Judgement
Certain ticklish questions arise in this appeal is it necessary for a minor on attaining his majority to sue for setting aside a transaction with respect to an immovable property by his de facto guardian affecting the formers interest therein ? If it is not necessary, is it necessary for the minor on attaining his majority to file a suit for declaration that the transaction in question is void and is not binding to him ? The Division Bench ruling of the Bombay High Court in the case of Tattya Mohyaji Dhomse v. Rabha Dadaji Bhomse reported in AIR 1953 Bombay 273 has answered both these questions in favour of the present appellants. One may then feel that these questions no longer retain any ticklish nature therein. However, the ruling of the Supreme Court in the case of State of Punjab v. Gurdev Singh reported in AIR 1992 SC 111 has created some difficulty in answering these questions in the light of the aforesaid Division Bench ruling of the Bombay High Court in the case of T. M. Dhomse (supra).
2. The factual backdrop of the case should be taken into consideration at this stage. The dispute centres round a piece of land bearing survey No. 167/2 admeasuring 1 acre 9 gunthas situated at Petapura Lakhadi Kui of village Jaspur, Taluka Padra (the suit land for convenience) belonged to the father of the appellants. He breathed his last during their minority. The affairs of the suit land came to be managed by the uncle of the present appellants. He was certainly not a natural guardian and he was not appointed as a guardian of the appellants during their minority by any competent Court. He acted as a de facto guardian only at the instance of the deceased father of the appellants. It appears that in his capacity as a de facto guardian of the appellants during their minority he transferred the suit land on 7th May 1953 in favour of the father of the respondents and one Virabhai Nathabhai of Village Fatehpura for Rs. 700. It appears that later on said Virabhai Nathabhai relinquished his rights therein in favour of the father of the present respondents. He breathed his last leaving behind him the respondents herein as his heirs and legal representatives. The appellants alleged the transaction to be that of mortgage whereas the respondents claimed it to be an outright sale with the right of repurchase within the specified time limit. The appellants approached the respondents for redemption of the alleged mortgage of the suit land. The respondents did not accede to that request. The appellants thereupon filed one suit in the Court of the Civil Judge (S.D. at Vadodara for redemption of the suit land and its possession. In the alternative they claimed the relief of possession simpliciter on the ground that the transaction entered into by their uncle as a de facto guardian would not be binding to them. Their suit came to be registered as Special Suit No. 23 of 1973. The respondents as the defendants filed their written statements at Exh. 8 on the record of the case and resisted the suit on various grounds. They also filed their further written statement at Exh. 35 on the record of the case to the amended plaint and resisted the amended plaint on various grounds. On the pleadings of the parties, the necessary issues were framed at Exh. 9 on the record of the case. After recording evidence and hearing of the parties, by his decision rendered on 17th March 1977 in Special Suit No. 23 of 1973, the learned Civil Judge (S.D.) at Vadodara dismissed the suit. The aggrieved plaintiffs have thereupon. invoked the appellate jurisdiction of this Court under section 96 of the code of civil procedure, 1908 for questioning the correctness of the aforesaid decision rendered by the trial Court against them.
3. Shri Sangajwala for the appellants has relied on the aforesaid Division Bench ruling of the Bombay High Court in the case of T. M. Dhomse (AIR 1953 Bombay 273) (supra) in support of his submission that the transaction entered into by the de facto guardian without legal necessity would be void and is of no consequence whatsoever and, article 44 of the limitation act, 1908 (the old limitation act) would not govern the suit inasmuch as it would not be necessary for the plaintiffs to seek the relief for setting aside such void transaction. The aforesaid Division Bench ruling of the Bombay High Court in the case of T. M. Dhomse is on all fours applicable in the present case.
4. Shri K. C. Shah for the respondents has however invited my attention to the binding ruling of the Supreme Court in the case of State of Punjab v. Gurdev Singh reported in AIR 1992 SC 111 in support of his submission that the aforesaid Division Bench ruling of the Bombay High Court in the case of T. M. Dhomse (supra) has been impliedly overruled by the Supreme Court in its aforesaid ruling in the case of Gurdev Singh (supra).
5. In the case of Gurdev Singh (AIR 1992 SC 111) (supra), the Supreme Court was required to consider whether or not an order without jurisdiction was required to be set aside and what would be the effect if no declaration was sought with respect to its invalidity or voidness. In that case, the services of the concerned employee were terminated and that termination was found to be in the nature of punishment. It was an admitted position on record that no inquiry whatsoever was held before taking any penal action against the said employee. He therefore instituted the suit for declaration that the termination order was against the principles of natural justice, the terms and conditions of employment and as such void and inoperative and he continued to be in service. The order of termination of his services was passed on 27th January 1977 and the suit for declaration was instituted on 18th April 1984, more than five years after the date of the impugned order. The suit was defended inter alia by pressing into service the law of limitation. The trial Court found the termination order to be penal in nature and character. It was admittedly found to have been passed without holding any inquiry. The order was thus found to be violative of principles of natural justice and hence void. The trial Court however accepted the plea based on the bar of limitation and dismissed the suit. On appeal, the first appellate Court held that no limitation was prescribed for challenging an illegal order. The trial Court judgment was thereupon reversed. On further appeal to the High Court, the view of the first appellate court was accepted. In that context the Supreme Court has held (paras 4, 5, 6 and 8 of AIR) :
"First of all, to say that the suit is not governed by the law of limitation runs afoul of our Limitation Act. The statute of limitation was intended to provide a time limit for all suits conceivable. s. 3 of the limitation act provides that a suit, appeal or application instituted after the prescribed "period of limitation" must subject to the provisions of Ss. 4 to 24 be dismissed although limitation has not been set up as a defence."
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"If an Act is void or ultra vires it is enough for the Court to declare it so and it collapses automatically. It need not be set aside. The aggrieved party can simply seek a declaration that it is void and not binding upon him. A declaration merely declared the existing state of affairs and does not quash so as to produce a new state of affairs".
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"But nonetheless the impugned dismissal order has at least a de facto operation unless and until it is declared to be void or nullity by a competent body or Court."
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"It will be clear from these principles, the party aggrieved by the invalidity of the order has to approach the Court for relief of declaration that the order against him is inoperative and not binding upon him. He must approach the Court within the prescribed period of limitation. If the statutory time limit expires the Court cannot give the declaration sought for."
The aforesaid ruling of the Supreme Court in the case of Gurdev Singh (AIR 1992 SC 111) (supra) appears to have taken a view taken by the Division Bench of the Bombay High Court in the case of T. M. Dhomse (AIR 1953 Bombay 273) (supra).
6. Shri Sanjanwala for the appellants has tried to distinguish the aforesaid ruling of the Supreme Court in the case of Gurdev Singh (AIR 1992 SC 111) (supra) on two counts. In the first place, according to him, the impugned order involved therein was passed in exercise of some statutory power and it is not so in the present case. Secondly, runs the submission of Shri Sanjanwala for the appellants, constitutional Bench of the Supreme Court in its ruling in the case of State of Madhya Pradesh v. Syed Qamarali reported in 1967 Serv LR 228 has taken a view in consonance with the aforesaid Division Bench ruling of the Bombay High Court in the case of T. M. Dhomse (AIR 1953 Bombay 273) (supra). It has been urged by Shri Sanjanwala for the appellants that the ruling of the Constitutional Bench of the Supreme Court in the case of Syed Quamarali (supra) is rendered by five Judges whereas the ruling of the Supreme Court in the case of Gurdev Singh (supra) is rendered by three Judges and in view of the settled legal position, the ruling rendered by the larger Bench of the Supreme Court should claim precedence over the ruling rendered by the smaller Bench in case of any conflict between the two.
7. The aforesaid submission urged before me by Shri Sanjanwala for the appellants appears to be quite (attractive). The difficult however is that the aforesaid ruling of the Constitutional Bench of the Supreme Court in the case of Syed Qamarali has been considered by the Supreme Court in its ruling in the case of Gurdev Singh (supra). In its ruling in the case of Gurdev Singh (supra) the Supreme Court has distinguished the Constitutional Bench ruling of the Supreme Court in the case of Syed Quamarali (supra) on the ground that on facts the suit instituted by the respondent in the earlier ruling was within the prescribed period of limitation.
8. It is obvious that, in accordance with the settled principles of law, a Division Bench ruling of the Bombay High Court prior to bifurcation of the State of Bombay is binding to me sitting as a single Judge. It would be difficult to hold that it does not lay down correct law in view of the aforesaid ruling of the Supreme Court in the case of Gurdev Singh (AIR 1992 SC 111) (supra) when the Constitutional Bench of the Supreme Court in its ruling in the case of Syed Qamarali (1967 Serv LR 228) (supra) has taken the view in consonance with the view taken by the aforesaid Division Bench ruling of the Bombay High Court in the case of T. M. Dhomse (AIR 1953 Bombay 273) (supra). Besides, sitting as a single Judge, I do not think it would be proper for me to hold that a Division Bench ruling of the Bombay High Court prior to formation of the State of Gujarat does not hold the field when it has not come to be overruled specifically.
9. In view of my aforesaid discussion, 1 am of the opinion that the controversies involved in this appeal are better decided by a larger Bench.
10. In the result, the Registry is directed to place the papers of this appeal before the learned Chief Justice for proper orders regarding its placement before a larger Bench for deciding the controversies between the parties.
Order accordingly.