Mohd. Sohrab Khan v. Deputy Director of Consolidation, Ghazipur
1969-12-02
R.L.GULATI
body1969
DigiLaw.ai
ORDER R.L. Gulati, J. - This petition Under Article 226 of the Constitution arises out of certain proceedings under the UP Consolidation of Holdings Act (hereinafter referred to as the Act). 2. The facts giving rise to this petition are these. Sita Ram and Sri Krishna Rai alias Hari Kishan were two brothers and formed a joint Hindu family. They owned plot No. 29 in village Mustafabad in the district of Ghazipur. On 13-5-1951 Sita Ram died leaving behind his widow Smt. Nageshwari and four sons viz. Achhutanand, Sri Ram Rai, Hari Har Rai and Shambhu Rai. The plot in dispute was partly bhumidhari and partly occupancy land. After the abolition of zamindari, Sri Krishna Rai and the four sons of Late Sita Ram deposited on 19-6-1958 ten times the land revenue in respect of that part of the plot in dispute which was occupancy land and thus became bhumidhar of the entire plot. It appears, that on the same day the plot in dispute was sold to one Mohammad Sohrab Khan and his brother Wahab Khan for a sum of Rs. 5400/-. At that time out of the four sons of Sita Ram only Achhutanand was major and the rest were minors. The sale deed was executed by Sri Krishna Rai and Achhutanand for himself and as the defacto guardian of his minor brothers. On the basis of the sale-deed the names of the vendees were entered in the revenue papers as bhumidhars of the plot in dispute and after the death of Wahab Khan the names of his two sons Mohd. Zakari Khan and Mohd. Shamshad Khan were substituted. 3. Thereafter, the village in question came under the consolidation proceedings and after C.H. Form V and V-B were issued to the tenure-holders, objections were filed by the three minor sons of Sita Ram contending that Achhutanand and Sri Krishna Rai had executed a farzi sale-deed which was void as against them as they were minors and Achhutanand had no right to execute the sale deed on their behalf. This objection was rejected by the Consolidation Officer on 9-7-1966. On appeal, however, the objection was upheld by the Assistant Settlement Officer (Consolidation) by his order dated 16-12-1966. Against this order, Mohd. Sohrab Khan and the two sons of Wahab Khan went up in revision u/s 48 of the Act. Their revision application, however, was dismissed by the Dy.
This objection was rejected by the Consolidation Officer on 9-7-1966. On appeal, however, the objection was upheld by the Assistant Settlement Officer (Consolidation) by his order dated 16-12-1966. Against this order, Mohd. Sohrab Khan and the two sons of Wahab Khan went up in revision u/s 48 of the Act. Their revision application, however, was dismissed by the Dy. Director of Consolidation, Ghazipurby his order dated 4-9-1967 on the ground that Achhutanand acting as a defacto guardian of the three minor sons of Sita Ram had no right to transfer the share of the minors by reason of Section 11 of the Hindu Minority and Guardianship Act, 1956. He, however, upheld the sale on behalf of Hari Krishna Rai and Achhutanand, major son of Sita Ram and thus held that out of the plot in dispute 5/8th belonged to the vendees and the remaining 3/8th belonged to three minor sons of Sita Ram. This petition is directed against the order of the Dy. Director of Consolidation as also against the order of the Assistant Settlement Officer (Consolidation). 4. Mohd. Sohrab Khan and the two sons of Wahab Khan, viz. Mohd. Zakari Khan and Mohd. Shamshad Khan are the Petitioners while the three minor sons of Sita Ram are Respondents second set and Achhutanand, major son of Sita Ram and Hari Krishna Rai are the Respondents third set. 5. The only question that falls for consideration is as to whether Achhutanand was competent to execute the sale on behalf of his minor brothers acting as their defacto guardian. 6. The Hindu Minority and Guardianship Act of 1956 (Act No. 32 of 1956) came into force with effect from 25-8-1956. Section 11 of that Act provides: 11. After the commencement of this Act, no person shall be entitled to dispose of, or deal with, the property of a Hindu minor merely on the ground of his or her being the defacto guardian of the minor. This provision is in imperative terms and contains an absolute prohibition against the transfer of a Hindu minor's property by his defacto guardian. Section 8 of the Act permits only the natural guardian to deal with the property of a minor and that too with the permission of the court.
This provision is in imperative terms and contains an absolute prohibition against the transfer of a Hindu minor's property by his defacto guardian. Section 8 of the Act permits only the natural guardian to deal with the property of a minor and that too with the permission of the court. In the present case the mother of the minors was alive and she being the natural guardian was alone competent to execute the sale deed on their behalf. As it is, the property has been transferred by the brother of the minors who purports to have acted as their defacto guardian. Section 11 of the Act makes such a transfer absolutely void. It cannot, therefore, be said that the consolidation authorities committed any error of law in refusing to give effect to the sale deed so far as it related to the shares of the minors. 7. Sri D.S. Sinha, learned Counsel appearing for the Petitioner, however, submits that Act No. 32 of 1956 had no application because the property which was the subject matter of the sale was agricultural land and by virtue of Article 246(3) read with Entry No. 18 of List II of Schedule VII of the Constitution the State Legislature alone was competent to make laws in respect of agricultural land. Learned Counsel argued that Act No. 32 of 1956 was a Central Act and as such could not govern the transaction in dispute. Sri G.P. Bhargava, learned Counsel for the Respondents, on the other hand, places reliance on Entry V of the Concurrent List in the VII Schedule to support his contention that Act No. 32 of 1956 was applicable. 8. It appears that the contention which Mr. Sinha seeks to raise was not raised in that form before the consolidation authorities. There it was contended that Sri Krishna Rai having already separated Achhutanand was the Karta of the family and as the land was the joint family property it could be alienated by the Karta for legal necessity.
8. It appears that the contention which Mr. Sinha seeks to raise was not raised in that form before the consolidation authorities. There it was contended that Sri Krishna Rai having already separated Achhutanand was the Karta of the family and as the land was the joint family property it could be alienated by the Karta for legal necessity. The learned Counsel has not put forth this contention before this Court and in my opinion very rightly because now it is a settled law, so far as this Court is concerned, that the notions of a joint family property and the co parcenary have no application with regard to the bhumidhari land, the alienation and succession whereof is now governed by the provisions of the UP ZA and LR Act. A Full Bench of this Court in Ram Awalamb v. Jata Shankar 1968 AWR 731 has held that where members of a joint Hindu family hold bhumidhari right in any holding, they hold the same as tenants in common and not as joint tenants and that the notions of Hindu law cannot be invoked. Similar view was taken in Mahendra Singh v. Attar Singh 1967 AWR 73 . 9. I am of the opinion that the contention of the learned Counsel for the Petitioner has no force. There is no doubt that framing of laws with regard to agricultural land is within the exclusive power of the State Legislature and any such law would abrogate the personal law of the parties so far as the latter is inconsistent with the former as illustrated by the two decisions of this Court referred to above. But the parties would still be governed by their personal law in matters which are not covered by the State laws. 10. Learned Counsel for the Petitioner has not been able to point out to me any provision in the UP ZA and LR Act or any other State laws relating to agricultural land which provides for the transfer of the share of a minor in agricultural land by a guardian. Had there been such a provision and had that provision been inconsistent with the provisions of Act No. 32 of 1956, a question might have arisen as to which one would prevail.
Had there been such a provision and had that provision been inconsistent with the provisions of Act No. 32 of 1956, a question might have arisen as to which one would prevail. But as it is, there is no provision in the UP ZA and LR Act dealing with the subject with which Section 11 of Act 32 of 1956 deals. That provision would, therefore, prevail. Under that provision a defacto guardian of a Hindu minor is prohibited from disposing of the property of a minor for any reason whatsoever. 11. The petition is accordingly dismissed with costs.