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PETITIONER: DIVYA DIP SINGH & ORS.

       Vs.

RESPONDENT: RAM BACHAN MISHRA & ORS.

DATE OF JUDGMENT:       24/10/1996

BENCH: M.M. PUNCHHI, K. VENKATASWAMI

ACT:

HEADNOTE:

JUDGMENT:                       J U D G M E N T      Venkataswami. J.      This appeal  by Special  Leave is preferred against the judgment and  order of  the Patna  High  Court  in  C.W.J.C. 915/1982 dated January 21, 1983.      Before the  High Court, the first respondent herein was the  petitioner  and  the  appellants  were  the  contesting respondents. The  5th respondent  herein, who has since died pending this  appeal,  was  the  father  of  the  appellants (hereinafter referred  as the  ’5th respondent’ for the sake of convenience).      The first respondent has successfully challenged before the High  Court by  filing the  above mentioned C.W.J.C. No. 915/1982 under  Articles 226  and 227 of the Constitution of India, an  order of the Consolidation Officer, Dumraon dated 18.10.1978  confirmed   by  the   Appellate  and  Revisional Authorities concerning  an extent  of 40 bighas of land sold to him  by the  5th respondent as guardian of the minor sons under a  registered sale  deed  dated  May  6,  1959  for  a consideration of Rs. 20,000/-. Hence the present appeal.      Briefly stated  the facts leading to the filing of this appeal are the following :-      The 5th  respondent filed  a title  suit No. 75/1951 in the Court  of Subordinate  Judge, Arrah.  Pending  suit  the appellants herein  who were  then minors  were allowed to be added as  co-plaintiffs represented  by next friend/guardian ad litom  Shri Kanhaiya  Singh. That  suit was in respect of Dumraon Raj  of which  the 5th  respondent, his brothers and their predecessors  were the Maharajas. That suit ended in a compromise  and  in  that  compromise  the  appellants  were exclusively allowed  58 acres  of land  besides a sum of Rs. 90,000/- in  cash. After  the suit  ended in compromise, the next friend/guardian  ad litom  of the minors was discharged by an order dated February 22, 1957. Thereafter, the 5th respondent as  natural guardian  of the  minors managed  the affairs - personal as well as the property of the minors. By way of  abundant caution, he also made an application in the very same Title Suit to appoint him as guardian on 3.5.1960. Before that  it appeared that the 5th respondent, as pointed out earlier,  sold the  suit lands  to the  first respondent

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herein on  6.5.1959. After  the purchase  of the suit lands, the first  respondent has  constructed  boundary  walls  and buildings and  mutation was  also duly  carried out  and the final Record  of Rights  was published  on March 30, 1970 in favour of  the first  respondent with respect to suit lands. It is  also on  record that the first appellant herein moved the civil  court in  the title  suit to  declare that he has attained majority  on 29.7.66  and sought  the permission of the Court  to deal  with the  Treasury deposits  and  saving certificates. That prayer was allowed by the civil court. It is  also  on  record  that  tile  appellants  accepting  the alienation of  the suit  lands by  their father in favour of the first  respondent request  the Collector  of Bhojpur  at Arrah to  recover the  loan advanced  against the suit lands from the  first respondent  who has  undertaken to discharge the same.      Some time  in  the  year  1972,  a  notification  under Section 3  of Bihar  Consolidation of Holding and Prevention of Fragmentation  Act, 1956  (hereinafter called  "the Act") was published  and in the Statements published under Section 9A read  with Section  10 of the Act, the first respondent’s name was  shown as  the owner. Notwithstanding the fact that sub-Section  2   of  Section   10  provides  for  preferring objections by  interested persons within 45 days, appellants did not  take any  step to  dispute the   correctness of the entries in  the Records  of Rights.  It must  be noted  that Section 10A  bars any  person after the expiry of the period of  45  days  from  raising  any  dispute  in  that  regard. Thereafter a  Draft Scheme  was also published under Section 12 of  the Act  reiterating the  statement  published  under Section 10.  Here again 30 days time was given under the Act for filing  objections and no objection was preferred by the appellants within  the said time. As there was no objections to the  statement as well as to the Draft Scheme as required under the  Act it  has become final. However, long after all these things, the appellants objecting to the entries in the Chaker Register  containing the name of the first respondent challenged the  same contending  that the  sale of  the suit lands by  the father  in  favour  of  the  first  respondent without obtaining  the prior  permission of  the  Court  was illegal and not binding on them.      The  Consolidation   officer  by  order  dated  October 18,1978, overruling  the  objections  raised  by  the  first respondent herein  held that  the sale  of the suit lands by the father of the appellants was not justified and he having not obtained  the permission  of the  Court,  the  sale  was illegal. On  appeal the Deputy Director (Consolidation) also took the  same view.  On further  revision, the  Director of Consolidation, Bihar,  Patna, took the view that in the face of appointment  of a  court guardian,  the rights of natural guardian cease permanently and the same are not revived on the discharge of court guardian to enable him to deal with the  properties of  his minor  sons. On  that view, the Revisional Authority  held the  sale by  the father  of  the appellants was  not binding  on the  minors and  they having come to  the Consolidation  Court within  12 years  from the date of knowledge of the sale, their claim was not barred by time. Aggrieved by that order the first respondent preferred C.W.J.C.  915/1982   under  Article   226  and  227  of  the Constitution of India.      A  Division   Bench  of  the  Patna  High  Court  after elaborately disclosing  the matter found that the principles laid down  by various  High Courts  and the Supreme Court in cases arising  under Guardians and Wards Act, 1890 and Hindu Minority and  Guardianship Act,  1956 may not be apposite to

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the guardians/next friend appointed under Order XXXII of the Code of  Civil Procedure. The Court also found on facts that the appointment  of guardian  ad litem/next  friend  in  the Title Suit  was limited  only for  the suit  and  after  the discharge of that guardian/next friend by an order of Court, the  father’s   right   who   had   no   adverse   interest, automatically revives  as natural  guardian. The  High Court also noticed the fact that the appellants have acquiesced by their conduct  in writing a letter to the Collector, Bhujpur at Arrah  to collect  the  balance  loan  arrears,  advanced against the  suit lands,  from the  first respondent who has undertaken to discharge the same and, therefore, they cannot be allowed  to turn  round and challenge the alienation long after the expiry of the period of limitation. The High Court also took  note of the fact that the appellants did not file any objections  within the  stipulated  time  to  statements published under  section 9A read with Section 10 and also to the Scheme published under Section 12 of the Act. Taking all these factors  into consideration,  the High Court held that the sale  by the  5th respondent on behalf of the minors, if at all  could be  challenged as  voidable one  and the  same cannot by  any stretch  of imagination  on the facts of this case be termed as void. The appellants having not challenged the sale  within the  period of  limitation after  attaining majority, cannot  treat the  sale as  void. Accordingly, the High Court  quashed the  orders of Consolidation Authorities by allowing the Writ Application.      Mr. B.B.  Singh, learned  counsel,  appearing  for  the appellants vehemently contended that the High Court erred in quashing the  orders of the Consolidation Authorities on the ground that  the sale  was voidable  and the appellants have failed to challenge the sale within the period or limitation after attaining  majority. According to the learned counsel, the sale  of suit  land by the  respondent must be deemed to be a sale by a stranger as he cannot claim to be the natural guardian of  the  minors  after  the  appointment  of  court guardian during the pendency of the suit and, therefore, the sale must  be treated as void and the suit having been filed within 12  years from the date of knowledge of the sale, the Consolidation Authorities  were right in holding the sale as void and  not binding  on the minors. In support of this, he cited Jiban  Krishna Dutta  and Another  vs. Sailendra  Nath Shee and Another reported in AIR 1946 Calcutta 272.      We do  not think  that Mr.  B.B. Singh was right in his submission. He  failed to take note of the important factor, namely, the  appointment of  guardian in  the Title Suit was one under  Order XXXII  Rule 3  of Code  of Civil Procedure, which will  not take  away the right of the natural guardian for ever. Once the guardian appointed during the pendency of the suit  was properly discharged, the rights of the natural guardian revive.  The case  cited by the learned counsel for the appellant  was under  the Guardians and Wards Act, 189O, which will  have no  application to the facts of the present case. As  a matter  of  fact,  Section  8(3)  of  the  Hindu Minority and  Guardianship Act, 1956 expressly provides that any disposal  of immovable property by a natural guardian in contravention of sub-section 1 or sub-Section 2 of Section 8 is voidable  at the instance of minor or any person claiming under him.  Sub-Section 2  of Section  8 inter alia bars the natural guardian  from encumbering  or selling the immovable property without  the previous  sanction of the Court. Under the circumstances  and in view of the admitted position that the minors  have not  challenged the sale within three years from their  attaining majority.  have no right to ignore the sale as  void. Further  as noticed  earlier, the  appellants

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themselves have  accepted the  said sale  by their father by writing a  letter to  the Collector  of Bhojpur at Arrah and requesting to  collect the loan arrears advanced against the suit  lands,  from  the  purchaser/first  respondent.  Still further, it  is again common ground that the appellants have not filed  any objections  to the Statements published under Section 9A  and the Scheme published under Section 12 of the Act within  the prescribed  period. All  these  factors,  as already noted,  were taken  due note  of by  the High Court, while passing the judgment under appeal.      In the  result we  do not find any merit in this appeal and consequently  the appeal  is dismissed.  However,  there will be no order as to cost.