CIVIL WRIT JURISDICTION CASE No. 2938 OF 1991 ***** ( In the matter of applications under Articles 226 and 227 of the Constitution of India ) ****** 1. SACHIDA NAND SHARMA @ SACHIDA NAND PANDEY, SON OF LATE RAJ NANDAN PANDEY 2. ARBIND KUMAR SHARMA, SON OF LATE RAJ NANDAN PANDEY BOTH ARE RESIDENT OF VILLAGE LUCKHISARAI, POLICE STATION GHOSHI, DISTRICT JEHANABAD, AT PRESENT MOHALLA TARATAND, POLICE STATION JHUMRI TILAIYA, DISTRICT HAZARIBAGH 3. AJAY @ AJAY KUMAR SHARMA, SON OF LATE HARI NARAIN PANDEY 4. YUGAL KISHORE SHARMA @ YUGAL SHARMA, SON OF LATE HARI NARAIN PANDEY BOTH ARE RESIDENT OF VILLAGE LUCKHISARAI, POLICE STATION GHOSHI, DISTRICT JEHANABAD. AT PRESENT MOHALLA I.M.S. ROAD, BHALOTIA DHARMASHALA, POLICE STATION JHUMRI TILAIYA, DISTRICT HAZARIBAGH ………………………..…………………………………………….……...PETITIONERS VERSUS 1. THE STATE OF BIHAR 2. THE JOINT DIRECTOR, CONSOLIDATION, GAYA 3. THE CONSOLIDATION OFFICER, JEHNABAD 4. THE ASSISTANT CONSOLIDATION OFFICER, JEHANABAD 5. RAM PRAWESH PANDEY, SON OF LATE JAI RAM PANDEY 6. RAM UDAI PANDEY, SON OF LATE JAI RAM PANDEY 7. RAM SEWAK PANDEY, SON OF LATE JAI RAM PANDEY 5 TO 7 ARE RESIDENT OF VILLAGE GINJI, POLICE STATION GHOSHI, DISTRICT JEHANABAD. AT PRESENT, RESIDENT OF HANUMAN MANDIR, I.M.S. ROAD, ADDI BUNGLOW, JHUMRI TILAIYA, DISTRICT HAZARIBAG …………………………………………………..…………………….RESPONDENTS ******************** FOR THE PETITIONERS :- MR. MAHESH PRASAD NO. 2, ADV. MR. BIJAY KUMAR PANDEY, ADVOCATE FOR THE S T A T E :- MR. N. K. SINHA, AC TO AAG X FOR RESP. 5 TO 7 :- MR. RAM SURESH ROY, SR. ADVOCATE MR. BINOD BIHARI SINGH, ADVOCATE ********** P R E S E N T THE HON'BLE JUSTICE SMT. SHEEMA ALI KHAN O R D E R Sheema Ali Khan, J. Two questions that have arisen in this case are whether the sale deed dated 04.05.1967 executed by Sri Ram 2 Pandey, uncle of respondents 5 to 7 is a void document or a voidable document? The second question is whether the Joint Director, Consolidation (Gaya) could have looked into the sale deed and interpreted it in favour of one or the other party? The facts are that Jai Ram Pandey became the owner of the property through a deed of gift, executed by the grandmother of Jai Ram Pandey on 11.07.1953. Jai Ram Pandey subsequently disappeared and remained traceless. The respondents 5 to 7 were minor at the time of disappearance of their father. The father of the petitioners was the purchaser of the lands in question by virtue of the sale deed executed on 04.05.1967 by Sri Ram Pandey, the brother of Jai Ram Pandey, on his own behalf and on behalf of the minor sons of Jai Ram Pandey, respondents 5 to 7. The case set up on behalf of the petitioners is that, Sri Ram Pandey got a deed of gift executed in favour of his elder brother, namely, Jai Ram Pandey, however the property was meant to be jointly enjoyed by Jai Ram Pandey and Sri Ram Pandey. It is, therefore, said that due to the legal necessity of the family, Sri Ram Pandey executed a sale deed in favour of the petitioners’ fathers, namely, Raj Nandan Pandey and Hari Narain Pandey. The respondents, on the other hand, claim that their uncle Sri Ram Pandey was not their natural guardian 3 and he did not have the authority to execute the sale deed in favour of the petitioners’ father. It is further stated that in fact they never came to know about the execution of the sale deed and have remained in possession of the vended lands, paying rent to the State of Bihar right up till 1991. The petitioners state that during the revisional survey, they got their names mutated in the records of right. No objection was filed on behalf of the petitioners at the time of the revisional survey. Later, when the consolidation proceedings started in the village, the petitioners’ father got his name included in the register of lands prepared under Section 9 and 9 (1) of the Bihar Consolidation of Holdings and Prevention of Fragmentation Act (hereinafter referred to as the Act). The respondents did not file any objection under Section 10 (2) of the Act. Thereafter, the draft statement was prepared under Section 11 of the Act and objections were invited under Section 12 (2) of the Act, no steps were taken by anyone i.e. the respondents to file an objection. The respondents, for the first time, filed an objection before the Consolidation Officer under Section 12 (2) of the Act, after a great delay in the year 1980, which was disposed of in favour of the petitioners’ father on 23.08.1989. The order has been directly challenged by the respondents by filing a revision under Section 35 of the Act on 03.02.1989. The petitioners being aggrieved by the order of the Joint Director, 4 Consolidation has challenged the order in this writ application. In order to decide or comment upon the validity of the order of the Joint Director, Consolidation, this Court finds it necessary to analyze the recitals in the sale deed. The following facts emerge on reading the sale deed. (a) Sri Ram Pandey claims that he is the co-sharer and has executed the sale deed as the lands were in joint possession of the two brothers. (b) The document has been executed for an alleged legal necessity. (c) The document has been executed by Sri Ram Pandey on his own behalf and on behalf of the respondents 5 to 7, who were minors at that time. (d) The recitals of the sale deed also indicate that Jai Ram Pandey had disappeared some four years earlier to the execution of the sale deed. The argument on behalf of the petitioners is that the Joint Director could not have adjudicated and held that the sale deed is a void document or that Sri Ram Pandey did not have the authority to execute the sale deed on behalf of the minor children of Jai Ram Pandey, as their mother was alive at the time of execution of the said sale deed. The respondents, in reply to the arguments advanced on behalf of 5 the petitioners, submits that the document itself is a void document for the reasons that the uncle could not have become the guardian of the minors, because their mother was alive at the time when the sale deed was executed and also for the reason that seven years had not elapsed since the disappearance of Jai Ram Pandey and, therefore, the uncle could not have stepped into the shoes as a guardian before the expiry of mandatory period of seven years under Section 108 of the Evidence Act, which is required for declaring a person traceless/dead. Thus, it is submitted that the Consolidation Authorities had the right to hold that the sale deed was void ab initio, the consequence of which is that the Consolidation Authorities can interfere and can declare a sale deed to be void for the reasons mentioned in the order. To substantiate the case that the Consolidation Authorities can hold that the sale deed is void, Mr. Ram Suresh Roy, learned Senior Counsel appearing on behalf of respondents 5 to 7 refers to the judgment rendered in the case of Gorakh Nath Dube vs. Hari Narain Singh & Others, reported in AIR 1973 SC 2451. The case before the Apex Court was whether it was proper for the Consolidation Authority under the U.P. Consolidation of Holdings Act to declare a document to be void. The admitted facts in that case were that there was a joint family property for which a sale deed was executed. The Consolidation Authority held 6 that the executants of the sale deed had sold in excess of his share and thus, the sale deed was itself void. The Supreme Court while considering this aspect has relied on the judgment of the Allahabad High Court in the case of Jagarnath Shukla vs. Sita Ram Pandey, reported in 1969 ALL.L.J. 768. While doing so, the Supreme Court said that there can be a distinction between a case “when a document is wholly or partially invalid, so that it can be disregarded by any Court or Authority and one where it has to be actually set aside before it can actually cease to have legal effect. An alienation or transfer made in excess of power to transfer, would be to the extent of power, invalid. Adjudication on the effect on such purported alienation would be “necessarily implied in the decision of the dispute involving conflicting claims to rights or interests in land which are subject matter of consolidation proceedings”. The Supreme Court has also held and referred to the well established principle that a contract or other transaction induced or tendered by fraud is not void, but only voidable at the option of the party defrauded. The transaction remains valid until it has been challenged (Ningawwa vs. Byrappa, AIR 1968 SC 956) In the case of Smt. Dularia Devi vs. Janardhan Singh, reported in AIR 1990 SC 1173, the question before the Supreme Court was that, there was a bar to a suit, in view of provisions of the U.P. Consolidation Act. (Bihar has a similar 7 provision under Section 37 of the Act). The plaintiff, being an illiterate lady, had filed a suit stating therein that her thumb impression was obtained on a sale deed by making her believe that she was executing a deed of gift in favour of her daughter. The Supreme Court held that there was no doubt of the fact that plaintiff had signed the deed due to misrepresentation of the facts, and in such a case the principles in the cases of Gorakh Nath Dube and Ningawwa would apply and the consolidation authorities could look into the sale deed. The suit was not maintainable and leave was granted by the Apex Court to approach the Consolidation Authorities. The question before this Court is that can the sale deed be held to be partially or wholly void. While referring to this aspect of the matter, Counsel for the petitioner refers to the judgment of the Calcutta High Court in the case of Hari Satya vs. Mahadev reported in AIR 1983 Cal. 76. Three issues had arisen before the Calcutta High Court. Firstly, there was a challenge to the recitals in the sale deed that the property was sold for the benefit of the minor. The Court held that the recitals in the sale deed, that the lands was sold for legal necessity is by itself not sufficient evidence for the purpose of showing the existence of a legal necessity. It must be established that there was in fact legal necessity for the sale of the lands in question. The document, in such 8 circumstances, would become voidable and would be liable to be challenged by the minor on attainment of majority. Another question, which was raised in the case of Hari Satya and also in the present case on behalf of the respondents is that Sri Ram Pandey was not the natural guardian of the minor respondents. The Court has distinguished between de facto guardian and the natural guardian appointed by the Court, whereas it has specifically been stated that de facto guardian is a stranger, meaning thereby that anybody can be appointed as a de facto guardian of a minor child. A sale deed executed by a de facto guardian for purported legal necessity can be challenged by the minors on attainment of majority. The minor may repudiate it by not accepting it and can remain and continue to enjoy and possess the property so transferred in his own rights or claim recovery of possession thereof, after he is dispossessed. This case does not help the petitioners, rather the contrary is true ! In the present case, the crux lies in the assertion of the vendor Sri Ram Pandey, who claims to be the natural guardian and also claims title to the lands in question jointly with his brother by virtue of the deed of gift executed in favour of Jai Ram Pandey. It is submitted that the respondents 5 to 7 have raised the issue that Sri Ram Pandey was not the legal guardian and he had no authority to execute the sale deed 9 on behalf of the minors for purported legal necessity. Such an assertion or document would become voidable document and is liable to be challenged by the minor on attaining the majority by filing an appropriate suit. Therefore, it is submitted that the consolidation authorities could not have examined the sale deed. In this case, the Court finds that the very fact that Sri Ram Pandey, vendors of the petitioners, has made a claim that the lands in question belong to both vendor, Sri Ram Pandey and his brother Jai Ram Pandey is misplaced. Obviously, this part of the pleadings has to be rejected by this Court as there is no presumption that a document (gift) prepared in the name of a particular person can be treated to be as part of the joint family property. Counsel for the petitioners does not dispute the fact that the gift was in favour of Jai Ram Pandey (father of the respondents). The order of the Consolidation Authority is rather sketchy, it gives no reasons for holding that the sale deed is a valid document except to say that it was not executed by the natural guardian of the respondents 5 to 7. In effect, this Court finds that the document concerned i.e. the sale deed is void document, applying the principles of Gorakh Nath Dube’s case, as the vendor of the petitioners’ father had no business to transfer the lands on his own behalf. The second part of the case as set up by 10 respondents to the extent that Sri Ram Pandey could not be the natural guardian during the life time of their mother, along with the specific recitals in the sale deed, that Jai Ram Pandey had gone missing for four years prior to the execution of the sale deed, would also lead this Court to conclude that in fact Sri Ram Pandey, could not have assumed the role of a natural guardian, until his brother was declared dead. This fact would also lead this Court to hold that the document is void, and the consolidation authority had the power to examine the sale deed and pass appropriate orders. The argument that sale deed is voidable and as such the Joint Director, Consolidation, could not have passed an order deciding or commenting on the merits of the sale deed would have to be rejected, in view of the recitals in the sale deed. It was thus open to the petitioners to show before the appropriate Civil Court that the sale deed was executed for legal necessity or that he was the natural guardian and the sale deed was executed after taking the consent of the mother of the minor sons of Jai Ram Pandey or that he is in possession of the lands in question by virtue of the sale deed. One fact is however clear which is that the gift on the basis of which Sri Ram Pandey is claiming title is not in favour of Sri Ram Pandey, which will have its own consequences, if such plea is raised on behalf of the 11 respondents. In the facts, aforesaid, this writ application is dismissed, and the order of the Joint Director, Consolidation is upheld, after modifying the reasons given by the Joint Director, Consolidation as mentioned in the present order. ( Sheema Ali Khan, J. ) PATNA HIGH COURT DATED, THE 24th SEPTEMBER, 2010 A.F.R./ANAND