PARASAPPA NAGAPPA WALIKAR Vs. CHANDRAWWA

JUDGEMENT

(1.) Defendant 1 is the appellant, Respondents 1 and 2 are plaintiffs 1 and 2, and respondents 3 and 4 defendants 2 and 3. Plaintiffs 1 and 2 are minors represented by their maternal uncle as the next-friend. Plaintiff 3 is the mother of plaintiffs 1 and 2. The three plaintiffs instituted a suit for a declaration that the lease deed dated 1-4-1966 executed by the third plaintiff along with defendant 2 in favour of defendant 1 is not binding on the plaintiffs, or on such of the plaitiffs as may be found not bound by it and for joint possession of their 3/4th share along with defendant 1, or of such share to which they or any of them may be found entitled to with future mesne profits etc. Plaintiff 3 is the step-mother of defendant 2, The husband of plaintiff 3, Baji Rama Pundenawar, died on 3-3-1966 at Algur leaving behind him plaintiffs 1 to 3 and defendant 2 as his heirs. This Baji was the statutory tenant of Sy. No. 12/3 of Sanal in Jamkhandi Taluk belonging to defendant 3. The plaintiffs claim that on the death of Baji, his tenancy rights devolved on the plaintiffs and defendant 2, under Section 24 of the Mysore Land Reforms Act (Act X of 1962). Plaintiffs 1 and 2 were minors at the time of their father's death. According to the plaint allegations, plaintiff 3 was in a depressed mood and unable to understand the consequence of her action and taking advantage of such mental condition of hers, the 1st defendant, in collusion with the second defendant, induced the third plaintiff to execute a registered lease deed dated 1-4-1966 in his favour for a period of 10 years. Since fraud was practised on her by defendants 1 and 2, the said lease deed is not binding on the 3rd plaintiff. It was also alleged that the third plaintiff had no authority to lease out the suit land for a period of 10 years so far as the half share of the minor plaintiffs 1 and 2 is concerned since such an alienation offends the provisions of Section 8(2) of the Hindu Minority and Guardianship Act 1956, and is therefore not binding on them. It is also alleged that the said lease deed is detrimental to the interests of the minor plaintiffs and therefore not binding on their half share in the suit property. Defendant 1 pleaded that in pursuance of the lease deed executed by the natural guardian of the plaintiffs, he was put in possession of the property as sub-tenant. Defendant 2 supported the case of defendant 1. The trial Court decreed the suit declaring that the lease deed dated 1-4-66 is not binding on the half share of the plaintiffs 1 and 2 and that the plaintiffs are entitled to joint possession of their half share in the suit property along with defendant 1 and directed an enquiry into future mesne profits from the date of suit till the plaintiffs 1 and 2 got joint possession. The suit against defendants 2 and 3 was dismissed. Defendant 1 appealed. The Lower Appellate Court concurred with the finding of the trial Court that the interests of the minor plaintiffs 1 and 2 are not affected by the lease deed by virtue of Section 8(2) of the Hindu Minority and Guardianship Act, and the same is not binding on their share in the suit property. It dismissed the appeal.

(2.) Both the lower Courts have held that the plaintiffs have not established the fraud alleged by them in securing the lease deed from the third plaintiff. There is no reason to interfere with that finding.

(3.) Mr. Joshi, appearing on behalf of the appellants, however, contended that the sub-lease created by the lease deed, Ext. D-1, executed by the third plaintiff is valid under the provisions of Clause (1) of Section 21 the Mysore Land Reforms Act, and that the provisions of Section 8(2) of the Hindu Minority and Guardianship Act cannot override the provisions of the State Act. His contention is that the Mysore Land Reforms Act having been enacted in exercise of the powers of the State Legislature under Item 18 of the State List of Schedule VII of the Constitution of India, and the Hindu Minority and Guardianship Act, 1956 having been enacted by Parliament under the powers conferred on it under Item 5 of the Concurrent List, the State Act should prevail over the Central Act as provided in Clause (2) of Article 254 of the Constitution, since the State Act had been reserved for consideration of the President and has received his assent. As against this Mr. Chhatre contended, firstly, that Section 8(2) of the Hindu Minority and Guardianship Act has no application to the present case, and that even if it does apply, there is no repugnancy between Section 8(2) of the Central Act and Section 21 (2) of the State Act.