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2010 DIGILAW 2990 (ALL)

HARI MOHAN v. ADDITIONAL DISTRICT JUDGE

2010-09-27

ARUN TANDON

body2010
JUDGMENT Hon’ble Arun Tandon, J.—Heard learned counsel for the petitioner. Nobody is present on behalf of the respondents even in the revised reading of the cause list. 2. Petitioner before this Court filed Original Suit No. 55 of 1986 for a declaration that the sale deed executed by his natural guardian (mother), at the time when the plaintiff was minor, in respect of his 1/3 share in the property be declared as void and an injunction be issued for delivery of possession. The plaint allegations were that the sale was effected without there being any legal necessity and without permission of the competent Civil Court and further without any consideration having passed for such transfer by sale. 3. The defendant purchaser of the property contested the suit and a preliminary objection was raised to the effect that the suit was not maintainable before the Civil Court, inasmuch as subject matter of transfer was an agricultural holding. The preliminary objection was decided by the Munsif under order dated 5.1.1991 and it was held that since the suit was for declaring the sale deed as void as well as for injunction for possession, it was the Civil Court alone which could grant such relief. 4. Not being satisfied the defendant filed Revision No. 01 of 1991. The revision has been allowed under the impugned order dated 21.7.1994 and it has been held that the suit, as filed before the Civil Court, was not maintainable. For arriving at the aforesaid conclusion, the Revisional Court has held that since the sale-deed is alleged to have been executed without any consideration having been paid or agreed to be paid, the sale deed was void and it is not necessary for the Civil Court to issue any declaration in respect of a void sale deed. Such issue of the sale deed being void can always be raised before the Revenue Court. 5. Counsel for the petitioner submits that the finding recorded by the Revisional Court is patently misconceived. Section 8 of the Hindu Minority and Guardianship Act, 1956 provides that a sale deed executed by the natural guardian contrary to the provisions of Section 8 is voidable at the instance of the minor. Article 60 of Schedule-I of the Limitation Act provides that such a suit can be filed within three years from the date of attaining the majority by the minor. Article 60 of Schedule-I of the Limitation Act provides that such a suit can be filed within three years from the date of attaining the majority by the minor. He further points out that the Full Bench of this Court in the case of Ram Padarath v. Second Additional District Judge, Sultanpur and others, 1989 ACJ 1 (FB)(All) (Paras 35 and 40) has held that even a void document is required to be so declared by a competent Court of law. He further submits that in the facts of the case no issue qua title of the minor over the agricultural property was involved and the only issue which did need examination in the suit was ‘as to whether the sale deed was executed in accordance with Section 8 of the Hindu Minority and Guardianship Act, 1956 or not’. Further the relief of injunction for possession could be granted by the Civil Court only after declaring the sale-deed void. 6. I have heard learned counsel for the petitioner and have gone through the records of the writ petition. 7. The issue with regard to the maintainability of the suit for cancellation of the sale deed or sale deed being declared void has been examined by the Full Bench of this Court in the case of Ram Padarath (supra), which has since been affirmed by the Hon’ble Supreme Court in the case of Smt. Bismillah v. Janeshwar Prasad and others, (1990) 1 SCC 207 . 8. From the aforesaid what legally follows is that even a void sale-deed is required to be so declared by a competent Court. If no right or title in the agricultural property to be established for adjudicating the legality of the sale-deed, then to declare the sale deed as void and for an injunction for delivery of possession the Civil Court alone is the competent Court. 9. Even otherwise in view of Section 8 of the Act, 1956, a sale-deed executed by the natural guardian in violation of conditions mentioned in Section 8 is voidable at the instance of minor and such a suit can be filed within three years of the date of attaining majority as per Article 65 of the Schedule-I to the Limitation Act. 10. 10. In the totality of the circumstances on record, this Court finds that the suit, as filed before the Civil Court, was legally maintainable and the findings recorded by the Revisional Court to the contrary are legally not justified. Writ petition is allowed. The order dated 21.7.1994 is set aside. Since the suit is of the year 1986, the trial Court is requested to proceed with the suit on day-to-day basis without granting any unnecessary adjournment to either of the parties. —————