JUDGMENT K.N. Misra, J. - In the present writ petition dispute relates to plot No. 195. It was recorded in the basic year Khetauni in the name of opposite party No. 2 Sheo Poojan (minor) son of Ram Sanmukh under guardianship of his own father Ram Sanmukh. Plot No. 199/2 and plot No. 316 situated in village Madanpur Khurd, Pargana Aldemau, Tahsil Kadipur, District Sultanpur, were recorded in the basic year Khetauni in the name of Ram Sanmukh, opposite party No. 3 himself. A sale deed was executed by Ram Sanmukh on his behalf in respect of his plots Nos. 199/2 and 316 and also as guardian of his minor son Sheo Poojan in respect of plots No. 195. The sale deed was executed and got registered on 14.10.1970 in favour of the petitioners. Petitioners applied for mutation on the basis of the aforesaid sale deed. This case was contested by opposite parties 2 and 3. It was asserted that the opposite party No. 2 Sheo Poojan was Sirdar tenant of aforesaid plot No. 195 and, as such, the said sale deed is invalid. It was further asserted that since permission of the District Judge was not obtained by the father of Shed Poojan, and, as such, the sale deed executed by Ram Sanmukh as guardian of his son Sheo Poojan is void. The opposite party No. 3 Ram Sanmukh had also challenged the sale deed in respect of plots No. 199/2 and 316 asserting that the sale deed was invalid and void. After taking the evidence of the parties, the Consolidation Officer by order dated 8.1.1978 allowed mutation in respect of plot Nos. 195 and 316. He rejected mutation application in respect of plot No. 192/2 because it was not recorded in the name of Ram Sanmukh in the revenue records. An appeal was filed by Sheo Poojan through his father guardian, relating to plot No. 195. Another appeal was filed by opposite parties 2 and 3 challenging the order in respect of the said other plot. Petitioners had also preferred appeal relating to Plot No. 199/2. Both these appeals were heard and dismissed by a common judgment and order dated 23rd of August, 1978 passed by the Assistant Settlement Officer, Consolidation. The order passed by the Consolidation Officer was maintained by which the name of petitioners were ordered to be mutated on the aforesaid plots namely, plots Nos.
Both these appeals were heard and dismissed by a common judgment and order dated 23rd of August, 1978 passed by the Assistant Settlement Officer, Consolidation. The order passed by the Consolidation Officer was maintained by which the name of petitioners were ordered to be mutated on the aforesaid plots namely, plots Nos. 3164 biswa and 195Marea 12 biswas. 2. Aggrieved by the order passed by the Assistant Settlement Officer, Consolidation, opposite parties 2 and 3 filed revision. It was stated on behalf of Sheo Poojan that since his father Ram Sanmukh had not obtained permission of the District Judge for transferring the plot in dispute, namely plot No. 195, and, as such, the sale deed is void and the subordinate consolidation authorities committed manifest error of law in ordering mutation in favour of petitioners over the said plots This argument was accepted by the Assistant Director, Consolidation and he allowed the revision, vide order dated 14.12. 1979 and directed the name of opposite party No. 2 Sheo Poojan to be recorded over the said plot. He held that since permission to transfer the said plot on behalf of the minor was not obtained by his father while executing; sale deed, and, as such, the sale deed in question was void and the petitioners did not acquire bhumidhari rights on the said plot. The order passed by the consolidation authorities in respect of plot No. 316 was not challenged in revision. 3. The Assistant Director of Consolidation allowed the said revision only on the aforesaid ground by holding that the sale deed was void since permission of the District Judge was not obtained as was required under Section 8 of the Hindu Minority & Guardianship Act. This order has been challenged in the present writ petition. 4. Learned counsel for the petitioners, Sri A.S. Chaudhari, placing reliance upon a decision in Smt. Surswati Devi Vs. Joint Director of Consolidation and others (1982 (1) Lucknow Report (Revenue Reporter?) P. 122) urged that no permission was required to be obtained by the fatherguardian under Section 8 of the Hindu Minority And Guardianship Act before executing the sale deed on behalf of his minor son because provision would not apply to agriculture land, 5.
Joint Director of Consolidation and others (1982 (1) Lucknow Report (Revenue Reporter?) P. 122) urged that no permission was required to be obtained by the fatherguardian under Section 8 of the Hindu Minority And Guardianship Act before executing the sale deed on behalf of his minor son because provision would not apply to agriculture land, 5. In reply learned counsel for the opposite parties, Sri B.K. Srivastava, urged that even in respect of agricultural land the provisions of Sec. 8 of the Hindu Minority and Guardianship Act will apply and the father of the minor who had executed the sale deed as guardian of his minor, son, should have obtained permission of the District Judge for making transfer of the land in question. Since no permission was obtained as was required under the aforesaid provisions, and, as such, the sale deed is per se void and the Assistant Director of Consolidation committed no error in passing the impugned order. 6. Having heard learned counsel for the parties I find that the case stands concluded by the decision of this court in Smt. Surswati Devi's case (supra) wherein it has been held that the provisions of Section 8 of the aforesaid Act will not be applicable to the agricultural land and the said provision would not govern or control the alienation by the natural guardian of the minor of the land belonging to his minor son. Thus no permission of the District Judge was required for making transfer of the aforesaid plot in dispute by Ram Sanmukh as guardian of his son Sheo Poojan. 7. In this view of the matter I am of opinion that the Assistant Director of Consolidation has legally erred in holding that the impugned transfer was void as no permission was takes by the natural guardian while making transfer of agricultural land of minor. 8. There is yet another ground on which the impugned order passed by the Assistant Director of Consolidation cannot be sustained. In subSection (3) of Section 8 of the Hindu Minority & Guardianship Act, it has been provided that a sale deed executed by a natural guardian in respect of the property to which the Act will apply would be only voidable.
In subSection (3) of Section 8 of the Hindu Minority & Guardianship Act, it has been provided that a sale deed executed by a natural guardian in respect of the property to which the Act will apply would be only voidable. Thus even if for the sake of argument it is accepted that the provisions of Sec. 8 of the Act would also apply to agricultural land, though not conceding, the impugned sale deed in respect of the aforesaid plots in question could at the best be said to be voidable and not void. It is well settled that the consolidation authorities cannot ignore the deed of transfer which cannot be treated to be void but merely voidable unless it is cancelled by the court of competent jurisdiction. The consolidation authorities have no jurisdiction to cancel a voidable deed of alienation. It has been held by the Supreme Court in Gorakh Nath v. Hari Narain Singh ( AIR 1973 SC 2451 ) that the existence and quantum of rights claimed or denied will have to be declared by the consolidation authorities which would be deemed to be invested with jurisdiction, by the necessary implication of their statutory powers to adjudicate upon such rights and interests in land, to declare such documents effective or ineffective, but where there is a document the legal effect of which can only be taken away by setting it aside on its cancellation, it could be urged that the consolidation authorities have no power to cancel the deed and, therefore, it must be held to be binding on them so long as it is not cancelled by a court having the power to cancel it. 9. Similar view was taken by this court in Shankar v. Deputy Director of Consolidation and others (l971 AWC 599), Ghansham Das v. Shiv Shankar Lal (1980 All LJ 130), and Ram Shankar Misra v. Kashi Misra (1981 All LJ 789). 10. The sale deed in question, in any view of the matter, cannot be dubbed as a void document because no permission of the District Judge was required to have been obtained under Section 8 of the said Act This permission in my opinion, does not apply to agricultural land.
10. The sale deed in question, in any view of the matter, cannot be dubbed as a void document because no permission of the District Judge was required to have been obtained under Section 8 of the said Act This permission in my opinion, does not apply to agricultural land. But even if for the sake of argument it be held though not conceding, that the impugned sale deed could not be executed without permission of the District Judge the same; could not be treated to be void but at the best merely voidable under subsection (3) of Section 8 of the Hindu Minority & Guardianship Act. The Assistant Director of Consolidation has, therefore, erred in ignoring the said sale deed by wrongly treating it to be void document. The sale deed in question could, in no manner, be ignored by the Assistant Director of Consolidation, whose order is manifestly wrong and the error is apparent on the face of the record. 11. In the present case the opposite parties have challenged the validity of the sale deed in question merely on the ground that no permission was obtained by his natural fatherguardian while executing the sale deed in favour of the petitioners. This ground is not available to them as in my opinion the said provision does not apply to agricultural land in view of the decision in Smt. Surswati Devi's case (Supra). 12. The sale deed in question has not been assailed on any other ground nor its validity could be gone into by the consolidation authorities. The petitioners are, therefore, entitled to get their names mutated on the basis of the sale deed executed in their favour over the aforesaid plots in question. 13. In the result the writ petition succeeds and is hereby allowed. The impugned order dated 14.12.1979 passed by the Assistant Director of Consolidation, Sultanpur, is hereby set aside and the orders passed by subordinate consolidation authorities below are restored and the names of petitioners be recorded as Bhumidhars over the plots in question.