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TMI Blog1983 (1) TMI 290X X X X Extracts X X X X X X X X Extracts X X X X ..... ral guardian of his aforesaid three minor sons, for a sum of ₹ 20,000/- by a registered sale deed dated 6-5-1959 (Annexure 2). It is this property that the petitioner has lost in the consolidation proceeding. 3. Briefly stated, the facts giving rise to the proceeding are as follows. Maharaja Keshav Prasad Singh, the Maharaja of Dumraon, had two sons, namely, Shri Ram Ran Vijay Prasad Singh and Maharaja Kumar Vishwanath Singh, respondent No. 5. Shri Ram Ran Vijay Prasad Singh had only one son, namely, Maharaja Kamal Singh, and Maharaj Kumar Vishwanath Singh, as already said earlier, had three sons. Title Suit No. 75 of 1951 was filed by Kumar Vishwanath Singh for partition is respect of the Dumraon Raj in the Court of the Subordinate Judge, Arrah. Later on he was also allowed to add his three minor sons as co-plaintiffs, who were shown under the guardianship of Shri Kanhaiya Singh (who later on became an Hon'ble Judge of this Court) as the next friend of the said minors. That title suit was ultimately compromised and respondent No. 5 and his three minor sons (respondents 6 to 8) were given separate properties, the sons having been exclusively allotted 58 acres of land un ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Collector of Bhojpur at Arrah, by the three sons (respondents 6 to 8) and their father (respondent No. 5) in the year 1975, that the fact of the sale of the land to the petitioner was admitted. The relevant recital may be extracted as follows :-- "..... the land for the development of which the loan was taken was later on sold to one Shri Ram Bachan Mishra of Dhananjaypur, P. S. Simri, District Bhojpur and others, vide various sale deeds. Ram Bachan Mishra took the land with the undertaking and the full knowledge that he would pay ₹ 4,000/- and the interest thereon towards the aforesaid loan." Thus their personal liability for the certificate debt was denied. 6. Some time in the year 1972 a notification under Section 3 of the Bihar Consolidation of Holdings and Prevention of Fragmentation Act, 1956 (for short 'the Act') was published and the consolidation authorities started the consolidation operations in accordance with the provisions of the Act including publication of registers prepared under Sub-section (2) of Section 9 and the statement of principles prepared under Section 9-A as required by Section 10 of the Act, showing the name of the petitioner ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , the father (respondent No. 5) was permanently ousted and disqualified to act as a natural guardian of his minor sons even after he was discharged inasmuch as the natural guardian once superseded remained superseded for all times to come, (3) the sale deed was also invalid as it was executed by one Gunjeshwari Prakash Singh and not by their father himself and, therefore, the document was bad in view of the maxim delegatus non potest delegate. The limitation for setting aside the transfer by the father was 12 years from the date of the attainment of the majority, and the respondents 6 to 8 derived the knowledge of the transaction for the first time on 1-2-1978. 8. The argument advanced on behalf of learned counsel for the petitioner was that the sale deed executed by respondent No. 5 acting as the natural guardian of his minor sons was binding on the minors until set aside by a competent Court and a period of 3 years only was available for instituting such suit, and no such suit having been instituted the transfer of the lands in favour of the petitioner became final and conclusive and was binding on the consolidation authorities inasmuch as it was simply voidable and not void. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of Mr. Banerji. Biswas, J. has simply indicated his apprehensions but ultimately he refused to note a dissent. The view expressed in the above decision is a debatable question but the facts of this case do not require any discussion of that question inasmuch as this case and the other cases on this line, i. e., cases under the Guardians and Wards Act, must be brushed aside on the simple ground that appointment of a guardian under the provisions of this Act has got a different complexion altogether as was the position in that case, but the appointment of a guardian or, for that matter, a next friend, under Order 32 of the C. P. C is entirely different. Rule 1 of Order 32 deals with a suit by a minor plaintiff and says that it shall be brought in his name by a next friend. Similarly Rule 3 provides for the appointment of a guardian for the suit by a Court for a minor defendant. Sub-rule (1) of Rule 3 clearly mentions that the appointment of such a guardian shall be only for the suit for such minor, who shall continue to be a guardian, unless his appointment is terminated by retirement or removal, throughout all proceedings and including any proceeding in appellate or revisional Cour ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... part of the immovable property of a minor or even lease any part thereof for a term exceeding five years, without the previous permission of the Court. Sub-section (3) of Section 8 makes any disposal of immovable property by a natural guardian in contravention of Sub-sections (1) and (2), voidable at the instance of the minor or any person claiming under him. 13. It was on the basis of this provision that Mr. Bauerji argued that the respondents were bound to take steps within the period of limitation for setting aside the sale deed, which was only three years under Article 60 of the Limitation Act. The argument of Mr. Balbhadra Prasad Singh, on the other hand, was that although Sub-section (3) of Section 8 treated such a transaction to be voidable, in the eye of law it must be deemed to be void and the minor was not bound to take any legal proceeding and could simply avoid it. In support of his contention he placed reliance upon a Bench decision in Shyam Behari Singh v. Rameshwar Prasad Sahu, (AIR 1942 Pat 213). That was a case under the Chota Nagpur Encumbered Estates Act Section 12-A thereof requires the previous sanction of the Commissioner for making alienation or charging a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a facie this proposition may appear to be acceptable, but it cannot be of universal application and must depend upon the circumstances and vary from case to case. 16. I may usefully refer to a single Judge decision of the Kerala High, Court rendered by V. R. Krishna Iyer, J. (as he then was) in the case of Iruppakket Veettil Viswa-nathan's wife Santha v. Deceased Kandan's L. Rs. wife Cherukutty (AIR 1972 Ker 71) which was referred to by teamed counsel for both the parties. This was a case raider the Hindu Minority and Guardianship Act, 1956, where a minor's property was transferred by his natural guardian without sanction of the Court. The learned Judge reviewed a large number of authorities on the question and held that the contract was voidable at the instance of the minor even without a suit. Whereas Mr. Banerji placed reliance upon this decision for the principle that such a contract was voidable, Mr. Singh referred it for the other proposition that such a contract could be avoided even by a conduct and without a suit. The situation in this case was that the guardian of a minor daughter had transferred the share white the partition suit was pending, and when the f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oid must be set aside by the minor under Article 44 (1908 Act) within the prescribed time, and when they were not set aside under Article 44, the minor's right became extinguished under Section 28 of the Limitation Act. The relevant Article of the new Limitation Act is Article 60 and it specifically provides a limitation of three years for a suit by the ward alter attaining majority to set aside transfer of property made by his guardian. I have already said earlier about the authority of the father as the manager of a Hindu family to deal with the undivided interest of a minor and the separate property. In the case of a transfer by a person acting as the guardian in respect of a property of a minor in a joint Hindu Mitakshara family, it is 'not binding on a minor and no suit need be brought by him under this Article. He can simply bring a suit for possession under Article 65 (old Art, 144), but where the alienation is not void but voidable only, the minor must sue to set it aside within the prescribed period of three years, otherwise his right to the property will be extinguished by operation of Section 28 and the new Section 27 of the Act. 17. The conclusion to which I r ..... X X X X Extracts X X X X X X X X Extracts X X X X
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