Ganayya and Another Vs. Radhabai and Others.
EmailAppeal: Civil Appeal No. 5373 of 1985
Petitioner: Ganayya and Another
Respondent: Radhabai and Others.
Apeal: Civil Appeal No. 5373 of 1985
Judges: M.M. PUNCHHI & FAIZAN UDDIN, JJ.
Date of Judgment: Apr 12, 1996
Head Note:
Bombay Tenancy and Agricultural Lands (Vidarbha Region) Act, 1958
Section 48 read with Sections 46 and 49A – Hindu Minority and Guardianship Act 1956, Section 11 – Constitution – Article 227 – Agricultural land – Conferment of statutory ownership – Application for – Applicability of Guardianship Act. Held after the commencement of Hindu minority and Guardianship Act no person was entitled to deal with the property of a Hindu Minor merely on the ground of his being the de-facto guardian – Grant of lease by de-facto guardian not valid as it was hit by the provisions of Guardianship Act – Application for conferment of statutory ownership dismissed.
Section 48 read with Sections 46 and 49A – Hindu Minority and Guardianship Act 1956, Section 11 – Constitution – Article 227 – Agricultural land – Conferment of statutory ownership – Application for – Applicability of Guardianship Act. Held after the commencement of Hindu minority and Guardianship Act no person was entitled to deal with the property of a Hindu Minor merely on the ground of his being the de-facto guardian – Grant of lease by de-facto guardian not valid as it was hit by the provisions of Guardianship Act – Application for conferment of statutory ownership dismissed.
Held:
A bare reading of Section 11 goes to show that it explicitly provides that after the commencement of the said 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 monor. It is not understood as to how the High Court took the view that the aforesaid provision was not attracted to the facts of the present case. In our opinion the High Court fell into a patent error in taking that view. Consequently, we allow this appeal, set aside the impugned orders passed by the High Court as well as the orders passed by the Maharashtra Revenue Tribunal, Sub-Divisional Officer and the Additional Teh-sildar and dismiss the application filed by late Nagayya, the predecessor-in-interest of the respondents for conferral of ownership rights on the land in dispute. No cost.(Para 5)
JUDGEMENT:
ORDER
1. This is an appeal against the order dated 17.1.1985 passed by the High Court of Bombay, Nagpur Bench, in Writ Petition No. 2315 of 1980 dismissing the petition of the appellants filed under Article 227 of the Constitution of India challenging the order dated 24.4.1980 passed by the Maharashtra Revenue Tribunal, Bombay affirming the orders passed by the Sub-Divisional Officer and Additional Tehsildar conferring the rights of statutory owner-ship on Nagayya the real uncle of the appellants on the view that he was lawful in cultivating possession of the property as a tenant on 1.4.1961 and 1.4.1963.
2. The deceased Nagayya Jangam, the predecessor-in-interest of the respondent Radhabai and others was the real brother of late Kashinathayya, the father of the appellants who made an application on 5.1.1973 under Section 48 read with Sections 46 and 49-A of the Bombay Tenancy and Agricultural Lands Act, 1958 for conferral of ownership rights in respects of Field Survey no. 82/2 admeasuring 10 acres and 25 gunthas situated in village Rithad in Akola District against the appellants herein and his married sister Kausalayabai Malkarjun Jangam. The statutory ownership right was conferred on Magayya by the Additional Tehsildar by his order dated 7.11.1974 on a view that he was in lawful possession of the property as a tenant on 1.4.1961 and 1.4.1963. This order was confirmed in appeal by the Sub-Division Officer by his order dated 29.10.1975 and also in revision by the Maharashtra Revenue Tribunal by an order dated 24.4.1980. The contention before the High Court raised by the appellants was that the grant of lease by de facto guardian namely, Balayya was not valid as it was hit by the statutory provisions contained in Section 11 of the Hindu Minority and Guardianship Act, 1956.
3. The case set up by the appellants was that their father was blind from birth who died on 16.2.1957 leaving behind him the appellants who were minors. The appellants’ uncle Nagayya was cultivating the land in question as Manager even during the lifetime of their father as he was blind and the appellants were minors. One Balayya, husband of appellants’ mother’s sister, leased out the lands in dispute to the said Nagayya, the real uncle of the appellants. On the basis of that lease made by the de facto guardian of the appellants, Nagayya, the uncle of the appellants, made the application for conferral of ownership rights of the land in dispute and for determination of purchase price of the said land under Section 48 read with Sections 46 and 49-A of the Bombay Tenancy and Agricultural Lands (Vidarbha Region) Act, 1958. The Additional Tehsildar allowed that application which was upheld by the Sub-Division Officer in appeal and the Revenue Tribunal in revision. The High Court also dismissed the appellants’ application filed under Article 227 of the Constitution on the view aforesaid. The High Court took the view that the provisions of Section 11 of the Hindu Minority and Guardianship Act, 1956 were not attracted to the facts of the present case and, therefore, dismissed the petition.
4. Thus the question before us for consideration is whether in the facts and circumstances of the present case the provisions of Section 11 of the Hindu Minority & Guardianship Act, 1956 are attracted or not. Section 11 of the said Act reads as under:
“11. 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.”
5. A bare reading of Section 11 goes to show that it explicitly provides that after the commencement of the said 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. It is not understood as to how the High Court took the view that the aforesaid provision was not attract-ed to the facts of the present case. In our opinion the High Court fell into a patent error in taking that view. Consequently, we allow this appeal, set aside the impugned orders passed by the High Court as well as the orders passed by the Maharashtra Revenue Tribunal, Sub-Divisional Officer and the Additional Teh-sildar and dismiss the application filed by late Nagayya, the predecessor-in-interest of the respondents for conferral of ownership rights on the land in dispute. No cost.
1. This is an appeal against the order dated 17.1.1985 passed by the High Court of Bombay, Nagpur Bench, in Writ Petition No. 2315 of 1980 dismissing the petition of the appellants filed under Article 227 of the Constitution of India challenging the order dated 24.4.1980 passed by the Maharashtra Revenue Tribunal, Bombay affirming the orders passed by the Sub-Divisional Officer and Additional Tehsildar conferring the rights of statutory owner-ship on Nagayya the real uncle of the appellants on the view that he was lawful in cultivating possession of the property as a tenant on 1.4.1961 and 1.4.1963.
2. The deceased Nagayya Jangam, the predecessor-in-interest of the respondent Radhabai and others was the real brother of late Kashinathayya, the father of the appellants who made an application on 5.1.1973 under Section 48 read with Sections 46 and 49-A of the Bombay Tenancy and Agricultural Lands Act, 1958 for conferral of ownership rights in respects of Field Survey no. 82/2 admeasuring 10 acres and 25 gunthas situated in village Rithad in Akola District against the appellants herein and his married sister Kausalayabai Malkarjun Jangam. The statutory ownership right was conferred on Magayya by the Additional Tehsildar by his order dated 7.11.1974 on a view that he was in lawful possession of the property as a tenant on 1.4.1961 and 1.4.1963. This order was confirmed in appeal by the Sub-Division Officer by his order dated 29.10.1975 and also in revision by the Maharashtra Revenue Tribunal by an order dated 24.4.1980. The contention before the High Court raised by the appellants was that the grant of lease by de facto guardian namely, Balayya was not valid as it was hit by the statutory provisions contained in Section 11 of the Hindu Minority and Guardianship Act, 1956.
3. The case set up by the appellants was that their father was blind from birth who died on 16.2.1957 leaving behind him the appellants who were minors. The appellants’ uncle Nagayya was cultivating the land in question as Manager even during the lifetime of their father as he was blind and the appellants were minors. One Balayya, husband of appellants’ mother’s sister, leased out the lands in dispute to the said Nagayya, the real uncle of the appellants. On the basis of that lease made by the de facto guardian of the appellants, Nagayya, the uncle of the appellants, made the application for conferral of ownership rights of the land in dispute and for determination of purchase price of the said land under Section 48 read with Sections 46 and 49-A of the Bombay Tenancy and Agricultural Lands (Vidarbha Region) Act, 1958. The Additional Tehsildar allowed that application which was upheld by the Sub-Division Officer in appeal and the Revenue Tribunal in revision. The High Court also dismissed the appellants’ application filed under Article 227 of the Constitution on the view aforesaid. The High Court took the view that the provisions of Section 11 of the Hindu Minority and Guardianship Act, 1956 were not attracted to the facts of the present case and, therefore, dismissed the petition.
4. Thus the question before us for consideration is whether in the facts and circumstances of the present case the provisions of Section 11 of the Hindu Minority & Guardianship Act, 1956 are attracted or not. Section 11 of the said Act reads as under:
“11. 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.”
5. A bare reading of Section 11 goes to show that it explicitly provides that after the commencement of the said 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. It is not understood as to how the High Court took the view that the aforesaid provision was not attract-ed to the facts of the present case. In our opinion the High Court fell into a patent error in taking that view. Consequently, we allow this appeal, set aside the impugned orders passed by the High Court as well as the orders passed by the Maharashtra Revenue Tribunal, Sub-Divisional Officer and the Additional Teh-sildar and dismiss the application filed by late Nagayya, the predecessor-in-interest of the respondents for conferral of ownership rights on the land in dispute. No cost.
