Ram Deo v. Dy. Director Consolidation, Allahabad — 1979 DIGILAW 871 (ALL)

ORDER K.P. Singh, J. - By means of this writ petition the petitioner has prayed for quashing the order dated 19-11-70' whereby the claim of the petitioner was negatived. He has also prayed for quashing the order dated 27-1-70 passed, by the Dy. Director of Consolidation, whereby the order dated 19-6-1969 allowing the revision petition of the petitioner was set aside. 2. The dispute in the present writ petition is with regard to Khatas. Nos. 34 and 36 wherein the petitioner-had claimed l/10th share. According to* the petitioner his grandfather Jaipal had l/5th share. The share of Jaipal had devolved upon the petitioners father Jagar Deo and Dhanai. On the death of Jagar Deo the petitioner became entitled to l/10th share in the disputed Khatas. In the year 1937 Dhanai: himself and on behalf of the petitioner Ram Deo had executed a sale deed in favour of Hingu, father of the contesting opposite parties Nos. 4 to 6. According to the petitioner the aforesaid sale deed is invalid and did not confer any right upon the vendee so far as the share of the present petitioner is-concerned. It has been emphasised even before me that Dhanai was not natural guardian of the petitioner when: he executed a sale deed on behalf of the petitioner as well, hence no title in. respect of the share of the petitioner-accrued to the vendee by means of the sale deed dated 22-11-37. The Consolidation Officer in his judgment dated 17-11-66 and the appellate authority in: his judgment dated 12-1-67 had accepted the validity of the sale deed executed by the petitioners uncle Dhanai and they had recognised the claim of the vendee but in revision the revisional Court vide its order dated 19-6-1969 accepted the claim of the petitioner and held that the sale deed was invalid so far as the share of the petitioner is concerned. The aforesaid order dated 19-6-1969 has been set aside by the order of the Dy. Director of Consolidation dated 27-11-70 and through the impugned judgment dated 19-11-70 passed by the Dy. Director of Consolidation, Allahabad, the judgment given by the appellate authority on 12-1-67 has been confirmed. The aforesaid order dated 19-6-1969 has been set aside by the order of the Dy. Director of Consolidation dated 27-11-70 and through the impugned judgment dated 19-11-70 passed by the Dy. Director of Consolidation, Allahabad, the judgment given by the appellate authority on 12-1-67 has been confirmed. This time the revisional Court did not accept the-contention of the petitioner about the invalidity of the sale deed executed by his uncle Dhanai in the year 1937 and the revisional Court has also emphasised that on attaining majority the petitioner did not challenge the aforesaid sale deed within three years, hence his right had become extinguished and he cannot challenge the sale deed thereafter. 3. Before me the learned counsel for the petitioner has reiterated the contention that the petitioners uncle being de facto guardian or manager in the circumstances of the present case had no right to execute the sale deed in favour of the father of the contesting opposite parties 4 to 6 and according to him the impugned judgment dated 19-11-70 suffers from patent error and deserves to be quashed. 4. During the course of argument on the facts given by the learned counsel for the petitioner I had expressed my doubt as to whether the sale deed executed by the uncle of the petitioner in the year 1937 could be held as void -document. Today the learned counsel for the petitioner has invited my attention to the ruling reported in AIR 1949 FC 218, Kondamudi Sriramulu v. Myneni Pundarikakshayya and has drawn my attention to para 13 of the aforesaid judgment which reads thus: - "In my opinion much of the apparent conflict of views will disappear if a de facto guardian is described as a de facto manager. In law there is nothing like a de facto guardian. There can only be a de facto manager, although the expression 'de facto guardian has been used in text books and some judgments of Courts. If that description is adopted (and I consider it to be the correct description of a person generally managing the estate of a minor without having any legal title to do so) the powers of a natural guardian are not brought into consideration in defining the position of such a manager. If that description is adopted (and I consider it to be the correct description of a person generally managing the estate of a minor without having any legal title to do so) the powers of a natural guardian are not brought into consideration in defining the position of such a manager. On first principles, it appears clear that a manager, who manages the estate of the minor because he finds it necessary to do so, although Tie has no legal title to handle the estate, must have his powers circumscribed by the limits of the necessity or benefit to the estate of the minor. The law has tried to find a solution out of two difficult situations. When a Hindu minor has no legal guardian, there will be no one who can handle and manage his estate in law, so that unless someone is deemed to have such authority, the minor will not receive any income or return from his estate. The second point is that a person having no title cannot be permitted to intermeddle with the minors estate so as to cause a loss to the minor. Judicial decisions have tried to find a way out of these difficulties. It may be noted that these difficult situations are not confined to Hindu minors only. Minors of all communities and everywhere have to face these difficulties. There appears to me no justification for treating the minors of different communities on different principles or to lay down different principles for the safety of the minor's estate, unless the personal law of the minor justified such a distinction, Waghela Rajsanji v. Shekh Masludin, (1887) 14 Ind App 89: (ILR 11 Bom 551 (PC)) was decided by the Judicial Committee on this line of reasoning." Relying upon the aforesaid observation the learned counsel for the petitioner has contended before me that in the present case the sale deed executed by the petitioners uncle Dhanai was void qua his share and the vendee became only a co-sharer in the disputed Khatas and cannot prescribe any title to the same by adverse possession and the petitioner can ignore such a sale deed being void. He also laid emphasis on the following observation in para 14 of the reported judgment: - "........ He also laid emphasis on the following observation in para 14 of the reported judgment: - "........ I do not think that the Court can overlook the duty of safeguarding the minor's estate against indiscriminate borrowings on the part of the guardian. As the minor cannot enter into a contract, I am reluctant to accept the argument that a de facto manager is the authorised agent of the minor and can therefore make his estate liable even in cases of necessity by making a contract in the name of the minor " According to me the learned counsel for the petitioner has not correctly appreciated the verdict given in the aforesaid ruling. Even his Lordship Kania, C. J. later observed that the law as it stands permits a de facto manager to borrow money for the necessity or the benefit of the minor's estate so as to make the minor's estate liable for the loan. 5. His Lordship B. K. Mukherjea, J. in paras 54 and 55 of the ruling mentioned supra has indicated that the powers of alienation for necessity or benefit of the infant can be exercised by a de facto guardian as well and so far as these powers are concerned, there is no distinction in Hindu Law between a adjure and a de facto guardian It has also been observed that even a de facto manager of the minors estate who has come into possession without any lawful title, would be competent to create a charge upon it if it was required to meet a family necessity or to avert a danger to the estate. In view of the actual decision in the case these observations may perhaps rank as obiter. But having regard to the fact that the view expressed in these observations was stated by their Lordships to be sanctioned by the ancient Hindu Law texts, and having regard to the long course of decisions in this country which have uniformly construed these observations to lay down a rule of Hindu Law, it is not possible for us at this date to say that the view so long accepted is wrong and is not sanctioned by Hindu Law at all. 6. 6. His Lordship Mahajan, J. also in para 114 of the ruling mentioned supra has indicated that: - "A person not having full powers of disposition and hence not being fully authorised can in certain circumstances transfer property and confer a title absolute and indefeasible on the purchaser though he himself does not possess that title. The pious obligation theory of Hindu Law under which a son is bound to pay the debts of his father is another instance in point." 7. In my opinion the ruling mentioned supra and relied upon by the petitioner does indicate that in certain circumstances a de facto guardian can alienate the property of the minor which would be binding upon the minor. In the present case I am not agreeable to the contention of the learned counsel for the petitioner that the sale deed executed by the petitioners uncle Dhanai was void altogether and the petitioner is entitled to l/10th share in the disputed khatas ignoring the sale deed. It is well known that a transaction executed by de facto guardian is a voidable document and it could be challenged by the minor on attaining majority within the period of limitation. I find that the revisional court and the appellate authority have taken this circumstance into consideration in negativing the claim of the petitioner that the petitioner had not challenged the sale deed executed by his uncle in the year 1937 within a period of three years on attaining majority, hence I am of the view that the impugned judgments do not suffer from any manifest error. In AIR 1971 SC 776 Raghubanchmani Prasad Narain Singh v. Ambica Prasad Singh their Lordships of the Supreme Court have held that an alienation by the manager of the Joint Hindu Family even without legal necessity is voidable and not void. It is well known that voidable documents need avoidance and a minor can do so within three years on attaining majority, so I think in the present case that the petitioner is bound by the sale deed executed by his uncle Dhanai. 8. It is well known that voidable documents need avoidance and a minor can do so within three years on attaining majority, so I think in the present case that the petitioner is bound by the sale deed executed by his uncle Dhanai. 8. As regards the petitioners contention that the revisional court, acted illegally in setting aside the order dated 19-6-1969 in the circumstances of the present case, hence-the revisional court had no jurisdiction to rehear the revision petition on merits and thereby it could not negative the claim of the petitioner, I think it proper to indicate that if the contention of the learned counsel for-the petitioner is accepted as correct-, the net result would be to restore the order dated 19-6-1969 which is patently erroneous as it has held that the sale deed executed by the petitioners uncle was void and on that ground it. had recognised the claim of the petitioner to the extent of 1/10th share. To. my mind even if the contentions of the learned counsel for the petitioner-are correct on this point, they should not be accepted in the exercise of the-powers under Article 226 of the Constitution as the result will be substituting a wrong order in favour of the petitioner in place of the impugned judgments which are correct. 9. For the reasons given above, the writ petition lacks merits and is accordingly dismissed. In the circumstances of the present case it is not necessary for me to deal with the other contentions raised on behalf of the contesting opposite parties in the present case. Parties are directed to-bear their own costs.