Krishna Murari, J.
1. By means of this writ petition, the petitioners have challenged the order dated 25.8.1983 passed by the Deputy Director of Consolidation, Varanasi.
2. The dispute relates to khata No. 7 situate in village Chak Adhiya district Varanasi which was recorded as Mafi Dakhalikari (rent-free grantee) of one Sudin. The undisputed pedigree of Sudin is as under:
Sudin=Lakhpati/-------------------------------------/ /Baij Nath Ram Adhar/ = Smt. Rajesra/ /Deo Nath ............................................................./ / / / /Bikrama Sant Kumar Basant Kumar Babu Nandan Mahadeo
3. After death of Sudin, Baij Nath father of petitioner No. 1 executed sale deed of share in the land in dispute in favour of contesting respondent Nos. 2 to 8. Respondent No. 9 also executed sale deed of the remaining half on his behalf as well as on behalf respondent Nos. 2 to 5 as their guardian, since they were minor at that time in favour of contesting respondent Nos. 2 to 8. On the basis of the aforesaid two sale deeds the name of contesting respondent Nos. 2 to 8 was recorded over the disputed khata. During consolidation operations petitioner No. 1 challenged the basic year entry in the name of contesting respondent Nos. 2 to 8 by filing an objection under Section 9A(2) of the Act seeking declaration in their favour over 1/4th share in the land on the ground that on death of his grandfather Sudin he along with his father Baij Nath inherited 1/2 share jointly and the remaining was inherited by Ram Adhar. Thus he was entitled to 1/4th share and his father Baij Nath illegally executed sale deed of the entire 1/2 share in favour of respondent Nos. 2 to 8 which was void to the extent of 1/4th share.
4. Another set of objection was filed by petitioner Nos. 2 to 5 on the ground that their father Ram Adhar inherited 1/2 share of the land in dispute on death of Sudin and after death of Ram Adhar they along with respondent No. 9 inherited 4/10th share each. The sale deed of their shares executed by their brother Bikrama during their minority as guardian was void because their mother was alive at that time and she being the natural guardian any sale deed executed by any other person would be void. Two sets of objection were contested by respondent Nos. 2 to 8 on the ground that during life time of Baij Nath petitioner No. 1 had no share and Bikrama has executed the sale deed as karta khandan.
5. The Consolidation Officer vide order dated 6.5.1981 allowed both the objections. Appeal filed by contesting respondent Nos. 2 to 8 was also dismissed. However, revision filed by them was allowed by the Deputy Director of Consolidation vide impugned order dated 25.8.1983.
6. With regard to the claim of petitioner No. 1 the Consolidation Officer has recorded a finding that Sudin died sometimes in between 1309 to 1333 fasli when Agra Tenancy Act, 1926 was enforced and since the land in dispute was mafi (rent-free grantee) the inheritance shall be governed by personal law and both petitioner No. 1 and his father Baij Nath would inherit 1/4th share each and as such the sale deed executed by Baij Nath more than of his 1/4th share would be void to that extent.
7. Regarding objection filed by petitioner Nos. 2 to 5 it was held that since their mother was alive on the date of sale deed any sale deed executed by Bikrama the elder brother of the shares of the minor as their guardian would be void as he was not a natural guardian.
8. The Consolidation Officer also held that petitioner Nos. 1 to 5 would be co-tenants and since there was no plea of ouster by respondent Nos. 2 to 8 as such there was no question of their perfecting rights by adverse possession.
9. The findings recorded by the Consolidation Officer was also confirmed by the Settlement Officer Consolidation while dismissing the appeal filed by respondent Nos. 2 to 8.
10. The revisional court has allowed the revision on the solitary finding that the execution of both the sale deeds was not denied and they were voidable documents as such the consolidation courts cannot ignore the same.
11. The first contention advanced by learned counsel for the petitioners is that the Deputy Director of Consolidation has failed to consider that land in dispute being mafi (rent-free grantee) would devolve in accordance with the personal law and on death of Sudin petitioner No. 1 and his father Baij Nath will jointly inherit 1/2 share and thus the sale deed of more than 1/4th share executed by Baij Nath father of petitioner No. 1 would be void to that extent. The Deputy Director of Consolidation has wrongly held the sale deed to be voidable only on the ground that the execution of the same was not denied.
12. In reply it has been urged that the sale deed has rightly been held to be a voidable document. The Deputy Director of Consolidation has rightly held that only civil court can consider the validity of a voidable document and the Consolidation Officer cannot go behind.
13. According to Section 3(6) of the Agra Tenancy Act, a rent-free grantee is not a tenant. The said Section reads as under :
'3(6). 'Land holder' means the person to whom, and 'tenant' the person by whom, rent is, or but for a contract, express or implied would be payable;
'tenant' includes as grove-holder, but does not include a mortgagee of proprietary rights, a rent-free grantee or, save as otherwise expressly provided by this Act, a thekedar; and....''
14. Even under the North West Tenancy Act, 1901 and U.P. Tenancy Act, 1939 a rent-free grantee is not included within the term tenant.
15. The Apex Court in the case of Ram Gopal and Ors. v. Deputy Director of Consolidation and Ors., 2000 ALR 370 (Supreme Court) after analyzing the provision of N.W.P. Tenancy Act, 1901, Agra Tenancy Act, 1926 and U.P. Tenancy Act, 1939 has held that a rent-free grantee is not included within the term tenant.
16. Section 18 of the U.P.Z.A & L.R Act provides that all land held by a rent-free guarantee as such on the date immediately preceding date of vesting shall be deemed to be settled by the State Government who shall subject to the provision of the Act be entitled to take or retain possession as bhumidar thereof. In view of the aforesaid provision, the petitioners having inherited the land in dispute as rent-free grantee shall become bhumidar on the date of vesting. Thus the sale deed executed by Baij Nath father of petitioner No. 1 in favour of contesting respondent Nos. 2 to 8 beyond his 1/4th share would be void to that extent. The Consolidation Officer as well as Settlement Officer Consolidation rightly came to the conclusion that sale deed executed by him of the 1/4th share of petitioner No. 1 was void and his claim has rightly been allowed. The Deputy Director of Consolidation without considering the aforesaid aspect of the matter wrongly and illegally held the sale deed to be voidable document only on the ground that execution of the same was not denied.
17. It has next been submitted by learned counsel for the petitioner that a specific finding of fact was recorded by the Consolidation Officer and the Settlement Officer Consolidation that mother of petitioner Nos. 2 to 5 was alive at the time when the sale deed was executed by respondent No. 9 Bikrama of their shares as guardian. Mother being the natural guardian during her life time brother cannot be a guardian and the sale deed executed by him on behalf of minor would be a void document but the Deputy Director of Consolidation has illegally held the same to be a voidable again only on the ground that the execution of the sale deed was not denied. Reliance in support of the contention has been placed on the decision of learned Single Judge in the case of Onkar Nath Dubey v. Deputy Director of Consolidation and Ors., 1977 RD 40.
18. In reply it has been contended that on behalf of the respondents that Section 8 of Hindu Minority and Guardianship Act, 1956 does not apply to agricultural property and as such even if the sale deed has been executed without any permission from the District Judge it would not be a void but only a voidable document and the same has rightly been held so by the Deputy Director of Consolidation. Reliance has been placed on two decision of this court in the case Maya Shanker and Anr. v. The Deputy Director of Consolidation, Varanasi and Ors., 1983 AWC 783 and Rajvir Singh v. Board of Revenue, U.P. at Allahabad and Ors., 1973 AWC 649.
19. The case laws relied upon by the learned counsel for the respondents are not applicable in the facts of the present case. In both the case relied upon by the respondents it has been held by this court that sale deed of an agricultural land executed by a natural guardian of a minor without permission of the District Judge is only voidable. In the present case the sale deed has not been executed by mother of the petitioner Nos. 2 to 5 who was their natural guardian but by their elder brother.
20. On the other hand, the law laid down by this court in the case of Onkar Nath Dubey (Supra) applies with full force to the facts of the present case. In the said case the sale deed executed by the uncle of the minor even though his mother the natural guardian was alive was held to be void as it was not executed by natural guardian.
21. The law does not recognize any de facto guardian. In case of a minor the father is the natural guardian and in his absence the mother is natural guardian. In the presence of any of the natural guardian the brother or any other relation could not be a natural guardian and has no legal status to act on behalf of the minor to alienate his property. In the present case respondent No. 9 brother of petitioner Nos. 2 to 8 purported to act on behalf of the petitioners without there being any authority in him. In the presence of mother who was natural guardian respondent No. 9 had no authority to alienate the shares of petitioner Nos. 2 to 5 on their behalf and the sale deed executed by him of the shares of the petitioner Nos. 2 to 5 who were minor at that time is void to that extent. The Deputy Director of Consolidation committed an error in holding the sale deed to be only a voidable document.
22. From the aforesaid discussions, it is clear that both the sale deeds - one executed by Baij Nath of 1/4th share of petitioner No. 1 and that executed by respondent No. 9 Bikrama of the shares of the petitioner Nos. 2 to 5 was a void document. In Gorakh Nath Dubey v. Hari Narain, AIR 1973 SC 2451 the Apex Court has held that if a document is wholly invalid it can be disregarded by the consolidation authorities. Since the two sale deeds executed in favour of respondent Nos. 2 to 8 of the shares of petitioner No. 1 and petitioner Nos. 2 to 5 was void to that extent the Consolidation Officer and Settlement Officer Consolidation rightly ignored the same. The Deputy Director of Consolidation has illegally relied upon the sale deed holding them to be a only voidable document and the said finding cannot be sustained.
23. In the result, the writ petition stands allowed. The impugned judgement of the Deputy Director of Consolidation dated 25.8.1983 is quashed.
24. However, in the facts and circumstances of the case, there shall be no order as to costs.