Dismissed

Lal Babu Giri v. the State of Bihar and Ors.

Patna HC8 Feb 2013L.P.A/949/2011

Case brief

AI extract

What is this about?

The Patna High Court dismissed a Letters Patent Appeal against the Board of Revenue's order upholding a pre-emption claim. The court held that the Board correctly refused to annul a valid title acquired under a registered Gift deed executed prior to the pre-emption application, distinguishing facts from cited precedents.

What did the court decide?

The appeal was dismissed, upholding the validity of the registration of the Gift deed.

Lal Babu Giri Vs the State of Bihar and Ors. — Property and Title | Patna HC (2013)

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Patna High Court LPA No.949 of 2011 dt.08-02-2013

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IN THE HIGH COURT OF JUDICATURE AT PATNA

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Letters Patent Appeal No.949 of 2011 IN Civil Writ Jurisdiction Case No. 13285 of 2005 =========================================================== Lal Babu Giri, S/o late Ram Pravesh Giri, resident of village Rup Rahimpur, P.O. & P.S. Marhaurah, Distt. Saran. .... .... Appellant/s Versus 1. The State Of Bihar. 2. The Additional Member, Boards of Revenue, Bihar, Patna 3. The Additional Collector, Saran at Chapra. 4. The Deputy Collector, Land Reforms, Marhaurah, P.S. Marhaurah, Dist. Saran 5. Smt. Parvati Devi, W/o Sri Uma Shanker Giri, resident of village Mubarakpur, P.O. & P.S. Marhaurah, Distt. Saran 6. Ravindra Kumar Giri. 7. Kanhaiya Kumar Giri. 8. Arvind Kumar Giri. 9. Chandan Kumar Giri, S/o Respondents no. 6 to 9 sons of Sri Uma Shanker Giri, resident of village Mubarakpur, P.O. & P.S. Marhaurah Distt. Saran. 10. Ram Babu Giri, S/o late Rampravesh Giri, resident of village Mubarakpur, P.O. & P.S. Marhaurah, Dist. Saran. .... .... Respondent/s =========================================================== Appearance : For the Appellant/s : Mr. Suresh Pd Singh No.1 Mr. Vitesh Kumar Singh Mrs. Kumari Rasmi For the Respondent/s : Mr. Mahesh Narayan Parvat Mr. Ved Prakash Srivastava For the State : Mr. Ajay, SC11 =========================================================== CORAM: HONOURABLE MR. JUSTICE NAVIN SINHA and HONOURABLE MR. JUSTICE SHIVAJI PANDEY CAV JUDGMENT (Per: HONOURABLE MR. JUSTICE NAVIN SINHA)

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Date: 08-02-2013

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C.W.J.C. No. 13285 of 2005 was preferred

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by Respondent no.5, aggrieved by the order of the Member Board of Revenue dated 30.8.2005 allowing the pre-emption application by the Appellant under Section 16 (3) of the Bihar

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Patna High Court LPA No.949 of 2011 dt.08-02-2013

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Land Reforms (Fixation of Ceiling area and Acquisition of Surplus land ) Act, 1961 (hereinafter called the Act). The writ application was allowed dismissing the pre-emption application filed by the appellant.

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Respondent No. 10, indisputably brother of the Appellant, executed a sale deed on 24.07.1996 in favour of respondent nos. 6 to 9 for 1 katha and 14 dhurs of land situated in khata no. 27, plot nos. 932 and 933, Village- Mubarakpur, P.S. Marhawarrah, District- Saran. The Sale deed was registered on 17.03.1998. A Gift deed was subsequently executed by the latter 24.9.1996 in favour of ‘Deity’ Sri Shanker Jee through respondent no.5 as the Shebait. The latter deed was also registered on 17.03.1998. The Appellant based on the claim for being a co sharer and adjoining raiyat of the vended lands filed a preemption application under Section 16 (3) of the Act on 13.4.1998 registered as land Ceiling case no.2 of 1998/99. Respondent no.5 was impleaded as respondent no.6, but the ‘Deity’ was not impleaded. No challenge was laid out to the Gift deed much less did the pleadings refer to the same. The challenge was only to a sale deed registered on 17.3.1998 in favour of other than the co sharer. An amendment application was filed on 12.12.1998 challenging the Gift deed stated to be in favour of

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Patna High Court LPA No.949 of 2011 dt.08-02-2013

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respondent no.5, making no reference to or impleading the ‘Deity’. The Vendees appeared and contested the pre-emption which was allowed by the DCLR on 09.07.1999. The Appeal by respondent nos. 6 to 9 before the Collector upset the order of the DCLR. The Appellate order was challenged by the Appellant before the Member, Board of Revenue which was allowed leading to the writ application.

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The Writ Court held that the Gift deed executed on 24.09.1996 and registered on 17.03.1998 prior to the institution of the pre-emption application, was not the subject matter of challenge in the pre-emption proceeding. The subsequent transferee (writ petitioner-respondent no.5) was not impleaded as party. Observing that no submissions had been made on behalf of the parties with regard to the exclusion of a Gift deed from scrutiny in a pre-emption proceeding, it was held that annulment of a valid title acquired under a registered Gift deed was beyond the jurisdiction of the Revenue authorities or under the Act. The finding by the Member, Board of Revenue that the deed of gift had been executed only to overcome the rigors of pre-emption did not find favour holding that preemption was a weak right and could be defeated by any lawful method.

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Patna High Court LPA No.949 of 2011 dt.08-02-2013

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Learned counsel for the Appellant submitted that prior to the execution of the Gift deed on 24.09.1996, Miscellaneous Land Ceiling Case No. 01 of 1996-1997 under Section 37 of the Act as it then stood before it was deleted, had been instituted on 18.9.1996 by the Appellant for restraining respondent nos. 6 to 9 from transferring the Lands in question. Orders for status quo were passed on 21.09.1996 and acceptance of notice refused by respondent nos. 6 to 9. The subsequent transfer contrary to the restraint order was invalid without further more. The fact that Section 37 was repealed on 26.12.1997 will not lend validity to the Gift deed executed at a time when a valid restraint order was operative. The Writ Court committed error of record in holding that the Gift deed was not challenged in Land Ceiling case no.2 of 1998/99 and respondent no.5 not impleaded. It has vitiated the entire consideration by the Writ Court.

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It was next submitted that there was a vital contradiction in the description of respondent nos. 6 to 9 as Vendees in the Sale deed dated 24.07.1996 and the Gift deed executed on 24.09.1996. The Sale deed did not describe respondent nos. 7 to 9 as minors while the Gift deed did so. If respondent nos. 7 to 9 were minors, no Sale deed could have been executed in their favour except through a guardian.

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Patna High Court LPA No.949 of 2011 dt.08-02-2013

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Conversely, if they were major the Gift deed contained a fraudulent description. These were indicative of the fact that the Gift deed had been brought into effect only for the purpose of defeating a valid claim for pre-emption, it being an undisputed fact that the Appellant was a co-sharer and adjoining raiyat. The transfer by Gift was therefore fake. Title under the Sale deed could flow only after registration, the execution of the Gift deed prior to the same was a nullity. Reliance was placed on A.I.R.2009 Calcutta 182 (Arun Bhusan Guha v. Amal Roy) and 2006 (3)PLJR 195 (SC) ( Chandrika Singh v. Arvind Kumar Singh).

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Relying on (2010) 6 SCC 441 (Suresh Prasad Singh v. Dulhin Phool Kumari Devi) referring to paragraph 21, it was submitted that preemption was a statutory right and if the conditions/requirements were fulfilled it was mandatorily required to be complied and could not be rejected simpliciter as being a weak right.

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Learned counsel for respondent no. 5, submitted that section 37 of the Act as it stood was a residuary provision. Its applicability was dependent on the existence of a prior valid proceeding under the Act. If no pre-emption proceeding under the Act had been filed much less was pending,

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Patna High Court LPA No.949 of 2011 dt.08-02-2013

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Land ceiling case no.1 of 1996/97 had no sanctity in the law much less did any so-called restraint order passed in the same have any validity in the law. Without prejudice to the same it was next urged that the alleged restraint order lost its validity on 26.12.1997 when section 37 stood deleted lending validity to the registration of the Gift deed on 17.3.1998. Without prejudice to the aforesaid, it was next submitted that no restraint order was served upon respondents 6 to 9 and the question of refusal by acceptance does not arise. The Gift deed was executed in favor of the ‘Deity’ Shankar Ji and respondent no. 5 was described as ‘Shebaiat’. The ‘Deity’ being a juristic person was required to be impleaded as a party on its own identity. The ‘Deity’ or respondent number 5 was not originally impleaded in Land Ceiling case 2 of 1998/99. The amendment application challenging the Gift deed impleaded only respondent number 5 and not the ‘Deity’. The Gift deed being prior to the institution of the pre-emption application, had to be challenged in the original application itself, as it had been registered before filing of the pre-emption application, in absence of which the pre-emption application itself not maintainable. Reliance was placed on 1971 BLJR 994 ( Ramchandra Yadav v. Anutha Yadav).

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The Gift deed was outside the purview of

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Patna High Court LPA No.949 of 2011 dt.08-02-2013

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challenge in a pre-emption proceeding under Section 16(3) of the Act. Any error in the description of the Vendees in the sale deed executed by the Vendor was not answerable by the Vendees and the description in the Gift deed made by them shall take precedence.

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No one appeared on behalf of respondent nos. 6 to 9 before the Writ Court despite valid service of notice and none has appeared before us also despite valid service of notice.

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We have considered the submissions and the materials on record. No submissions have been made before us on behalf of the Appellant with regard to the inapplicability of a proceeding under Section 16(3) of the Act to a Gift deed. If that were not enough, the ‘Deity’ in whose favour the Gift deed was executed being a juristic person was never impleaded as a party at any stage of the pre-emption proceedings. This view taken by us is fortified by AIR 1978 Patna 330 (Laxmi Narayan v. State of Bihar) holding that the legal ownership under the endowment vests in the Idol. Under the Hindu Law the ‘Deity’ is a ‘juristic entity’ vested with the capacity of receiving gift and holding property effected through a human agency called by whatever name but only in the capacity of a Manager or custodian. Whether it be Land Ceiling case no. 1 of 1996/97 or Land Ceiling

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Patna High Court LPA No.949 of 2011 dt.08-02-2013

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case no. 2 of 1998/99 both suffered from this defect. We therefore do not consider it necessary to decide the maintainability of proceedings under Section 37 of the Act, the restraint order or the effect of deletion of the provision.

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The issue whether respondent nos. 6 to 9 were minors or major is a mixed question of law and fact. The Sale deed was executed by the vendor respondent no. 10. Any misdescription by him of the vendee cannot bind the vendee more so when the latter has executed another deed in pursuance of the same describing its own status. Moreover we do not find that this question has been raised at any earlier stage of the proceedings.

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Chandrika Singh (supra) is distinguishable on its own facts. A Sale deed was executed. Before its registration it was sold to another. After the first deed was registered, a preemption application was filed. The objection was that the subsequent purchaser had not been impleaded. The second sale deed was registered after institution of the pre-emption proceeding. In the present case the sale deed was executed on 24.07.1996 and the Gift deed executed on 24.9.1996. Both were registered the same day on 17.3. 1998 and shall relate back to the date of their respective execution lending validity to the same.

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Patna High Court LPA No.949 of 2011 dt.08-02-2013

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Arun Bhusan Guha ( supra) only lays down the well established principal that execution without registration cannot confer a valid title.

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The order under challenge requires no

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interference.

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The appeal is dismissed.

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