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2013 DIGILAW 355 (PAT)

Sachida Nand Sharma v. State of Bihar

2013-03-14

NAVIN SINHA, SHIVAJI PANDEY

body2013
ORAL JUDGMENT (Per: HONOURABLE MR. JUSTICE NAVIN SINHA) The present Appeal arises from order dated 24.9.2010 dismissing CWJC no. 2938 of 1991, declining interference with the order dated 5.9.1990 of the Joint Director Consolidation, Gaya, in Revision case no. 283 of 1989 preferred by respondents no. 5 to 7. The Revisional Court held that the sale deed executed by Siya Ram Pandey in favour of the Appellants was a void document and set aside the order of the Consolidation officer dated 23.2.1989 rejecting the claim of Respondents 5 to 7. A deed of gift was executed on 17.11.1959 by Most. Khubsoorat Kuer in favour of her grandson Jai Ram Pandey only by name. Siya Ram Pandey, the younger brother is stated to have been a minor at the time. Jai Ram Pandey is stated to have gone missing. Siya Ram Pandey executed a sale deed on 1.5.1967 in favour of the Appellants, describing himself as a joint owner and karta of the lands, on behalf of himself and as guardian of respondents 5 to 7, minor sons of Jai Ram Pandey (hereinafter referred to as the respondents). The sale deed recited it was executed for the benefit of the education of the minors, treatment of the ailing wife of Jai Ram Pandey and to redeem a land mortgaged by the Pandey brothers. The wife of Jai Ram Pandey was deceased in 1974. During the Revisional Survey, the Appellants are stated to have filed objections leading to entry of their name in the Khatian. On 29.9.1975 Register of Land and Statement of Principles was prepared under section 9 and section 9 A of the Consolidation Act (hereinafter referred to as the Act) mentioning the name of the Appellants. No objections were filed under Section 10 (2) of the Act by Respondents 5 to 7. The draft scheme was then published under Section 12 of the Act inviting objections under Section 12 (2). Respondents filed objections on 15.9.1980. On 23.2.1989 the Consolidation Officer held that no objections having been filed earlier under Section 10 A after draft publication objections could be entertained only with regard to allocation of Chak under section 12(2). No corrections with regard to Khatian entries could be made leaving it for the respondents to challenge the sale deed before an appropriate Civil Court. The respondents preferred Revision Case no. No corrections with regard to Khatian entries could be made leaving it for the respondents to challenge the sale deed before an appropriate Civil Court. The respondents preferred Revision Case no. 283 of 1989 before the Joint Director Consolidation under Section 35 of the Act. The Joint Director held that under the gift deed dated 17.11.1959 Jai Ram Pandey was the sole named beneficiary. Siya Ram Pandey had no right or title to dispose off the property standing exclusively in the name of his brother Jai Ram Pandey. No evidence had been produced that Siya Ram Pandey was a member of the joint family and was acting as karta while executing the sale deed or that the gift deed was intended for his benefit also though not named. He was not competent to execute the sale deed on behalf of the minor nephews as natural guardian especially when their mother was alive. Her signature was not obtained on the sale deed. No permission from the District and Sessions Judge was obtained before executing the sale deed on behalf of the minors. We notice that no objection was raised by the Appellants before either Authority regarding non-impleadment of Siya Ram Pandey. In the writ petition also the Appellants did not implead Siya Ram Pandey as party respondent or question the orders as bad for non-impleadment of Siya Ram Pandey. The Learned Single Judge held that the sale deed was a void document as Siya Ram Pandey was not a named beneficiary of the gift deed. He could not act as the natural guardian of the minors and execute the sale deed on their behalf while the mother, the natural guardian, was alive. Eight years, as prescribed under Section 108 of the Evidence Act, had not elapsed from the disappearance of Jai Ram Pandey to create a presumption of death and the right to sell after four years only. Mere recital of legal necessity of sale for the benefit of the minors was not sufficient in the facts of the case in absence of necessary and material evidence in support of the same. There was no presumption that the gift deed in favour of Jai Ram Pandey could be treated as joint family property on the mere asking by his brother Siya Ram Pandey. There was no presumption that the gift deed in favour of Jai Ram Pandey could be treated as joint family property on the mere asking by his brother Siya Ram Pandey. It was open for the Appellants to demonstrate before the competent Civil Court that the sale deed was executed for legal necessity and for benefit of the minors or that he was the natural guardian and that the sale deed was executed after taking the consent of the mother and that the Appellants were in possession of the lands after the sale. Learned counsel for the Appellants submitted that the Single Judge erred in directing them to file a Civil Suit instead of the private respondents who questioned their title. The gift deed named Jai Ram Pandey in the capacity of Karta, Siya Ram Pandey being a minor. Jai Ram Pandey went missing. His sons were minors and his widow went into a shock after his disappearance. Siya Ram Pandey became the karta of the joint family and was looking after the minors and his sister-in-law. The sale deed was executed by him for the benefit of the minors to finance their education, the treatment of the sister-in-law and to redeem the mortgaged joint family property at Ginji all mentioned in the sale deed itself. If no objections were filed under section 10 (2) of the Act after publication of the Land Register, the objection under Section 12 (2) of the Act after publication of the draft scheme could only be with respect to allotment of Chak and not correction of khata entries. The order of the Consolidation Officer dated 23.2.1989 was first amenable to challenge in an Appeal and only thereafter in Revision. The objection has not been decided by the Revisional Court. The respondents became major before 1972. The sale deed was not a void but voidable document and should have been challenged within 12 years or 3 years of attaining majority. The Consolidation Court could not ignore a registered gift deed. The application of the Respondents before the Consolidation Officer and the Joint Director was not maintainable in absence of Siya Ram Pandey as a party. The Joint Director returned no finding on the order of the consolidation officer that the question of title could not be gone into in a proceeding at the stage of section 12(2) of the Act. The application of the Respondents before the Consolidation Officer and the Joint Director was not maintainable in absence of Siya Ram Pandey as a party. The Joint Director returned no finding on the order of the consolidation officer that the question of title could not be gone into in a proceeding at the stage of section 12(2) of the Act. It was lastly submitted that the Consolidation officer having rejected the application of the respondents on 23.2.1989, the respondents were fully aware of issues and should have filed a suit questioning the sale deed within 3 years from the same. The recitals in the registered sale deed carry a legal sanctity for the recitals, it being a registered document and the onus lay on the person who challenged the correctness of the recitals. Reliance has been placed on precedential judgements which shall be discussed. Learned Senior counsel for the respondents relied on 2005 (2) PLJR 476 (Sabitri Devi v. Rangnath Tiwary) to submit that invocation of the Revisional jurisdiction under section 35 without availing the remedy for Appeal against the order of the Consolidation officer was justified both in law and facts of the case. Whether the gift deed was made jointly in favour of Jai Ram Pandey and Siya Ram Pandey was a question of fact to be proved in accordance with law. Similarly whether Jai Ram Pandey subsequently threw the property into the joint family hotch potch is again a question of fact which had to be proved by appropriate evidence. Mere unilateral recitals in the sale deed by Siya Ram Pandey in the facts of the case cannot suffice. There is not an iota of independent evidence that the sale deed was executed for the benefit of the minors. There is no explanation that if the mother, the natural guardian, was alive why she could not have executed the sale deed. Again there is not an iota of evidence with regard to her alleged illness. The presumption for missing of Jai Ram Pandey could not have arisen after 4 years in the law. The sale deed being a void document from the very inception, no right title or interest can flow to the Appellants. The rent receipts were all in favour of Jai Ram Pandey and the payee was respondent number 5. The lands have remained in the possession of the respondents throughout. The sale deed being a void document from the very inception, no right title or interest can flow to the Appellants. The rent receipts were all in favour of Jai Ram Pandey and the payee was respondent number 5. The lands have remained in the possession of the respondents throughout. In (1997) 1 SCC 504 (Divya Dip Singh v. Ram Bachan Mishra) relied on by the Appellants, the sale deed had been executed by the father and natural guardian. The minors after attaining majority themselves accepted in writing addressed to the Collector for collection of loan arrears advanced against the suit lands from the purchaser. In these circumstances the Supreme Court held that the failure to file objections after publication of statement under section 9-A coupled with failure to file a suit challenging the sale within 3 years were all sufficient to deny the claim on behalf of the minors. The case is distinguishable on its own facts. In (2003) 3 SCC 524 (Sadhana Lodh v National Insurance Co. Ltd.) the issue was regarding resort to the remedy under Article 226 by passing an alternative statutory remedy. It has no relevance in view of Section 35 of the Act which is sufficiently wide and also an original power. In (2006) 5 SCC 353 (Prem Singh v. Birbal) relied upon by the Appellant, the sale deed describing the executant as 26 years of age was questioned by the executant after attaining majority alleging he was 16 years on the date of execution. It was held that a Suit by the minor challenging the same had to be filed within three years after majority under Article 60 of the Limitation Act. In paragraph 18 it has been observed that limitation would have no application to a presumptively invalid (read Void) document. Distinguishing fraud regarding character of a document from fraudulent misrepresentation regarding contents of a document it was held that the former is void but the latter voidable holding at paragraph 22 as follows : “22. In Ningawwa v. Byrappa this Court held that the fraudulent misrepresentation as regards character of a document is void but fraudulent misrepresentation as regards contents of a document is voidable stating: “The legal position will be different if there is a fraudulent misrepresentation not merely as to the contents of the document but as to its character. In Ningawwa v. Byrappa this Court held that the fraudulent misrepresentation as regards character of a document is void but fraudulent misrepresentation as regards contents of a document is voidable stating: “The legal position will be different if there is a fraudulent misrepresentation not merely as to the contents of the document but as to its character. The authorities make a clear distinction between fraudulent misrepresentation as to the character of the document and fraudulent misrepresentation as to the contents thereof. With reference to the former, it has been held that the transaction is void, while in the case of the latter, it is merely voidable.” The reliance on 1985 P.L.J.R. 43 (Shyam Bihari Upadhya v. State of Bihar) has no relevance since the question of not filing objections under Section 10 (2) at the stage of Section 12 (2) was not arising in context of a void document of title. Similar is the position regarding 1996 BLJ 608 (Bhubneshwar Rai v. State of Bihar). In 2005 (1) PLJR 553 (Bharat Baitha v. State of Bihar) the question related to an order obtained from Court by practicing fraud at the stage of Section 12 (2) without any objections having been filed under Section 10(2). The cases relied upon are all distinguishable. We have considered the submissions made on behalf of the parties and deem it necessary to take note of some significant and important facts. The gift deed mentioned Jai Ram Pandey as the only beneficiary. If minor Siya Ram Pandey was also to be a beneficiary, undoubtedly proper recitals could have been incorporated. If Jai Ram Pandey went missing, his wife, the natural guardian of respondents was available and could well have executed the sale deed on behalf of the minors. There is no evidence on record with regard to her alleged insanity. Siya Ram Pandey could not claim to be the natural guardian of her minor children during her lifetime. The recital that the sale deed was executed by an unauthorised person for the benefit of the minors, was an issue of fact for which there is not an iota of independent evidence. There is no evidence with regard to alleged redemption of the jointly mortgaged lands. In our opinion the Learned Single Judge rightly opined that these were facts to be proved by evidence in a Suit by the Appellants. There is no evidence with regard to alleged redemption of the jointly mortgaged lands. In our opinion the Learned Single Judge rightly opined that these were facts to be proved by evidence in a Suit by the Appellants. The unilateral self-serving recitals in the sale deed, in the facts of the case cannot be construed as conclusive. Significantly the Appellants raised no objection before the Consolidation officer or the Joint Director for non-impleadment of Siya Ram Pandey and neither have the Appellants impleaded him in the writ petition. It is not possible for us to speculate on the claim by Siya Ram Pandey that he was also a deemed beneficiary of the gift deed, he was acting as karta while executing the sale deed, the mother and natural guardian was insane, the sale was for benefit of the minors. The respondents in their counter affidavit specifically asserted that the possession of the lands has remained with them and the rent receipts were being issued in the name of Jai Ram Pandey, the named payee being his son Ram Pravesh Pandey. No rejoinder was filed on behalf of the appellants denying the same. If Siya Ram Pandey was not the natural guardian of the minors he was apparently not competent to execute the sale deed and convey good title. An additional factor we must take note of is that the sale deed itself states that Jai Ram Pandey was missing for four years, not eight years. All these leave us in no doubt that the sale deed under which the appellants claim a right title and interest is a wholly void document. In the circumstances to hold that because objections may not have been filed under Section 10 (2) of the Act and that objections with regard to the same could not be entertained at the stage of section 12 shall be conferring validity on a sale deed which was void ab initio. The Learned Single judge has aptly relied upon A.I.R.1973 S C 2451 (Gorakh Nath Dube v. Hari Narain Singh) to hold that an alienation or transfer made in excess of power to transfer would make the document invalid. The Learned Single judge has aptly relied upon A.I.R.1973 S C 2451 (Gorakh Nath Dube v. Hari Narain Singh) to hold that an alienation or transfer made in excess of power to transfer would make the document invalid. It has also been noticed that the principle has been followed in AIR 1990 SC 1173 (Smt. Dularia Devi v. Janardhan Singh) that the consolidation authorities had the jurisdiction to look into the gift deed if it had been obtained by misrepresentation. Relying on A.I.R 1983 Calcutta l76 (Hari Satya v. Madhav) it was aptly held that recitals in the sale deed that it was executed for the benefit of the minors was not an absolute presumption and had to be proved. We are in agreement with the conclusion that there could be no presumption that a gift deed executed in the name of a particular person can still be treated as a joint family property in absence of any evidence. We find no reason to interfere with the conclusion of the Learned Single Judge that the gift deed being in name of Jai Ram Pandey alone, execution of the sale deed by Siya Ram Pandey as natural guardian during the lifetime of the mother and natural guardian of the minor, with no evidence for her insanity, within four years of the missing of Jai Ram Pandey coupled with the absence of any evidence that the lands were sold for the benefit of the minors the sale deed was a void document. We find no merit in the appeal calling for interference with the judgment impugned. The appeal is dismissed.