S.N. Jha and M.Y. Eqbal, JJ.
1. This letters patent appeal is directed against judgment and order of a learned Single Judge of this Court setting aside the orders of the District Sub Registrar, Gaya, directing compulsory registration of a sale deed under Sections 73/74 of the Indian Registration Act.
2. The short facts of the case are that Rajendra Prasad Sharma, respondent No. 1 herein, executed a sale deed with respect to parcels of land situate in the districts of Gaya and Patna in favour of the appellants which was presented for registration at Jehanabad Sub Registry. He later backed out and did not appear to admit the execution before the Registring authority. The Sub Registrar, Jehanabad, in the circumstances, refused to register the deed. The appellants herein made an application under Section 73 of the Registration Act. A plea was taken on behalf of respondent No. 1 that he was minor on the date of execution of the sale deed and, therefore, had no disposing capacity. The District Sub-Registrar framed three questions for decision, namely, (a) whether the opposite party i.e. respondent No. 1 herein had executed the sale deed in question after going through the contents of the deed, (b) whether the opposite party at the time of executing the sale deed was minor and (c) whether the guardianship certificate issued by the District Judge, Patna, dated 22.9.95 in favour of Ram Naresh Singh (uncle of respondent No 1) as guardian will have any effect on registration of the sale deed. The District Sub-Registrar examined witnesses and came to the conclusion that the respondent had executed the sale deed with full awareness of its contents. He, however, declined to answer the second question as, in his opinion, having regard to the nature of the proceeding under Section 73 of the Registration Act the question of minority could not be gone into. He observed in this connection that had the proceeding been under Section 72 of the Act, which provides for appeal against an order refusing to register document on any ground other than denial of execution, the question could have been decided. Having declined to answer the second question, he did not consider it worthwhile to examine the third question either as the same was inter-linked with the second question. However, in view of his finding on the first question to the effect that the respondent had executed the sale deed after having gone through the contents and with full awareness thereof he directed the registration of the sale deed under Section 75(1) of the Registration Act. The said order was challenged by respondent No. 1 by way of writ petition in this Court in C.WJ.C. No. 2114 of 1980.
3. The learned Single Judge in his judgment under appeal held that in view of certificate granted by the District Judge under Section 7 of the Guardians and Wards Act and the provisions of Section 48 of that Act it was not open to the Registration authority to go behind the order of the District Judge about the minority of the respondent. He observed in this connection that 'whenever question of minority of a person becomes involved, the restriction under Section 48 will place a clog on all courts and authorities from taking a contrary view.' He, accordingly, set aside the order of the District Sub-Registrar. The appellants have come up in appeal.
4. The point for consideration is whether the certificate under Section 7 of the Guardians and Wards Act is a conclusive proof of one's age and whether Section 48 of that Act forbids any kind of enquiry including suit in regard.
5. The traditional law vests the guardianship of orphan minors whose parents are not alive in the sovereign as parents patire. In course of time the law regarding guardianship was codifided in the form of legislative enactments. One such enactment is the Guardians and Wards Act, 1890. Without being exhaustive as to the evolution of the law on the point it may be stated that the traditional concept of the sovereign being the guardian of the orphan minor has since changed. It is now the Courts within whose local jurisdiction the minor resides, which is deemed to be ultimate guardian of the minors.
6. It would be appropriate at this stage to notice the scheme of the Guardians and Wards Act under which the certificate in question has been granted. Section 7 empowers the Court, which has been defined under Section 4(5) of the Act to mean the District Court, to appoint guardian of person and/or property of a minor or declare a person to be such guardian where the Court is satisfied that such certificate declaration is for the welfare of the minor. Section 8 enumerates the categories of persons, who are eligible to make application for such certificate declaration. Section 9 specific the Courts which have jurisdiction to entertain such applications. Section 10 prescribes the format of the application. Section 11 lays down the procedure for disposal of the application. Section 12 empowers the Courts to make interlocutory order of the kind mentioned therein. Section 13 provides for taking of evidence before final order is passed. Section 17 contains the guidelines which are to be kept in mind in appointing guardian. The rest of the provisions of the Act are not required to be seen for the purpose of this case except Section 48, which has been relied upon by the learned Single Judge and, may therefore, be quoted:-
48. Finally of other orders:- Save as provided by the last foregoing section and by Section 622 of the Code of Civil Procedure, 1882 (14 of 1882) (read, Section 115 of the Civil Procedure Code, 1908), an order made under this Act shall be final and shall not be liable to be contested by suit or otherwise.' (Words within brackets added.)
7. It has been contended on behalf of the appellants that having regard to the scheme of the Act and the nature of the adjudication contemplated therein, the question of age i.e. minority of the person is not required to be gone into by the Court. It was pointed out that so far as the instant case is concerned, no such adjudication was, in fact, made. The certificate under Section 7 was granted in favour of Ram Naresh Singh after a brief proceeding. Counsel, accordingly, urged that in such a situation it would be difficult to countenance that the certificate granted by the Court should be treated as the conclusive proof of age i.e. 'minority' status of the person so as to preclude any kind of proceeding suit. The submission, in our opinion/is well founded.
8. Section ID of the Act, which, as noticed above, contains the format of the application, does not contain anything which would require the applicant to mention the age of the person of whose person and property he wants to be appointed declared guardian. Sub-section (1) of Section 10 (which alone is relevant to the point) runs as follows:-
10. Form of application:- (1) If the application is not made by the Collector, it shall be by petition signed and verified in manner prescribed by the Code by Civil Procedure 1882 (14 of 1882), for the signing and verification of a plaint; and stating, so far as can be ascertained,-
(a) the name, sex, religion, date of birth and ordinary residence of the minor;
(b) where the minor is a female, whether she is married and if so, the name and age of her husband;
(c) the nature, situation and approximate value of the property, if any, of the minor;.......
(d) the name and residence of the person haying the custody or possession of the person or property of the minor;
(e) what near relations' the minor has and where they reside,
(f) whether a guardian of the person or property or both, of the minor has been appointed by any person entitled or claiming to be entitled by the law to which the minor is subject to make such an appointment;
(g) whether an application has at any time been made to the Court or to any other Court with respect to the guardianship of the person or property or both, of the minor and if so, when, to what Court and with what result;
(h) whether the application is for the appointment or declaration of a guardian of the person of the minor, or of his property, or of both;
(i) where the application is to appoint a guardian, the qualifications of the proposed guardian;
(j) where the application is to declare a person to be guardian, the grounds on which that person claims;
(k) the causes have led to the making of the application; and
(l) such other particulars, if any, as may be prescribed or as the nature of the application renders it necessary to state.
The Civil Court Rules framed by the Patna High Court further lay down the following requirements, obviously in terms Clause (1) of Section 10(1) (supra). The Civil Court Rules so for as relevant are as follows:-
(1) The application made under Section 8 of the Act shall, in addition to the particulars required by Section 1Q, state whether minor is entitled to any property absolutely, or subject to the rights or interest of any other person and the incumbrances, if any, to which the property in subject; and shall specify all persons of the same degree or relationship, as or of nearer degree than, the proposed guardian and where a female is proposed as guardian, the nearest male relation of the minor.
(2) Where the father of the minor is living and is not proposed as guardian, the application shall also state any facts relied on as showing that he is unfit to act as guardian of the minor, or that the consents to the application.
Whenever the petition under Section 10 of the Act, states that the property of the minor consists of land or any interest in land, a copy of the petition shall be sent free of charge to the Collector of the district in which such property or any part of it is situate.
9. A bare perusal of the above provisions leaves no room for doubt that the applicant is not required to mention the age of the person in the application. It, therefore, does not stand to reason that the Court would on its own embark upon an enquiry as to the age and find out whether the person with respect to whom such appointment declaration is sought is, in fact, minor or not. We would hasten to add that this observation should not be construed to mean that the Court is precluded from making such enquiry if any such objection is raised from any quarter.
10. It would appear from the scheme envisaged in the Guardians and Wards Act that the whole thrust of enactment is on 'appointment' of the Guardian. As stated above, the law recognizes the Court to be ultimate guardian of all minors and, therefore, whenever such an application is made the Court is required to consider whether the appointment declaration will be for the welfare and in the interest of the minor or not. This is obvious from plain reading of Section 17, which, as noticed above, contains the guidelines which are to be kept in mind considering the application for appointment declaration of guardianship. The Court is not required during course of proceedings to go into the question of the minority of the person on its own except where, as indicated above, any such objection is bonafide raised from any quarter.
11. In such premises, it is difficult to agree with the learned Single Judge that the certificate granted by the District Judge would be final and conclusive proof of the 'minority' of the respondent. So far as Section 48 of the Guardians and Warda Act attaching finality to the orders under that Act is concerned, in our opinion, what is to be treated as finalls the order of appointment of guardian as such. The object of the proceedings being appointment of guardian, whoever the Court appoints any person to be guardian or declares him to be guardian of the minor, such appointment declaration is to be treated as final and the same is not 'liable to be contested by any person by the otherwise' within the meaning of Section 48. Since no order on the point of age i.e. the minority of the subject of the proceeding is required to be passed, within the scheme of the Act, it is difficult to uphold the view of the learned Single Judge that the certificate is final and conclusive declaration of the minority status of the person. In other words, the certificate granted under Section 7 is to be treated as final only so far as the appointment of the applicant as guardian is concerned and not as regards the minority status of the subject.
12. The Guardians and Warda Act does not contemplate any adversary litigation nor the proceeding thereunder is called suit. It has been classified as 'Miscellaneous Judicial Case' under the Civil Rules (See Part VI, Chapter I, Rule 21, Entry XXVIII). When an application is made for appointment of guardian or a declaration is sought in that regard, the Court has to satisfy itself that such appointment or declaration will be for the welfare of the minor and serve his interest best. The Court is the ultimate guardian of all minors and protector of their interest. It is this legal character, which otherwise vests in the Court, that is sought to be conferred upon the applicant-guardian. The 'lis' in such proceedings is, therefore, between the applicant and the 'Court'. Not being an adversary litigation, whether it would be correct to treat the decision regarding appointment of guardian as conclusive declaration of age or minority status of the person, binding on the entire world? The Calcutta High Court in Muktipada Dawn v. Aklema Khatoon : AIR1950Cal533 has held that decision of the Court appointing a guardian is not a decision in rent and we are in complete agreement with the same.
13. The interpretation given by the learned Single Judge may result in injustice in certain cases. An unscrupulous vendor may set up the plea of minority and get rid of his obligations and liabilities under a document on the basis of guardianship certificate under Section 7 of the Guardians and Wards Act obtained in a collusive proceeding. And as per the decision of the learned Single Judge that whenever question of minority involved 'Section 48 will place a clog on all Courts and authorities from taking a contrary view', the bonafide vendee cannot challenge the self-professed minority status of the vendor and, thus, cannot seek any remedy. That cannot be the correct interpretation of the law. In the above view of the matter also, the decision of the learned Single Judge that the certificate under Section 7 of the Guardian and Wards Act is binding on the Registering authority and the Sub Registrar has no option but proceed on the footing that the executant of the document was a minor cannot be said to be in accordance with law.
14. Counsel for the appellants in order to assist the Court, in all fairness, referred to a decision of the Allahabad High Court in the case of Raj Kumar v. Vijay Kumar and Anr. : AIR1969All162 . The Allahabad High Court, inter alia, took into account the Civil Court Rules framed by that Court under the Guardians and Warda Act and came to the conclusion that as the certificate is to be granted in the prescribed form and the period of minority has to be mentioned therein, the entry regarding the period of minority i.e. age is admissible under Section 35 of the Evidence Act. The decision has no application becaUse there are no such rules in Bihar nor the question of admissibly of the certificate under Section 7 of the Guardians and Wards Act is in issue in this case.
15. The question that next arises for consideration is as to what consequential order should be passed in this case. As stated above, the District Sub Registrar declined to answer the question regarding the age of the respondent although that was only dispute to be resolved. The District Sub Registrar taking a too technical view, if we may say so, excused himself by declining to go into the question on the ground that the proceeding pending him was under Section 73/74 of the Registration Act. Where registration is refused on the ground of denial of execution, the Registration Act, no doubt, provides for different remedy, namely, application under Section 73. In other cases i.e. where registration is refused on other grounds the remedy is appeal under Section 72. In our opinion, without going into technically of the matter, the best course would be to direct the District Registrar to decide the question of age of respondent No. 1 as on the date of the execution of the sale deed in question and then proceed in accordance with law.
16. In the result, the judgment and order of the learned Single Judge is set aside. The District Registrar, Jehanabad (now) is directed to consider the application preferred by the appellants, Case No. 7 of 1976, afresh and pass orders in accordance with law. This appeal is, accordingly, allowed. As there is no appearance by the respondents, there will be no order as to costs.