# Badri Vishal and Ors v. Raj Narain

- **Citation:** (2013) 2 ILRA 893
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2013-05-07
- **Case number:** Second Appeal No. 117 of 2013
- **Bench:** Saeed-Uz-Zaman Siddiqi
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/badri-vishal-and-ors-v-raj-narain-42641
- **Pages:** 6

## Headnote

Hindu minority and guardianship Act
1956-Section8(2)
and
(4)-
Suit
for
cancellation of sale deed-at behest of
minor-dismissed by Trail Court-decreed
by Lower Appellate Court-with specific
finding-transfer made even by mother of
minor-without prior permission heldillegal-can
not
be
disturbed
under
second appeal-no substantial question of
law involve.

Held: Para-11
A detailed hearing and perusal of the
judgment and orders of both the Courts
below made it abundantly clear that no
substantial question of law is involved in
this
appeal.
Even
appreciation
of
evidence by the two Courts below has
not been assailed before this Court.
Since the question involved in the
instant second appeal has already been
decided by the Hon'ble Apex court as
well as this Court in three cases, I do not
find it fit and expedient to refer this
matter to a larger Bench of this Court as
provided under Chapter V of Rules of the
Court, 1952.

Case Law discussed:
[1982 (1) RR 122]; 1978 AWC 13; 2011 (2)
AWC 1641; AIR 1991 SC 1256; 1987 AWC
109; AIR 1962 SC 1314; (2005) 7 SCC 60; AIR
1947 PC 19; (2011) 1 SCC 673; Civil Appeal
No. 1374 of 2008.

## Text

2 All] Badri Vishal and Ors. Vs. Ran Narain
893
to how the deceased has incurred the burn
injuries, was of his consequence. The non
- establishment of the ingredients of the
offence itself had entitled the accused to
an acquittal.

9. In view of our findings just noted,
we find that the appeal against acquittal
filed by the appellant is meritless and the
same is dismissed.
---------
APPELLATE JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 07.05.2013

BEFORE
THE HON'BLE SAEED-UZ-ZAMAN SIDDIQI, J.

Second Appeal No. 117 of 2013

Badri Vishal and Ors.
 ...Petitioners
Versus
Raj Narain

 ...Respondent

Counsel for the Petitioners:
Sri Ashok Shukla, Sri Shishir Tewari

Counsel for the Respondent:
Sri Raj Narain

Hindu minority and guardianship Act
1956-Section8(2)
and
(4)-
Suit
for
cancellation of sale deed-at behest of
minor-dismissed by Trail Court-decreed
by Lower Appellate Court-with specific
finding-transfer made even by mother of
minor-without prior permission heldillegal-can
not
be
disturbed
under
second appeal-no substantial question of
law involve.

Held: Para-11
A detailed hearing and perusal of the
judgment and orders of both the Courts
below made it abundantly clear that no
substantial question of law is involved in
this
appeal.
Even
appreciation
of
evidence by the two Courts below has
not been assailed before this Court.
Since the question involved in the
instant second appeal has already been
decided by the Hon'ble Apex court as
well as this Court in three cases, I do not
find it fit and expedient to refer this
matter to a larger Bench of this Court as
provided under Chapter V of Rules of the
Court, 1952.

Case Law discussed:
[1982 (1) RR 122]; 1978 AWC 13; 2011 (2)
AWC 1641; AIR 1991 SC 1256; 1987 AWC
109; AIR 1962 SC 1314; (2005) 7 SCC 60; AIR
1947 PC 19; (2011) 1 SCC 673; Civil Appeal
No. 1374 of 2008.

(Delivered by Hon'ble Saeed-Uz-Zaman
Siddiqi, J.)

1. Heard learned counsel for the
appellants and perused the records.

2. The instant appeal has been
preferred against the judgment and decree
dated 22.12.2010, passed by learned
Additional Civil Judge (J.D.), Court
No.21, Barabanki, in Regular Suit No.134
of 1996, by which the plaintiffs suit for
cancellation of sale deed was dismissed
with costs but Civil Appeal No.5 of 2011
preferred by the defendant has been
allowed and judgment and decree passed
by the learned Trial Court has been set
aside and the suit for cancellation of sale
deed has been decreed with costs by
learned First Appellate Court who has
discussed the entire evidence and law laid
down by the Hon'ble Apex Court as well
as this Court in detail.

3. Simple dispute in this case is that
the plaintiff was the recorded tenure holder
of disputed agricultural plots. Since he was
minor, his mother was natural guardian who
sold it to the defendants without obtaining
any permission from the learned District
Judge as required under Section 8 of Hindu
Minority and Guardianship Act, 1956. It is
894 INDIAN LAW REPORTS ALLAHABAD SERIES [2013
admitted case between the parties that while
executing the sale deed plaintiff's mother
did not obtain any permission from the
District Judge. The plaintiff after attaining
majority, filed suit for cancellation which
has already been decreed by the learned
First Appellate Court. The law has been
settled by the Hon'ble Apex Court in
Amirtham
Kudumbah
v.
Sarnam
Kudumban, AIR 1991 SC 1256 and
Vishambar and others v. Laxminarayana
(Dead) by L.Rs. and another, 2001 (44)
ALR 569, which have been relied upon by
this court in a catena of judgments. The law
is also clear on the point. Section 8 of Hindu
Minority and Guardianship Act, 1956 deals
with power of natural guardian. Sub Section
(2) of which prohibits a guardian not to
transfer any part of immovable property of
the minor without previous permission of
the Court. The legislature has put a rider on
the Courts itself by incorporating Sub
Section (4) which says that no Court shall
grant permission to the natural guardian to
transfer except in the case of necessity or
for an evident advantage to the minor.
These words denote that if the property has
been transferred without permission of the
District Judge for the benefit of minor, he
may not challenge it after attaining the age
of majority and, as such, such transfer has
been made voidable at the instance of the
minor or by any person claiming under him.
Sub Section (4) deals with proceedings of
application for obtaining permission of the
Court in the same fashion as are provided
under Section 29 of Guardian and Wards
Act, 1890.

4. Learned counsel for appellants
relied upon the law laid down by this
Court in Smt. Sursati Devi v. The Joint
Director of Consolidation, Basti and
others [1982 (1) RR 122], wherein
following observations have been made:-

"In view of aforesaid, one has to
make strict interpretation of Entries 5 and
6 of List III so as to enable those to
operate fully in their respective legislative
fields. While Entry 5 covers a very wide
field in matters of 'marriage an divorce;
infants and minors, adoption, wills,
intestacy and succession; joint family and
partition all matters in respect of which
parties in judicial proceedings were
immediately before the commencement of
this Constitution subject to their personal
law, Entry 6 of List III covers the
legislative filed on the topics; 'Transfer of
property other than agricultural land;
registration of deeds of documents.' There
appears to be good reason for the authors
of the Constitution to exclude agricultural
land from the ambit of legislative field on
the topic 'transfer of property' enumerated
in Entry 6 of List III because such matter
has been enumerated in Entry 18 of List II
and the State Legislature has been given
exclusive jurisdiction to make laws about
transfer and alienation of agricultural
land. A harmonious construction is to be
made so as to give full effect to Entry 18
of List I. The exclusion of 'agricultural
land' from the ambit of Entry 6 clearly
makes out that the Parliament has got no
jurisdiction to legislate on the matter
regarding
transfer
and
alienation
agricultural land because of specific
exception provided in Entry 6 of List III
in respect of such land.

There is a presumption that the
legislature does not intend to exceed its
jurisdiction and that the general words in
a Statute are to be construed with
reference to the powers of the legislature
which enacts it. If Parliament enacts law
on the subject enumerated in List II or the
State Legislature enacts laws on the
subject enumerated in the List I, the law
2 All] Badri Vishal and Ors. Vs. Ran Narain
895
so enacted would be ultra vires to that
extent are liable to be struck down being
enacted
beyond
the
legislative
competence envisaged in the Constitution.

In this view of the matter, the
provision of Section 8 of the H.M. & G.
Act have got to be construed as to bring
the said provision within the legislative
competence of the central legislature.
Since the Parliament could not make laws
regulating transfer of agricultural land, it
would be apt to construe the said
provision
to
be
not
applicable
to
agricultural land so as to bring the said
provision
within
its
legislative
competence."

5. It has been further held by this
court in the above said case that the words
'immovable property' has not been defined
in Section 4 of the H.M. & G. Act nor
under Section 4 of the G. & W. Act. But,
this Court in Murari Lal v. DDC and
Others, 1978 AWC 13 has held as
under:-

".....relying on the authority reported
in Mohd. Sohrab Khan & Ors. v. Deputy
Director of Consolidation, 1970 AWR 78
in which it was held that transfer of share
of a minor in agricultural land by a
guardian is prohibited. It is also further
held in this authority that there is no
provision in U.P. Zamindari Abolition
and Land Reforms Act dealing with the
subject with which Sec. 11 of Hindu
Minority and Guardianship Act of 1956
deals. That provision would, therefore,
prevail and on this basis the revision was
allowed."

6. Not only this in a recent case of
Hari Mohan v. Additional District
Judge and Ors. 2011 (2) AWC 1641
same view has been reiterated. In
Amrithan
Kudumbah
v.
Sarnam
Kudumban, AIR 1991 SC 1256, the
Hon'ble Apex Court has relied upon a
number of decisions and held as under:-

"The rationale of these decisions is
that the right to impeach a sale effected by
the guardian is a personal right vested in
the minor and it is not transferable inter
vivos. The expression "person claiming
under him", according to this line of
reasoning must, therefore, be understood
as a legal representative and not as
assignee."

In the above mentioned case it was
further held:-

"The transfer made by the father
during his son's minority was voidable at
the instance of his son who was the real
owner, and any person purchasing such
property from the natural guardian
obtained only a defeasible title. The minor
retained a right in the property to defeat
existing adverse claims, and such right is
an assignable right. We are in complete
agreement with what has been stated on
the point of Palaniappa Goundan v.
Nallappa
Goundan
and
Ors.
MANU/TN/0264/1951 : AIR 1951 Mad
817 and in P.Kamaraju v. C Gunnayya
and Ors. MANU/TN/0068/1923 : AIR
1924 Mad. 322. We do not agree with the
contrary view expressed on the point in
Jhaverbhai Hathibhai Patel v. Kabhai
Bechar
Patel
and
Ors.
MANU/MH/0102/1932 : AIR 1933 Bom.
42 : Mon Mohan Battacharjee and Ors. v.
Bidhu
Bhusan
Dutta
and
Ots.
MANU/WB/0259/1938
:
AIR
1939
Cal.460 : MANU/WB/0259/1938 : AIR
1939 Cal460 and Palani Goundan and
Anr.
v.
Vanjiakkal
and
Anr.
896 INDIAN LAW REPORTS ALLAHABAD SERIES [2013
MANU/TN/0395/1955 : 1956 ILR Mad.
1062."

7. In an earlier decision in the case
of Banshi and others v. The D.D.C.
Kanpur Camp at Orai (Jalaun), 1987
AWC 109, this court has held as under:-

"As regards the third submission that
the provisions of Section 8 of the Hindu
Minority and Guardianship Act 1956
were not retrospective and sale-deed was
dated 20.6.1956 and the Hindu Minority
and Guardianship Act came into force on
27.8.1956. No doubt that the sale-deed
was executed prior to 27th August, 1956
when
the
Hindu
Minority
and
Guardianship Act came into force and the
same was retrospective in its operation.
But before the enforcement of this Act in
such matters where the property of minor
was
sought
to
be
alienated
of
compromised Order Thirty two (32) Rule
7 CPC was applicable. Even though
provisions of the Code of Civil Procedure
do not apply in terms to consolidation
proceedings but its spirit or substances
has to be made applicable to secure the
ends of justice. In respect of the land of
the minor if any transfer or compromise
was sought to be made, the permission of
the District Judge must have been
obtained.
In
the
present
case
the
permission of the District Judge was not
obtained. The sale-deed in question,
cannot, accordingly be said to have been
legally executed. This submission is
equally devoid of substance."

8. In view of the authorities as
mentioned above, it is quite clear that
under Section 4 (b) of Hindu Minority &
Guardianship Act, 1956, guardian of
minor means a person having the care of
the person of a minor or of his property or
of both his person and property. Under
Section 5 (b) of this Act the Act has
overriding effect of any other law in force
immediately before the commencement of
this Act shall cease to have effect in so far
as it is inconsistent with any of the
provisions contained in this Act.

9. In view of these provisions texual
Hindu law which is the general law is no
more in force and Hindu Minority &
Guardianship Act, 1956 is a special law
which has got an overriding effect over
any other law. In this aspect of the matter,
a study of U.P. Zamindari Abolition and
Land Reforms Act shows that there is no
such provision in the entire Act which
deals with the powers of natural guardian.
Since the Act is silent on the point of
rights of minor and powers of natural
guardian is special law i.e. Hindu
Minority & Guardianship Act, 1956 and
Section 4 of Guardian and Wards Act
shall prevail and prior permission must
have been obtained of the learned District
Judge under Section 8 of the Act.

10. In view of this matter I
respectfully disagree with the law laid
down by a Single Judge of this Court in
Smt. Sursati Devi's case (supra) and I
conquer with the law laid down by the
Hon'ble Apex Court as well as various
authorities as mentioned above and in
view of law laid down by this Court in
Banshi's case (supra), Hari Mohan's case
(supra) and Murari Lal's case (supra).
Particularly, because the State legislature
while enacting U.P. Z.A. & L.R. Act has
purposely omitted to deal with properties
held by a minor keeping in view of the
fact that such matters have already been
dealt with by the Parliament in Hindu
Minority and Guardianship Act and under
Guardian and Wards Act.
2 All] Badri Vishal and Ors. Vs. Ran Narain
897

11. A detailed hearing and perusal of
the judgment and orders of both the
Courts below made it abundantly clear
that no substantial question of law is
involved in this appeal. Even appreciation
of evidence by the two Courts below has
not been assailed before this Court. Since
the question involved in the instant
second appeal has already been decided
by the Hon'ble Apex court as well as this
Court in three cases, I do not find it fit
and expedient to refer this matter to a
larger Bench of this Court as provided
under Chapter V of Rules of the Court,
1952.

In Sir Chunnilal V. Mehta & &
Sons Ltd. Vs. Century Spinning and
Manufacturing Co. Ltd., reported in
A.I.R. 1962 S.C., 1314, the Hon'ble Apex
Court for the purposes of determining the
issue has held :

"The proper test for determining
whether a question of law raises in the
case is substantial, would, in our opinion,
be whether it is of general public
importance or whether it directly and
substantially affects the rights of the
parties."

13. Further in Rajeshwari Vs.
Puran Indoria, reported in (2005) 7
S.C.C., 60, it was held :

"The Court, for the reasons to be
recorded, may also entertain a second
appeal even on any other substantial
question of law, not formulated by it, if
the Court is satisfied that the case
involves such a question. Therefore, the
existence of a substantial question of law
is a sine-quanon for the exercise of
jurisdiction under the provisions of
Section 100 C.P.C. The second appeal
does not lie on the ground of erroneous
findings of facts based on appreciation of
the relevant evidence."

14. In Smt. Bibhabati Devi Vs.
Ramendra Narayan Roy & Ors.,
reported in A.I.R. 1947 PC 19, it has
been held :

"the Privy Council has provided the
guidelines as in what cases the second
appeal can be entertained, explaining the
provisions
existing
prior
to
the
amendment of 1976, observing .... that
miscarriage of justice means such a
departure from the rules which permeate
all judicial procedure as to make that
which happen not in the proper sense of
the word a judicial procedure at all. That
the violation of some principles of law or
procedure
must
be
such
erroneous
proposition of law that if that proposition
to be corrected, the finding cannot stand,
or it may be the neglect of some principle
of law or procedure, whose application
will have the same effect. The question
whether there is evidence on which the
Courts could arrive at their finding, is
such a question of law."

15. In Vijay Kumar Talwar Vs.
Commissioner of Income Tax, New
Delhi, reported in (2011) 1 S.C.C. 673,
it has been held :

"a point of law which admits of no
two opinions may be a proposition of law
but cannot be a substantial question of
law. To be 'substantial' a question of law
must be debatable, not previously settled
by law of the land or a binding precedent,
and must have a material on the decision
of the case, if answered either way,
insofar as the rights of the parties before it
are concerned. To be a question of law
898 INDIAN LAW REPORTS ALLAHABAD SERIES [2013
'involving in the case' there must be first a
foundation for it laid in the pleadings and the
question should emerge from the sustainable
findings of fact arrived at by court of facts and
it must be necessary to decide that question of
law for a just and proper decision of the case.
It will, therefore, depend on the facts and
circumstances of each case, whether a
question of law is a substantial one or not; the
paramount overall consideration being the
need for striking a judicious balance between
the indispensable obligation to do justice at all
stages and impelling necessity of avoiding
prolongation in the life of any lis."

16. In the case of Union of India
Vs. Ibrahim & Another in Civil Appeal
No.1374 of 2008, decided on July 17,
2012, the Hon'ble Apex Court has held :

"There may be exception circumstances
where the High Court is compelled to
interfere, notwithstanding the limitation
imposed by the wording of Section 100
CPC. It may be necessary to do so for the
reason that after all the purpose of the
establishment of courts of justice is to render
justice between the parties, though the High
Court is bound to act with circumspection
while exercising such jurisdiction. In second
appeal the court frames the substantial
question of law at the time of admission of
the appeal and the Court is required to
answer all the said questions unless the
appeal is finally decided on one or two of
those questions or the court comes to the
conclusion that the question(s) framed could
not be the substantial question(s) of law.
There is no prohibition in law to frame the
additional substantial question of law if the
need so arises at the time of the final hearing
of the appeal."

17. In view of the law as discussed
above, the second appeal is dismissed.
---------
APPELLATE JURISDICTION
CIVIL- SIDE
DATED: ALLAHABAD 23.07.2013

BEFORE
THE HON'BLE PANKAJ MITHAL, J.

First Appeal No. 129 of 1988

D.M. Jaunpur & Ors.
 ...Petitioners
Versus
Majid and Ors.
 ...Respondents

Counsel for the Petitioner:
S.C., Sri S.C. Srivastava

Counsel for the Respondents:
Sri A.K. Sinha, Sri K.P. Agarwal
Sri R.S. Pandey, Sri Rajesh Kesarwani

Land
Acquisition
Act-Section
18-
Reference
against-award
made
by
S.L.O.-reference court enhanced amount
of compensation relying upon photocopy
of sale deed-never proved-enhancement
patently illegal-S.L.O. is not a courtsimply
giving
offer-inadequacy
of
compensation can be proved only by
evidence-order
passed
by
reference
court not sustainable-quashed.

Held: Para-11
The impugned judgment and order of the
reference court does not point out any
error of law in the award of the SLAO or
as to how the compensation awarded is
on the lower side. The reference court
has simply based its award on the sale
deed of Devi Prasad. The said sale deed
was never produced in evidence before
it. Thus, without adducing any evidence
to prove that the compensation offered
is inadequate or that it should be on
higher
side,
the
reference
court
manifestly erred in law in awarding
compensation on the basis of the sale
deed of Devi Prasad which was not part
of the record.

Case Law discussed:
AIR
1988
SC
1652