# Ved Prakash v. Phool Chand and others

- **Citation:** (2012) 2 ILRA 662
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2012-05-25
- **Bench:** Sibghat Ullah Khan
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/ved-prakash-v-phool-chand-and-others-42248
- **Pages:** 5

## Headnote

Sri Dhan Prakash
Sri M.C.Joshi
Sri Rajiv Joshi
Sri Sudhir Prakash
Sri V.K.S.Chaudhary

Code of Civil Procedure-Section 100cancellation of sale deed by minor on
behalf of his maternal uncle-sale deed
executed by natural father of minorbasis of suit that the father of miner had
executed gift deed when minor was 2
years old-which was never acted upon
and the name of donor continued over
revenue record-after 2 1/2 years father
executed sale deed-no where pleaded
that the natural guardian had no relation
with minor-suit by maternal uncle as
2 All] Ved Prakash V. Phool Chand and others
663
guardian-nothing but a fraud-sale deed
executed by father is protected.

Held: Para 10

In fact the entire transition and the suit
was nothing but a fraud. The maternal
uncle of the minor plaintiff who filed the
suit as guardian of the minor no where
stated that the minor was not residing
along with his parents or that his parents
were not taking care of the minor or that
there was any dispute between the
minor plaintiff (who was 13 years of age
at that time) and her parents. All these
things clearly go to show that the gift
was not intended to be acted upon and it
was never accepted by the father owner
on behalf of his infant son donee.
Mutation of minor in revenue record
through his father and guardian would
have
been
the
best
evidence
of
acceptance of the gift by the father
donor as guardian.
Case law discussed:
A.I.R. 2004 S.C. 1257

## Text

662 INDIAN LAW REPORTS ALLAHABAD SERIES [2012
ground and has rejected the application by
one sentence :

"tgakaWa rd vfHk;qDrk f'ko dqekjh ds fo:)
vijk/k ds cuus dk iz"u gS ;g lk{; dk fo'k;gSA
irzkoyh vHkh gkftjh vfHk;qDrx.k esa fu;r gSA bl
izdze ij vfHk;qDrk Jherh f'kodqekjh dks mUeksfpr
fd;s tkus dk dksbZ vk/kkj ugha gSA vfHk;qDrk Jherh
f'kodqekjh dks lk{; ds Lrj ij oknh o mlds
lk{khx.k ls ftjg dk iw.kZ volj izkIr gksxkA vr%
vfHk;qDrk dk izkFkZukirz Lohdkj fd;s tkus ;ksX; ugha
gSA"

6. From the above, it appears that
learned Magistrate proceeded on the
assumption that he has no power to
evaluate the materials forwarded by
police under Section 173 Cr.P.C. and at
that stage, prayer for discharge cannot be
entertained. This is in violation of clear
mandate of Sections 239 & 240 Cr.P.C.
which require a finding by the Magistrate
with regard to the charge against the
accused being groundless or that there is
ground for presuming that the accused has
committed offence. This finding was to be
recorded upon considering the police
report, the documents sent therewith and
after hearing both the parties, Magistrate
has not considered any document or
material forwarded by the police nor has
even referred to the contentions raised by
the applicant. Magistrate has not applied
his mind to the contentions raised by the
applicant and provisions of section, thus
the order cannot be upheld. Section 239
Cr.P.C. contemplates discharge even
before the commencement of the trial
which factor has been overlooked by the
Magistrate. Thus, order suffers from vice
of non-application of mind.

7. Accordingly, the petition is
allowed. Order dated 08.01.2010 passed
by Judicial Magistrate-II, Gonda, in Case
No. 3550 of 2007 is quashed.

8. Magistrate is directed to decide
the application in accordance with law
within a period of six weeks from the date
a certified copy of this order is produced
before him.
---------
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 25.05.2012

BEFORE
THE HON'BLE SIBGHAT ULLAH KHAN, J.

SECOND APPEAL No. - 1190 of 1976

Ved Prakash

 ...Petitioner
Versus
Phool Chand and others ...Respondents

Counsel for the Petitioner:
Sri N.C.Rajvanshi
Sri M.K. Rajvanshi
Sri P.K.Tyagi
Sri P.N. Tyagi
Sri Ravi Kant
Sri Sankatha Rai
 Smt.Archana Tyagi
Sri Ved Prakash
Sri Ashok Srivastava

Counsel for the Respondents:
Sri Dhan Prakash
Sri M.C.Joshi
Sri Rajiv Joshi
Sri Sudhir Prakash
Sri V.K.S.Chaudhary

Code of Civil Procedure-Section 100cancellation of sale deed by minor on
behalf of his maternal uncle-sale deed
executed by natural father of minorbasis of suit that the father of miner had
executed gift deed when minor was 2
years old-which was never acted upon
and the name of donor continued over
revenue record-after 2 1/2 years father
executed sale deed-no where pleaded
that the natural guardian had no relation
with minor-suit by maternal uncle as
2 All] Ved Prakash V. Phool Chand and others
663
guardian-nothing but a fraud-sale deed
executed by father is protected.

Held: Para 10

In fact the entire transition and the suit
was nothing but a fraud. The maternal
uncle of the minor plaintiff who filed the
suit as guardian of the minor no where
stated that the minor was not residing
along with his parents or that his parents
were not taking care of the minor or that
there was any dispute between the
minor plaintiff (who was 13 years of age
at that time) and her parents. All these
things clearly go to show that the gift
was not intended to be acted upon and it
was never accepted by the father owner
on behalf of his infant son donee.
Mutation of minor in revenue record
through his father and guardian would
have
been
the
best
evidence
of
acceptance of the gift by the father
donor as guardian.
Case law discussed:
A.I.R. 2004 S.C. 1257

(Delivered by Hon'ble Sibghat Ullah Khan, J.)

1. Heard learned counsel for the
parties.

2. This Second Appeal was allowed
on 20.2.2006. Against the said judgment
and decree Special Leave Petition was
filed before the Supreme Court which was
converted into Civil Appeal No.5197 of
2007. The Supreme Court allowed the
appeal on 14.11.2007 on the ground that
questions of law had not been framed and
remanded the matter to the High Court for
a fresh hearing. Thereafter amendment
application was filed on 15.12.2008
containing five substantial questions of
law. The application was allowed on
30.1.2009. On 13.12.2011 following order
was passed on the order sheet:-

"Amendment application filed on
15.12.2008 has formally been allowed on
30.1.2009. It is further clarified that this
Second Appeal will be heard on the
substantial questions of law A,B,C,D and
E given in the said amendment application.

List in the next cause list."

3. The questions of law mentioned in
the Amendment Application filed on
15.12.2008 are quoted below:

A. Whether the Lower Appellate
Court was correct in taking the view that
inspite of the fact that the plaintiff was
minor (2 years old) at the time of
Execution of the Gift Deed in his favour by
his natural father, express acceptance of
the Gift was necessary in order to make it a
valid Gift?

B.
Whether
in
the
facts
and
circumstances of the present case, the
Lower Appellate Court ought to have
treated the Gift as deemed accepted and
acted upon since Ram Singh, the father of
the plaintiff, himself was the guardian and
had himself executed the Gift Deed in
favour of his minor son (Plaintiff)?

C. Whether the Lower Appellate
Court was justified in dismissing the Suit
in spite of arriving at a conclusion that the
Suit so far as the relief of cancellation of
the impugned Sale Deed is concerned is
not hit by the bar imposed by Section 49 of
the Consolidation of Holdings Act?

D. Whether the conclusion drawn by
the Lower Appellate Court that the suit is
barred under Section 49 of the U.P.
Consolidation of Holdings Act since it
involved the question of title to the
disputed agriculture land, is correct in view
664 INDIAN LAW REPORTS ALLAHABAD SERIES [2012
of the fact that plaintiff was minor during
consolidation operations and his guardian,
his real father, was in collusion with Phool
Chand, Vendee of his father?

E. Whether the Lower Appellate
Court was justified in allowing the Appeal
treating the Gift Deed as invalid and Suit
barred under Section 49 of the U.P.
Consolidation of Holdings Act without
discussing, dealing and discarding the
Evidence relief upon by the Trial Court for
arriving at a contrary conclusion?

4. This Second Appeal arises out of
Original Suit No.358 of 1973 instituted by
Ved Prakash minor son of Ram Singh
through his guardian Shri Naresh Chand,
maternal uncle. In the suit father and
mother of the plaintiff minor i.e. Ram
Singh and Smt. Prakasho were impleaded
as defendant nos. 2 and 3. The defendant
no.1 was Phool Chand. It was stated in the
plaint that Ram Singh father of plaintiff
Ved Prakash had executed registered gift
deed of the agricultural land in dispute in
his favour on 28.2.1962 when Ved Prakash
plaintiff was only two years old. Ram
Singh after about two and half years of the
Gift Deed i.e. on 3.8.1964 executed a
registered sale deed of the agricultural land
in dispute in favour of Phool Chand,
defendant-respondent no.1. Through the
suit cancellation of the said sale deed had
been sought. Suit was decreed on 2.6.1975
by City Munsif, Saharanpur and sale deed
dated 3.8.1964 was cancelled. Against the
said decision defendant-respondent no.1
Phool Chand filed Civil Appeal No.226 of
1975
which
was
allowed
by
Vth
Additional District & Sessions Judge,
Saharanpur on 19.2.1976 through which
judgment and decree passed by the trial
court was set aside and suit for cancellation
of the sale deed was dismissed hence this
Second Appeal. The Lower Appellate
Court held that:-

"It could not be established that the
alleged Gift Deed was accepted on behalf
of donee, no valid Gift Deed was granted
in his favour under the Deed (Exhibit-2) it
must also be held that the Gift Deed was
not acted upon and given effect to by the
donar who on 3.8.1964 executed the
impugned Sale Deed in respect of land in
suit in favour of the defendant-appellant.
Not only that in the mutation proceedings
taken out by the defendant-appellant on the
basis of the impugned sale deed executed
in his favour defendant Ram Singh stated
before the A.C.O., Saharanpur that in his
place the name of his vendee namely Phool
Chand may be mutated over plots in
question of which he had been delivered
possession."

5. Lower appellate court further held
that the suit was filed after nine years of
execution of the sale deed even though
maternal uncle (mama) of the plaintiff was
aware of the same since its execution and
all these facts further re-enforced the
argument that the Gift Deed was in fact a
sham transaction and that it was never
acted upon.

6. Learned counsel for the appellant
has placed strong reliance upon the
authority of the Supreme Court reported in
K. Balakrishnan v. K. Kamalam and
Ors. A.I.R. 2004 S.C. 1257 (as was done
at the earlier stage when this appeal was
allowed.)

7. It is correct that gift in of minor by
his guardian can very well be accepted by
the guardian himself. However the facts in
the above authority of he Supreme Court
were somewhat different. In that case
2 All] Ved Prakash V. Phool Chand and others
665
mother had gifted the property to her son
who was 16 years of age at that time but
through the gift possession and right of
enjoyment was retained by donor mother.
In that scenario it was held that no overt
act was required either by the donor or by
the donee to show acceptance of the gift
and that in normal course acceptance is to
be presumed as, unless the gift is onerous,
it is for the benefit of the donee.

8. However, in the instant case it can
not be said that gift made by the father was
accepted by him on behalf of his son who
was two years of his age. Main part of the
Section 122 Transfer of property Act is
quoted below:

"Gift is the transfer of certain existing
movable or immovable property made
voluntarily and without consideration, by
one person, called the donor, to another,
called the donor, and accepted by or on
behalf of the donee."

9. After execution of the gift father
did not get the name of the donee infant
son and two years of age, mutated in the
revenue records. After two years of the gift
he sold the property and until sale name of
the father was continued to be recorded in
revenue records. Even though revenue
entries do not conclusively prove title,
however, they have got lot a value and are
a very strong evidence of possession.

10. In fact the entire transition and the
suit was nothing but a fraud. The maternal
uncle of the minor plaintiff who filed the
suit as guardian of the minor no where
stated that the minor was not residing along
with his parents or that his parents were not
taking care of the minor or that there was
any dispute between the minor plaintiff
(who was 13 years of age at that time) and
her parents. All these things clearly go to
show that the gift was not intended to be
acted upon and it was never accepted by the
father owner on behalf of his infant son
donee. Mutation of minor in revenue record
through his father and guardian would have
been the best evidence of acceptance of the
gift by the father donor as guardian.

11. Accordingly, question of law no.
A and B are decided in favour of the
plaintiff-respondent
and
against
the
appellant. I do not propose to decide
substantial question of law no. C, D and E
as the decision on question no. A and B is
sufficient for decision on the appeal.

12. There is one more substantial
question of law involved in this appeal
which is to the following effect"

F. Whether sale deed is protected on
the basis of doctrine of ostensible owner as
provided under Section 41 of Transfer of
Property Act?

13. Father was guardian of the minor.
He did not make any effort to get the name
of his infant son donee recorded as
Bhomidhar of the land in dispute in the
revenue records. Accordingly, father as
guardian of the minor allowed himself to
remain the ostensible owner of the property
in dispute hence sale deed is fully protected
and valid on the basis of Section 41 of
Transfer of property Act. This question is
also decided in favour of the plaintiffrespondent.

14. Accordingly, on the basis of
decision on substantial question of law no.
A and B and additionally on the basis of
decision on substantial question of law no. F
this Second Appeal is dismissed.
---------
666 INDIAN LAW REPORTS ALLAHABAD SERIES [2012
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 14.05.2012

BEFORE
THE HON'BLE RAJES KUMAR, J.
THE HON'BLE HET SINGH YADAV, J

First Appeal From Order No. - 1921 Of 2012

The New India Assurance Co. Ltd

 ...Petitioner
Versus
Smt. Rani Devi and others ...Respondents

Counsel for the Petitioner:
Sri Saral Srivastava

Counsel for the Respondents:
.......................................

Motor Vehicle Act, 1988-Section-163-A-
(2)-deceased TRAVELLING IN Tractor
Trolley-accident
took
place
due
to
negligence to Bus Driver-running Bus
from wrong side-Tribunal awarded much
excess than the amount claimed-held-no
requirement of prove of negligence
under Section 163-A (2)-no interference
called for-Appeal dismissed.

Held: Para 6

We are of the view that even if the
claimant claimed less amount but in a
case of death or permanent disability,
under the Statute, it is required that the
compensation is to be calculated in
accordance to the Schedule II of the Act.
Therefore, the compensation should be
calculated in accordance to Schedule II.
In the present case, the Tribunal has
rightly done so.
Case law discussed:
2009 (2) TAC 677

(Delivered by Hon'ble Rajes Kumar, J.)

1. Heard learned counsel for the
appellant.

2. This is an appeal by the insurance
company. The appellant is the insurer of
bus bearing registration no.UP-93C-2348.
The accident took place on 27.04.2009.
The case of the claimant was that few
persons, namely, Laxmi Narain and Jai
Ram Sahu and others were travelling in
tractor trolley going from Jhansi to their
village. The tractor was going on its own
side while the bus came from right side
and hit the tractor trolley, as a result of
accident, the tractor trolley turtled causing
grievous injuries to the persons sitting in
the tractor trolley. Jai Ram Sahu and
Nand Kishore died and other persons
suffered injuries. The first information
report was lodged and site plan was
prepared. Laxmi Narain, who was eye
witness stated that the driver of the bus
was driving the bus negligently and came
to the wrong side and hit the tractor
trolley. The site plan filed by learned
counsel for the appellant is at page no.54
of the memorandum of appeal, also
reveals that the bus came from wrong side
and hit the tractor trolley. The accident
was caused on account of the negligence
of the driver of the bus. Tribunal on the
basis of the principle laid down by the
Apex Court in the case of Smt. Sarla
Verma and others Vs. Delhi Transport
Corporation and another, reported in
2009 (2) TAC, 677 has assessed the
compensation.

3. Learned counsel for the appellant
submitted that the claim was made under
Section 163-A of the Motor Vehicles Act
at Rs.2,81,500 while the Tribunal has
awarded the compensation to the extent of
Rs.3,93,500/= in excess to the amount
claimed by the claimant which is not
justified.