N.D. Ojha, J. - (1.) AN application under Section 5 of the U.P. Consolidation of Holdings Act has been filed on behalf of the Defendant -Appellants for abating this second appeal as well as the suit giving rise to the second appeal under the aforesaid section on the ground that the land which is the subject matter of the suit has been brought under Consolidation operations by issuing a notification under Section 4 of the U.P. Consolidation of Holdings Act.
(2.) HAVING heard Counsel for the parties I am of opinion that the prayer contained in the aforesaid application deserves to be allowed. The suit giving rise to the present second appeal was instituted by Plaintiff -Respondents 1 to 3 for a declaration that a mortgage deed executed by Hardeo Misra Respondent No. 4 on 4 -1 -1958 in favour of the Appellants in respect of certain bhumidhari plots was void and not binding on them in so far as their share in the plots mortgaged is concerned. A decree for injunction was also prayed for restraining the Defendants from interfering with the possession of the Plaintiff -Respondents over the land in dispute. The suit was contested by the Defendants and was dismissed by the trial Court but on appeal by the Plaintiffs it was decreed. Aggrieved two of the Defendants preferred the present second appeal.
(3.) THE case of the Plaintiff -Respondents has been that they were bhumidhars of the land in dispute along with Respondent No. 4 Hardeo Misra. The mortgage dated 4 -1 -1958 was executed by Hardeo Misra for self and as guardian of Plaintiff -Respondents 2 and 3 being their elder brother. The natural guardian in view of Section 6 of the Hindu Minority and Guardianship Act in respect of a boy is the father and after him the mother. In Bishen Chand v. Lakhan, 1972 AWR 139 it was held that a minor's elder brother who was karta and manager of the joint family has no right to make a transfer of the bhumidhari interest of the minor unless he was a duly appointed guardian of such minor. The same view was reiterated by this Court in Bhawani Prasad v. Ram Deo : AIR 1975 All 87. In this view of the matter even if it is accepted that the mortgage deed dated 4 -1 -1958 had been executed by Hardeo Misra as elder brother of Respondents 2 and 3 and karta of a joint Hindu family the same would be void in so far as the share of his minor brother is concerned.;