# S.K. Akela & others v. The Registrar Societies Firms & Chits, Allahabad & others

- **Citation:** (2005) 2 ILRA 813
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2005-07-19
- **Case number:** Civil Misc. Writ Petition No. 8397 of 1980
- **Bench:** Krishna Murari
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/s-k-akela-others-v-the-registrar-societies-firms-chits-allahabad-others-40542
- **Pages:** 6

## Headnote

(A) Hindu Minority & Guardianship Act
1956-Section
11
read
with
U.P.
Consolidation
of
Holding
Act
1962Section 9-A-Sale deed executed by grand
mother-minor's
father
and
mother
already died-at the age of 2 yrs.
Notification
under
Section
4
of
Consolidation of Holding Act made in the
INDIAN LAW REPORTS ALLAHABAD SERIES [2005
814
year 1972-minor attain majority in Act
1968-6 yrs. period of limitation would
expire
in
1974-plea
of
adverse
possession not available.

Held: Para 16 & 17

On the basis of evidence brought on
record in the form of voter list of 1973
and Parivar register the Settlement
Officer
Consolidation
held
that
the
petitioner attained majority either in
1968 or in 1972. The said finding of the
Settlement Officer of Consolidation is
based on the voter list wherein the age
of the petitioner is recorded as 24 year
and the parivar register wherein his date
of birth is 25.2.1954. Thus in any case
even if the starting point of limitation is
taken to be 1968 when the petitioner
attained majority, six year period would
expire in 1974. Admittedly the attained
majority, six year period would expire in

## Text

2 All] S.K. Akela & others V. The Registrar Societies Firms & Chits, Allahabad & others 813
36. It must be noted that Courts are not
powerless or helpless. Section 38 of the
Advocates Act provides that even in
disciplinary matters the final Appellate
Authority is the Supreme Court. Thus
even if the Bar Councils do not rise to the
occasion and perform their duties by
taking disciplinary action on a complaint
from a client against an advocate for nonappearance by reason of a call for strike
or boycott, on an Appeal the Supreme
Court can and will, apart from this, as set
out in Romans Services' case, every Court
now should and must mulct. Advocates
who hold Vakalats but still refrain from
attending Courts in pursuance of a strike
call with costs,. Such costs would be in
addition to the damages which the
Advocate may have to pay for the loss
suffered by his client by reason of his nonappearance.

27. Advocate is an officer of the
Court. He is an indispensable constituent
of the 'justice delivery system'. He enjoys
special status by virtue of his being
enrolled
as
Advocate.
He
enjoys
privileged position in Court (as well as in
public). In High Court he is provided
place to sit in Court premises. High Court
has given large accommodation in the
High Court Building to High Court Bar
Association for chambers, canteen etc.
High Court holds references/ condolences
on the request made by the High Court
Bar Association, and these proceedings
are Court proceedings.

28. There is no dispute or doubt that
Writ Petition lies against Respondent
No.1/Registrar,
Societies
Registration
who is responsible for proper functioning
of a 'Society' (registered under Societies
Registration Act) including High Court
Bar Association. Similarly, Writ Petition
lie against Respondent nos. 5,6,7, 8 & 9.

29. The question, as to what extent
this court can issue 'Writ' against
Respondent Nos. 2, 3 & 4, shall be seen
while hearing and deciding the case
finally on merit.

30.

Objections,
regarding
maintainability of the Writ Petition are
not tenable at this stage.

31. These objections shall, however,
be dealt finally in detail while deciding
the Writ Petition on merit.

Prima
facie
Writ
Petition
is
maintainable. Petition Maintainable
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 19.07.2005

BEFORE
THE HON'BLE KRISHNA MURARI, J.

Civil Misc. Writ Petition No. 8397 of 1980

Ram Vriksha

...Petitioner
Versus
The Asstt. Director of Consolidation,
Gorakhpur and another ...Respondents

Counsel for the Petitioner:
Sri R.S. Misra

Counsel for the Respondents:
Sri Swaraj Prakash
S.C.

(A) Hindu Minority & Guardianship Act
1956-Section
11
read
with
U.P.
Consolidation
of
Holding
Act
1962Section 9-A-Sale deed executed by grand
mother-minor's
father
and
mother
already died-at the age of 2 yrs.
Notification
under
Section
4
of
Consolidation of Holding Act made in the
INDIAN LAW REPORTS ALLAHABAD SERIES [2005
814
year 1972-minor attain majority in Act
1968-6 yrs. period of limitation would
expire
in
1974-plea
of
adverse
possession not available.

Held: Para 16 & 17

On the basis of evidence brought on
record in the form of voter list of 1973
and Parivar register the Settlement
Officer
Consolidation
held
that
the
petitioner attained majority either in
1968 or in 1972. The said finding of the
Settlement Officer of Consolidation is
based on the voter list wherein the age
of the petitioner is recorded as 24 year
and the parivar register wherein his date
of birth is 25.2.1954. Thus in any case
even if the starting point of limitation is
taken to be 1968 when the petitioner
attained majority, six year period would
expire in 1974. Admittedly the attained
majority, six year period would expire in
1974. Admittedly the village was notified
for
consolidation
operation
on
20.5.1972. After commencement of the
consolidation operation no suit under
Section 209 of U.P.Z.A. & L.R. Act can be
filed, the jurisdiction being barred and
hence non filing of suit would confirm no
rights on the person who was in
possession on the date the consolidation
proceedings started if the limitation for a
suit under Section 209 of U.P.Z.A. & L.R.
Act has not, till then run out. In other
words if before the expiry of the
prescribed
period
of
limitation
consolidation
intervenes
then
the
limitation prescribed by Section 209
stands arrested.

In view of the above legal position the
period of six years from the time
petitioner attained majority having not
expired before the commencement of
the
Consolidation
proceedings,
the
respondent no. 4 would not acquire any
title or right by adverse possession. The
remand order made by Deputy Director
of Consolidation cannot be said to be
justified in any manner in the aforesaid
facts and circumstances.
Case law discussed:
2001 (45) ALR 820

(B) Constitution of India Art. 226-Writ
petition against remand order-generally
the court refused to interfere-but where
the interference become necessary-court
not to refused on technical groundfinding of facts recorded by the S.O.C.
without setting aside the same-where
the sale transaction made by defects
guardian found void-remand order on
illegal
presumption
of
avoidable
document by the D.D.C.-can not be held
justified-Such
order deserves to be
interfered.

Held: Para 18

If the court normally does not interfere
with the remand order, it does not mean
that there is any lack of power or the
writ petition is not maintainable. The
court can interfere if it finds the
circumstances to be extraordinary or the
interference necessary in the interest of
justice. In the present case on the
material available on the record the
Settlement
Officer
Consolidation
recorded a finding of fact regarding the
age
of
the
petitioner,
the
Deputy
Director of Consolidation without even
referring to the said documents or
setting aside the finding of fact recorded
by Settlement Officer has remanded the
case back and that too on the illegal
presumption that the sale deed was a
viodable document.

(Delivered by Hon'ble Krishna Murari, J.)

1. This petition under Article 226 of
the Constitution of India is directed
against the judgment and order dated
26.8.1980 passed by Deputy Director of
Consolidation by which the case has been
remanded back to the Settlement Officer
Consolidation.

2. The dispute arises out of
proceeding under Section 9 A (2) of the
2 All] Ram Vriksha V. The Asstt. Director of Consolidation, Gorakhpur and another 815
U.P. Consolidation of Holdings Act (for
short the Act) and relates to plot no.
102/65 and khat no. 175. The undisputed
facts are that one Raj Bali, father of the
petitioner was recorded as sirdar of the
land in dispute. He died in 1956 when the
petitioner was minor, aged about 2 years.
Vide order dated 11.4.1956 passed by
Naib Tehsildar, the name of the petitioner
was mutated in revenue record in place of
his deceased father. Shortly, after the
death of the petitioner's father his mother
also died. The petitioner was under care
and supervision of his grand mother. On
account of his disability, being a minor,
the petitioner was not able to cultivate the
land himself as such it was let out to one
Sawaroo, the father of respondent no. 4
on "BATAI" (crop sharing basis). Later
on the grand-mother of the petitioner
executed a sale deed of the disputed plot
in favour of Sawaroo on 11.5.1959, on
behalf of the petitioner as his guardian.
The name of Sawaroo also came to be
mutated in the revenue record.

3. On attaining majority when the
petitioner came to know about the entries
in the revenue records he filed objection
under Section 9 A (2) of the Act for
expunging the name of Sawaroo on the
ground that sale deed executed by his
grand mother dureing his minority was
void as she was not the natural guardian.
The
objection
was
contested
by
respondent no. 4 on the ground that since
no suit was filed for cancellation of the
sale deed by the petitioner within
limitation, after attaining majority his
rights in the land in dispute were
extinguished and in the alternate it was
pleaded that he has perfected rights by
being in possession for about 20 years.

4. The Consolidation Officer vide
order dated 24.4.1978 dismissed the
objection filed by the petitioner. Appeal
filed against the said order was allowed
by the Settlement Officer Consolidation
vide order dated 9.3.1997. Aggrieved the
respondent no. 4 filed a revision which
was allowed by the Deputy Director of
Consolidation and the case was remanded
back
to
the
Settlement
Officer
Consolidation.

5. The Consolidation Officer held
that petitioner did not file suit for
cancellation of sale deed within three
years of attaining the majority and the
objection has also been filed by him after
more than one year of publication of
notification under Section 4 of the Act
and the consolidation courts have no
power to cancel the sale deed hence the
objection is liable to be dismissed. In
appeal
the
Settlement
Officer
Consolidation held that since the sale
deed was not executed by natural
guardian of minor hence it is hit by
Section 11 of Hindu Minority and
Guardianship Act and is void. He also
recorded a fining that consolidation
intervened before the respondent no. 4
could perfect his rights by adverse
possession as such he is not entitled to
any rights in the property in dispute.

6.

The
Deputy
Director
of
Consolidation was however of the view
since the sale deed was executed without
obtaining permission of District Judge as
such it was only a voidable document. He
further held that it is not clear when the
petitioner attained majority and without
ascertaining the age of the petitioner the
question whether the petitioner took steps
within limitation after attaining majority
cannot be decided. Thus he directed the
case
back
to
Settlement
Officer
Consolidation to re-determine the age of
INDIAN LAW REPORTS ALLAHABAD SERIES [2005
816
the petitioner and accordingly ascertain
whether objection was field by him within
prescribed period of limitation after
attaining majority.

7. It has been urged by the learned
counsel for the petitioner that sale deed
executed
by
grand
mother
of
the
petitioner who was not natural guardian
was void and hit by Section 11 of the
Hindu Minority and Guardianship Act.
The Deputy Director of Consolidation has
wrongly and illegally held it to be a
voidable document. It has further been
urged that there was no justification to
remand the case back for recording a
finding about the age of the petitioner as
there was enough material available on
the record on the basis of which
Consolidation Officer and Settlement
Officer both recorded a fining of fact
about the date of birth and age of the
petitioner.
The
Deputy
Director
of
Consolidation without considering the
said evidence remanded the matter back
for no rhyme and reason.

8. In reply the learned counsel for
the respondents while justifying the
remand order contended that writ petition
is not maintainable against the remand
order.

9. I have considered the arguments
advanced by the learned counsel for the
parties and perused the record.

10. The twin questions which arise
for adjudication are (i) the competence of
the grand mother of the petitioner to
execute the sale deed as his guardian (ii)
whether the respondent no. 4 would
perfect rights by adverse possession.
11. In so far as first question is
concerned Section 11 of the Hindu Minor
and Guardianship Act 1956 is a complete
answer. The said Section provides that the
De Facto Guardian has no right or
authority to dispose of or deal with the
property of the minor. Section 11 of the
Act reads as follows:

"De Facto Guardian not to deal
with
minor's
property-
After
the
commencement of this Act, no person
shall be entitled to dispose of, or deal
with, the property of a Hindu minor
merely on the ground of his or her
being the de-facto guardian of the
minor"

12. A plain reading of Section goes
to show that after commencement of the
Act no person is entitled to transfer,
alienate or deal with the property of the
minor on the ground of his or her being
the De Facto Guardian.

13. The Hon'ble Apex Court in the
case of Madhegowda (D) by L.Rs. Vs.
Ankegowda (D) by L.Rs. and others
2001 (45) ALR SC has ruled that transfer
of a minor's property in violation of
Section 11 of the Act is void ab initio
void. It has been observed as follows:
"From the statutory provisions noted
above, it is clear that with the avowed
object of saving the minor's estate being
mis-appropriated or squandered by any
person, by a relation or a family friend
claiming to be a well wisher of the minor,
Section 11 was enacted to prohibit any
such person from alienating the property
of the minor. Even a natural guardian is
required to seek permission of the court
before alienating any part of the estate of
the minor and the court is not to grant
such permission to the natural guardian
except in case of necessity or for an
evident advantage to the minor. So far as
2 All] Ram Vriksha V. The Asstt. Director of Consolidation, Gorakhpur and another 817
de facto guardian or de facto manager is
concerned, the statute has in no uncertain
terms prohibited any transfer of any part
of minor's estate by such a person. In view
of the clear statutory mandate, there is
little scope for doubt that any transfer in
violation of the prohibition incorporated
in Section 11 of the Act is ab initio void."

14. From the aforesaid settled legal
position, it is clear that the sale deed
executed by the grand mother of the
petitioner was a void document and the
Deputy
Director
of
Consolidation
wrongly held it to be viodable.

15. In view of the fact that since the
sale deed was a void document, the
judgment of the Deputy Director of
Consolidation remanding the case back to
the Settlement Officer Consolidation to
find out the age of the petitioner to
ascertaining whether proceedings were
initiated by him within limitation after
attaining
majority
also
cannot
be
sustained for the simple reason that void
document
does
not
require
any
cancellation and can be ignored by the
consolidation authorities. The Limitation
provided
under
general
law
for
cancellation of a document would not
stand in the way of the consolidation
authorities in case the document in
question is a void document.

16. In so far as the second question
is concerned admittedly the respondent
no. 4 came in possession in 1959, on the
basis of sale deed executed during the
minority of the petitioner. The limitation
of six years as prescribed at the relevant
time, for perfecting rights by adverse
possession would start running after the
petitioner had attained majority. On the
basis of evidence brought on record in the
form of voter list of 1973 and Parivar
register
the
Settlement
Officer
Consolidation held that the petitioner
attained majority either in 1968 or in
1972. The said finding of the Settlement
Officer of Consolidation is based on the
voter list wherein the age of the petitioner
is recorded as 24 year and the parivar
register wherein his date of birth is
25.2.1954. Thus in any case even if the
starting point of limitation is taken to be
1968
when
the
petitioner
attained
majority, six year period would expire in
1974. Admittedly the attained majority,
six year period would expire in 1974.
Admittedly the village was notified for
consolidation operation on 20.5.1972.
After commencement of the consolidation
operation no suit under Section 209 of
U.P.Z.A. & L.R. Act can be filed, the
jurisdiction being barred and hence non
filing of suit would confirm no rights on
the person who was in possession on the
date the consolidation proceedings started
if the limitation for a suit under Section
209 of U.P.Z.A. & L.R. Act has not, till
then run out. In other words if before the
expiry of the prescribed period of
limitation consolidation intervenes then
the limitation prescribed by Section 209
stands arrested. The view taken by me
finds support from a division bench
judgment of our court in the case of Smt.
K.
Devi
Vs.
Joint
Director
of
Consolidation U.P. & ors. 1973 ALJ
365.

17. In view of the above legal
position the period of six years from the
time petitioner attained majority having
not expired before the commencement of
the
Consolidation
proceedings,
the
respondent no. 4 would not acquire any
title or right by adverse possession. The
remand order made by Deputy Director of
INDIAN LAW REPORTS ALLAHABAD SERIES [2005
818
Consolidation cannot be said to be
justified in any manner in the aforesaid
facts and circumstances.

18. The objection raised by learned
counsel for the respondents that writ
petition challenging remand order is not
maintainable, is also not liable to be
accepted. It cannot be said that as a rule
writ petition against remand order is not
maintainable. Generally, the court refused
to interfere or issue a writ of certiorari
against a remand order for there is no
final adjudication. If the court normally
does not interfere with the remand order,
it does not mean that there is any lack of
power or the writ petition is not
maintainable. The court can interfere if it
finds
the
circumstances
to
be
extraordinary
or
the
interference
necessary in the interest of justice. In the
present case on the material available on
the
record
the
Settlement
Officer
Consolidation recorded a finding of fact
regarding the age of the petitioner, the
Deputy Director of Consolidation without
even referring to the said documents or
setting aside the finding of fact recorded
by Settlement Officer has remanded the
case back and that too on the illegal
presumption that the sale deed was a
viodable document. Thus the remand
order in no way can be said to be justified.
The approach of the Deputy Director of
Consolidation is totally contrary to the
law and the order deserves to be
interfered and quashed by this court.

19. In the result writ petition
succeeds and is allowed. The impugned
order of Deputy Director of Consolidation
dated 26.8.1980 stands quashed and that
of Settlement Officer Consolidation dated
9.3.1979 stands affirmed. However, in the
facts and circumstances of the case, there
shall be no order as to costs.
Petition Allowed.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 13.7.2005

BEFORE
THE HON'BLE S.N. SRIVASTAVA, J.

Civil Misc. Writ Petition No. 48682 of 2005

Kripal Singh

...Petitioner
Versus
State of U.P. and others ...Respondents

Counsel for the Petitioner:
Sri S.R. Singh

Counsel for the Respondents:
Chief Standing Counsel
Sri V.K. Singh (S.C.)
(Gaon Sabha)

U.P.
Zamindari
Abolition
and
Land
Reform
Act-Section
122-B
(4-f)-
Settlement
of
Gaon
Sabha
Landpetitioner alleging himself to belonging
to scheduled Cost Candidates-on the
basis of compromise the village Pradhangiven
the
land
in
question
for
construction of 'Barat Ghar'-No material
produced regarding plea of agricultural
labour-the
man
possessing
financial
status to construct a 'Barat Ghar' can not
be
agricultural
labour-compromise
between the petitioner and the Gaon
Panchayat-unsustainable-court
expressed
its
great
concern-D.M.
concerned
to
initiate
appropriate
proceeding
against
the
concerned
revenue officials.

Held: Para 14,15 and 16

The property in question vests in Gaon
Panchayat and is not a private property
of Gram Pradhan. Gram Pradhan is only
custodian of such property. Any property