JUDGMENT Poonam Srivastava, J.
1. Heard learned Counsel for the petitioner and learned Counsel for the contesting respondents.
2. This writ petition has been filed challenging the order dated 6.2.1978 passed by Settlement Officer (Consolidation), Hamirpur under Section 11 of the Consolidation of Holdings Act (hereinafter referred to as the Act) and order of the Deputy Director (Consolidation), Hamirpur dated 30.6.1980.
3. The disputed Khata No. 136 was initially in the name of the petitioner-Mullu, Ramkishan and respondent No. 3 Bhagwandin, respondent No. 4 Swamidin and respondent No. 5 Murliya. The share of contesting respondents was 1/2 and remaining 1/2 share belonged to the petitioner Lallu and Ramkishan, who are real brothers. They have not been made party by the petitioner and there is no dispute regarding their 1/2 share. The dispute relates to 1/2 share of the respondents. In respect of share of respondents, an order was passed on 2.9.1974 by the S.D.O. Munderha to mutate the name of the petitioner but before the order could be given effect to, the village was subjected to the consolidation operation and, therefore, the name could not be mutated. After the consolidation commenced, the petitioner filed his objection under Section 9 of the Act. It was contended that in respect of 1/2 share of the contesting respondents a sale deed was executed by their natural guardian, their mother in favour of the petitioner and as such their names may be struck off. Thus according to the petitioner, besides his share along with Ramkishan, the other 1/2 share of the respondents was also claimed by him on the basis of the sale deed and the order of the S.D.O. The objection filed by the petitioner was allowed vide order dated 28.12.1977 which is Annexure-1 to the writ petition. The contesting respondents challenged the said order in appeal before the Settlement Officer Consolidation. The appeal was allowed on 6.2.1978 and the order was confirmed in revision under Section 48 of the Act vide order dated 30.6.1980.
4. The dispute revolves around the question, whether the mother of the respondent Nos. 3 to 5 Smt. Gridiya can execute a sale deed in respect of share of her minor sons and also whether permission was necessary under the Hindu Minority Guardianship Act, 1956. The S.O.C. came to a conclusion that the sale deed executed by the mother to the detriment of the contesting respondents without permission of the competent authority is illegal and therefore, declined to uphold the claim of the petitioner. At the time when the revision was decided, Swamidin and Murliya were still minor, in fact at the time of institution of the writ petition Murliya was still minor.
5. Learned Counsel for the petitioner has placed reliance on a number of decisions. Smt. Sursati Devi v. The Joint Director of Consolidation, Basti and Ors.
1982 All. L.J., 1473. In this case, the Court came to a conclusion that alienation of the property by a natural guardian has been curtailed under the Hindu Minority and Guardianship Act, 1956 for the first time and, therefore, alienation of the property by a natural guardian (in the instant case by the mother) is a voidable document and consolidation authorities have no jurisdiction to adjudicate upon that question. Emphasis is on paragraph 52 of the said decision. The next decision isAshok Kumar and Ors. v. Kameshwar Nath and Ors.
1999(90) R.D. 144 and the third decision is of the Apex Court in the case of Amirtham Kudumbah v. Sarnam Kudumban AIR 1991 Supreme Court, 1256. The Apex Court held that where the property of the minor was sold by his father as his natural guardian to a person without the permission of the court, the sale could be repudiated within three years after the minor attained majority. The transfer made by the father during his son's minority is voidable at the instance of his son.
6. Counsel for the contesting respondents has emphatically disputed the arguments advanced on behalf of the petitioner. He has placed reliance on a decision of Lucknow Bench in the case of Murari Lal and Ors. v. Deputy Director of Consolidation and Ors. 1978 AWC, 13, where it was ruled by this Court that transfer of share of a minor in agricultural land by a guardian is prohibited. There is no provision in U.P.Z.A.&L.R. Act dealing with the subject with which Section 11 of Hindu Minority and Guardianship Act, 1956 deals, therefore it was concluded that the provisions of U.P.Z.A. &L.R. Act shall prevail. The Apex Court in the case of Panni Lal v. Rajinder Singh and Anr. , had held that the sale by mother, notwithstanding that the father attested it, was held to be not only voidable but void. In another case by the Apex Court in the case of Madhegowda v. Ankegowda 2002(93) R.D. 50, it was held that the permission of the court was necessary and in case the minor repudiates such transfer even if it made in lawful manner, is well within his right to do so after attaining majority. Following this decision, this Court in the case of Ram Vriksha v. Assistant Director of Consolidation, Gorakhpur 2005(99) RD, 295 came to a conclusion that the sale deed was a void document and limitation for cancellation of such a sale deed would not stand in the way of the consolidation authorities. In this view, the Court came to a conclusion that such a void document does not require such cancellation whatsoever. Similar view was expressed in other cases by the Apex Court.
7. In view of the aforesaid decision, the contesting respondents are well within their rights to repudiate the sale deed executed by their mother in favour of the petitioner who has already a share along with his brother Ramkishan and, therefore, the minors after attaining the majority were well within their right to contest their claim before the consolidation authorities by filing an appeal and contesting the revision.
8. I do not find any illegality whatsoever in the orders of the S.O.C. and D.D.C. who have come to conclusion that the sale deed executed by their mother at the time when the contesting respondents were minor, can not give any right whatsoever to the petitioner specially when the respondents (who were minors) at the time of execution of the sale deed and some of them continued to be minor during the continuation of the proceedings before the court below, has an absolute right to challenge the claim of the petitioner before the consolidation authorities, specially in view of the fact that the Apex Court as well as this Court have categorically held that it is not only voidable but a void document since no permission from the competent authority was obtained before alienating the entire share of the respondents.
9. In the facts and circumstances, I do not find any illegality in the impugned judgment. The writ petition has no force and is accordingly dismissed.