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Govind Prasad And Another v. State Of M.P.

Madhya Pradesh High Court

Apr 29, 1957

Judgment

Subsequent
References

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Summary of Legal Opinion

Factual and Procedural Background

This appeal arises from an order of the Nistar Officer-cum-Additional Deputy Commissioner, Durg, vesting khasra Nos. 143/1-3, 251/1 and 251/2 in the State. Appellant No. 2, Mansingh, claimed khasra No. 143/1-3 (which the impugned order wrongly described at places as 145/1-2) on the basis of a registered gift-deed executed by his father, the ex-proprietor, in 1948, asserting proprietary rights that could not be vested in the State. Appellant No. 1, Govind Prasad, claimed khasra No. 251/2, presumably under u/s 40 of the Madhya Pradesh Abolition of Proprietary Rights Act. The lower court rejected Mansingh's claim on grounds including that the land remained fallow till 1953, that the transfer was a 'benami' transaction intended to avoid vesting, and that the conferral of occupancy rights was irregular although the ex-proprietor later got his son declared malik-makbuza. The lower court also rejected Govind Prasad's claim.

Legal Issues Presented

Whether the impugned order vesting the specified khasra numbers in the State could lawfully affect the proprietary/malik-makbuza rights claimed by the appellants.
Whether the 1948 registered gift-deed in favour of Mansingh created complete proprietary rights and entitled him to malik-makbuza status (as declared by the Deputy Commissioner in 1951 under u/s 106 (c) of the Land Revenue Act).
Whether the lower court correctly characterized the 1948 transfer as a benami transaction or held that malik-makbuza rights were lost because the land remained fallow.
Whether the Nistar Officer-cum-Additional Deputy Commissioner had jurisdiction to set aside the Deputy Commissioner's 1951 order declaring malik-makbuza rights.
Whether Govind Prasad had any subsisting right on khasra No. 251/2 under u/s 40 of the Madhya Pradesh Abolition of Proprietary Rights Act.

Arguments of the Parties

Appellant No. 2 — Mansingh

Claimed proprietary rights in khasra No. 143/1-3 by virtue of a registered gift-deed executed by his father in 1948.
Relied on the 1948 proceedings in which the Deputy Commissioner declared him malik-makbuza under u/s 106 (c) of the Land Revenue Act, arguing that such proprietary/malik-makbuza rights could not be set aside by the impugned order.

Appellant No. 1 — Govind Prasad

Claimed khasra No. 251/2, presumably under u/s 40 of the Madhya Pradesh Abolition of Proprietary Rights Act.
According to the opinion, counsel for Govind Prasad failed to point out any grounds to substantiate his claim under that provision.

Lower Court's Findings (as described in the opinion)

Rejected Mansingh's claim on the grounds that the land remained fallow until 1953.
Concluded the transfer was a 'benami' transaction, apparently to save grass land from vesting in the State, made when the Madhya Pradesh Abolition of Proprietary Rights Act was on the anvil.
Found that the conferral of occupancy rights in favour of Mansingh was not in order, but that the ex-proprietor subsequently managed to get his son declared malik-makbuza.

Table of Precedents Cited

No precedents were cited in the provided opinion.

Court's Reasoning and Analysis

The court reviewed the record and found the lower court's handling to be cursory and error-prone (noting inconsistent references to the relevant khasra number across documents). The correct khasra number (143/1-3) was identified from the Deputy Commissioner's Revenue Case No. 16/1-2 dated 16-8-51.

The Deputy Commissioner's record showed that khasra No. 143/1-3 (14.00 acres) had been transferred in complete proprietary rights from Govind Prasad (the ex-proprietor) to Mansingh in 1948, and that the Deputy Commissioner had declared Mansingh malik-makbuza under u/s 106 (c) of the Land Revenue Act in accordance with government instructions. The court treated that declaration as a valid proceeding that conferred malik-makbuza (plot-proprietor) rights on Mansingh.

The court rejected the lower court's conclusions that the transfer was a benami device or that occupancy/malik-makbuza rights were created improperly on the eve of the Madhya Pradesh Abolition of Proprietary Rights Act. It held that a gift to a minor is not vitiated by minority because there is no contract in the sense that would render it voidable, and that allowing land to remain fallow does not cause malik-makbuza rights to be lost. The court further held that the Madhya Pradesh Abolition of Proprietary Rights Act does not operate to affect plot-proprietors or malik-makbuzas, and that the Nistar Officer (as Compensation Officer or Additional Deputy Commissioner) had no jurisdiction to set aside the Deputy Commissioner's 1951 order made under u/s 106 (c) of the Land Revenue Act. Consequently, the impugned order was illegal insofar as it sought to vest khasra No. 143/1-3 in the State.

Regarding Govind Prasad's claim to khasra No. 251/2, the court noted that counsel for Govind Prasad failed to identify any basis under u/s 40 of the Madhya Pradesh Abolition of Proprietary Rights Act to substantiate his claim; the court therefore found that the lower court had correctly rejected that claim.

Holding and Implications

The appeal succeeds only partly.

Holding:

Khasra No. 143/1-3 shall continue to be recorded in malik-makbuza rights (described by the opinion as now Bhumiswami) of appellant Mansingh. The impugned order vesting this khasra in the State is set aside insofar as it affects these rights.
The appeal of Govind Prasad in respect of khasra No. 251/2 is dismissed for lack of merit.

Implications:

Direct effect: Mansingh retains the proprietary/malik-makbuza (now bhumiswami) rights in khasra No. 143/1-3; Govind Prasad's claim to khasra No. 251/2 is rejected.
The opinion does not purport to lay down a new broader precedent; its reasoning is tied to the facts and statutory provisions as applied to the records before the court.

This summary is based exclusively on the text of the provided opinion.

Show all summary ...

This appeal arises from the order of the Nistar Officer-cum-Additional Deputy Commissioner, Durg, vesting khasra Nos. 143/1-3, 251/1 and 251/2 in the State.

2. Khasra No. 143/1-3 is claimed by appellant No. 2 Mansingh. It may be pointed out that this kharsra number has been wrongly referred to in the impugned order as khasra No. 145/1-2. The case of Mansingh appellant is that this land was received in proprietary rights by virtue of a registered gift-deed executed by his father, the ex-proprietor, in the year 1948 and could not be vested in the State by the impugned order.

3. Khasra No. 251/2 is claimed by Govind Prasad appellant No. 1, presumably u/s 40 of the Madhya Pradesh Abolition of Proprietary Rights Act.

4. The claim of Mansingh on khasra No. 143/1-3 (wrongly shown as 145/1-2) was rejected by the lower Court on the grounds that (i) this land remained fallow till the year 1953, (ii) that this was a 'Benami' transaction apparently "to save some grass land from vesting in the State", the transaction having been made "when the Madhya Pradesh Abolition of Proprietary Rights Act was already on the anvil", (iii) that although the conferral of occupancy rights in favour of Mansingh was itself not in order, the ex-proprietor subsequently managed to get his son declared as malik-makbuza.

5. I regret to observe that the lower Court dealt with the case in a very cursory and slip-shod manner, the khasra number of the land in question has been differently mentioned at different places, causing no little amount of confusion. In the order-sheet dated 15-1-55, it is referred to as khasra No. 142/10, in the report of the Assistant Superintendent Land Records on page 7 of the record it is mentioned as 142/1-3 while in the statement of Govind Prasad and in the order of the lower Court yet another number is given as 145/2. It was, therefore, with some difficulty that the correct number viz., 143/1-3 was traced. This correct number is indicated when we read Assistant Superintendent Land Records' report on page 7 wherein it is mentioned that this khasra number was declared malik-makbuza vide orders of the Deputy Commissioner in Revenue Case No. 16/1-2 dated 16-8-51. In the order of the Deputy Commissioner the khasra No. is 143/1-3.

6. A reference to Deputy Commissioner's revenue case cited above,, however, gives an entirely different picture so far as the nature of right of the appellant on khasra No. 143/1-3 is concerned. It appears from the record of the Deputy Commissioner's case that khasra No. 143/1-3, area 14'00 acres, was 'khudkasht' land of Govind Prasad, the ex-proprietor, and was transferred to Mansingh in complete proprietary rights. In other words, as early as 1948, appellant No. 2 was created a plot-proprietor and, consistently with the instructions of the Government contained in Revenue Book Circular I-II, the Deputy Commissioner declared Mansingh as malik-makbuza u/s 106 (c) of the Land Revenue Act. This was a perfectly normal proceeding and Mansingh duly acquired malik-makbuza rights in the year 1948. Such a gift-deed in favour of Mansingh cannot be vitiated because of his minority. In a gift to a minor there is no promise on behalf of the minor and there does not arise the question of contract which, in the case of a minor, is not binding on him.

7. In the face of above facts, it is clear that the observations of the lower Court to the effect that occupancy rights were created in favour of Man-singh on the eve of passing of the Madhya Pradesh Abolition of Proprietary Rights Act and that subsequently his father ex-proprietor managed to gel him declared malik-makbuza are entirely without foundation. The rights malik-makbuza cannot be lost if Mansingh allowed the land to remain fallow. The Madhya Pradesh Abolition of Proprietary Rights Act has nothing to ' with the plot-proprietors or with the malik-makbuzas. The Nistar either as Compensation Officer or as Additional Deputy Commissioner had no jurisdiction whatsoever to set aside the order passed by the Deputy Commissioner in 1951 us 106 (c) of the Land Revenue Act. Obviously the impugned order, being wholly illegal in this respect, deserves to be set aside.

8. With regard to the claim of Govind Prasad appellant No. 1, the learned counsel for him failed to point out any ground on which his right on khasra No. 251/2 could be substantiated u/s 40 of the Madhya Pradesh Abolition of Proprietary Rights Act. His claim, being entirely unsupportable, was rightly rejected by the lower Court.

9. In the result the appeal succeeds only partly. Khasra No. 143/1-3 shall continue to be recorded in malik-makbuza rights (now Bhumiswami) of appellant Mansingh. The appeal of Govind Parasad in respect of khasra No. 251/2 having no force is dismissed. Ordered accordingly.

Appeal dismissed.