Citation Codes

Equivalent Citations

citation codes

Case Number

Civil Misc. Writ No. 3066 of 1972

Judges

K.N Singh, J.

Acts

Section 6 of the Limitation Act read with section 341 of the U.P Zamindari Abolition and Land Reforms Act
section 209 of the U.P Zamindari Abolition and Land Reforms Act
section 9-A of the U.P Consolidation of Holdings Act
section 4(2) of the U.P Consolidation of Holdings Act
section 49 of the U.P Consolidation of Holdings Act
section 4 of the U.P Consolidation of Holdings Act
section 5(2) of the Consolidation of Holdings Act.5.
provision in section 341 making section 6
Zamindari Abolition and Land Reforms Act,
SECTION 6 LIMITATION ACT

See more information ...

Smart Summary

Judgment Summary — Onkar Nath Dubey v. Alakhdeo (U.P. Consolidation)

Factual and Procedural Background

Onkar Nath Dubey (petitioner) filed an objection under section 9-A of the U.P. Consolidation of Holdings Act claiming a one half share in Khata No. 65 of Village Kachchwa Bojh, Pargana Bhadohi, District Varanasi. The khata had been recorded in the basic year as the bhumidhari of Alakh Deo. The petitioner alleged that his share had been transferred by a sale deed dated 19-12-1953 executed by his uncle Adinath, who acted despite the petitioner's mother (the natural guardian) being alive.

The Consolidation Officer rejected the petitioner's claim by order dated 7-5-1970. The Settlement Officer (Consolidation) affirmed that order on appeal, and the Deputy Director of Consolidation dismissed the petitioner's revision, upholding the Settlement Officer's order. The petitioner challenged these three consolidation orders by filing a petition under Article 226 of the Constitution.

Legal Issues Presented

Whether the petitioner's claim challenging the sale deed of 19-12-1953 is barred by limitation, having regard to his minority and the subsequent extension of limitation periods and commencement of consolidation proceedings.
Whether Adinath (the uncle) had legal authority to execute the sale deed on behalf of the minor petitioner in the presence of the petitioner's mother (the natural guardian), i.e., whether the sale deed is void for want of guardian's authority.
Whether the authorities constituted under the U.P. Consolidation of Holdings Act have jurisdiction to disregard or cancel a sale deed executed by a person who had no legal authority to transfer the minor's land (i.e., whether consolidation authorities can treat such a document as void).

Arguments of the Parties

Petitioner's Arguments

Adinath (the uncle) was blind since birth and had no legal authority to transfer the petitioner's share; the petitioner's mother was alive and was the natural and legal guardian.
The sale deed dated 19-12-1953 executed by Adinath is void and does not confer title on respondent Alakhdeo.
The petitioner, being a minor when the sale occurred, upon attaining majority could challenge the sale; the limitation rules (including the extension from three to six years) entitled him to bring proceedings and his objection under section 9-A was filed within the applicable period.

Respondent Alakhdeo's Arguments

Adinath acted as a de facto guardian and executed the sale deed for consideration; the deed has not been cancelled by a competent court and therefore confers title on Alakhdeo.
Alternatively, the sale deed was at most voidable (not void) and consolidation authorities lacked jurisdiction to cancel or ignore a voidable document; hence they were bound to give effect to the sale deed.
Since respondent has been in continuous possession since 1953, he had matured title; the petitioner's claim to set aside the sale deed or recover possession was barred by limitation.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Badal v. Deputy Director of Consolidation, 1970 AWR 456 (Full Bench)	Held that section 49 of the U.P. Consolidation of Holdings Act bars a suit under section 209 of the U.P. Zamindari Abolition and Land Reforms Act, and that a person who had limitation to file a suit on the date of notification under section 4 of the Consolidation Act retains a right to obtain relief under consolidation proceedings notwithstanding failure to file a suit under section 209.	The court relied on this authority to conclude that the petitioner was entitled to seek relief in consolidation proceedings despite the limitation issues that had been relied upon by the consolidation authorities.
Shitla Prasad v. Bans Bahore, 1974 AWR 48 (Full Bench)	Held that Section 6 of the Limitation Act is applicable to suits under section 209 even in the absence of an express provision in section 341 making section 6 applicable.	The court used this decision to confirm that the petitioner could avail the protection of Section 6 (i.e., disability-based extension of limitation) for a suit under section 209.
Gorakh Nath Dubey v. Hari Narain, (1973) 2 SCC 535 : AIR 1973 SC 2451 (Supreme Court)	Held that if a document is wholly invalid it could be disregarded by consolidation authorities.	The court relied on this Supreme Court decision to hold that a sale deed executed by a person who had no right to transfer the minor's share (Adinath) was void and could be ignored/cancelled by consolidation authorities.
Jagarnath Shukla v. Sita Ram Pandey, 1969 AWR 435 (Division Bench)	Held that a sale deed executed by an uncle transferring land (where the uncle had no authority) could be declared void and that such claims are adjudicable by consolidation courts.	The court noted that the principle in Jagarnath Shukla was approved by the Supreme Court in Gorakh Nath's case and applied that principle to conclude the sale deed here was void for want of guardian authority.

Court's Reasoning and Analysis

The court proceeded by analysing two principal lines of enquiry addressed by the pleadings and consolidation orders: limitation and the validity/authority behind the sale deed.

Limitation analysis:

The court accepted the undisputed fact that the petitioner attained majority on 8 January 1959. Prior to that he was disabled by minority from instituting suit.
Section 6 of the Limitation Act provides that where the person entitled to sue is a minor at the time from which the prescribed period runs, he may institute suit within the same period after the disability ceases. The court applied Section 6 (read with section 341 of the U.P. Zamindari Abolition and Land Reforms Act as applicable) to the petitioner's case.
Initially the limitation period for a suit under section 209 was three years (Appendix III to the Rules) until 26 March 1959. A notification dated 27 March 1959 extended that limitation to six years. Because the extension occurred before expiry of the original three-year period, the petitioner could file a suit within six years from attaining majority, i.e., by 8 January 1965.
Before 8 January 1965, a notification under section 4(2) of the U.P. Consolidation of Holdings Act was issued on 1 July 1964, bringing the land into consolidation. Ordinarily, after consolidation notification, a suit under section 209 could not be maintained. Nevertheless, the court relied on the Full Bench authorities (Badal and Shitla Prasad) to hold that a person who had the benefit of limitation on the date of the consolidation notification has the right to obtain relief in consolidation proceedings.
Applying these principles, the court concluded the petitioner's objection under section 9-A was filed within the period to which he was entitled and therefore not barred by limitation. The consolidation authorities were in error to reject the claim on the ground of limitation.

Validity of the sale deed and guardian authority:

The court accepted that Adinath executed the sale deed while the petitioner's mother (the natural guardian) was alive and did not transfer the land; Adinath was not appointed guardian by any competent court.
The court stated the law does not recognise a "de facto guardian" — in presence of a natural guardian, any distant relation (including an uncle) has no legal authority to alienate a minor's property. Adinath therefore had no right or authority to transfer the petitioner's share.
On that basis, the court held the sale deed was void (not merely voidable) for want of authority, and the consolidation authorities erred in upholding the deed by treating Adinath as a de facto guardian.
Relying on the Supreme Court decision in Gorakh Nath Dubey (which approved the Division Bench decision in Jagarnath Shukla), the court held consolidation authorities have jurisdiction to disregard or cancel a wholly invalid sale deed executed by a person lacking authority to transfer the land.

Combining the limitation analysis and the conclusion as to guardian authority, the court found merit in the petitioner's objection and concluded that the consolidation authorities committed a patent error of law in rejecting his claim.

Holding and Implications

PETITION ALLOWED.

Holding (direct orders given by the court):

The petition is allowed; the order of the Deputy Director of Consolidation is quashed.
The Deputy Director is directed to hear and decide the petitioner's revision in accordance with law.
The judgment contains the statement "I, therefore, allow the petition with costs" but also states "Parties shall bear their own costs." The opinion therefore orders relief to the petitioner while providing that parties shall bear their own costs (these cost directions are contained in the text of the judgment).

Implications:

Direct effect: The petitioner's objection under section 9-A is to be reconsidered by the Deputy Director; the consolidation authorities' prior rejection on limitation and on the validity of the sale deed has been set aside.
Legal principle affirmed in this decision (as applied): minors who attain majority are protected by Section 6 of the Limitation Act when instituting suits under section 209; consolidation authorities may disregard or cancel wholly invalid transactions (including those by persons lacking guardian authority), and consolidation proceedings can afford relief where a right to sue existed on the date of consolidation notification.
No new broader precedent beyond the application and synthesis of existing authorities was declared; the court applied and followed earlier Full Bench and Supreme Court decisions to support its conclusion.

K.J.C

Statutes and provisions referenced in the opinion (for context only, as cited in the judgment): Section 9-A of the U.P. Consolidation of Holdings Act; Article 226 of the Constitution; Section 209 and section 341 of the U.P. Zamindari Abolition and Land Reforms Act; Appendix III to the Rules under the Zamindari Act; Section 4(2) of the U.P. Consolidation of Holdings Act; Section 6 of the Limitation Act.

Show full summary ...

Onkar Nath Dubey v. Dy. Director Of Consolidation, Varanasi And Others

K.N Singh, J.:— Onkar Nath Dubey, the petitioner, filed objection under section 9-A of the U.P Consolidation of Holdings Act claiming one half share in Khata No. 65 of Village Kachchwa Bojh pargana Bhadohi district Varanasi, which was recorded in the basic year as Bhumidhari of Alakh Deo. His objection was contested by Alakhdeo, opposite party No. 2 on the ground that Adinath, as guardian of Onkar Nath Dubey petitioner, had executed a sale deed on 19-12-1953 transferring the said khata to him for consideration. Since then he has continued in possession and his name was also mutated in the revenue papers. The Consolidation Officer rejected the petitioner's claim by his order dated 7-5-1970. The Settlement Officer (Consolidation) affirmed the order of the Consolidation Officer in appeal. The Deputy Director of Consolidation dismissed the petitioner's revision and upheld the order of the Settlement Officer (Consolidation). Aggrieved the petitioner filed this petition under Article 226 of the Constitution challenging the aforesaid three orders of the consolidation authorities dismissing his claim for one half share in the Khata in dispute.

2. Learned Counsel for the petitioner urged that Adinath was a blind person since birth. He was the uncle of the petitioner. He had no legal authority or right to transfer the petitioner's share in the land included in the Khata in question by the sale deed dated 19-12-1953. Since the petitioner's mother was alive and she was legal and natural guardian of the petitioner, Adinath had no locus standi to transfer the petitioner's land to Alakhdeo. The sale deed was void and it did not confer any valid title to Alakhdeo. On behalf of respondent Alakhdeo, it was urged that Adinath was de facto guardian of the petitioner, he executed the sale deed for consideration and since the sale deed has not been cancelled by a competent court the same is binding.

3. In the alternative, it was further urged that the sale deed was not a void document, instead it was a voidable document and as such the consolidation authorities have no jurisdiction to cancel or ignore the said sale deed, they are bound to give effect to that sale deed. Further since 1953 respondent Alakhdeo has continuously been in possession of the land in dispute, he matured his title to the land. It was further urged that the petitioner's claim for setting aside the sale deed or for regaining possession or title to the land in dispute was barred by time and as such the consolidation authorities rightly rejected the petitioner's claim.

4. There is no dispute that the sale deed in question was executed by Adinath the uncle of the petitioner even though his mother, the natural guardian, was alive. In the circumstances, it was always open to the minor on attaining majority to challenge the validity of the sale deed. All the three consolidation authorities have however rejected the petitioner's claim on the ground that since the petitioner's right to bring an action for the cancellation of sale deed was barred by time he could not challenge the validity of the sale deed. On the findings recorded by the consolidation authorities it is clear that the petitioner completed the age of 18 years on 8th January, 1959, he could therefore, file a suit for cancellation of the sale deed and for possession of the land in dispute within the prescribed period of limitation. Under section 209 of the U.P Zamindari Abolition and Land Reforms Act, the petitioner could file suit for ejectment of respondent Alakhdeo, the transferee under the sale deed executed by Adinath. Under Appendix III to the Rules framed under the Zamindari Abolition and Land Reforms Act, the period for filing a suit under section 209 was three years till 26th March, 1959. By a notification dated March 27, 1959, Appendix III to the Rules was amended and the limitation of three years was extended to six years. Consequently a suit for dispossession of a person retaining land unlawfully could be filed within six years after 27th March, 1959. As noted earlier, the petitioner attained majority on 8th January, 1959. He could file suit for possession under section 209 within a period of three years of the date he attained majority but this period of limitation was extended to six years as a result of which the petitioner could file the suit within six years of his attaining majority, namely, by 8th January, 1965 as the limitation for filing a suit under section 209 could expire on 8th January, 1965, but before that date a notification under section 4(2) of the U.P Consolidation of Holdings Act was issued on July 1, 1964 and the land in dispute became the subject matter of consolidation proceedings. The petitioner thereafter could not file any suit under section 209 as a suit could not be maintained under section 5(2) of the Consolidation of Holdings Act.

5. The contention of the learned counsel for the respondent that the petitioner's claim was barred by time is misconceived. As already noted the petitioner attained majority on 8th January, 1959. He could file a suit within three years of his attaining majority as prior to that period being a minor he was disabled person to bring any suit or proceeding for the cancellation of the sale deed. Section 6 of the Limitation Act lays down that where a person entitled to institute a suit is at the time from which the prescribed period of limitation is reckoned a minor or insane or idiot, he may institute a suit within the same period after the disability has ceased. This section protects the right of a person who is legally disabled to bring action in a court of law, namely a minor or insane or an idiot. The period of limitation in such a case for the purpose of filing a suit shall commence from the date of discontinuance the disability. Section 6 of the Limitation Act read with section 341 of the U.P Zamindari Abolition and Land Reforms Act is applicable to the proceedings under the latter Act. In Badal v. Deputy Director of Consolidation, 1970 AWR 456 a Full Bench of this Court held that section 49 of the U.P Consolidation of Holdings Act bars a suit under section 209 of the U.P Zamindari Abolition and Land Reforms Act and a person who had limitation to file a suit under section 209 of the 1951 Act on the date of notification under section 4 of the U.P Consolidation of Holdings Act has full right to get relief under the consolidation proceedings notwithstanding his failure to file a fuit under section 209 of the 1951 Act. In Shitla Prasad v. Bans Bahore, 1974 AWR 48, another Full Bench held that Section 6 of the Limitation Act is applicable to a suit under section 209 even in the absence of any express provision in section 341 making section 6 applicable. These authorities leave no room for any doubt that the petitioner was entitled to the benefit of Section 6 of the Limitation Act. As already noted he attained majority on 8th January, 1959, and the period of limitation for filing the suit under section 209 would commence from that date. Since before the expiry of the period of limitation of three years the period was enhanced to six years the petitioner could legally file a suit under section 209 within six years from the date of his attaining majority. Admittedly the petitioner filed objection under section 9-A of the U.P Consolidation of Holdings Act within a period of six years from the date of his attaining majority. The petitioner's claim was therefore not barred by limitation. The consolidation authorities committed patent error of law in rejecting his claim on the ground of limitation.

6. On the admitted facts Adinath was not legal guardian of the petitioner. Admittedly, his mother was alive and she was natural guardian. She did not act on behalf of the petitioner as minor nor she transferred the land in dispute, instead Adinath who was uncle executed the sale deed. The Consolidation authorities have upheld the validity of the sale deed on the ground that Adinath was a de facto guardian. The law does not recognise any de facto guardian. In case of a minor the father is the natural guardian, in his absence the mother is natural guardian, any uncle or cousin could not be a natural guardian of a minor. In the presence of a natural guardian any distant relation including an uncle had no legal status to act on behalf of the minor to alienate his property. Adinath was not appointed petitioner's guardian under order of any competent court. He purported to act on behalf of the petitioner without there being any authority in him. The law does not recognise any de facto guardian. In the presence of mother who was natural guardian Adinath had no authority to alienate the petitioner's property. The Consolidation authorities committed an error in upholding the validity of the sale deed.

7. The respondent's contention that the authorities constituted under the Consolidation of Holdings Act have no jurisdiction to ignore or cancel the sale deed executed by Adinath as it was not a void document is again without any merit. In Gorakh Nath Dubey v. Hari Narain, (1973) 2 SCC 535 : AIR 1973 SC 2451, the Supreme Court held that if a document is wholly invalid it could be disregarded by the consolidation authorities. In that case the Supreme Court expressed agreement with a Division Bench of this Court in Jagarnath Shukla v. Sita Ram Pandey, 1969 AWR 435 where the sale deed executed by his uncle transferring the land was declared void and it was further held that such a claim could be adjudicated by the consolidation courts. The principle laid down in Jagarnath Shukla's has been clearly approved by the Supreme Court in Gorakhnath's case. Since Adinath had no right or title to transfer the petitioner's share in the property in dispute the sale deed is void. Therefore, the consolidation courts had jurisdiction to cancel and ignore that sale deed.

8. I, therefore, allow the petition with costs and quash the order of the Deputy Director and direct him to hear and decide the petitioner's revision in accordance with law. Parties shall bear their own costs.

K.J.C

9. Petition allowed.

Zamindari Abolition and Land Reforms Act,

Onkar Nath Dubey v. Dy. Director Of Consolidation, Varanasi And Others

Judgment Summary — Onkar Nath Dubey v. Alakhdeo (U.P. Consolidation)

Factual and Procedural Background

Legal Issues Presented

Arguments of the Parties

Petitioner's Arguments

Respondent Alakhdeo's Arguments

Table of Precedents Cited

Court's Reasoning and Analysis

Holding and Implications

Onkar Nath Dubey v. Dy. Director Of Consolidation, Varanasi And Others

Comments