SANTOSH KUMAR PATRA Vs. DHIRENDRA KUMAR PATRA

JUDGEMENT

(1.) Detailed reference to the factual aspects is not necessary because the fate of this writ application depends primarily upon adjudication of questions of law.

(2.) BARE facts necessary are as follows : Petitioner and Dhirendra Kumar Patra (opposite party No. 1) are related to each other as would be evident from the following genealogy. Nabaghana| - -| |Baishab Adwaita| | | | | |Arjuna Surendra Arjuna Ramesh| | | Uhsamani | Dhirendra | | (Opp. party No. 1)Antaryami | | | |Santosh Dayanidhi Anam (petitioner) When operations under the Orissa Consolidation of Holdings and Prevention of Fragmentation of Land Act, 1972 (in short, the 'Consolidation Act') were commenced, opposite party No. 1 filed objection case No. 3044/110 to record his name in the land register of hal plot No, 1614 under hal khata No. 1126 and to correct the area from 4 decimals to 8 decimals. Objection Case No, 2953 was filed by the petitioner to correct the area of the same plot. Both the objection cases were disposed of by a common order by the Consolidation Officer, Balianta (opposite party No. 2) on 9 -2 -1982. Opposite party No. 1 claimed to have purchased the disputed property by registered sale deed No. 559 dated 23 -1 -1980 executed by his father Arjuna as uncle guardian of petitioner. Opposite party No. 1 in the said sale deed was described as a minor represented by his mother guardian Ushamani. Petitioner claimed that the property originally belonged to one Haramani Dei. By sale deed No. 4667 dated 1 -7 -1977 Haramani sold the property to the petitioner who was minor then. According to the petitioner the sale deed executed by Arjuna as uncle guardian of the petitioner in favour of his son opp. party No. 1 is illegal. With reference to the provisions of the Hindu Minority and Guardianship Act, 1956 (in short, the 'Act') it was contended that his father Surendra being the natural guardian and the sale deed having not been executed by the natural guardian, had no validity in the eye of law. Opp. party No. 2 by order vide Annexure -1 rejected both the objection cases. Opp. party No. 1 preferred Consolidation Appeal No. 124 of 1982 before the Deputy Director of Consolidation, Range II, Bhubaneswar, who dismissed the appeal and confirmed the order dated 9 -2 -1982. Opposite party No. 1 filed Consolidation Revision No. 283 of 1982, which was re -numbered as Revision Case No. 3227 of 1983 before the Commissioner, Consolidation (opp. party No. 4). The revision application was accepted by the opp. party No. 4 with the conclusion that the sale deed executed in favour of the petitioner was a benami one and the original owner was Arjuna who was competent to execute the sale deed dated 23 -1 -1980 in favour of his son (opp. party No. 1). The said order dated 18 -12 -1936 which is annexed as Annexure -3 to the writ application is assailed in this writ application.

(3.) BEFORE the Hindu Laws were condified and the Act was enacted and became operative with effect from 25 -8 -1956, minors and guardians were governed by the traditional Hindu Law. According to such law, age of majority was fifteen years in Eastern and Southern India, and sixteen years in rest of the country. The first natural guardian of the person, minor children of either sex. and his separate property, was the father, and next to him, the same position was assigned by law to the mother. However, she could be replaced and some other person could be appointed as guardian by the Will of the father. The Indian -Majority Act, 1875 was the first enactment to directly affect rules of Hindu Law relating to age of majority. The personal law of Hindus was also affected indirectly by Courts of Wards Act, enacted locally in different parts of India in the subsequent years. The Guardians and Wards Act, 1890 empowered Courts to appoint and declare guardian of a person and property and laid down detailed law relating to its power in this regard. This was a general law applicable to all guardians in respect of personal law. However, in terms of Section 17 of the said Act the Courts were directed by the Act itself to act ordinarily in accordance with the personal law of the parties in certain matters. Rules relating to guardians ad item and next friends to represent minor parties to civil proceedings as contained in the Civil Procedure Code, 1908 were made applicable to Hindu minors as well. In 1976 there has been significant modification in the law relating to guardianship ad .litem under Civil Procedure Code. 1908. No minor can now act without such a guardian in any matter without any prejudice to the provisions of Section 2 of the Indian Majority Act, 1875 [Order XXXII, Rule 1 explanation (as modified in 1976)]. Section 4(b) of the Act defines 'guardian' to mean a person having the care of the person of a minor or his property or of both his person and property and includes ; (i) a natural guardian ; (ii) a guardian appointed by the Will of the minor's father or mother ; (iii) a guardian appointed or declared by a Court; and (iv) a person empowered to act as such by or under any enactment relating to any Court of wards. 'Natural guardian' has been defined in Clause (c) of Section 4 to mean any of the guardians mentioned in section. Section 6 has relevance so far as this case is concerned and the same reads as follows : '6. NATURAL GUARDIAN OF A HINDU MINOR : The natural guardian of a Hindu minor, in respect of the minor's person as well as in respect of the minor's property (including or excluding his or her undivided interest in joint family property) are - (a) in the case of a boy or an unmarried girl - the father and after him, the mother; provided that the custody of a minor who has not completed the age of five years shall ordinarily be with the mother ; (b) in the case of an illegitimate boy or an illegitimate unmarried girl - the mother, and after her, the father ; (c) in the case of a married girl - the husband : provided that no person shall been titled to act as the natural guardian of a minor under the provisions of this section ; (i) if he has cassed to be a Hindu, or (ii) if he has completely and finally renounced the world by becoming a hermit (Vanaprastha) or an ascetic (Yati or Sanyasi) EXPLANATION : In this section, the expressions 'father' and 'mother' do not include a step -father and a step -mother.'