# Lalloo & Ors v. The Board of Revenue & Ors

- **Citation:** (2019) 2 ILRA 701
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2019-08-30
- **Case number:** Writ-B No. 21737 of 2004
- **Bench:** Rajiv Joshi
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/lalloo-ors-v-the-board-of-revenue-ors-44733
- **Pages:** 10

## Headnote

C.S.C., Sri A.L. Nigam, Sri Anuj Kumar, Sri
N.B. Nigam, Sri N.K. Baranwal, Sri Rajesh
Kumar, Sri Rajesh Kumar Dwivedi, Sri
Shivajee Srivastava, Sri V.K. Baranwal

A. Uttar Pradesh Zamindari Abolition &
Land Reforms Act, 1950- Sections 8(3) &
229 B - any transfer of immovable property by
natural guardian-in contravention to S.8(1) &
(2)-voidable-at instance of minors or any person
claiming under him.

B. Section 229B of UP.Z. A & LR Ac t- suit for
mere declaration of rights in agricultural landnot maintainable-as suit is based on transfer
by guardian-without taking permission from
competent court (District Judge).

Held :- suit for mere declaration of rights in
respect of agricultural land under Section 229B
of U.P.Z.A & L.R. Act is not maintainable as the
same is based on transfer made by the
guardians of the plaintiffs without taking the
permission from the competent court (District
Judge) and the said document is rendered
voidable in view of Section 8 (3) of the Act of
1956 for which the suit for cancellation of said
instrument is required to be filed before the
competent court.

Writ Petition dismissed (E-8)

List of Cases Cited: -

## Text

2 All. Lalloo & Ors. Vs The Board of Revenue & Ors.
701
Director of Consolidation will proceed to
determine the revision afresh, within a
period of three months next from the date
of first appearance by the parties.

17. Until decision by the Deputy Director
of Consolidation the status-quo regarding
possession over the land in dispute as exits
today shall be maintained by both parties.

18. Costs easy.
----------

(2019)10ILR A 701

ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 30.08.2019

BEFORE

THE HON'BLE RAJIV JOSHI, J.

Writ-B No. 21737 of 2004

Lalloo & Ors. ...Petitioners
Versus
The Board of Revenue & Ors.
 ...Respondents

Counsel for the Petitioners:
Sri Ashutosh Srivastava, Sri Prashant
Kumar Tripathi

Counsel for the Respondents:
C.S.C., Sri A.L. Nigam, Sri Anuj Kumar, Sri
N.B. Nigam, Sri N.K. Baranwal, Sri Rajesh
Kumar, Sri Rajesh Kumar Dwivedi, Sri
Shivajee Srivastava, Sri V.K. Baranwal

A. Uttar Pradesh Zamindari Abolition &
Land Reforms Act, 1950- Sections 8(3) &
229 B - any transfer of immovable property by
natural guardian-in contravention to S.8(1) &
(2)-voidable-at instance of minors or any person
claiming under him.

B. Section 229B of UP.Z. A & LR Ac t- suit for
mere declaration of rights in agricultural landnot maintainable-as suit is based on transfer
by guardian-without taking permission from
competent court (District Judge).

Held :- suit for mere declaration of rights in
respect of agricultural land under Section 229B
of U.P.Z.A & L.R. Act is not maintainable as the
same is based on transfer made by the
guardians of the plaintiffs without taking the
permission from the competent court (District
Judge) and the said document is rendered
voidable in view of Section 8 (3) of the Act of
1956 for which the suit for cancellation of said
instrument is required to be filed before the
competent court.

Writ Petition dismissed (E-8)

List of Cases Cited: -

1. Punni Lal Vs. Rajender Singh & Anr. 1993
(SC) 1117

2. Prem Singh Vs. Birbal (2006) 5 SCC 353

3. Kamla Prasad & Ors Vs. Krishna Kant Pathak
& Ors (2007) 4 SCC 213

4. Tej Bhan Singh Anr. Vs. IX ADJ Jaunpur &
Ors. 1994 RD 496

5. Ram Awalamb Anr Vs. Jata Shanker & Ors
AIR 1969 ALL 526 (F.B.)

6. Vishwambhar & Anr Vs. Laxmi Narayana
(Dead) through Lrs. & Ors. AIR 2001 SC 2607

7. Sursati Devi Vs. Joint Director of Consolidation,
Basti & Ors 1983 ALL L.J. 1473 (Parag 53)

8. Ram Padarath and Ors Vs. Second ADJ &
Ors 1989 (1) AWC 290 (F.B.).

9. Smt. Bismilla Vs. Janeshwar AIR 1990 SC 504

10. Shri Ram & Anr. Vs. Ist Additional Judge,
2001 (92) RD 241 (SC)

(Delivered by Hon'ble Rajiv Joshi, J.)

1. The present writ petition under
Article 226 of the Constitution has been
702 INDIAN LAW REPORTS ALLAHABAD SERIES
filed
by
the
plaintiffs-petitioners
challenging the validity of the order dated
16.4.2004 passed by the Board of
Revenue U.P. At Allahabad in Second
Appeal No. 06 of 2002-2003 (Dashrath &
Ors Vs. Panna Lal & Ors) whereby the
second appeal filed by respondent nos. 7
to 11 was allowed and the judgment and
decree dated 7.6.2003 passed by the
Commissioner,
Vindhyachal
Division
Mirzapur
as
well
as
order
dated
22.10.2002 passed by the Assistant
Collector
/Upziladhikari,
Gyanpur,
Badohi were set aside.

2. The relevant facts for consideration in
the present case are; that plot no. 47 having
area of 2 bighas situate in Village Bhatpura,
Tehsil Aurai, District- Sant Ravidan Nagar is
the disputed land and said land is also part of
Khata No. 40.

3. The mother of the plaintiffspetitioners namely Smt. Kalawati Devi and
defendant -respondent no. 12 Panna Lal s/o
Lalloo Yadav executed a registered sale-deed
dated 10.7.1970 in favour of Ram Pyare
Singh (father of respondent nos. 2 to 5) and
Lal Pratap Singh, (father of defendant
respondent no.6). On the strength of said
sale-deed, the names of Ram Pyare Singh-
father of respondent nos. 2 to 5 and Lal
Pratap Singh- father of respondent no.6, were
mutated in the revenue record. Subsequently,
Shiv Ram Singh and others (Sons of Ram
Pyare Singh and Late Lal Pratap Singh
respondent nos. 2 to 6), executed a registered
sale-deed dated 11.2.1988 in favour of
respondent nos. 7 to 11 (Dashrath & Ors),
who got their names mutated in the revenue
record on the strength of said sale-deed.

4. The plaintiffs-petitioners filed a
suit on 14.6.1988 being Suit No. 293 of
1989 under Section 229-B of U.P. Z.A &
L.R.
Act
before
the
Assistant
Collector/Upziladhikari,
Gyanpur
at
Badohi, praying that decree be passed
declaring the plaintiffs/petitioners and
defendant-respondent No.12 (Panna Lal)
as bhumidhar of the land in dispute and
the sale-deed executed by their mother
and their brother Panna Lal (respondent
no.12) be declared to be a void document
on the ground that on the date of
execution of the said sale-deed, the
plaintiffs were minors and said deed has
been executed without taking prior
permission from the District Judge in
terms of the provisions of Hindu Minority
& Guardianship Act, 1956 (hereinafter
referred to as the "Act of 1956").

5. The suit filed by the plaintiffspetitioners was contested by the father of
respondent nos. 2 to 5, father of
respondent no.6 and father of respondent
nos. 7to 11 that the sale-deed has rightly
been executed by the mother and brother
of the plaintiffs in their favour and saledeed
dated
10.7.1970
is
not
void
document and the suit filed by the
plaintiffs-petitioners cannot be decreed by
the revenue court and the same is also not
maintainable.

6. Both the parties in support of their
respective
claims
adduced
the
oral
evidence and filed documentary evidence.

7. The trial court partly decreed the
suit of the plaintiffs-petitioners vide
judgment and decree dated 22.10.2002.

8. Aggrieved by the judgment and
decree passed by the trial court, the
defendants-respondents no. 7 to 11 filed
an appeal registered as Appeal No. 87 of
2003
before
the
Commissioner,
Vindhyachal Division, Mirzapur which
2 All. Lalloo & Ors. Vs The Board of Revenue & Ors.
703
was dismissed by the Commissioner vide
judgment and order dated 7.6.2003. The
respondent nos. 7 to 11 filed a second
appeal being Second Appeal No. 6 of
2002-03 before the Board of Revenue
U.P. At Allahabad against the judgment
and
decree
dated
22.10.2002
and
7.6.2003. The Board of Revenue vide
judgment and order dated 16.4.2004 has
allowed the second appeal filed by the
respondent nos. 7 to 11, setting aside the
judgment and decree dated 7.6.2003 and
22.10.2003 of the trial court and appellate
court. It is the judgment and order dated
16.4.2004 which is impugned in the
present writ petition.

9. I have heard Sri Ashutosh
Srivastava,
learned
counsel
for
the
petitioners and Sri N.B. Nigam, learned
counsel for the respondents and perused
the record.

10. Contention of learned counsel
for the petitioners is that the Board of
Revenue has committed manifest error in
law while allowing the second appeal by
holding that the sale-deed in question is
not a void document and the suit filed by
the plaintiffs-petitioners for declaration
before
the
revenue
court
is
not
maintainable, in absence of any relief for
cancellation
of
sale-deed.
Learned
counsel
for
the
petitioner
while
elaborating his argument submits that the
relief claimed in the suit is for declaration
of rights by unrecorded tenure holder and
the said declaration can only be made by
the revenue court, even if it is admitted
that the sale-deed is voidable in view of
Section 8 (3) of the Act of 1956.

11. It is further argued by learned
counsel for the petitioner that at the time
of execution of the sale-deed, the
petitioners were minors and in absence of
natural guardians, de-facto guardians
could not deal with the minors property in
view of Section 11 and 12 of the Act of
1956. In support of his contention, he
relied upon the following judgments in
the cases of Punni Lal Vs. Rajender
Singh & Anr. 1993 (SC) 1117, Prem
Singh Vs. Birbal (2006) 5 SCC 353,
Kamla Prasad & Ors Vs. Krishna Kant
Pathak & Ors (2007) 4 SCC 213 and
Tej Bhan Singh Anr. Vs. IX ADJ
Jaunpur & Ors. 1994 RD 496

12. On the other hand, learned
counsel for the respondents submits that
in view of Section 8(3) of the Act, the
sale-deed dated 10.7.1970 cannot be said
to be a void document and it is merely a
voidable document.

13. Counsel for the respondent
further contends that since the sale-deed is
a voidable document and admittedly the
name of respondent no.7 to 11 have been
mutated in the revenue records, therefore,
the suit for declaration under Section 229B of the U.P. Z.A. & L.R. Act is not
maintainable, the remedy available to the
plaintiffs-petitioners was to get the saledeed
cancelled.
In
support
of
his
contention, he relied upon the following
judgments in cases of Ram Awalamb
Anr Vs. Jata Shanker & Ors AIR 1969
ALL 526 (F.B.), Vishwambhar & Anr
Vs. Laxmi Narayana (Dead) through
Lrs. & Ors. AIR 2001 SC 2607, Sursati
Devi
Vs.
Joint
Director
of
Consolidation, Basti & Ors 1983 ALL
L.J.
1473
(Parag
53)
and
Ram
Padarath and Ors Vs. Second ADJ &
Ors 1989 (1) AWC 290 (F.B.).

14. I have considered the rival
submissions so raised by the learned
704 INDIAN LAW REPORTS ALLAHABAD SERIES
counsel for the parties and perused the
record.

15. The suit for declaration of title
under Section 229-B of U.P. Act No.1 of
1951 in respect of agricultural land was
filed by the plaintiffs-petitioners on the
ground that the petitioners were minor at
the time of execution of sale-deed dated
10.7.1970 and same was executed without
taking permission from the competent
authority (District-Judge of the concerned
District) and therefore, the said deed is
void ab initio having no binding effect
upon the petitioners and therefore, the
declaration be made in their favour.

16. The Board of Revenue vide
impugned judgment and decree had
formulated
the
following
substantial
questions of law:

(a) Whether sale-deed of agricultural
land executed by the natural guardian on
behalf of minors requires a necessary
permission of the competent authority
(District-Judge).

(b) Whether sale-deed executed by
guardian
of
the
minors
without
permission or with permission is void or
voidable.

(c) Whether the suit for mere
declaration is maintainable in revenue
court unless the voidable sale deed
executed by the guardian of the minor is
cancelled by the competent civil Court
and whether without the prayer of setting
aside
the
sale
deed
the
suit
is
maintainable.

(d) Whether after the expiry of
limitation of three years a minor can sue
for setting aside a voidable sale deed and
regain property and whether in case of
two sons/respondents having attained
majority more than three years ago and
have not filed suit within three years, the
suit
to
the
extent
of
those
sons/respondents is barred by limitation.

17. The Board of Revenue came to the
conclusion that no permission is required
under Section 8 of Guardianship and Wards
Act in respect of sale of agricultural land of
minors by his guardians and the sale-deed
executed by the mother and brother of the
petitioners is not void but a voidable
document. Secondly, the suit was filed on
14.6.1988 i.e. after 18 years from the date of
execution of the sale-deed and all the
petitioners attained the majority as provided
in Article 60 of the Schedule of Indian
Limitation Act, the limitation for minors for
filing the suit for cancellation of sale-deed is
three years appears to be barred by
limitation and thirdly, the name of the
respondents have already mutated in the
revenue record and said mutation has not
been challenged by the petitioners after they
had attained majority and further in view of
Section 31 of Specific Relief Act 1966 the
suit without seeking the cancellation of the
sale-deed
dated
10.7.1970
is
not
maintainable.

18. In the present petition, the
questions that arises for consideration are
as under;

(1) Whether the sale-deed dated
10.7.1970 executed by the mother and
brother of the petitioners is void or
voidable instrument.

(2) Whether the suit is cognizable by
the Revenue Court or the Civil Court.

19. So far as the first question is
concerned, Section 8 of the Hindu
Minority and Guardianship Act,1956 (for
short "Act of 1956") is relevant which
reads thus:-
2 All. Lalloo & Ors. Vs The Board of Revenue & Ors.
705

"8. Powers of natural guardian.--

(1) The natural guardian of a Hindu
minor
has
power,
subject
to
the
provisions of this section, to do all acts
which are necessary or reasonable and
proper for the benefit of the minor or for
the realisation, protection or benefit of
the minor's estate; but the guardian can in
no case bind the minor by a personal
covenant.

(2) The natural guardian shall not,
without the previous permission of the
court,--

(a) mortgage or charge, or transfer
by sale, gift, exchange or otherwise, any
part of the immovable property of the
minor; or

(b) lease any part of such property
for a term exceeding five years or for a
term extending more than one year
beyond the date on which the minor will
attain majority.

(3) Any disposal of immovable
property by a natural guardian, in
contravention of sub-section (1) or subsection (2), is voidable at the instance of
the minor or by any person claiming
under him.

(4) No court shall grant permission
to the natural guardian to do any of the
acts mentioned in sub-section (2) except
in the case of necessity or for an evident
advantage to the minor.

(5) The Guardians and Wards Act,
1890 (8 of 1890), shall apply to and in
respect of an application for obtaining
permission of the court under sub-section
(2) in all respects as if it were an
application for obtaining the permission
of the court under section 29 of that Act,
and in particular--

(a) proceedings in connection with
the application shall be deemed to be
proceedings under that Act within the
meaning of section 4A thereof;

(b) the court shall observe the
procedure and have the powers specified
in sub-sections (2), (3) and (4) of section
31 of that Act; and

(c) an appeal shall lie from an order
of the court refusing permission to the
natural guardian to do any of the acts
mentioned in sub-section (2) of this
section to the court to which appeals
ordinarily lie from the decisions of that
court.

(6) In this section "court" means the
city civil court or a district court or a
court empowered under section 4A of the
Guardian and Wards Act, 1890 (8 of
1890), within the local limits of whose
jurisdiction the immovable property in
respect of which the application is made
is situate, and where the immovable
property is situate within the jurisdiction
of more than one such court, means the
court within the local limits of whose
jurisdiction any portion of the property is
situate...."

20. From the perusal of the aforesaid
section, it is apparent that the previous
permission of the competent authority
(District-Judge of the concerned district)
is required in case of transfer of
immovable property by the natural
guardian. Admittedly, as per the plaint, no
permission was taken by the natural
guardian of the petitioners while making
the transfer and, hence, in view of Section
8 (3) of the aforesaid Act of 1956 any
disposal of immovable property by
natural guardians in contravention subsection (1) or sub-section (2), of the the
Act is voidable at the instance of minors
or any person claimed under him and
therefore, the sale-deed dated 10.7.1970 is
voidable document and even the learned
counsel appearing on behalf of the
petitioners conceded the said position.
706 INDIAN LAW REPORTS ALLAHABAD SERIES

21. Now coming to the second
question, whether the suit is cognizable
by the civil court or the revenue court a
suit for cancellation of instrument, is
based on provisions of Section 31 of
Specific Relief Act which is quoted as
under:-

"31. When cancellation may be
ordered.--

(1) Any person against whom a
written instrument is void or voidable,
and who has reasonable apprehension
that such instrument, if left outstanding
may cause him serious injury, may sue to
have it adjudged void or voidable; and
the court may, in its discretion, so
adjudge it and order it to be delivered up
and cancelled.
(2) If the instrument has been registered
under the Indian Registration Act, 1908
(16 of 1908), the court shall also send a
copy of its decree to the officer in whose
office the instrument has been so
registered; and such officer shall note on
the copy of the instrument contained in
his books the fact of its cancellation."

22. Thus, the Section 31 of Specific
Relief Act refers to both void and
voidable
instrument
and
it
is
the
discretional relief.

23. It is true that as per the Full
Bench decision of this Court in the case of
Ram Padarat (supra) even a suit for
cancellation of void sale-deed in respect
of agricultural land may be maintainable
before the civil court. The decision of the
said Full Bench decision has been upheld
by the Hon'ble Apex Court in the case of
Smt. Bismilla Vs. Janeshwar AIR 1990
SC 504; the Hon'ble Apex Court has held
that if the plaintiff is of opinion that
without getting the offending deed set
aside, he cannot get proper reliefs, then
the bar is not attracted and the plaintiff is
at liberty to file suit before the Civil
Court.

24. In Shri Ram & Anr. Vs. Ist
Additional Judge, 2001 (92) RD 241
(SC), the Apex Court also held that the
recorded tenure holder is not required to
approach
the
Revenue
Court
for
declaration of rights and can challenge the
sale-deed
purported
to
have
been
executed before the civil court.

25. The paragraphs Nos. 7 and 41 of
the Full Bench decision of this Court in
the case Ram Padarat (supra) which has
been approved by the Apex Court in the
Case of Smt. Bismilla (supra) read as
under:

"7. So far as voidable documents like
those obtained by practising coercion,
fraud, misrepresentation, undue influence
etc., are concerned, their legal effect
cannot be put to an end without its
cancellation. But a void document is not
required to be cancelled necessarily. Its
legal effect if any can be put to an end to
by declaring it to be void and granted
some other relief instead of canceling it.
Once it is held to be void it can be
ignored by any court or authority being of
no legal effect or consequence. A
document executed without free consent
or one which is without consideration or
the object of which is unlawful or
executed by a person not competent to
contract like a minor or in excess of
authority would be a void document. In
case it is in excess of authority it would be
void to that extent only. There is
presumption of due registration of a
document and correctness of the facts
mentioned in the same, but the said
2 All. Lalloo & Ors. Vs The Board of Revenue & Ors.
707
presumption is not conclusive and be
dislodged.

"41..... Suit or action for cancellation
of void document will generally lie in the
Civil court and a party cannot be
deprived of his right getting this relief
permission under lad except when a
declaration of right or status of a tenure
holder is necessarily needed in which
even relief for cancellation will be
surplusage and redundant. A recorded
tenure- holder having prima facie title in
his favour can hardly be directed to
approach the Revenue Court in respect of
Seeking relief for cancellation of a void
document which made him to approach
the Court of law and in such case he can
also claim ancillary relief even through
the same can be granted by the Revenue
Court."

26. In view of the aforesaid decision
of the Full Bench of this Court as well as
Hon'ble Apex Court; a person who
question the sale deed executed or
purported to be executed by him in
respect of agricultural land can file a suit
for its cancellation before the civil court if
the sale is void or voidable on the ground
of fraud coercion, undue influence,
misrepresentation or impersonation.

27. This Court in the case of Sursati
Devi (supra), has also taken a similar view
to the effect that in view of provision
contained in sub section (3) of Section 8 of
the Act of 1956, any alienation made by the
guardians of the minor rendered it voidable
and the said alienation cannot be ignored by
the revenue/consolidation courts. Paragraph
53 of the said judgment is quoted
hereunder:

"53. The sale deed in question has
not been dubbed as a void document.
Opposite party No. 4 had asserted that
since no permission of the District Judge
was obtained as was required by S. 8 of
Act No. 32 of 1956 while making transfer
of the land in question by his father and
as such he was not bound by the said
transfer being void in law. Learned
counsel for the opposite party No. 4,
however, conceded that on the aforesaid
ground the impugned sale deed cannot be
said to be void but he asserted that it was
voidable in view of the provisions
contained under Sub-sec (3) of S. 8 of the
H. M. & G. Act. The consolidation
authorities, therefore, could not ignore
the said document while treating it to be a
void document as has been held by them.
The impugned orders passed by the
consolidation authorities thus suffer from
a manifest error of law."

28. The Apex Court in the case of
Vishwambhar (supra) has also taken
same view, which applies in the present
case on its four corners. Relevant portion
of the said judgment i.e. paragraph nos. 9
and 10, are quoted hereunder:

"9. On a fair reading of the plaint, it
is clear that the main fulcrum on which
the case of the plaintiffs was balanced
was that the alienations made by their
mother-guardian Laxmibai were void and
therefore, liable to be ignored since they
were not supported by legal necessity and
without permission of the competent
court. On that basis the claim was made
that the alienations did not affect the
interest of the plaintiffs in the suit
property. The prayers in the plaint were
inter alia to set aside the sale deeds dated
14.11.1967
and
24.10.1974,
recover
possession of the properties sold from the
respective purchasers, partition of the
properties
carving
out
separate
708 INDIAN LAW REPORTS ALLAHABAD SERIES
possession of the share from the suit
properties of the plaintiffs and deliver the
same to them. As noted earlier, the trial
court as well as the first appellate court
accepted the case of the plaintiffs that the
alienations in dispute were not supported
by legal necessity. They also held that no
prior permission of the court was taken
for the said alienations. The question is in
such circumstances are the alienations
void or voidable? In Section 8 (2) of the
Hindu Minority and Guardianship Act,
1956, it is laid down, inter alia, that the
natural guardian shall not, without
previous permission of the Court, transfer
by sale any part of the immovable
property of the minor. In sub-section (3)
of the said section it is specifically
provided that any disposal of immovable
property by a natural guardian, in
contravention
of
sub-section
(2)
is
voidable at the instance of the minor or
any person claiming under him. There is,
therefore, little scope for doubt that the
alienations made by Laxmibai which are
under challenge in the suit were voidable
at the instance of the plaintiffs and the
plaintiffs were required to get the
alienations set aside if they wanted to
avoid the transfers and regain the
properties from the purchasers. As noted
earlier in the plaint as it stood before the
amendment the prayer for setting aside
the sale deeds was not there, such a
prayer appears to have been introduced
by amendment during hearing of the suit
and the trial court considered the
amended prayer and decided the suit on
that basis. If in law the plaintiffs were
required to have the sale deeds set aside
before making any claim in respect of the
properties sold then a suit without such a
prayer was of no avail to the plaintiffs. In
all probability realising this difficulty the
plaintiffs
filed
the
application
for
amendment of the plaint seeking to
introduce the prayer for setting aside the
sale deeds. Unfortunately, the realisation
came too late. Concededly, plaintiff no.2
Digamber attained majority on 5th
August, 1975 and Vishwambhar, plaintiff
no.1 attained majority on 20th July, 1978.
Though the suit was filed on 30th
November, 1980 the prayer seeking
setting aside of the sale deeds was made
in December, 1985. Article 30 of the
Limitation Act, prescribes a period of
three years for setting aside a transfer of
property made by the guardian of a ward,
by the ward who has attained majority
and the period is to be computed from the
date when the ward attains majority.
Since the limitation started running from
the dates when the plaintiffs attained
majority the prescribed period had
elapsed by the date of presentation of the
plaint so far as Digamber is concerned.
Therefore,
the
trial
Court
rightly
dismissed the suit filed by Digamber. The
judgment of the trial court dismissing the
suit was not challenged by him. Even
assuming that as the suit filed by one of
the plaintiffs was within time the entire
suit could not be dismissed on the ground
of limitation, in the absence of challenge
against the dismissal of the suit filed by
Digambar the first appellate court could
not have interfered with that part of the
decision of the trial court. Regarding the
suit filed by Vishwambhar it was filed
within the prescribed period of limitation
but without the prayer for setting aside
the sale deeds. Since the claim for
recovery of possession of the properties
alienated could not have been made
without setting aside the sale deeds the
suit
as
initially
filed
was
not
maintainable. By the date the defect was
rectified (December, 1985) by introducing
such a prayer by amendment of the plaint
2 All. Lalloo & Ors. Vs The Board of Revenue & Ors.
709
the prescribed period of limitation for
seeking such a relief had elapsed. In the
circumstances the amendment of the
plaint could not come to the rescue of the
plaintiff.

10. From the averments of the plaint
it cannot be said that all the necessary
averments for setting aside the sale deeds
executed by Laxmibai were contained in
the plaint and adding specific prayer for
setting aside the sale deeds was a mere
formality. As noted earlier, the basis of
the suit as it stood before the amendment
of the plaint was that the sale transactions
made by Laxmibai as guardian of the
minors were ab initio void and, therefore,
liable to be ignored. By introducing the
prayer for setting aside the sale deeds the
basis of the suit was changed to one
seeking setting aside the alienations of the
property by the guardian. In such
circumstance the suit for setting aside the
transfers could be taken to have been filed
on the date the amendment of the plaint
was allowed and not earlier than that."

29. The proposition of law as per the
aforesaid judgment are thus:

(i) the alienation made by the
mother, the natural guardian of the minor
are voidable at the instance of plaintiffs;

(ii) the plaintiffs are required to get
the alienation set aside, if they wanted to
avoid such transfer and regain the
property from its purchasers;

(iii) the plaintiffs were also required
to get the sale deed set aside before
making any claim in respect of properties
sold by them and the suit without setting
aside the alienation was of no avail;

(iv) when there were more than one
minor and some of them had attained the
majority, the prescribed period has lapsed
by the date of presentation of plaint for
some of them and even for setting aside
the suit, alienation would be barred by
limitation as prescribed under Article 60
of the Limitation Act, which prescribes
the limitation period of three years for
filing the suit for setting aside the deed;
and

(v) if the suit was not filed within the
prescribed period of three years from the
date of attaining the majority by the
plaintiffs, the other relief for declaration
of their rights or possession would not be
maintainable.

30. In view of the above, it is clear
in the present case that suit for mere
declaration of rights in respect of
agricultural land under Section 229B of
U.P.Z.A & L.R. Act is not maintainable
as the same is based on transfer made by
the guardians of the plaintiffs without
taking the permission from the competent
court (District Judge) and the said
document is rendered voidable in view of
Section 8 (3) of the Act of 1956 for which
the suit for cancellation of said instrument
is required to be filed before the
competent court.

31. The judgment cited on behalf of
the petitioners are distinguishable in view
of the above proposition of law as the
same relates to the void instrument and
which does not give any help to the
petitioners.

32. I do not find any merit in the
writ petition. The Board of Revenue vide
impugned order has considered each and
every aspect of the matter in detail while
allowing
the
appeal
filed
by
the
respondent nos. 7 to 11.

33. Writ petition lacks merit and is,
accordingly, dismissed.
710 INDIAN LAW REPORTS ALLAHABAD SERIES

34. No order as to costs.
----------

(2019)10ILR A 710

APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 30.08.2019

BEFORE

THE HON'BLE HARSH KUMAR, J.

Second Appeal No. 1052 of 1991

Nageshwar Prasad & Anr.
 ...Plaintiffs/Appellants
Versus
Santosh Kumar ...Defendant/Respondent

Counsel for the Appellants:
Sri R.N. Upadhyay, Sri A.K. Bind, Sri A.N.
Verma, Dr. Madhu Tandon, Sri G.N. Verma,
Sri H.N. Shukla, Sri H.O. Khare, Sri R.K. Bind,
Sri Rahul Mishra, Sri S.K. Yadav, Sri S.K.
Tyagi, Sri S.R. Yadav, Sri U.N. Shukla

Counsel for the Respondent:
Sri Sankatha Rai, Dr. Vinod Kumar Rai, Sri
Siddharth Niranjan

A. Registration of Births and Death Act, 1969 -
Section 17 - read with Indian Evidence
Act,1872 - Section 76 - Generally Certified
copies
of
public
documents
carries
presumption of correctness of its entries - but if
there is tampering and overwriting there can
be no presumption of genuineness and
correctness of entries of "Birth Register".

Since the very basis of entry of Birth Register
about death of Nawal Kishor on 27.09.1984 is
not proved in view of tampering in 'Death
Certificate' the presumption of correctness of
certified copy of 'Birth Register' duly issued under
section 17 (2) of Birth Act may not be drawn
under Section 76 of Evidence Act. (Para 17)

B. Practice and Procedure - Plaintiff's
application - for obtaining report of
fingerprint and handwriting expert - for
comparison of thumb impressions of
Nawal Kishor over the sale deed in
favour of defendant, with his thumb
impression over other exemplar sale
deed filed by plaintiff - Rejected - Held -
No illegality as No relief for cancellation
of sale deed was sought and despite
specific plea about execution of sale
deed on 19.10.84 by Nawal Kishor in
favour
of
defendant
in
written
statement, there are no pleadings by
plaintiff by amendment of plaint or by
filing replication, that sale deed has been
obtained by impersonation after death of
Nawal Kishor. (Para 19)

Second Appeal Dismissed (E-5)
(Delivered by Hon'ble Harsh Kumar, J.)

1. The instant second appeal has
been filed against impugned judgment
and decree dated 13.2.1991 passed by
Additional District Judge, Allahabad in
Civil Appeal No.267 of 1987, arisen out
of Civil Suit No.770 of 1986 "Nageshwar
Prasad and another Vs. Santosh Kumar".

2. The appeal was admitted vide
order dated 10.4.2007 on following two
substantial questions of law:-

"1.Whether the Courts below having
admitted three documents namely, Papaer
No.10/Ga, 15/Ga and 16/Ga by written
orders of Sri Chandra Prakash, XIth
Additional District Judge, Allahabad
dated 18.04.1999 and the said documents
were 'Janm Evam Mrityu Register'
regarding
family
of
Nawal
Kishor
deceased the date of death is shown as
27.09.1984, Mst. Sonpatti, Widow of
deceased Nawal Kishor. The second is the
'Kutumb Register' of Nawal Kishor which
shows Sonpatti is his widow, Gulab Kali
W/o
Nageshwar
Prasad
(Appellant),
Phool Kali W/o Prem Shanker, Smt. Anar