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Prem Nath S/O Amar Nath Vs. Sundra Wati W/O Babu Kishori Lal and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtPunjab and Haryana High Court
Decided On
Case NumberFirst Appeal No. 11 of 1951
Judge
Reported inAIR1960P& H630
ActsTransfer of Property Act - Sections 2 and 54; Guardians and Wards Act - Sections 29; Punjab Pre-emption Act - Sections 3(5)
AppellantPrem Nath S/O Amar Nath
RespondentSundra Wati W/O Babu Kishori Lal and ors.
Cases ReferredRup Devi v. Matwal Chand
Excerpt:
- sections 80 (2) & 89 & punjab motor vehicles rules, 1989, rules 85 & 80: [t.s. thakur, cj, jasbir singh & surya kant, jj] appeal against orders of state or regional transport authority imitation held, a stipulation regarding the period of limitation available for invoking the remedy shall have to be strictly construed. that is because any provision by way of limitation is in the nature of a restraint on the remedy provided under the act. so viewed two inferences are clear viz., (1) sections 80 and 89 of the act read with rule 85 of the rules make it obligatory for the authorities making the order to communicate it to the applicant concerned and (2) the period of limitation for any appeal against the order is reckonable from the date of such communication of the reasons would imply..........sanction of the court under the provisions of section 29 of the guardians and wards act, is not a 'sale in execution of an order of a civil court' within the meaning of s. 3(5)(a) of the punjab pre-emption act, and is consequently not exempt from the law of pre-emption. it may be stated that in the reported case the guardian of the minor had applied to the court for leave to execute a sale deed which had already been drawn up and approved by the parties. leave was granted by the court and the conveyance was duly executed and registered by the parties. on these facts it was observed that the sale in that case was an ordinary private transaction which only required the sanction of the court because one of the parties to it was under disability.on this finding the transaction in the.....
Judgment:

Inder Dev Dua, J.

(1-5) On appeal Mr. Nathu Lal Wadehra has contended that the sale in question could only be effected by means of a registered document. He has placed reliance on S. 54 of the Transfer of Property Act which section has admittedly been made applicable to the areas within the municipal limits throughout the Punjab by means of a notification dated 27-4-1935. The Court below, it may be mentioned has while repelling this contention relied on S. 2(d) of the Transfer of Property Act which is to the following effect:

'2. In the territories to which this Act extends for the time being the enactments specified in the schedule hereto annexed shall be repealed tot he extent therein mentioned. But nothing herein contained shall be deemed to affect-

(a) .. ..

(b) .... .... .... .... ....

(c) .... .... .... .... ....

(d) save as provided by S. 57 and Chapter IV of this Act, any transfer by operation of law or by, or in execution of a decree or order of a Court of competent jurisdiction:

* * * * * * * * * * * *'

(6) Mr. Wadehra has drawn our attention to Salig Ram v. Barkat Ali, reported in ILR 4 Lah 164: (AIR 1924 Lah 48), in which it has been held that a sale by a guardian of the property of his ward which requires and has received the sanction of the Court under the provisions of Section 29 of the Guardians and Wards Act, is not a 'sale in execution of an order of a Civil Court' within the meaning of S. 3(5)(a) of the Punjab Pre-emption Act, and is consequently not exempt from the law of pre-emption. It may be stated that in the reported case the guardian of the minor had applied to the Court for leave to execute a sale deed which had already been drawn up and approved by the parties. Leave was granted by the Court and the conveyance was duly executed and registered by the parties. On these facts it was observed that the sale in that case was an ordinary private transaction which only required the sanction of the Court because one of the parties to it was under disability.

On this finding the transaction in the reported case was held to fall within the exceptions under S. 3(5)(a) of the Punjab Pre-emption Act of 1913. As against this decision the learned counsel for the respondents has drawn our attention to Mithan Lal v. Chuni Lal, decided by Teja Singh and Khosla, JJ. and reported in AIR 1949 EP 22. In this case also S. 3(5)(a) of the Punjab Pre-emption Act came up for construction and the expression 'in execution' was held not to have been used in that narrow technical sense in which execution of a decree takes place under the provisions of the C. P. C.; this expression was construed in a very wide sense and was held to mean 'in obedience to', 'in compliance with', or 'in accordance with'.

The learned Judges took into consideration the fact that the operation of sub-section (5) extended not only to an order of a civil Court but also to orders of criminal or revenue Courts and therefore observed that the tem 'in execution' could not but have been used in a very wide sense. In the reported case an argument was advanced by way of analogy that a sale of insolvent's property by an Official Receiver had been construed in Gurbakhsh Singh v. Sardar Singh, ILR 16 Lah 173: (AIR 1935 Lah 268), (a decision by a Full Bench to be subject to the right of pre-emption and not hit by S. 3(5)(a) of the Punjab Pre-emption Act. This argument was met among other reasons by a reference to an unreported decision by a large Bench of the Lahore High Court in Rup Devi v. Matwal Chand, LPA No. 34 of 1945, which according to Khosla, J., who was also a member of that larger Full Bench, had expressly dissented from the principle enunciated in Gurbakhsh Singh's case, ILR 16 Lah 173: (AIR 1935 Lah 268) (FB).

(7) I have bestowed by most anxious thought to the reasoning employed in the two reported cases and after considering both the views I am inclined, though not without some hesitation, to agree with the reasoning adopted in the case in AIR 1949 EP 22. Besides, this being the decision of this Court it is entitled to greater respect than the decision of the Lahore High Court. The facts of this case also bear comparatively speaking a closer resemblance of the facts of the instant case. As already stated above it was the Guardian Court which actually ordered the sale of the property by Amrit Lal Ahluwalia auctioneer and sent to him a robkar directing him to sell the property and deposit the proceeds in Court. The fact that the Court passed in this order on an application by the guardian of the minor, would not in my opinion, detract from the order dated 25th of May, 1943, being an order of the Court in compliance with which or in obedience to which the sale was in fact effected.

Indeed it was understood by all concerned at that time that the sale was being effected in accordance with and in obedience to the orders of the Court. Mr. Amrit Lal Ahluwalia in his report dated 21-6-11943, expressly says that he had effected the sale 'in obedience to the orders of the Court and in compliance with the Court's Robkar'. In this view of the matter I am of the opinion that the sale in question was not hit by the provisions of S. 54 of the Transfer of Property Act as it was a transfer in execution of an order of a Court of competent jurisdiction. It is noteworthy that there was no suggestion at the Bar that the Guardian Court was not empowered in the circumstances of this case to order sale of the minor's property; the only contention raised being that under the provision of the Guardians and Wards Act only permission of the Court need have been obtained for selling the minor's property.

This, in my opinion, does not debar the Court form actually ordering the sale and supervising the whole process in order to safeguard the interests of the minor ward for the protection of whose estate the ultimate responsibility is always that of the Guardian Court. Indeed in proceedings in which interests of minors are involved the courts being in the position of quasi-tutelage have a duty to protect their interests and in the discharge of this function have full power to control such proceedings.

(The rest of the judgment has not been printed here as it does not contain any new or important point of law.)

Falshaw, J.

(8) I agree.

(9) Appeal dismissed.


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