Holding

The sale by the natural guardian without court sanction is only voidable; since the minors did not challenge it within three years of attaining majority and had acquiesced, the sale stands and cannot be set aside.

Summary

The father of three minor sons filed a title suit in which the minors were added as co-plaintiffs and a court‑appointed guardian was assigned. After the suit was compromised, the father, acting as natural guardian, sold the suit land to the first respondent without obtaining prior court sanction, and the sale was recorded and mutation effected. The minors later wrote to the collector accepting the sale and did not object to the entries under the Bihar Consolidation of Holding and Prevention of Fragmentation Act within the statutory periods. They subsequently challenged the sale, arguing it was void because the natural guardian had no authority after a court guardian was appointed. The High Court held the sale was only voidable, that the natural guardian’s rights revived after discharge of the court guardian, and that the minors were barred by limitation and by their acquiescence. The Supreme Court affirmed this view, holding that the sale is not void, the limitation period had expired, and the appeal was dismissed.

Issues considered

Whether a sale of immovable property by a natural guardian of minors without prior court sanction is void or merely voidable and can be set aside after the minors attain majority.
Whether the appointment of a court guardian under Order XXXII Rule 3 of the CPC extinguishes the natural guardian's authority permanently.
Whether the minors' failure to object to the entries under the Bihar Consolidation of Holding and Prevention of Fragmentation Act within the prescribed periods bars their claim.

Legislation cited

Code of Civil Procedure, 1908s. Order XXXII Rule 3
Hindu Minority and Guardianship Act, 1956s. 8(2), s. 8(3)

Subjects

sale of minor's propertynatural guardiancourt guardianvoidable salelimitation periodacquiescenceHindu Minority and Guardianship ActCivil Procedure CodeBihar Consolidation Actguardianship

Judgment

DIVYA DIP SINGH AND ORS. A
v.
RAM BACHAN MISHRA AND ORS.

· OCTOBER 24, 1996

(M.M. PUNCHHI AND K. VENKATASWAMI, JJ.] B

Hindu Minority and Guardianship Act, 1956-Section 8(2) & (3)-Sale
of Immovable property of minors-By natural guardian wi~lwut prior Sanction
of Court-Whether minors bound by the sale-Held, the sale cannot be ignored
in the facts and circumstances of the ca~e. c
Civil Procedure Code, 1908---0rder XXXII Rule 3-Court guardian
appointed during pe11de11cy of Suit-Natural guardian vis-a-vis appointed
guardian-Right of-Held, the appointment does not take away the right of
the natural guardian for ever, once the appointment duly discharged, the rights
of natural guardian revive. D
Respondent No. S, father of the appellants filed a title suit and the
appellants (then minors) were added as co- plaintiffs. Court guardian was
appointed for ·them, during the pendency of the suit. Suit ended up in
compromise and the guardian was discharged. Thereafter respondent No. E
S managed the affairs of minors as natural guardian and also made an
application in the above title suit for his appointment as the guardian of
the minors. Prior to filing of the application, respondent No.Shad already
sold the suit land to respondent No. 1. Mutation was duly carried out and
Final Record of Rights was published in favour· of respondent No. 1.
Appellant No. 1 vide an application in the suit, sought permission of the F
Court to deal with treasury deposits and saving certificates, since he had
attained majority on 29.7.66. The application was allowed. Appellants
wrote a letter to the District Collector (with regard to the sale of suit land
by their father to respondent No. 1) to collect the balance loan arrears
advanced against the suit land from respondent No. 1 who had undertaken G
to discharge the same.

In 1972, the name of respondent No. 1 was shown as owner in the
statement published under Section 9A r/w Section 10 and Draft Scheme
u/s 12 of Bihar Consolidation of Holding and Prevention of Fragmentation
Act, 1956. The appellants did not file any objection to the statements and H
705
706 SUPREME COURT REPORTS (1996) SUPP. 7 S.C.R.
A the Scheme, within prescribed period and the entry of respondent No. 1 in
Records of Rights became final. Long after the finalisation of respondent
No. l's name, appellants filed objections that the sale by their father,
without prior .permission of the Court was illegal, hence not binding on
them.

B The Consolidation Officer, upheld the objection and in appeal, the
Appellate Deputy Director (Consolidation) also upheld the decision of
Consolidation Officer.

In appeal, the Revisional Authority, held that the sale was not
C binding on the minors, and that the appellants having approached the
Court within 12 years from the date of knowledge of the sale, their claim
was not barred by time.

A writ petition was filed by respondent No. 1, and the High Court
held that sale by respondent No. S on behalf of minors cannot be chal·
b lenged as void and the appellants having not challenged the sale within
limitation period aft1~r attaining majority, their claim was barred by time.

In appeal to this Court, appellants contended that the sale by
respondent No. S must be deemed to be sale by stranger, as he could not
claim to be natural guardian after the appointment of Court guardian and
E therefore, the sale must be treated as void and that the claim of the
appellants was not barred by time.

Dismissing the appeal, this Court

HELD : 1. In the circumstances of the case and in view of the
F admitted position that the minors have not challenged the sale within 3
years from their att11ining majority and having themselves accepted the
sale by their father by writing a letter to the Collector requesting him to
collect the loan am~ars advanced against the Suit land, from the pur-
chaser/first respond1mt and appellants having not filed any objections to
G the statements published under Section 9A and the Scheme published
under Section 12 ot' Bihar Consolidation of Holding and Prevention of
Fragmentation Act, 1956, within the prescribed period, have no right to
ignore the sale as void. [711-A·C]

2. The appointment of guardian in the Title Suit was one under
H Order XXXII Rule 3 of Code of Civil Procedure, which will not take away
DNYADIPSINGHv. R.B.MISHRA[VENKATASWAMI,J.] 707

the right of the natural guardian for ever. Once the guardian appointed A
during the pendency of the Suit, was properly discharged, the rights of the
natural guardian revive. [710-F]

Jiban Krishna Dutta & Another v. Shailendra Nath Shee and Another,
AIR (1946) Calcutta 272, distinguished.
B
CIVIL APPELLATE JURISDICTION : Civil Appeal No. 3308 of
1983.

From the Judgment and Order dated 21.1.83 of the Patna High Court
in C.W.J.C. No. 915 of 1982.
c
B.B. Singh for the Appellants.

Dr. Sankar Ghosh and M.P. Jha for the Respondents.

The Judgment of the Court was delivered by :
D
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 contensting respondents. The 5th respondent E
herein, who has since died pending this appeal, was the father of the
appellants (hereinafter referred to as '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. Nb: 915/1982 under Artkles· F
226 and 227 of the Constitution of India, an ordet 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 G ·
..,. 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 H
708 SUPREME COURT REPORTS [1996) SUPP. 7 S.C.R.
A Subordinate Judge, Amih. Pending suit the appellants herein who were the
minors were allowed to be added as co-plaintiffs represented by next
friend/guardian ad /item Shri Kanhaiya Singh. That suit was in respect of
Dumraon Raj of which the 5th respondent, his brothers and their predeces-
sors were the Maharajas. That suit ended in a compromise and in that
B 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 /item of the minors was discharged by an order
dated February 22, 1957. Thereafter, the 5th respondent as natural guar-
dian 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
C · 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 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
D Rights was published on March 30, 1970 in favour of the first respondent
with respect to suitlands. 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 the appellants accepting the alienation of the suit
E lands by their fathe:r in favour of the first respondent requested 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
F Consolidation of Holding and Prevention of Fragmentation Act, 1956
(hereinafter called ":the Act") was published in the Statements published
under Section 9A re:ad 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
G of the entries in the Records of Rights. It must be noted that Section lOA
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 Ai.;t for filing objections and
H no objection was preferred by the appellants within the said time. As there
DIVYADIPSINGHv. R.B.MISHRA[VENKATASWAMI,J.) 709

was no objections to the statement as well as to the Draft Scheme as A
< 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 contend-
ing that the sale of the suit lands by the fath.er in favour of the first
respondent without obtaining the prior permission of the Court was illegal B
and not binding on them.

The Consolidation Officer by order dated October 18, 1978, overrul-
ing 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 C
appeal the Deputy Director (Consolidation) also took the same Yiew. 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 D
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. E

A Division Bench of Patna High Court after elaborately discussing
the matter found that the principles laid down by various High Courts and
the Supreme Court in cases arising under Guardians and Wards Act, 1980
and Hindu Minority and Guardianship Act, 1956 may not be apposite to F
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 /item/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 G
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 H
710 SUPREME COURT REPORTS (1996) SUPP. 7 S.C.R.

A 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
B
of imagination 6f 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.
c
Mr. B.B. Singh, learned counsel, appearing for the appellants vehe-
mently 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 of limitation
D after attaining majority. According to the learned counsel, the sale of suit
land by the 5th 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 appoint-
ment 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
E right in holding the sale as void and not binding on the minors. In support
of this, he cited Jiban Krishna Dutta and Another v. 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
F 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
G and Wards Act, 1890, 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
H person claiming under him. Sub-section (2) of Section 8 inter alia bars the
DIVYADIPSINGHv. R.B.MISHRA[VENKATASWAMI,J.] 711

natural guardian from encumbering or selling the immovable property A
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 themselves have
accepted the said sale by their father by writing a letter to the Collector of B
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 C
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.

KKT. Appeal dismissed. D