N.D. Ojha, J. - (1.) THE Petitioner was a minor and his mother Smt. Bhagwan Devi was appointed his guardian by the Distt. Judge on 1 -6 -1957. Subsequently Smt. Bhagwan Devi acting as guardian of the Petitioner and Om Prakash, the elder brother of the Petitioner executed a sale deed on 29 -10 -1958 in respect of land of an area of 4.45 acres in favour of the Respondents 2 and 3. The sale deed was in respect of land of which admittedly the Petitioner and Om Prakash were the co -tenure holders. After about 10 years of the execution of the sale deed, the Petitioner filed a suit for partition in the year 1968 being case No. 4 (sic) of 1968 Under Section 176 UPZA and LR Act against his brother Om Prakash on the allegation that he was a co -tenure holder having a half share. This suit was in respect of the land already transferred to Respondents 2 and 3 on 29 -10 -1958. It was further pleaded in the suit that the sale deed executed in favour of Respondents 2 and 3 was void in as much as it was in contravention of Section 168 -A of the UPZA and LR Act. The trial court found in favour of the Petitioner and decreed the suit. That decree was upheld by the Addl. Commr. in appeal. Aggrieved Respondents 2 and 3 filed a second appeal before the Board of Revenue. The Board of Revenue allowed the second appeal on the finding that the sale deed in favour of Respondents 2 and 3 was valid. On this finding the suit of the Petitioner was dismissed. He has now instituted the present writ petition with a prayer to quash the order of the Board of Revenue.
(2.) LEARNED Counsel for the Petitioner urged that the sale deed was void inasmuch as it had been executed by his mother without obtaining prior permission of the Distt. Judge. Since Smt. Bhagwan Devi had been appointed guardian of the Petitioner it is the provision of the Guardians and Wards Act which will be applicable to the facts of the instant case. Section 30 of the Guardians and Wards Act, however, is clear on the point which makes such a transfer only voidable and not void. Even under the provisions of the Hindu Minority and Guardianship Act, 1956 a sale deed executed by a natural guardian of a minor without the permission of the Distt. Judge is only voidable in view of Sub -section 3 of Section 8 of the said Act. The submission of the learned Counsel for the Petitioner, therefore, has no substance. It was then urged that the sale deed was void being in contravention of Sub -section (1) of Section 168A of the UPZA and LR Act. The said Sub -section (1) reads: (1) Notwithstanding the provisions of any law for the time being in force, no person shall transfer whether by sale, gift or exchange any fragment situate in a consolidated area except where the transfer is in favour of tenure -holder who has a plot contiguous to the fragment or where the transfer Is not in favour of any such tenure -holder, the whole, or so much of the plot in which the person has bhumidhari rights, which pertains the fragment is thereby transferred. Fragment has been defined under the UPZA and LR Act in Section 3 Sub -section (8 -a). The relevant portion of the said sub -section reads: (8 -a) 'Fragment' means land of less extent than - -(a)....(b) 3.125 acres in the rest of UP excluding Kumaun Division.
(3.) AS already seen above the sale was in respect of land of an area of 4 45 acres. It was consequently not a fragment. Learned counsel, however, urged that since the sale deed was by two co -tenure -holders having a half share each the land of the share of each co -tenure -holder was a fragment being less than 3.125 acres .This argument also has no substance. The word "person" as defined in the U.P. General Clauses Act includes any company or association or body of individuals, whether incorporated or not. The word "person" as used in Section 168 -A of the UPZA and LR Act will include not only an individual but also a body of individuals and as such the vendors as a whole would constitute "person" for the purpose of determining as to whether the sale) deed was of a fragment or not. No Other point has been pressed.;