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2017 DIGILAW 1889 (ALL)

HARPAL SINGH v. HEIMANT KUMAR

2017-08-17

SIDDHARTHA VARMA

body2017
JUDGMENT Hon’ble Siddhartha Varma, J.—The facts of the case lie within a very narrow ambit. The plaintiff-respondent Heimant Kumar who was born on 15.5.1970 was a minor of three years when a sale-deed was executed on 1.6.1973 by his father and natural guardian of a property which belonged to the minor. Upon the appointment of Chandrapal as a guardian of the minor on 30.4.1975 while his natural father was alive by the District Judge, Bijnor under Section 7 of the Act No. 8 of 1890, a suit was got filed by Chandrapal on behalf of the minor on 16.8.1975 for the cancellation of the sale-deed. The suit was numbered as 425 of 1975. After framing issues, the Trial Court on 24.2.1978 dismissed the suit and held that the sale-deed was validly executed. The First Appellate Court however on 19.11.1981 allowed the first appeal of the plaintiff and held that the sale-deed dated 1.6.1973 was void and cancelled the same. 2. Against the judgment and decree dated 19.11.1981, the instant second appeal has been filed by the defendant buyers. On the date of admission the substantial questions of law as were framed by this Court are being reproduced herein as under; I. Whether on the allegations as contained in the plaint the Civil Court had jurisdiction to try the case? II. Whether the main relief was of possession and as such the Revenue Court had exclusive jurisdiction? III. Whether the suit is barred by Section 331 of the U.P.Z.A. & L.R.Act? IV. Whether the suit is hit by Section 34 of the Specific Relief Act? V. Whether the certified copy of sale-deed is admissible in evidence under Section 90-A (2) of the Evidence Act without formal proof even though it is the basis of the suit? VI. Whether the legal guardian has a right to maintain a suit for cancellation of a document which was executed before his appointment as legal guardian? VII. Whether the sale-deed executed by the natural guardian of the minor is void or voidable? VIII. Whether the amendment allowed by the lower appellate Court has changed the nature of the suit? IX. Whether the appointment of legal guardian in preference to the natural guardian is illegal and in contravention of Section 19(b) of the Guardian and Wards Act? X. Whether the finding of the lower appellate Court are based on the misreading of evidence? 3. Whether the amendment allowed by the lower appellate Court has changed the nature of the suit? IX. Whether the appointment of legal guardian in preference to the natural guardian is illegal and in contravention of Section 19(b) of the Guardian and Wards Act? X. Whether the finding of the lower appellate Court are based on the misreading of evidence? 3. The learned counsel for the appellant submitted that on the date when the sale-deed was executed i.e. on 1.6.1973 the natural guardian of the minor i.e. his father was alive. He alone was responsible for the welfare of the minor and was the guardian of his interest. If at all the minor’s interest was not being guarded properly and the Court was of the opinion that the natural guardian i.e. the father of the minor was unfit to be a guardian of the minor then the Court could have appointed another person as a guardian. In the present case, the District Judge, Bijnor appointed Sri Chandrapal Singh as the guardian of the minor-Hemant on 30.4.1975 without there being a finding of fact as was compulsorily required under Section 19(b) of the Guardians and Wards Act, 1890. In the present case, the District Judge, Bijnor appointed Sri Chandrapal Singh as the guardian of the minor-Hemant on 30.4.1975 without there being a finding of fact as was compulsorily required under Section 19(b) of the Guardians and Wards Act, 1890. The order dated 30.4.1975 is being reproduced herein as under: ^^pwafd bl U;k;ky; esa vf/kfu;e 8 lu~ 1890 bZŒ dh /kkjk&7 ds vuqlkj vkidks gseUr dqekj ¼15-5-70½ vYio;Ld ds mlds vYio;Ld jgus dh vof/k rd vFkkZr~ fnukad 15 ekl ebZ lu~ 1991 bZŒ rd tks fd vYio;Ld jgus dh lekfIr dk le; gS vf/kfu;e ds vuqcU/kksa ds vuqlkj vkSj fo'ks"kr% mu vuqcU/kksa ds vuqlkj tks /kkjk;s 32 rFkk 39 rFkk 40 mijksDr vfèkfu;e esa O;ofLFkr gS] laj{kd mn~?kksf"kr fd;k x;k gSA vr% vkidks vuqefr nh tkrh gS fd mijksDr vYio;Ld dh laifRr vekur ds :i esa viuh lqiqnZxh esa ysdj lEiw.kZ _.k iz?kkj rFkk mfpr /kujkf'k;ksa tks vYio;Ld dh laifRr ij izkI; rFkk ns; gks izkIr djs vkSj nsos] rFkk vYio;Ld dh laifRr ds lEcU/k esa oknksa dks izLrqr djs rFkk tks okn mijksDr laifRr ds fo:) gks mudh izfrj{kk djsa rFkk lk/kkj.kr;k laiw.kZ dkjksckj tks vekurnkjh dh iw.kZ djus ds fy;s mfpr izdkj ls vko';d gks djrs jgs] ijUrq vuqcU/k ;g gS fd vki vius lajf{kr O;fDr dh vpy laEifRr ds fdlh Hkkx dks cU/kd u djsa ;k mlds ek:) u dj vFkok fodz; nku vFkok fofue; vFkok vU; fdlh izdkj ls vUrj.k u djsa vFkok bl lEifRr ds fdlh Hkkx dk iV~Vk ikap lky ls vf/kd vof/k dk vFkok ,slh vof/k dk tks ml fnukad ls tcfd vkidk lajf{kr O;fDr vYio;Ld u jgs ,d o"kZ ls vf/kd gks u fy[ksxsA tc rd fd bl U;k;ky; esa vuqefr Li"Vr;k igys ls izkIr u djs vkSj lEiw.kZ vk; rFkk O;; dk fglkc mu lunksa rFkk izys[kksa ds lfgr ftuls fglkc dk Bhd gksuk fl) gks lds fpfUgr fu;ekuqlkj rS;kj djrs jgsA rFkk gj lky ukckfyx dh tk;nkn dh vkenuh o [kpZ dk fglkc bl U;k;ky; esa izLrqr djsxsA igyk fglkc vk; vkSj O;; dk 1-5-1976 dks U;k;ky; es izLrqr fd;k tkosxkA** 4. Counsel for the appellant has submitted that a perusal of the above order clearly indicated that there was no finding given by the District Judge, Bijnor that the father who was alive on 30.4.1975 was, in the opinion of the Court, unfit to be the guardian of the person of the minor. Counsel for the appellant has submitted that a perusal of the above order clearly indicated that there was no finding given by the District Judge, Bijnor that the father who was alive on 30.4.1975 was, in the opinion of the Court, unfit to be the guardian of the person of the minor. In such circumstances, he submitted that the order dated 30.4.1975 was a nullity and the same could easily be avoided as a null and void order. He has further submitted that before the guardian was appointed on 30.4.1975, the property in question was already sold on 1.6.1973 by the father of the plaintiff who alone was the natural guardian and no sale could be set aside at the instance of the minor while he was still a minor. Under Section 8 (3) of the Hindu Minority and Guardianship Act, 1956 the disposal of any immovable property by a natural guardian is voidable at the instance of the minor or by any person claiming under him after the minor attains the age of majority. Under the Limitation Act, 1963, Article 60 provides that a minor could file a suit to set aside any transfer of his property which was transferred while he was a minor within three years of his attaining majority and that only the minor had a right to file the suit. Having not done this the minor now had no right to challenge the sale-deed dated 1.6.1973. He has submitted that the suit was filed by the minor through a guardian who was appointed illegally on 30.4.1975 without any authority. Even though the application of the minor under Order XXXII, Rule 12 C.P.C. has been filed by which he has elected to contest the suit (as the same was earlier filed by the guardian appointed by the Court on 30.4.1975) and the consequent second appeal in this Court, it would not mean that the minor had filed a suit for the cancellation of the sale-deed dated 1.6.1973 after attaining majority. 5. Learned counsel for the appellant has further stated that if the overall facts of the case are seen then it becomes clear that the buyers-appellants were collusively befooled by the natural guardian of the minor and the guardian appointed by the Court. 5. Learned counsel for the appellant has further stated that if the overall facts of the case are seen then it becomes clear that the buyers-appellants were collusively befooled by the natural guardian of the minor and the guardian appointed by the Court. He submits that the father of the minor on 1.6.1973, when the minor was merely three years of age, sold the property to the appellants. Thereafter, he collusively, on 30.4.1975 got another guardian appointed while he was still alive to file the suit for cancellation of the sale-deed. Neither the natural father contested the appointment of a subsequent guardian during his lifetime nor did he contest the Suit No. 425 of 1975 which was filed by the newly appointed guardian Chandrapal for the cancellation of the sale-deed. By the cancellation of the sale-deed it was only the appellants, who were to suffer. After the sale-deed was cancelled, the natural guardian was nowhere to be found and no one questioned as to what he did with the proceeds of the sale. Thus, he submits that from the facts as have been stated, it becomes clear that the natural guardian and the guardian as was appointed by the Court had collusively filed the suit to the detriment of the appellant/buyer. 6. In reply the learned counsel for the respondent emphatically submitted that the suit for the cancellation of the sale-deed could very well be filed by the guardian appointed by the Court. He further submitted that the guardian as was appointed by the Court was a lawfully appointed guardian and nobody ever questioned his appointment. Still further he submits that there was no collusion between the natural guardian and the guardian appointed by the Court to deceitfully befool the appellant. 7. After having heard the learned counsel for the parties and after having perused the record, I find that the First Appellate Court had wrongly cancelled the sale-deed. If Section 19(b) of the Guardians and Wards Act, 1890 is seen it becomes clear that Chandrapal Singh could not have been appointed as the guardian of the minor while the natural father was alive. AIR 1914 Privy Council (Mrs. Annie Besant v. G. Narayaniah and another) also makes this principle of law clear. If Section 19(b) of the Guardians and Wards Act, 1890 is seen it becomes clear that Chandrapal Singh could not have been appointed as the guardian of the minor while the natural father was alive. AIR 1914 Privy Council (Mrs. Annie Besant v. G. Narayaniah and another) also makes this principle of law clear. The Privy Council has very categorically laid down as under: “and further no order declaring a guardian could by reason of the 19th Section of the Guardians and Wards Act, 1890 be made during the respondent’s life unless in the opinion of the Court he was unfit to be their guardian, which was clearly not the case.” 8. Section 19(b) of the Guardian and Wards Act is also clear on this issue and is being reproduced here as under: “19. Guardian not to be appointed by the Court in certain cases—Nothing in this Chapter shall authorize the Court to appoint or declare a guardian of the property of a minor whose property is under the superintendence of a Court of Wards, or to appoint or declare a guardian of the person-” “19(b) of a minor whose father is living and is not, in the opinion of the Court, unfit to be guardian of the person of the minor, or.” 9. If the order dated 30.4.1975 is perused as was passed by the District Judge Bijnor under Section 7of the Act No. 8 of 1890, then it becomes clear that no finding was given by the District Judge as to why the natural guardian-the father who was alive on 30.4.1975 was being declared unfit to be a guardian of the person of the minor and a new guardian was being appointed by the Court. Further, the minor who attained majority some time in the year in 1991 should have filed a suit for getting the sale-deed dated 1.6.1973 set aside. He could not have taken refuge behind the suit which was filed by the guardian appointed by the Court, Sri Chandrapal Singh and that the suit was thus incompetent. Even if the judgment and decree of the First Appellate Court is perused, it is evident that the natural father who had sold the property, had not been directed to refund the money of the appellants. The appellants were thus the only losers. Even if the judgment and decree of the First Appellate Court is perused, it is evident that the natural father who had sold the property, had not been directed to refund the money of the appellants. The appellants were thus the only losers. Thus the suit as was filed by the minor through the guardian appointed by the Court was an incompetent suit. 10. Further at the first appellate stage, since the jurisdiction of the Civil Court was not agitated, questions of law as have been framed as at serial No. I, II, III, IV and V need not be looked into. However, question Nos. VI to X are decided in favour of the appellants. 11. The second appeal is allowed. The judgment and decree dated 19.11.1981 is set aside and the suit is dismissed.