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Harnam Singh Vs. Smt. Kamla Devi - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtHimachal Pradesh High Court
Decided On
Case NumberCivil Revision No. 26 of 1970
Judge
Reported inAIR1971HP25
ActsCode of Civil Procedure (CPC) , 1908 - Section 151; ;Guardians and Wards Act, 1890 - Section 31
AppellantHarnam Singh
RespondentSmt. Kamla Devi
Appellant Advocate S. Malhotra, Adv.
Respondent Advocate Chhabil Dass, Adv.
DispositionPetition allowed
Cases Referred(Sultan Singh v. Hashmat Ullah). That
Excerpt:
- .....issued but to the public at large and not to any specific person. no one eame to object and the learned district judge, after examining two witnesses, arrived at the conclusion that it was evidently advantageous to the minors if the land is sold and the money invested in the improvement of their other land. accordingly he granted the permission to sell the land, with one small direction that the sale-deed should be shown to the court before it is finalised.2. this order he made on 24-11-1969. subsequently, it seems, one harnam singh appeared, who claimed to be the uncle of the minors. he made an application for review before the learned district judge and asserted as he has done in this court, that the minors already possessed other land yielding an income of rs. 10,000/- per annum.....
Judgment:

D.B. Lal, J.

1. This is a civil revision and has been directed against the order dated 9th June, 1970 of the District Judge, Dharamsala. Smt. Kamal Deyi being the mother and natural guardian of her minor sons, Karam Singh (13 years), Bir Singh (11 years) and Sukh Dev Singh (8 years), applied under Section 8 of the Hindu Minority and Guardianship Act before the District Judge, Kangra for permis-sion to sell a parcel of land situate at Khan-pur Chak Indora and belonging to the minors. It was stated that the said land is lying 'banjar' and has been adversely affected by river-action, so much so that no crops ever yielded out of it. There is a close vicinity of river Beas and the process of dilluvion influences the land. As such, it was stated that the said land be permitted to be sold in the interest and welfare of the minors. The usual notice was issued but to the public at large and not to any specific person. No one eame to object and the learned District Judge, after examining two witnesses, arrived at the conclusion that it was evidently advantageous to the minors if the land is sold and the money invested in the improvement of their other land. Accordingly he granted the permission to sell the land, with one small direction that the sale-deed should be shown to the Court before it is finalised.

2. This order he made on 24-11-1969. Subsequently, it seems, one Harnam Singh appeared, who claimed to be the uncle of the minors. He made an application for review before the learned District Judge and asserted as he has done in this Court, that the minors already possessed other land yielding an income of Rs. 10,000/- per annum and besides that, they also possessed cash certificates worth Rs. 25,000/-. That being the position, there was hardly any necessity for effecting the sale of the disputed land. As such there was a danger of the property being squandered away by the natural guardian. Therefore, he asked for a review by the learned District Judge of his previous order. After hearing Harnam Singh, the learned District Judge, however, found that he had no power to review his own decision and on this short ground, the application of Harnam Singh has been dismissed on 9th June, 1970. It is against this second order of the learned District fudge that Harnam Singh has come up in revision.

3. The learned counsel for the petitioner contended with some insistence that the learned District Judge has failed to exercise a jurisdiction which was vested in him. According to the learned counsel, he could revise his previous order under inherent jurisdiction and Section 151 of the Civil Procedure Code was available for that end. According to the respondent, the Court had become functus officio and as such it was no longer open for it to have revised its previous order.

4. It would be appropriate, at this stage, to point out the provisions which have been made applicable to proceedings under Section 8 of the Hindu Minority and Guardianship Act. A perusal of that Section would disclose that permission to sell, or for any other alienation specified therein, can only be granted by that Court where it is a case of necessity or for anevident advantage to the minor. It is further provided in Clause (5) of Section 8 of the Act that the application under Section 8 for obtaining such permission would be treated in all respects as if it were an application under Section 29 of the Guardians and Wards Act, 1890. Then it is provided therein that Sub-sections (2), (3) and (4) of Section 31 of the Guardians and Wards Act, 1890, are applicable and the Court shall observe the procedure laid down therein. When we look up these provisions contained in Section 31 of the Guardians and Wards Act, 1890, we find the details regarding information which is required to be given to the Court and besides that, we also find that the Court may, in its discretion, attach to the permission some other conditions, particularly the condition for the sale to be made to the highest bidder by public auction and that the proceeds of such sale to be paid into Court, or to be disposed of or invested, as ordered by the Court. It is also laid down that a notice in respect of the application is to be sent to any relative or friend of the ward who should, in the opinion of the Court, receive notice thereof and thereafter the Court has to hear and record the statement of any person who appears in opposition to the application. It is pertinent to note that a notice to a relation or friend is required to be given, and the petitioner before us being uncle was certainly a relation and a notice to him was to be given. Such a notice was never given to him and that is why he was delayed in making the application for review before the learned District Judge. All this detailed procedure has been prescribed to safeguard the interest of the minor.

5. It has to be well understood, that the scheme of the Guardians and Wards Act, 1890 and for that matter the scheme of the Hindu Minority and Guardianship Act is meant to protect and upkeep the interest and welfare of the minor both as to his person and property. Any action on the part of the guardian which is likely to affect adversely the interest of the minor, if preserved on the ground of any technicality under law is bound to militate against the schemes of these Acts. As such, under its inherent jurisdiction, in my opinion, the learned District Judge should have interfered and corrected any error of judgment, specially when facts were alleged by the petitioner which, if proved, could as well determine the right of the natural guardian to apply for such permission to sell the properties. The earliest case to be considered in this connection is reported in (1907) ILR 31 Bom 590 (Nagardas Vachraj v. Anandrao Bhai). The Court was considering Section 48 of the Guardians and Wards Act, 1890 which provides that, subject to appeal or revision under the Civil Procedure Code, an order made under that Act shall be final and shall not beliable to be contested by suit or otherwise. The learned Judge held that judging from the analogy of English practice, there can be no doubt that in these miscellaneous matters the Judge sitting in chambers and making orders from petitions and applications, has the power to vary, alter, modify or set aside his own orders when he finds that the order is one which ought riot to have been made and that the order is one that requires, in the interest of justice, to be dealt with in that way. A similar view was taken in AIR 1924 Nag 269 (Sonba v. Narayan), AIR 1958 Pat 410 (Walima Khatoon v. Md. Kabiruddin) and AIR 1959 Mys 150 (V. Munisamappa v. Krishnamma). In the Patna case, the inherent jurisdiction of the Court under Section 151 of the Civil Procedure Code was brought in and the previous order which was ex parte, as in this case, was set aside. In the Mysore case, it was emphasised that the orders made under the Guardians and Wards Act are always of a temporary character; it is always open to the Court acting in the interest of the welfare of the minor to vary, alter or rescind the orders which might have been previously made under the provisions of the Act. In this connection, reference can also be made to 1916 Pun LR 111 = (AIR 1915 Lah 356) (Sultan Singh v. Hashmat Ullah). That was a case under Sections 29 and 31 of the Guardians and Wards Act, 1890, and the Court had not fixed an approximate price nor did it ascertain what was to be sold and the value of it. It was held that it was not beyond the power of the Court to intervene and stop the sale, if it finds something detrimental to the ward's interest is contemplated. In the instant case, as well, the Court neither fixed any approximate price nor did it care to write that the sale should take place by public auction, or that the proceeds of such sale should be invested in any particular manner. That was all contemplated under Section 31 of the Guardians and Wards Act, 1890. Therefore, interference by the learned District Judge was very essential to protect the interest of the minors. It was, therefore, in the circumstances of the case, for the Court to have acted under its inherent powers under Section 151 of the Civil Procedure Code. It was then contended that the review petition, firstly, was not maintainable and secondly, it had also become time-barred because the limitation prescribed is only 30 days for such application. In view of the fact that I do propose to remit this case to the learned District Judge for assuming jurisdiction and considering it on merit, I do not propose to give any opinion on these questions of both law and fact which are directly involved in this case.

6. Holding, as I do, that the learned District Judge had the jurisdiction to vary, alter, modify or set aside his own orders, the petition is to be allowed so thatthe case is decided on merit. It is open for the lower Court to decide as to whether the objections of the petitioner merit any consideration and if so, would it be in the interest of the minors to set aside the permission of sale, or to alter, or modify it in a manner considered fit and proper by the Court. The Court has further to decide as to whether some conditions are to be given in the sale proclamation, fixing approximate value of the property and prescribing a mode of conducting the sale.

7. The petition is, therefore, allowed and the order of the learned District Judge is set aside. The case is remitted for decision in accordance with law. No order is made as to costs.


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