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Swaku Vs. Hemanand - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtHimachal Pradesh High Court
Decided On
Case NumberMisc. Second Appeal No. 73 of 1969
Judge
Reported inAIR1972HP31
ActsTransfer of Property Act, 1882 - Section 123; ;Hindu Law; ;Himachal Pradesh Abolition of Big Landed Estates and Land Reforms Act, 1954 - Section 11(2)
AppellantSwaku
RespondentHemanand
Appellant Advocate P.N. Nag, Adv.
Respondent Advocate D.P. Sud, Adv.
DispositionAppeal allowed
Cases Referred(Delhi). Smt. Sarswati v. Bhagtu).
Excerpt:
- .....contended that the gift was invalid because no acceptance was made of the gift on behalf of the minor hemant kumar.2. the two land-owners contested the petition on the allegations, that the gift was accepted by the father of hemant kumar who is grandson of parmanand. it was then stated that hemant kumar had no other means of livelihood and as such his right, title and interest in the property could not be acquired by the tenants.3. the learned compensation officer granted the petition and conferred proprietary rights upon the tenants and fixed the amount of compensation. the land-owners came in appeal before the learned district judge and their appeal was accepted. it was held that the gift was properly accepted by the father of the minor and hence was a valid gift. it was, however,.....
Judgment:

D.B. Lal, J.

1. Sidhu and Swaku appellants, were petitioners before the Compensation Officer under Section 11 (1) of the Himachal Pradesh Abolition of Big Landed Estates and Land Reforms Act, 1953 (hereinafter to be referred as the Abolition Act) and they claimed to be tenants of 6-7-6 bighas of land situate in Khasra Nos. 309. 578 and 608 of village Baggi in Tehsil Sadar of Mandi District. The petition was filed against Parmanand and Hemant Kumar who was then minor the latter being land-owner of the disputed land which, according to the petitioners, was gifted to him by Parmanand on 16-9-1963. It was contended that the gift was invalid because no acceptance was made of the gift on behalf of the minor Hemant Kumar.

2. The two land-owners contested the petition on the allegations, that the gift was accepted by the father of Hemant Kumar who is grandson of Parmanand. It was then stated that Hemant Kumar had no other means of livelihood and as such his right, title and interest in the property could not be acquired by the tenants.

3. The learned Compensation Officer granted the petition and conferred proprietary rights upon the tenants and fixed the amount of compensation. The land-owners came in appeal before the learned District Judge and their appeal was accepted. It was held that the gift was properly accepted by the father of the minor and hence was a valid gift. It was, however, held that the minor Hemant Kumar was not possessed of any means of livelihood and therefore his right, title and interest of the property could not be acquired. Accordingly the petition was dismissed. The tenants have now come up in this second appeal under Section 104 of the Abolition Act.

4. So far as the gift deed (Ex. RA) is concerned, it is a registered document. The entry was made in the revenue record in respect of this gift. The recital in the deed itself indicated that possession was delivered to the donee. The presumption is that the possession was delivered to the natural guardian of the donee, namely his father. Apart from this, the donee's father appeared as witness in the case and affirmed that he accepted the gift on behalf of the minor. As such the Court of first appeal rightly held that the gift was validly accepted and was binding on the parties.

5. However, the learned counsel for the appellant raised a new ground of contention. It was urged by him that the minor Hemant Kumar has since become major. The fact is not disputed by the respondent. A perusal of Section 11 (2) of the Abolition Act will show that a minor can only get the benefit under Clause (2) of the Section 11 during his minority and not beyond it. In other words, if the minor becomes major during the pendancy of the proceeding, he can no longer avail himself of the protection afforded by Clause (2) of Section 11 of the Acquisition Act. It cannot be denied, that subsequent events, which affect the rights and liabilities of parties in a proceeding are taken into consideration while determining points of controversy which arise in such proceeding. In other words, if Hemant Kumar has become major, the tenants can certainly be permitted to take up the plea that any disability of the minor land owner regarding his means of livelihood, will no longer stand in their wav for acquisition of proprietary rights.

In the scheme of the Abolition Act, it is nowhere prohibited that subsequent attainment of majority by a minor landowner would nonetheless afford him the protection of Clause (2) of Section 11 of the Act, V.S. Deshpande, J. in MSA No. 6 of 1968 (Delhi). Smt. Gian Devi v. Rijju was considering a very much similar situation. In that case, the land-owner had died during the pendency of the proceeding and he was succeeded by his widow and two minor sons. The learned Judge took note of this subsequent event and permitted the minors to take up the plea regarding means of livelihood under Clause (2) of Section 11 of the Abolition Act. This case has been followed by my lord the Chief Justice in MSA No. 38 of 1969 (Delhi) and MSA No. 39 of 1969 (Delhi) (judgment delivered in MSA No. 39 of 1969 (Delhi). Smt. Sarswati v. Bhagtu).

6. It is, therefore, evident that the tenants' claim for proprietary rights cannot be defeated on the ground that the minor Hemant Kumar did not possess any means of livelihood, besides the income which he derived from the disputed land. Such a plea is no longer open to him and the tenants' petition is bound to succeed. It is manifest, merely the filing the petition when obviously the proceedings are supposed to be pending being in second appeal before this Court, does not give any vested right to the respondents and hence the subsequent event of Hemant Kumar having attained majority, will reflect upon the decision to be arrived at.

7. In the result, the appeal is allowed and the judgment and the decree of the learned District Judge are set aside. The petition of the appellant under Section 11 (1) of the Abolition Act shall stand granted, and the judgment and the decree of the learned Compensation Officer are restored.

8. In the special circumstances of the case, no order is made as to costs.


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