Madhya Pradesh High Court
Prem Bai vs Smt. Neelam Jain on 11 March, 2025
Author: Gurpal Singh Ahluwalia
Bench: G. S. Ahluwalia
NEUTRAL CITATION NO. 2025:MPHC-GWL:6188
1 SA. No. 1725 of 2024
IN THE HIGH COURT OF MADHYA PRADESH
AT G WA L I O R
BEFORE
HON'BLE SHRI JUSTICE G. S. AHLUWALIA
ON THE 11th OF MARCH, 2025
SECOND APPEAL No. 1725 of 2024
PREM BAI AND OTHERS
Versus
SMT. NEELAM JAIN AND OTHERS
Appearance:
Shri Rajeev Shrivastava- Advocate for appellants.
None for respondents.
JUDGMENT
This second appeal, under Section 100 of C.P.C., has been filed against
the judgment and decree dated 29/04/2024 passed by Second District Judge,
Ashoknagar in RCA No.68/2023 arising out of judgment and decree dated
03/11/2023 passed by Third Additional Judge to the Court of Ist Civil Judge
Senior Division, Ashoknagar in RCS A No.89/2018.
2. The appellants are the defendants whereas respondent No.1 is the
plaintiff.
3. Respondent No.1 filed a civil suit claiming that she is the owner of
Survey No.174/2/1 area 2.263 hectares situated in village Shankarpur Magarda,
Tehsil and District Ashoknagar. The said land was purchased from the previous
vendor Kamaliya Bai, Rajkumar, Amar Singh, Radha Bai and Puniya Bai after
obtaining due permission from the Collector. It is the case that out of total area
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2.263 hectares of survey No.174/2/1, 2 hectares of land was sold in favour of
the plaintiff by registered sale deed dated 12/07/2004 for a consideration
amount of Rs.5,00,000/- and the actual possession of the land was also given
0.263 hectares was remaining and accordingly, the remaining land i.e. 0.263
hectares was sold by the vendors to the plaintiff by registered sale deed dated
29/07/2011 and accordingly, it was pleaded that the plaintiff became the owner
and in possession of entire 2.263 hectares of land bearing survey No.174/2/1.
The name of plaintiff was also mutated in the revenue records and even Bhu-
adhikar Pustika was also issued. In the month of June, 2017 when the plaintiff
went to the disputed property, then she found that on a part of the land
belonging to plaintiff, defendants have encroached upon and by hiring
labourers they are trying to construct a building.
4. Accordingly, it was pleaded that the area shown as A ad-measuring 900
sq.ft. of land has been encroached upon by the defendant No.1 whereas the
defendant No.2 has encroached upon 200 sq.ft. of land which is shown as B,
defendant No.3 has encroached upon 900 sq.ft. of land which is shown as C,
defendant No.4 has encroached upon 600 sq.ft. of land which is shown as D,
defendant No.5 has encroached upon 300 sq.ft. of land which is shown as E,
defendant No.6 has encroached upon 600 sq.ft. of land which is shown as F,
defendant No.7 has encroached upon 600 sq.ft. of land which is shown as G
and all of them have constructed a Kachha/Pakka house. Accordingly, it was
pleaded that defendants have encroached upon about 2.5 Bigha of land
belonging to the plaintiff and when the plaintiff tried to stop the defendants,
then they extended a threat that plaintiff would be falsely implicated in a case
under Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act. It
was alleged that the defendants have no right or title over the land in dispute
and taking advantage of their caste, they are out and out to pick up a quarrel
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and accordingly, a suit was filed for declaration of title of the plaintiff over
survey No.174/2/1 area 2.263 hectares as well as for possession and mesne
profit @ Rs. 500.
5. The defendants No.1, 3 to 5 filed their written statement and denied the
plaint averments. It was pleaded that the defendants No.2 to 5 had entered into
an agreement to purchase from the defendant No.1/vendor and on the basis of
agreement to sell, they are in possession of the land in dispute and are residing
over there after constructing a house. Similarly, defendant Nos.7 to 10 also
filed their written statement and submitted that they had purchased the land in
dispute from the original vendor and since then they are in possession by virtue
of the agreement to sell.
6. On the basis of the pleadings of the parties, the Trial Court framed issues
and after recording of the evidence of the parties decreed the suit. Being
aggrieved by the judgment and decree dated 03/11/2023 passed by Third
Additional Judge to the Court of Ist Civil Judge Senior Division, Ashoknagar in
RCS A No.89/2018, defendants filed different appeals, which were registered
as RCA No.61/2023 and RCA No.68/2023, By a common judgment the
appellate Court i.e. Second District Judge, Ashoknagar by judgment and decree
dated 29.04.2024 passed in RCA No.61/2023 and RCA No.68/2023 dismissed
the appeals.
7. Challenging the judgment and decree passed by the Courts below, it is
submitted by counsel for appellant that it is clear that the land in dispute was
not the exclusive property of the vendors but Kalawati has alienated the share
of minors also without obtaining permission from the competent Court
therefore, the sale-deed executed in favour of the plaintiff is void on the ground
of violation of mandatory provisions of Section 8 (3) of Hindu Minority and
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Guardianship Act, 1956 and proposed the following substantial question of law.
"1- Whether both the court below has committed error in holding that
the Kamaliya Bai is entitled for sale out the minor property Manoj
and Rajkumar without seeking permission from the competent court
under the provision of guardian wards act.
2- Whether both the court below has committed error in holding the
possession of plaintiff from the date of filing of suit or from the date
of execution of sale deed while in the light of admission made by the
Neelam Jain that at the time of execution of sale deed the possession
has not given to her.
3- Whether both the court below has committed error in holding that
the Kamaliya Bai who is the grandmother of minor, can act as a
guardian while the natural mother is survive.
4- Whether both the court below has committed error in not admitting
the possession of defendants at the time of filing of suit and without
payment of advolerum court fees upon the sale deed the decree of
possession has been wrongly passed in favour of plaintiff.
5- Appellant has reserving his right to proposed any other suitable
substantial question of law if at the time of admission of the appeal."
8. Heard learned counsel for the parties.
9. The appellants are claiming the title on the basis of agreement to sell.
10. The moot question for consideration is as to whether, the agreement to
sell would result in transfer of title or create interest in property in favour of
intending purchaser or not?
11. The question is no more res integra.
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12. The Supreme Court in the case of Indian Overseas Bank Vs. M.A.S
Subramanian and Ors. by judgment dated 07.01.2025 passed in Diary
No..38616/2018 has held as under:-
"6. It is well settled that an agreement for sale in respect of
an immovable property does not transfer title in favour of the
purchaser under the agreement. In view of Section 54 of the
Transfer of Property Act, 1882, an agreement for sale does not
create any interest in the property. The only mode by which an
immovable property worth more than Rs.100/- (Rupees one
hundred) can be sold is by a sale deed duly registered in accordance
with the Indian Registration Act, 1908."
Thus, it is clear that the agreement to sell does not create any interest or
transfers any title in the property. However, the intending purchaser can always
protect his possession in the light of Section 53-A of Transfer of Property Act
provided he was ready and willing to perform his part of contract or has
performed his part of contract. It is not the case of the appellants that they are
entitled to protect their possession by virtue of Section 53-A of Transfer of
Property Act. Therefore, even otherwise the appellants are not entitled to
protect their possession for the simple reason that they have failed to prove the
basic ingredients before taking advantage of Section 53-A of Transfer of
Property Act.
Whether the sale deed executed in violation of Section 8(3) of Hindu
Minority and Guardianship Act is a void document or is a voidable
document ?
13. The Supreme Court in the case of Murugan v. Kesava Gounder
reported in (2019) 20 SCC 633 has held as under:-
21. The question is as to whether by execution of the release
deed dated 24-3-1986 in favour of the plaintiffs, there was
repudiation of the alienation made by Balaraman. The release deed
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has been brought on the record as Annexure P-1. A perusal of the
release deed does not indicate that there is any reference of
alienation made by Balaraman in favour of the defendants. There
being no reference of the alienation made by Balaraman on behalf
of minor, there is no occasion to read release deed as repudiation of
the claim on behalf of the minor. Section 8(3) gives a right to the
minor or any person claiming under him, the relevant words in
Section 8(3) are "at the instance of the minor or any person
claiming under him". Thus, alienation made on behalf of the minor
can be avoided by minor or any person claiming under him. In
event, minor dies before attaining majority, obviously, his legal
heirs will have right to avoid the alienation.
14. The Supreme Court in the case of Amirtham Kudumbah v. Sarnam
Kudumban reported in (1991) 3 SCC 20 has held as under:-
14. In the instant case, on the facts found, the transfer of the
property made by the guardian was a voidable transaction and it
was, therefore, open to the minor to challenge it and seek recovery
of possession. Such a right of the minor is a right or interest in
property which he himself or "any person claiming under him" may
enforce by instituting a suit [Section 8(3) of the Guardianship Act].
"Any person claiming under him" must necessarily include a
purchaser.
15. Section 8(3) confers a right of suit in the special circumstances
postulated in that provision. The object of the Act being the
protection of the minor, the legislature has thought it fit to confer a
right of suit in certain circumstances not only on the minor, but also
on a person to whom the minor has transferred his rights. The right
transferred is an interest in property which is capable of
enforcement at the instance of the transferee as it was at the instance
of the ex-minor prior to the transfer. Such a provision, intended
specially for the protection of the interests of the minor, must be
read in harmony and consistently with the general provisions
contained in Section 6 of the T.P. Act. [See J.K. Cotton Spinning &
Weaving Mills Co. Ltd. v. State of U.P. [(1961) 3 SCR 185, 194 :
AIR 1961 SC 1170 : (1961) 1 LLJ 540] and Ashoka Marketing
Ltd. v. Punjab National Bank [(1990) 4 SCC 406 : JT (1990) 3 SC
417] ].
16. The transfer made by the father during his son's minority was
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voidable at the instance of his son who was the real owner, and any
person purchasing such property from the natural guardian obtained
only a defeasible title. The minor retained a right in the property to
defeat existing adverse claim, and such right is an assignable right.
We are in complete agreement with what has been stated on the
point in Palaniappa Goundan v. Nallappa Goundan [AIR 1951
Mad 817 : (1951) 1 MLJ 265] and in P. Kamaraju v. C.
Gunnayya [AIR 1924 Mad 322 : 45 MLJ 240 : 1923 MWN 756] .
We do not agree with the contrary view expressed on the point
in Jhaverbhai Hathibhai Patel v. Kabhai Becher Patel [AIR 1933
Bom 42 : 34 BLR 1512] ; Mon Mohan Bhattacharjee v. Bidhu
Bhusan Dutta [AIR 1939 Cal 460 : 43 CWN 295 : 69 CLJ 188]
and Palani Goundan v. Vanjiakkal [ILR 1956 Mad 1062 : AIR 1956
Mad 476].
15. Thus, it is clear that the sale deed executed in violation of Section 8(3) of
Hindu Minority and Guardianship Act is violable at the instance of the minors.
16. By no stretch of imagination the said conveyance can be treated as void.
In the present case, minors have not challenged the two sale deeds executed in
favour of the plaintiff. Therefore, sale deeds executed in favour of plaintiff
cannot be declared as void in absence of challenge by the minors or at the
instance of the appellants.
17. No other argument was advanced by counsel for the appellants.
18. As no substantial question of law arises in the present appeal,
accordingly, judgment and decree dated 29/04/2024 passed by Second District
Judge, Ashoknagar in RCA No.68/2023 is hereby affirmed.
19. The appeal is hereby dismissed in limine.
(G.S. Ahluwalia)
Judge
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