K.P. Singh, J.
1. This writ petition is directed against the judgment of the Additional Civil Judge Bijnor, dated 13-5-76 in Revenue Appeal No. 243/75, Jitendra Vir Singh v. State of U. P.
2. The prescribed authority through its judgment dated 28-2-75 has declared 35.95 acres surplus area of the petitioner.
3. The only point which appears to have been argued before the appellate authority was that the petitioners wife Smt. Vinod Kumari had executed certain sale deeds on behalf of her sons which were wrongly ignored by the prescribed authority. The sama point has been urged before me.
4. The learned counsel for the petitioner has also contended before me that his un-irrigated land has been wrongly treated as irrigated one.
5. The learned counsel for the State has tried to refute the contentions and has submitted that the appellate authority has correctly ignored the sale deed executed by Smt. Vinod Kumari on behalf of the minor sonsand he has further submitted that the question of unirrigated land was neither urged before the appellate authority nor that plea has been taken before this court in writ jurisdiction.
6. I have examined the contentions raised on behalf of the parties and I think that the appellate authority has correctly held that Smt. Vinod Kumari was not the natural guardian of the minor sons of the petitioner and she was not competent to execute the sale deeds on behalf of the minor sons. Moreover, it appears that the will through which tha petitioner's father Randhiv Singh had allegedly appointed Smt. Vinod Kumari as the guardian of the petitioners' minor sons was not filed before the ceiling authorities. In this view of the matter the petitioner cannot contend that Smt, Vinod Kumari was the appointed guardian and she was fully entitled to execute various sale deeds.
7. Shri Virendra Singh brief holder for the learned counsel for the petitioner, has vehemently urged before me that in accordance with Section 28 of the Guardians and Wards Act 1890 Smt. Vinod Kumari was fully entitled to execute sale deeds on behalf of the minor sons of the present petitioner.
8. Section 28 of the Guardians and Wards Act 1890 reads thus :--
'Where a guardian has been appointed by will or other instrument his power to mortgage or charge, or transfer by sale, gift, exchange or otherwise, immovable property belonging to his ward is subject to any restriction which may be imposed by the instrument, unless he has under this Act been declared guardian and the court which made tha declaration permits him by an order in writing, notwithstanding the restriction, to dispose of any immovable property specified in the order in a manner permitted by the order.'
9. In view of the aforesaid provision, the petitioner could claim the benefit of the guardian having been appointed by will if he had produced the will before the ceiling authorities. In the present case, it is evident that the will has not been produced before the ceiling authorities nor there is any categorical averment in the writ petition that the will has been proved by secondary evidence before the ceiling authorities. In the absence of the will and its legal proof, the petitioner cannot desire (sic) (derive?) any benefit out of the provisions of Section 28 of the Guardians and Wards Act. I think that the submissions made by the learned brief-holder have no force.
10. As regards the petitioner's claim of unirrigated land, he has not urged this pointbefore the appellate authority nor he has made necessary averments in the writ petition. It would not be proper exercise of discretion to permit him to rake up the points during the course of arguments here. Accordingly I am not inclined to entertain the petitioners' claim with regard to unirrigated land at this stage.
11. For the reasons given above the writ petition lacks merit and it is accordingly dismissed but I make no order as to costs.