IN THE COURT OF ADDL. DISTRICT JUDGE, COURT NO.01, VARANASI.

Present- Narendra Bahadur Yadav, HJS

Civil Appeal No.68 of 2008

Girija Devi Adult W/o Kirti Singh R/o Village Devchandra Post
Tadwa District Azamgarh present R/o Plot No.25/273 Sarsaudi Tajpur Mahavir
Road City Varanasi.
------------------------------------- Appellant/defendant No.1

Versus

1. Mahendra Kumar S/o Tribhuwan (Dead)

1/1. Vidya Maurya W/o Late Mahendra Kumar Maurya
1/2. Priti Adult D/o Late Mahendra Kumar Maurya
1/3. Sagar Aged about 16 years (Minor) S/o Late Mahendra Kumar Maurya
Through guardian Vidya Maurya (Real Mother)
1/4 Shivani Aged about 14 years (Minor) D/o Late Mahendra Kumar Maurya
Through guardian Vidya Maurya (Mother)

2. Surendra Kumar alias Rajendra S/o Tribhuvan

All R/o Tajpur Pargana Shivpur City- Varanasi.

---------------------------------------------Opposite party/plaintiff

3. Smt. Ramdei W/o Late Tribhuvan R/o Tajpur Pargana Shivpur City-
Varanasi
----------------------------------------------------Opposite party/defendant no.2

Judgement
Present Civil Appeal has been filed by contesting defendant no.1 of
regular Civil Suit No. 96 of 1989 Mahendra Kumar and others Versus Smt.
Girija Devi and others against judgement and decree dated 04.04.2008
passed by the then learned [Link] Judge (Junior Divsion) Court No.05,
Varanasi by which the suit of plaintiffs was decreed.

2. The appeal is mainly based on the grounds that the impugned decree
and judgement is contrary to facts and law. The learned lower court utterly
failed to appreciate the evidence adduced by parties. The learned lower court
also failed to appreciate the relevant case laws correctly. The learned lower
court did not draw right conclusion on the basis of available case laws
regarding non application of the provisions for obtaining permission to sell
agricultural land belonging to minors. The pleadings of the plaintiffs and
evidence adduced by them are self contradictory but lower court did not
consider such contradictory situation while passing impugned judgement and
decree. On the basis of available evidence on record it was proved that the
sale deed was executed by mother of plaintiffs for their benefits and interest
but lower Court did not consider it. The lower court failed to appreciate the
evidence on record correctly. The suit was time barred but the lower court
 -2-
wrongly refused to realise it accordingly. The interest of respondent no.2 was
never against plaintiffs but such facts were not considered by lower court. The
lower court decreed the suit and cancelled the disputed sale deed contrary to
law and facts. In such circumstances the appeal is to be allowed setting aside
impugned judgement and decree passed by lower court.

3. Heared learned Counsel of the parties and perused the entire record.

4. Respondent nos. 1 and 2 filed regular Civil Suit No.96 of 1989 against
appellant/defendant no.1 for cancellation of sale deed dated 07.08.1981,
registered in Bahi no.1 Zild 4751 at pages 211 and 212 at serial no.9581 on
12.10.1981 executed by defendant no.2 Smt. Ramdei in favour of defendant
no.1 Smt. Girija Devi in the capacity of guardian of plaintiffs.

5. The basis of prayer regarding cancellation of sale deed has been stated
in the plaint as lack of need to execute the sale deed, want of permission from
District Judge, Varanasi, want of legal necessity, execution of deed being
contrary to interest of plaintiffs and invasion of authority by guardian of the
plaintiffs in such regard. It was also stated in the suit that the sale proceeds
were not spent for the benefit of plaintiffs by their mother. The alleged sale
deed was without consideration. The cause of action arose to file the suit when
defendant no.1 denied for cancellation of alleged sale deed.

6. Defendant no.2 Smt. Ramdei filed written statement 79A supporting the
version of plaint.

7. Defendant no.1 Smt. Girija Devi filed written statement 78A with prayer
to dismiss the suit filed by plaintiffs. It was stated in the written statement filed
by Smt. Girija Devi that the suit has been instituted by plaintiffs without
authority and contrary to provisions of law. The plaintiffs never became owner
of the property in question but same was owned by defendant no. 2 deriving
from ancestral property through partition. Defendant no.1 sold the property to
defendant no.2 in lieu of consideration. The sale deed was executed obtaining
permission from prescribed authority of urban ceiling. At the very moment of
execution of the sale deed, the possession over the property in question was
handed over to defendant no.1 and she got mutated her name in revenue
record. No permission of District Judge was required prior to sale of property
in question because same was not owned by plaintiffs. The property
mentioned in the sale deed was not agricultural land but same was in the
shape of Abadi on the spot. The suit has been filed by plaintiffs being in
collusion with defendant no.2. Plaintiff no.1 has never been appointed as
 -3-
guardian of plaintiff no.2 and he can not be recognised to hold such capacity
and suit filed by plaintiff no.1 on behalf of plaintiff no.2 is not maintainable. The
suit is beyond jurisdiction of civil court. The suit is barred by the provision of
Section 331 of Uttar Pradesh Zamindari Abolition and Land Reforms Act. The
plaintiff may seek redress for partition of their shares through suit of partition to
be filed before the revenue court or civil court as the case may be. The
defendant no.2 transferred the disputed property through registered sale deed
to meet out her legal necessity for the benefit of plaintiffs. No cause of action
arose to file the suit. The suit is time barred. The plaintiffs are not entitled for
any relief. The property in question was under valued at the time of execution
of sale deed because it was in the form of pit and its value was inferior to other
property. Sufficient consideration was paid to the seller at the time of
execution of the deed. The suit is barred by principle of estoppel and
acquiescence. The plaintiffs have got no right to sue. The plaintiffs are entitled
to adjust their shares with the share of their mother available in other plot
numbers. The plaint has not been legally verified. Lastly, it is prayed to
dismiss the suit with costs.

8. The plaintiffs rebuted the facts averred in written statement filed by

defendant no.1 through replication.

9. On the basis of the pleadings of the parties total twelve issues in number
were framed by lower court on 17.01.1991. The issues (translated in English)
framed by lower court are as under:
1) Whether sale deed dated 07.08.1981 executed by Ramdei in favour
of Smt. Girija Devi is liable to be cancelled on the grounds mentioned in the
plaint?
2) Whether plaintiffs are entitled to get mesne profits? If yes, how
much?
3) Whether plaintiffs have no title and share in the disputed property but
same was excusively owned by defedant no.2 deriving through partition?
4) Whether plaintiff no.1 was entitiled to file a suit on behalf of plaintiff
No.2 ?
5) Whether civil court has no jurisdiction to entertain the suit?
6) Whether suit is barred by provisions of Section 331 of U.P. Act 1 of
1951?
7) Whether plaintiffs had no cause of action to file the suit? If yes, its
effect ?
8) Whether the suit is under valued and paid court fee is not
sufficient ?
 -4-
9) Whether suit is time barred?
10) Whether suit is barred by principle of estoppel and acquiescence?
11) Whether suit is not verified in legal manner? If yes, its effect ?
12) Whether plaintiffs are entitled to any relief ?

10. The plaintiffs filed certified copies of disputed sale deed dated
07.08.1991 through list 8C and certified copies of Khasra, transfer certificate
issued by school showing age of plaintiffs through list 13C.

11. No documentary evidence was filed by defendant No.1 before the lower
court but during appeal she also filed certified copy of sale deed with the leave
of court which was executed by mother of plaintiffs in favour of another person
but same remain unchallenged by plaintiffs/respondents.

12. The plaintiff no.1 Mahendra Kumar (Now dead) examined himself as
PW1. Kanhaiya Lal and Triloki Prasad were also examined as PW2 and PW3
respectively on behalf of plaintiffs.

13. On behalf of defendant No.1 DW1 Kirti Singh was examined as her
Mukhtar-e-aam and Vijay Shankar Singh as DW2.

14. The issue No.4 regarding right to sue was decided in affirmative in
favour of plaintiffs. Issue nos.5 and 6 regarding jurisdiction of the court were
answered by learned lower court in favour of the plaintiffs observing that the
civil court has got jurisdiction to try the suit. Issue no.7 was answered in the
manner that the plaintiffs had got cause of action to file the suit. Issue no.8
regarding valuation and court fees was decided in negative in favour of
plaintiffs by lower court vide order dated 09.01.1996 and such order has
become part of the impugned judgement. Issue No.9 regarding bar of
limitation, issue no.10 regarding bar of principle of estoppel and acquiescence
and issue no.11 regarding improper verfication of the plaint were also decided
by learned lower court in favour of the plaintiffs. During course of hearing
before this court, learned Counsel of either party did not press such issues
except issue no.10. In such circumstances it would not be appropriate to
reconsider the findings of learned lower court regarding issues no.4 to 9 and
11 because question involved in such issues have no bearing effect on the
merit of instant appeal.

15. Issue no.3 was framed by learned lower court regarding ownership of
defendant no.2 in respect of disputed property. The learned lower court
decided issue no.3 in the manner that the evidence available on record do not
 -5-
reveal that the defendant no.2 got exclusive ownership over the property in
question through partition. Issue no.2 was decided by learned lower court
against plaintiffs observing that the possession of defendant no.1 cannot be
treated as illegal unless disputed sale deed is cancelled. Learned lower court
also observed that the plaintiffs are not entitled for reimbursement of any
mesne profit. Issue no.1 regarding cancellation of disputed sale deed on the
grounds mentioned in the plaint was decided in affirmative in favour of
plaintiffs mainly on the ground that the sale deed was executed by defendant
no.2 in favour of defendant no.1 without obtaining permission from the
District Judge as per requirement of Section 8 of Hindu Minority and
Guardianship Act, 1956.

16. Learned Counsel of appellant contended that the learned lower court
utterly failed to appreciate the evidence available on record regarding services
rendered to plaintiffs by defendant no.2 as mother after demise of her
husband. It is also contended that the learned lower court failed to consider
the pleadings and evidence regarding care taken by mother of plaintiffs as
natural guardian and alleged transfer was made in favour of defendant no.1 for
the benefit of plaintiffs. He also placed reliance upon case laws wherein it has
been observed that the manager or Karta of the family may alienate the share
of minor for their interest even without permission of District Judge. It is also
contended that the provisions of Section 8 of Hindu Minority and Guardianship
Act, 1956 are not attracted in the instant matter. It is further contended that
the plaintiffs were estopped from challenging the disputed sale deed by their
acquiescence because they have not challenged other sale deeds executed
by their mother in favour of other persons during their minority period.

17. Learned Counsel of respondents contended that the disputed sale deed
was not executed by mother of respondents for their benefits and same is
liable to be cancelled due to want of permission of District Judge in
compliance of Section 8 of the Hindu Minority and Guardianship Act, 1956. It
is also contended that the learned lower court was justified in decreeing the
suit.

18. Considering the pleadings of the parties, evidence adduced by them in

support there of, findings of the lower court and contentions raised by learned
counsel of the parties before this Court, the following points come into
existence for the purposes of determination:
1) Whether disputed property sold by defendant no.2 in favour of defendant
No.1 by way of executing disputed sale deed was joint Hindu family property
 -6-
and same was being managed through defedant no.2 as natural guardian of
plaintiffs after demise of her husband.
2) Whether disputed sale deed was executed transferring the alleged plot
for the benefit of plaintiffs of the suit by their natural guardian.
3) Whether interest of defendant No.2 Smt. Ramdei (Mother of plaintiffs)
was clashing with the interest of minors at the time of execution of disputed
sale deed.
4) Whether plaintiffs are estopped by acquiescence due to non challenging
of sale deeds executed by their mother in favour of other persons.
5) Whether disputed sale deed is liable to be cancelled due to reason that
same was executed by natural guardian of plaintiffs without obtaining
permission from District Judge.

19. Prior to determine aforementioned points it would be appropriate to cite

case laws as referred by learned Counsel of parties during course of their
arguments.

20. The learned Counsel of respondents referred Saroj Versus Sundar

Singh and Ors. 2014 (122) RD 386 (SC). In this case Hon’ble Supreme Court
observed that the property derived by minors can not be transferred by his or
her guardian without permission of District Judge as required under Section 8
of Hindu Minority and Guardianship Act, 1956.

21. The learned Counsel of respondents also placed reliance upon decision
in Smt. Sursati Devi Versus Joint Director of Consolidation, Basti and
Ors. 1982 ALL. L.J.1473 wherein Hon’ble High Court referred various
decisions of Hon’ble Privy Council, Hon’ble High Courts and also of Hon’ble
Supreme Court. In para 31 of the judgement, Hon’ble High Court was pleased
to observe:
“The words ‘immovable property’ have not been defined in Sec.4 of the
H.M. & G. Act nor under Sec.4 of the G.&W. Act. No doubt under S.3 of the
T.P. Act the ‘immoveable property’ would cover ‘agricultural land’ as well, but
since the Parliament, as already observed above, could not legislate law about
transfer and alienation of agricultural land because of Entry 6 of List III and on
said matter the State Legislature alone has got legislative power in view of
Entry 18 of List II, the word ‘immoveable property’ occurring, in Sec.8 of the
Act connotes all immoveable property of a minor other than his argricultural
land. The said provision would nor apply to agricultural land not it will govern
or control alienation made by the natural guardian of the agricultural land of
his minor ward and no permission as is envisaged under sub-sec. (2) of S.8 of
 -7-
the Act would be required in respect of agricultural and on matters enunciated
therein, nor any transfer made by the natural guardian can be said to be
voidable on the ground that it was made in contravention of sub-sec. (1) or
sub-sec. (2) of S.8 of the Act at the instance of the minor or any person
claiming under him as provided under sub-sec. (3) of S.8 of the Act. The minor
can, however, repudiate and get the transfer deed set aside either he himself
within three years of his attaining majority or even during minority through a
next friend, on the ground that the transfer was neither for the benefit of his
estate nor was compelled by any pressure on the estate, nor it is such as a
prudent owner would reasonably enter into and that he has acted improperly
in his trusts. The minor can urge and show that the transfer made by
his natural guardian is highly prejudicial to his interest and is absolutely unfair
as there was no legal necessity at all for making the transfer or that it was not
sold for adequate sale consideration or that it was got executed by practising
calculated fraud or misrepresentation on the guardian himself while getting
impugned deed executed. The aforesaid are not all but some of the grounds
on which alienation can be questioned. The transfer or alienation by the
natural guardian of an immoveable property other than agricultural land can
no dobt be questioned on the ground that it was made without previous
permission of court as required by sub-sec. (2) of S.8 of the H.M. & G. Act but
the transfer made in respect of agricultural land cannot be challenged on the
aforesaid ground because ‘immoveable property’ referred in S.8 cannot be
construed to cover agricultural land as the Parliament could not make such
law pertaining to agricultural land as already observed above.”

22. In Sursati Devi Versus J.D.C. & Ors (supra), Hon’ble High Court was
further pleased to rely upon law laid in Calcutta Gas Company Versus State of
West Bengal and others AIR 1962 SC 1044 and J.K. Cotton Spinning and
Weaving and V.V. Mills Corp. Ltd. Versus State of U.P. AIR 1961 SC 1170 for
purposes of distinguishing the sale of agricultural land from sale of other
property which is not governed by State land laws.

23. The learned counsel of appellant relied upon law laid by Hon’ble
Supreme Court in Shri Narayan Bal and Ors. Versus Sri Sridhar Sutar and
Ors. (1996) 80 SCC 84, JT 1996 (1), 711, 1996 SCALE (1) 570. In such
referred case the basic question which was considered by Hon’ble Apex Court
was as: whether the provisions of Section 8 of the Hindu Minority and
Guardianship Act, 1956 were applicable to the joint Hindu family property sold
or disposed of by the Karta.
 -8-
24. Hon’ble Apex Court observed in Sri Narayan Bal Case (supra):
“With regard to undivided interest of the Hindu minor in joint family
property, the provisions afore-culled are beads of the same string and need be
viewed in a single glimpse, simultaneously in conjunction with each other.
Each provisions, and in particular Section 8, cannot be viewed in isolation. If
read together the intent of the legislation in this beneficial legislation becomes
manifest. Ordinarily the law does not envisage a natural guardian of the
undivided interest of a Hindu minor in joint family property. The natural
guardian of the property of a Hindu minor, other than the undivided interest in
joint family property, is alone contemplated under Section 8, whereunder his
powers and duties are defined. Section 12 carves out an exception to the rule
that should there be no adult member of the joint family in management of the
joint family property, in which the minor has an undivided interest, a guardian
may be appointed; but ordinarily no guardian shall be appointed for such
individed interest of the minor. The adult member of the family in the
management of joint Hindu family property may be a male or a female, not
necessarily the Karta. The power of the High Court otherwise to appoint a
guardian, in situations justifying, has been preserved. This is the legislative
scheme on the subject. Under Section 8 a natural guardian of the property of
the Hindu minor, before he disposes of any immoveable property of the minor,
must seek permission of the Court. But since there need be no natural
guardian for the minor’s undivided interest in the joint family property, as
provided under sections 6 to 12 of the Act, the previous permission of the
Court under Section 8 of disposing of the undivided interest of the minor in the
joint family property is not required. The joint Hindu family by itself is a legal
entity capable of acting through its Karta and other adult members of the
family in management of the joint Hindu family property. Thus Section 8 in
view of the express terms of Sections 6 and 12, would not be applicable where
a joint Hindu family property is sold/disposed of by the Karta involving an
undivided interest of the minor in the said joint Hindu family property.”
In such referred case Hon’ble Apex Court further observed:
“The eldest male member in the family acted as a Karta in executing the
sale and had joined with him the two widows for themselves and as guardians
of the minor members of joint Hindu family, as supporting executants. That
act by itself is not indicative of the minors having a divided interest in the joint
Hindu family property commencing before or at the time of the sale. In this
view of matter, Section 8 of the Act can be of no avail to the appellant’s claim
to nullify the sale.”
 -9-

25. The law laid in Sri Narayan Bal and Ors. Versus Sri Sridhar Sutar
and Ors.(supra) was relied upon by Hon’ble High Court of Allahabad in
second appeal No.402 of 2011 Smt. Ramwati and Ors. Versus Dharmdas
reported in 2013 (120) RD 842. In such case the Hon’ble High Court was
pleased to formulate one substantial question of law as : “Whether
defendants-appellants were obliged to obtain permission under Section 29 of
Guardians & Ward Act, 1890 (hereinafter referred to as “Act, 1890”) or
Section 8 of Hindu Minority and Guardianship Act, 1956 (herein after referred
to as “Act, 1956) from District Judge before selling the share of the property of
minor despite the fact that defendant-appellant no.1, who is the head of Joint
Hindu Family and the property in dispute was joint Hindu Property, in which
the minor had her share.”

26. In Smt. Ramwati and Ors. Versus Dharmdas (supra), the dispute was
related to property i.e. Gata No.191, area 0.560 hectare and Gata No.248,
area 0.227 hectare, situate at Village Maminpur Ahmdabad Swar, District
Rampur. Sri Devi Das , Son of Hulasi was bhumidhar with transferable rights
and tenure holder of the aforesaid land. He had four sons namely Bhajan Lal,
Ram Chandar, Ram Charan and Ratan Lal. Bhajan Lal died during lifetime of
Devi Das, leaving his son Dharampal. In other words, the plaintiff, Dharam Pal
is the grandson of Devi Das, (now deceased). Defendant no.1 Smt. Ramwati
is widow of Devi Das and grandmother of Dharampal. In such referred case,
disputed land was transferred vide sale deed dated 09.10.2003 by defendant
no.1 of concerned suit in favour of defendant nos.2 and 3. Thereafter the
plaintiffs of concerned case instituted original Civil Suit seeking cancellation of
alleged sale deed and permanent injunction in respect of disputed property.
The trial court and first appellate court decreed the suit of the plaintiffs by way
of cancelling disputed sale deed executed by guardian of plaintiffs during their
minority. The Hon’ble High Court was pleased to reverse the judgements and
drecrees passed by both the Courts below and dismissed the suit filed for
cancellation of sale deed.

27. In the case of Smt. Ramwati and Ors. Versus Dharmdas (supra),
Hon’ble High Court also relied upon the decision of Hon’ble Apex Court in
Madhegowda (D) by Lrs. Versus Ankegowda (D) by Lrs. and others AIR
2002 SC 215 as well as decision of Hon’ble Privy Council in
Hunoomanpersaud Panday Versus Mussumat Babooee Munraj
Koonweree (1854-57) 6 Moore’s I.A. 393. Hon’ble court observed that the
defacto guardian has the same power of alienating the property of his ward as
 -10-
a natural guardian in the capacity of Karta of the family. The Hon’ble High
Court was also pleased to elaborate the concept of Karta of joint Hindu family
in para 20 of the judgement as :
“The concept of joint Hindu family and its Karta is quite ancient and an
integral part of the way of living and customary rules of Society among Hindu.
In India, and, particularly among Hindus, the family bonds are not only very
strong but they have given right to a society who believe in a joint family even
going to the extent of concept of village community. In the concept of
property, there have been three layers, i.e., Patriarchal Family, Joint Family
and Village Community. The patriarchal family is headed by father and
consists of his offsprings. The joint family may include within itself the
members, related to each other, though not having common ancestors and
goes beyond the family flowing from father himself. It is said that unlike
England, where the concept of ownership, as a rule, is single, independent
and unrestricted, and it may be joint, but the presumption is to the contrary. It
may be restricted but only in special instances and under special provisions.
The situations in India is totally different. Here the joint ownership is normally
the rule and may be presumed to succeed until contrary is proved. If an
individual holds property in severalty, in the next generation, it will relapse into
a stand of joint tenancy. A Hindu may start with nothing and make a self
acquired fortune by dint of his own labour, capacity and merits and he is the
absolute owner of estate but in a couple of generations his offspring would
ramify in a joint family, like a banyan tree which also stands as single shoot. If
the property is free from hands of its acquirer, it will become fettered in the
hands of his heirs.

28. It was also observed in Smt. Ramwati & Ors. Versus Dharmdas
(supra) by Hon’ble High Court that the bar of Section 8 to obtain permission of
the District Judge for alienation of property is not attracted where joint Hindu
family property is governed in view of Sections 6 and 12 of the Act, 1956 and
property is sold /disposed of by Karta involving an undivided interest of minor
in the joint Hindu family property.

29. Learned Counsel of appellant also referred the law laid in Maya
Shanker Versus D.D.C. & Another 1983 All. C.J. 556 and Arun Kumar and
others Versus Smt. Chandrawati Agrawal & others AIR 1978 All 221. In
the case of Maya Shanker, it was held that the provisions of Section 8 of Hindu
Minority & Guardianship Act, 1956 were not to be applied to the agricultural
property and no permission of the District Judge was required. Hon’ble High
Court reiterated the principle led in Sursati Devi Versus J.D.C. (supra).
 -11-

30. In Arun Kumar and others Versus Smt. Chandrawati Agrawal AIR
1978 All 221, it was held that Section 6 of Hindu Minority & Guardianship Act,
1956 excludes a natural guardian applying for the permission of the court to
alienate property of minor under Section 8(2) of the Act. It was also held that a
father or natural guardian can alienate a minor’s interest in coparcenary
property regarding benefit of estate, etc.
31. It would be appropriate to detetmine the points formulated by this court
considering the pleadings and evidence of both the parties in the light of
guidelines issued in above referred cases.

32. The first determinable point is whether disputed property sold by

defendant no.2 in favour of defendant no.1 by way of executing disputed sale
deed was joint Hindu family property and same was being managed through
defendant no.2 as natural guardian of plaintiffs after demise of her husband.

33. The factum relating to alienation of disputed property by natural mother

of plaintiffs is not in dispute. At the time of sale, the demise of the father of
plaintiffs is also not disputed. It is also admitted fact that the disputed property
was previously owned by father of plaintiffs.

34. Extract of Khasra and Khatauni as filed by plaintiffs before lower court
reveal that the disputed plot was recorded as Bhumidhari in the name of father
of plaintiffs alongwith his brothers. The extract of Khatauni, Fasli year 1384 to
1389 (paper no.49C) also consists the description regarding mutation of the
names of purchasers in whose favour land in pieces was transferred by
defendant no.2 on various occasions in disputed plot no. The extract of Khasra
and Khatauni available on record also show that the concerned plot no.
consisting disputed portion also was jointly recorded in the name of father of
plaintiffs and his brothers prior to his death. Such documents also reveal that
the name of plaintiffs got mutated as successor of their father after his demise
regarding disputed plot no. Extract of Khasra, Fasli year 1392 consists the
position of disputed plot as Parti. Similar is the position of Fasli year 1393 also
.To determine the point whether disputed property was joint Hindu family
property at the time of execution of sale deed, it would be appropriate to
scrutinise the oral evidence adduced by parties.

35. In the plaint it has been stated that the sale deed executed by mother of
plaintiffs was without permission of District Judge and same was executed
without any legal necessity. Nothing is mentioned in the plaint to show that the
disputed property was being managed through defendant no.2 Smt. Ramdei in
the capacity of natural guardian of plaintiffs or it was managed through any
 -12-
other person. Plaintiff no.1 Mahendra Kumar has stated as PW1 in his
examination in chief that his age was about to 11 years and his brother
Surendra was 6 years old at the time of death of his father. He also stated
that the source of livelihood of their mother was earning from agricultural land
and recieving of rent from rented portion of house. He further stated that her
mother was in no need of money for purposes of selling the disputed property.
During course of cross examination, PW1 stated that the name of his
grand-father was Sukhnandan and after his death his sons including father of
plaintiffs partitioned their respective shares and commenced to live separately.
PW1 failed to narrate his age at the time of death of his father in his cross
examination. PW1 stated at page no.5 in his cross examination that he
continued his study alongwith his brother after death of his father and her
mother was bearing the expenses incurred in connection with study of his own
as well as of his brother. He also stated that his mother did not contract
remarriage after death of his father and continuously remained with them. He
also stated at page no.6 that her mother nourished and maintained him and
his brother after death of his father. He also admitted that the expenses of
marriage of his sister were also borne by his mother to the maximum extent
and she is continuously affectionate to PW1 and his brother. According to
PW1, his mother was unemployed. He also stated that the disputed land was
ancestral which is within the area of Nagar Mahapalika. PW1 stated at page
no.7 that the disputed property is adjacent to abadi land and it has taken the
shape of abadi too. It is also stated that the disputed property was used as
Abadi in the lifetime of his father also. It is further stated that his mother and
brother became owner of the property alongwith him after death of his father
and he was not acquainted with the facts of transfer of disputed property. He
also expressed ignoratia regarding consideration received by his mother in lieu
of sale of disputed property.

36. PW2 Kanhaiya Lal stated in his examination in chief that the disputed
property was sold by mother of plaintiffs during age of their minority without
any necessity because they were cared by their uncle but not by their mother.
PW2 stated in his cross examination that the partition amongst the brothers of
the father of the plaintiffs took place in the lifetime of Tribhuwan (father of
plaintiffs) and all started to live separately by metes and bounds. He further
stated that the wife of Tribhuwan (father of plaintiffs) nourished his sons
(plaintiffs) with the assistance of brother of her deceased husband and minor
sons of deceased Tribhuvan were residing with their mother. He expressed
 -13-
ignorance relating to expenditure of the family of plaintiffs during their age of
minority.

37. DW1 Kirti Singh stated in the capacity of husband of defendant no.1 that
the disputed property was sold by defendant no.2 in favour of defendant no.1
in lieu of adequate consideration and defendant no.2 was capable to transfer it
being successor of her deceased husband. In his cross examination DW1
stated that the disputed piece of land was part of Bhumidari plot and name of
transferor Ramdei was mutated in revenue record. DW1 stated at page no.8
that the disputed property was in the shape of Abadi at the time of execution of
disputed sale deed which was previously owned by Tribhuwan and the name
of plaintiffs got mutated after his death as successor. He also stated that the
defendant no.2 Ramdei got the property through partition which was done
during lifetime of her husband Tribhuwan.

38. The oral evidence adduced by PW1 Mahendra and PW2 Kanhaiya Lal
reveal that family of the father of plaintiffs was single entity after partition
amongst father of plaintiffs and his brothers. The evidence of PW1 and PW2
also visualise that family of the father of plaintiffs consisted of father of
plaintiffs Tribhuwan, mother of plaintiffs Ramdei, plaintiffs themselves and their
sister. It is also proved on the basis of evidence of such witnesses that the
sister of plaintiffs got married after death of their father regarding which
expenses were borne by defendant no.2 in the capacity of mother of plaintiffs
and their sister. It is also proved that the defendant no.2 Ramdei was
continuously living with plaintiffs as natural guardian and they were nourished
and maintained by her. It is also proved that she continued to live with plaintiffs
till now as Karta or manager of joint family.

39. The facts of the present case are similar to that of Smt. Ramwati and
Ors. Versus Dharmdas 2013 (120) RD 842 in which Gata no.191 and 248
were transferred by grand mother of minor in the capacity of Karta of the
family. The above mentioned two plots which were under dispute in the case of
Smt. Ramwati (supra) were also recorded as Bhumidhari land in revenue
records. In such referred case the interest of minor was being protected by his
grand mother in the event of remarriage by his natural mother. Treating the
family of minor and his grand mother as a single unit, it was held that the
grand mother acted as Karta of the family. At the ratio of law laid in Smt.
Ramwati and Ors. Versus Dharmdas (supra), it may be concluded in the
present case that the plaintiffs and their mother were single unit of joint Hindu
family at the time of execution of disputed sale deed after death of the father of
 -14-
plaintiffs and defendant no.2 Ramdei was manager or Karta of joint undivided
family in the capacity of real mother and natural guardian of plaintiffs.
Determinable point no.1 is answered accordingly in favour of
appellant/defendant no.1.

40. Determinable point no.2 is as: Whether disputed sale deed was
executed transferring the alleged plot for the benefit of plaintiffs of the suit by
their natural guardian.

41. It is admitted that the disputed sale deed was executed by natural
mother of plaintiffs. In the plaint it has been averred that the property
mentinoed in the disputed sale deed was alienated without any legal
necessity and same was not for the benefit of the plaintiffs. PW1 Mahendra,
PW2 Kanhaiya and PW3 Triloki Nath stated in their respective examination in
chiefs that the defendant no.2 Ramdei had no need to transfer the diputed
property for the benefit of plaintiffs. Plaintiff no.1 stated as PW1 in his cross
examination that he was ignorant regarding factum of the marriage of his sister
as well as factum of his own age and also age of his brother at the time of
death of his father. He has clearly stated at page no.5 in his cross
examination that he and his brother continued their study after death of his
father and expenses in such regard were borne by his mother. He also stated
that his mother did not contracted remarriage and lived continuously with them
since after death of his father. He also stated that he and his brother Surendra
Kumar were nourished and maintained by her mother and she also borne the
expenses of the marriage of his sister. PW2 Kanhaiya Lal could not tell
regarding requirement of money for the welfare of the family of plaintiffs after
death of their father. PW2 admitted that the sons of Tribhuwan i.e. plaintiffs
were nourished and maintained by their mother after death of their father.
Defendant no.2 Ramdei (Mother of plaintiffs) did not dare to come before the
court to examine herself for adducing her evidence though she had filed
written statement supporting the version of plaint and the evidence led by PW1
and PW2 show that she is residing with the plaintiffs. Supporting the version
of plaint and residing with plaintiffs by defendant no.2, it appears that she has
turned in collusion with plaintiffs and intentionally or due to certain other
reasons the plaintiffs did not produce her before the lower court for the
purposes of adducing her evidence by way of examination and cross
examination.

42. The evidence led by PW1 and PW2 as discussed in preceeding

paragraph is wide enough to reveal that the defendant no.2 had to bear the
 -15-
expenses to be incurred for nourishment and maintenance of plaintiffs as well
as marriage of her daughter. In the disputed sale deed it has been specifically
mentioned that the expenses of family affairs cannot be borne by defendant
no.2 unless disputed piece of land was sold in favour of defendant no.1. On
the basis of such evidence it is concluded that the disputed sale deed was
executed by defendant no.2 in favour of defendant no.1 for the benefit and
welfare of joint family including plaintiffs. Determinable point no.2 is answered
in affirmative in favour of appellant.

43. Determinable point no.3 is as: Whether interest of defendant no.2

Smt. Ramdei (Mother of plaintiffs) was clashing with the interest of minors at
the time of execution of disputed sale deed.

44. During course of determination of point nos.1 and 2 it has been

concluded that disputed sale deed was executed by defendant no.2 Smt.
Ramdei in favour of defendant no.1 Smt. Girija Devi for the benefit and welfare
of joint family entity to which the plaintiffs were the member. It has also been
concluded that the plaintiffs were nourished, maintained, brought up, got
educated and marriage of their sister was performed at the expenses borne by
defendant no.2. PW1 Mahendra and PW2 Kanhaiya Lal have stated in their
respective cross examinations that the defendant no.2 Smt. Ramdei never got
remarried and she is continuously living with her sons i.e. plaintiffs after
demise of her husband. Defendant no.2 has also filed written statement in
support of plaint version which is sufficient to smell that she is blind supporter
of the interest of her sons and she can not act contrary to their interest. In
such situation it can not be said that the interest of defendant no.2 Smt.
Ramdei was clashing with the interest of minors at the time of execution of
disputed sale deed. Point no.2 is answered in negative favouring appellant.

45. Determinable point no.4 is as : Whether plaintiffs are estopped by

acquiescence due to non challenging of sale deeds executed by their mother
in favour of other persons.

46. The learned counsel of appellant invited attention of the court towards
copy of sale deed executed by Ramdei W/o Late Tribhuwan in the capacity of
guardian of Mahendra and Rajendra (minors) joining with Jagdish in favour of
one Gulabi Devi which was filed during course of appeal as paper no. 79C
with the leave of the court. Such document reveals that the piece of land was
transferred in favour of Gulabi Devi existing in the same plot no. which was
involved regarding transfer of property through disputed sale deed by
defendant no.2 in favour of defendant no.1. In the sale deed executed by
 -16-
defendant no.2 along with brother of her husband in favour of Gulabi Devi
consists the description of various sale deeds executed on previous occasions
in favour of other persons. In the said sale deed the property transferred in
favour of defendant no.1 has been acknowledged by way of mentioning the
facts that the area consisting 3.25 decimal situating in plot. Araji no.20 was
transferred in favour of Girija Devi W/o Kirti Singh in lieu of consideration
Rs.6,000 on 07.08.1981. Learned counsel of appellant also contended that
the sale deed executed in favour of Gulabi Devi remain unchallenged till now
by plaintiffs of present case which results their acquiescence of accepting the
authority of their mother to alienate their respective share during course of
their age of minority.

47. On behalf of appellant/defendant no.1 certified copy of sale deed

executed by Smt. Ramdei (Mother of plaintiffs) in favour of Gulab Devi is filed
with the leave of the court. The said document is filed on record as paper
no.79c in which it has been mentioned that Jagdish S/o Sukhnandan and Smt.
Ramdei W/o Late Tribhuwan as gaurdian of Mahendra Kumar and Rajendra
transferred certain piece of land in plot no.20 in favour of Gulabi Devi on
17.03.1982. In such document it has also been mentioned that 3.25 decimal
area was transferred in the concerned plot number in favour
of Smt. Girija Devi on 07.08.1981 in lieu of consideration Rs. 6,000/- , 3.25
decimal area was transferred in favour of Yogendra Nath Maurya and Pyari
Devi in lieu of consideration Rs.10,000/- on 06.08.1981. It has also been
mentioned that the remaining area of 5 decimal was sold in favour of Smt.
Gulabi Devi on 17.03.1982.

48. The plaintiff no.1 stated in his cross examination as PW1 that he was
not acquainted with execution of sale deeds executed by his mother in favour
of persons other than defendant no.1. The plaintiffs have filed the extract of
Khasra and Khatauni on the record of lower court in which the entries of the
name of transferees found mentioned and certainly such facts would have
come in the knowledge of plaintiffs but they have not challenged sale deeds
executed by their mother in favour of persons other than defendant no.1. In
spite of knowledge of the sale deeds executed by their mother of plaintiffs in
favour of persons other than defendant no.1, the plaintiffs failed to challenge
such sale deeds. It clearly shows that the plaintiffs have accepted by their
conduct, the authority of their mother to alienate their respective shares in the
disputed plot number in favour of transferees of the concerned deeds. Any
person cannot be allowed to blow hot and cold both simultaneously. Non-
challenge of sale deeds executed in favour of Gulabi Devi, Yogendra Nath
 -17-
Maurya and Pyari Devi by plaintiffs of present case is sufficient to draw the
conclusion that they have adopted pick and choose formula in connection with
acceptance of the powers of their natural mother regarding alienation of their
property during their age of minority. Accordingly, the plaintiffs are estopped
by their acquiescence in view of their conduct in regard with non-challenging
the sale deeds executed by their mother in favour of persons other than
appellant/defendant no.1. Thus, it is concluded that the plaintiffs are
estopped by acquiescence to challenge disputed sale deed due to non
challenging of sale deeds executed by their mother in favour of persons other
than defendant no.1 even after knowledge of such deeds. Point no. 4 is
answered in affirmative accordingly in favour of appellant/defendant no.1.

49. The determinable point no.5 is as : Whether diputed sale deed is liable
to be cancelled due to reason that same was executed by natural guardian of
plaintiffs without obtaining permission from District Judge.

50. In the foregoing determined points, it has been concluded that Smt.
Ramdei had executed the disputed sale deed in favour of appellant in lieu of
consideration as natural guardian of plaintiffs as well as in the capacity of
Karta/Manager of joint family, to which plaintiffs were members at the relevant
time and even they are also residing with their mother till today. It has also
been concluded that the transfer of property belonging to minor plaintiffs by
their natural guardian as Karta of joint family was for the benefit of plaintiffs
and estate. On the basis of evidence as discussed earlier it is proved that the
interest of Smt. Ramdei (Mother of plaintiffs) was not clashing with the interest
of minor plaintiffs at the time of execution of disputed sale deed. Due to non-
challenging the sale deeds by plaintiffs executed by their mother as natural
guardian and Karta of joint family in favour of few persons other than
appellant/defendant no.1 till now in spite of knowledge of such sale deeds, it
is ascertained that the plaintiffs are estopped by acquiescence to challenge
the disputed sale deed.

51. In the above situations the question arises whether disputed sale deed
is liable to be cancelled due to only reason that the same was executed by
natural guardian/Karta of the family of the plaintiffs without obtaining
permission from District Judge.

52. In Civil Appeal no.1782 of 2019 Murugan & Ors. Versus Kesava
Gounder (Dead) Thr Lrs. and Ors., decided by Hon’ble Supreme Court
on 25.02.2019 (Reportable), it was held that the
 -18-
alienation of property belonging to minor during his age of minority by his
guardian or Karta is not void but voidable if it was wanting the permission of
District Judge under Section 8 of Hindu Minority and Guardianship Act, 1956.
Hon’ble Apex Court was further pleased to observe that only on such ground
the sale deed cannot be thrown away and it consists legal effect till its
cancellation by competent court.

53. The land alienated through disputed sale deed was recorded as
Bhumidhari in revenue records at the time of execution of sale deed and no
change or alteration has been shown by either party in revenue record entry in
respect of status of concerned plot number. At the time of execution of
disputed sale deed, plot no.20 to which alienated property was part, has been
narrated by PW1 Mahendra Kumar existing within limits of municipal area. In
the disputed sale deed the alienated property has been shown as Parti
(Barren) land and its value was diminished at the relevant time due to reason
that it was in the sape of pit. Though alienated property through disputed sale
deed was part of Gata no.20 recorded as Bhumidhari in revenue record but
same was not being cultivated at the time of its transfer. On the ratio of law
laid in Smt. Ramwati and Ors. Versus Dharmdas (supra); disputed property
comes within the purview of joint Hindu family property. The transfer was
made by natural guardian of plaintiffs and Karta of joint Hindu family; hence,
by virtue of law laid in Smt. Ramwati and Ors. (supra) by Hon’ble High Court
and also law laid in Sri Narayan Bal and Ors. Versus Sri Sridhar Sutar and
Ors. (supra) by Hon’ble Supreme Court, the disputed sale deed is not liable
to be cancelled due to only reason that the permission of District Judge was
not obtained prior to alienation of property in question.

54. For the sake of caution, if the alienated property through disputed sale
deed is treated as part of agricultural land, even then requirement of
permission under Section 8 of Hindu Minority and Guardianship Act, 1956 from
District Judge do not come into play by virtue of law laid in decisions of
Hon’ble High Court Allahabad in Ram Sunder and Ors. Versus The Board of
Revenue, U.P. Allahabad and Ors. 1984 ACJ 696; Arun Kumar and Ors.
Versus Smt. Chandrawati Agrawal and Ors. AIR 1978 Allahabad 221 and
Maya Shankar and another Versus Dy. Director of Consolidation and
Another (supra) 1983 ACJ 556.
55. In Maya Shanker and Another Versus Dy. Director of Consolidation
and Another (supra), the law laid in Sursati Devi Versus JDC (supra) was
reiterated. The decision of Smt. Sursati Devi Versus J.D.C. (supra) has
been relied upon by learned counsel of respondent due to reason best known
 -19-
to him but the law laid in such case enunciates the principle relating to non
requirement of permission of District Judge for alienation of agricultural land by
natural guardian of minor for the benefit of estate.
56. In the above circumstances it is concluded that in the situations of
treating alienated property as agricultural land as well as treating it as
ancestral joint Hindu family property, the permission of District Judge was not
required for alienation in both the situations if it is made for benefit and interest
of plaintiffs as well of estate. In the instant case, in the preceeding paragraphs
it have been concluded that the property was alienated executing disputed
sale deed for the benefit of minor plaintiffs and also of their estate. In such
situation by virtue of law laid in above discussed cited cases decided by
Hon’ble Supreme Court and Hon’ble High Court, particularly Smt. Ramwati &
Ors. Versus Dharmdas (supra); Shri Narayan Bal & Ors. Versus Sri
Sridhar Sutar & Ors. (supra) and Maya Shanker Versus D.D.C. (supra) the
impugned sale deed is not liable to be cancelled. Point no.5 is answered
accordingly in favour of appellant/defendant no.1.

57. Since the property of minor plaintiffs was transferred by their natural
mother as their guardian and Karta of joint Hindu family for their benefits as
well as benefit of their estate; hence, the sale deed is not liable to be cancelled
by way of decreeing the suit. In such circumstances the impugned judgement
and decree is not sustainable and same is liable to be quashed. Accordingly,
appeal is liable to be allowed.
Order
The appeal is allowed. The impugned judgement and decree dated
04.04.2008 passed by the then [Link] Judge (Junior Divsion) Court No.05,
Varanasi in Civil Suit No.96 of 1989 Mahendra Kumar and Another Versus
Girija Devi and Another is hereby quashed and consequently, Suit no. 96 of
1989 filed by plaintiffs stand dismissed. Parties to bear their own respective
costs.
(Narendra Bahadur Yadav)
Dated: 22.10.2019 Addl. District Judge
Court No.01, Varanasi

The judgement is signed, dated and pronounced in open court.

(Narendra Bahadur Yadav)

Dated: 22.10.2019 Addl. District Judge
Court No.01, Varanasi