintiffs and deliver the same to them. As noted earlier, the trial court as well as the first appellate court accepted the case of the plaintiffs that the alienations in dispute were not supported by legal necessity. They also held that no prior permission of the court was taken for the said alienations. The question is in such circumstances are the alienations void or voidable? In Section 8 (2) of the Hindu Minority and Guardianship Act, 1956, it is laid down, inter alia, that the natural guardian shall not, without previous permission of the Court, transfer by sale any part of the immovable property of the minor. In sub-section (3) of the said section it is specifically provided that any disposal of immovable property by a natural guardian, in contravention of sub-section (2) is voidable at the instance of the minor or any person claiming under him. There is, therefore, little scope for doubt that the alienations made by Laxmibai which are under challenge in the suit were voidable at the instance of the plaintiffs and the plaintiffs were required to get the alienations set aside if they wanted to avoid the transfers and regain the properties from the purchasers. As noted earlier in the plaint as it stood before the amendment the prayer for setting aside the sale deeds was not there, such a prayer appears to have been introduced by amendment during hearing of the suit and the trial court considered the amended prayer and decided the suit on that basis. If in law the plaintiffs were required to have the sale deeds set aside before making any claim in respect of the properties sold then a suit without such a prayer was of no avail to the plaintiffs. In all probability realising this difficulty the plaintiffs filed the application for amendment of the plaint seeking to introduce the prayer for setting aside the sale deeds. Unfortunately, the realisation came too late. Concededly, plaintiff no.2 Digamber attained majority on 5th August, 1975 and Vishwambhar, plaintiff no.1 attained majority on 20th July, 1978. Though the suit was filed on 30th November, 1980 the prayer seeking setting aside of the sale deeds was made in December, 1985. Article 30 of the Limitation Act, prescribes a period of three years for setting aside a transfer of property made by the guardian of a ward, by the ward who has attained majority and the period is to be computed from the date when the ward attains majority. Since the limitation started running from the dates when the plaintiffs attained majority the prescribed period had elapsed by the date of presentation of the plaint so far as Digamber is concerned. Therefore, the trial Court rightly dismissed the suit filed by Digamber. The judgment of the trial court dismissing the suit was not challenged by him. Even assuming that as the suit filed by one of the plaintiffs was within time the entire suit could not be dismissed on the ground of limitation, in the absence of challenge against the dismissal of the suit filed by Digambar the first appellate court could not have interfered with that part of the decision of the trial court. Regarding the suit filed by Vishwambhar it was filed within the prescribed period of limitation but without the prayer for setting aside the sale deeds. Since the claim for recovery of possession of the properties alienated could not have been made without setting aside the sale deeds the suit as initially filed was not maintainable. By the date the defect was rectified (December, 1985) by introducing such a prayer by amendment of the plaint the prescribed period of limitation for seeking such a relief had elapsed. In the circumstances the amendment of the plaint could not come to the rescue of the plaintiff.
10. From the averments of the plaint it cannot be said that all the necessary averments for setting aside the sale deeds executed by Laxmibai were contained in the plaint and adding specific prayer for setting aside the sale deeds was a mere formality. As noted earlier, the basis of the suit as it stood before the amendment of the plaint was that the sale transactions made by Laxmibai as guardian of the minors were ab initio void and, therefore, liable to be ignored. By introducing the prayer for setting aside the sale deeds the basis of the suit was changed to one seeking setting aside the alienations of the property by the guardian. In such circumstance the suit for setting aside the transfers could be taken to have been filed on the date the amendment of the plaint was allowed and not earlier than that."
The proposition of law as per the aforesaid judgment are thus:
(i) the alienation made by the mother, the natural guardian of the minor are voidable at the instance of plaintiffs;
(ii) the plaintiffs are required to get the alienation set aside, if they wanted to avoid such transfer and regain the property from its purchasers;
(iii) the plaintiffs were also required to get the sale deed set aside before making any claim in respect of properties sold by them and the suit without setting aside the alienation was of no avail;
(iv) when there were more than one minor and some of them had attained the majority, the prescribed period has lapsed by the date of presentation of plaint for some of them and even for setting aside the suit, alienation would be barred by limitation as prescribed under Article 60 of the Limitation Act, which prescribes the limitation period of three years for filing the suit for setting aside the deed; and
(v) if the suit was not filed within the prescribed period of three years from the date of attaining the majority by the plaintiffs, the other relief for declaration of their rights or possession would not be maintainable.
In view of the above, it is clear in the present case that suit for mere declaration of rights in respect of agricultural land under Section 229B of U.P.Z.A & L.R. Act is not maintainable as the same is based on transfer made by the guardians of the plaintiffs without taking the permission from the competent court (District Judge) and the said document is rendered voidable in view of Section 8 (3) of the Act of 1956 for which the suit for cancellation of said instrument is required to be filed before the competent court.
The judgment cited on behalf of the petitioners are distinguishable in view of the above proposition of law as the same relates to the void instrument and which does not give any help to the petitioners.
I do not find any merit in the writ petition. The Board of Revenue vide impugned order has considered each and every aspect of the matter in detail while allowing the appeal filed by the respondent nos. 7 to 11.
Writ petition lacks merit and is, accordingly, dismissed. No order as to costs.
Order Date : 30.8.2019 Akbar