Saturday, 28 February 2015

Disposal of minor's property for legal necessity by natural guardian whether voidable?

Hindu Minority and Guardianship Act, 1956 - Sections 6 and 8-The necessity for a natural guardian to obtain permission or sanction from the Court before alienating the minor's property will not be attracted so far as the minor's undivided interest in the joint family property is concerned.
Section 8(3) of the Act lays down that any disposal of immovable property by a natural guardian, in contravention of sub-section (1) or sub-section (2) is voidable at the instance of the minor or any person claiming under him. When Section 8 does not take within its ambit the minors undivided interest in the joint family property, Section 8(3) would not be applicable.
The recitals of legal necessity in a deed do not by themselves prove legal necessity. The recitals are, however, admissible in evidence, their value varying according to the circumstances in which the transaction was entered into. The recitals may be used to corroborate other evidence of the existence of legal necessity. The weight to be attached to the recitals varies according to the circumstance.
What the alienee is required to establish is legal necessity for the transaction and it is not necessary for him to show that every bit of the consideration which he advanced was actually applied for meeting family necessity. The reason is that the alienee can rarely have the means of controlling and directing the actual application of the money paid or advanced by him unless he enters into the management himself.
The natural guardian of a minor has the necessary competence to deal with even the separate property of the minor. Nonetheless the natural guardian remains a guardian of the minor in other senses also. Natural guardian who has a share in the property along with the minors' undivided interest in the property is legally competent to alienate the property as a whole, either in the capacity of the minor's guardian or as a Manager.
Karnataka High Court
A. Chidananda (Deceased) By L.Rs. ... vs Smt. Lalitha V. Naik And Ors. on 19 January, 2006
Equivalent citations: AIR 2006 Kant 128, 2006 (2) KarLJ 67,2006(3)KCCR1403

Bench: H G Ramesh
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Whether mother can transfer properties of minor without obtaining permission of court?

KARNATAKA High Court in a case of Gangoji Rao And Anr. vs H.K. Channappa And Ors. Decided on 9/12/1982. Reported in 1983 (1) Kar. L.J. 177; observes as follows

The view that I have taken finds support in the ruling rendered by the High Court of Rajasthan in the case, Girdhar Singh v. Anand Singh. In a similar case, the High Court of Rajasthan, in para 12 of the judgment, has held thus : "As regards the question of taking permission from a competant Court of law in this case, I am in agreement with the view taken in Sunnamani Dei v. Babaji Das that when the minor and his mother constitute a Hindu Joint Family, each with a moiety of undivided interest in any movable property be longing to the family, in the absence of the father, the mother as natural guardian, can alienate even the minor's half share in the immovable property under the personal law. Section 8 of the Hindu Minority and Guardianship Act will not apply to such alienation. This view finds support from Smt. Suggabai v. Hira Lal ."

In Re. Krishnakant Maganlal, , Bhagwati J., delivering the judgment has observed. (at p. 73) "The restrictions contained in Section 8 do not apply in respect of the undivided interest of a minor in joint family property and Section 8 does not debar a Manager and Karta of a joint family from alienating joint family property without obtaining the previous permission of the Court even if the Manager and Karta happens to be the natural guardian in respect of the separate property of any one or more of the minor coparceners. Of course the alienation would have to be justified under Hindu Law, but Section 8 does not require that any previous permission of the Court should be obtained before effecting such alienation........"

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How to ascertain readiness and willing of plaintiff to perform his part of contract in suit for specific performance of contract?

 The plaintiffs also served two notices and remained present before the Sub-Registrar on the dates mentioned in the notices for getting the sale deed executed. However, the appellant did not reach to execute the sale deed. It is contended that on the acknowledgment of the notice, there is signature of Hakim Singh though he is illiterate man. The plaintiff could not have given any reason regarding the signatures and stated that he produced the acknowledgment in the same condition, ft is not disputed that the notices were sent at the correct addresses. Therefore, the service of the notices should be presumed. The appellant despite of the same did not appear before the Sub-Registrar. All these facts show that the plaintiffs were ready and willing to perform their part of the contract.

Second Appeal Nos. 279 and 102 of 1998
Decided On: 16.03.2001
Appellants: Hakim Singh
Respondent: Ram Sanehi and others
Hon'ble Judges/Coram:
B.K. Rathi, J.
Citation: AIR2001All231, 2001 (43) ALR 534, 2001 2 AWC1118All
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Whether court can presume that plaintiff was not ready and willing to perform his part of contract as he failed to pay court fees?

In the second appeal, the High Court reversed the judgment and decree and dismissed the suit on the main ground that the appellant did not pay sufficient court-fee on the date of presenting the plaint and the deficit was not made good for some time thereafter. It would show that the appellant had no capacity to pay the consideration and willing to perform his part of the contract.
 We are wholly unable to subscribe to the views expressed by the High Court. Section 16 of the Specific Relief Act, 1963 mandates the plaintiff to aver in the plaint and establish as a fact by evidence aliunde that he has always been ready and willing to perform his part of the contract. The failure thereof is fatal to maintain the suit and entails with its dismissal. It is seen that the appellant has specifically pleaded in his plaint that he has been ready and willing to perform his part of the contract. He also further stated that he was ready to deposit the balance consideration of Rs. 9,000/- and get the sale deed executed and registered in his favour in terms of the contract. The High Court also found that the appellant had deposited Rs. 9,000/- within the time allowed by the trial court and the suit was decreed. That would clearly show that the appellant had the capacity to pay the balance consideration and he was always ready and willing to perform his part of the contract.
 Though the decree for specific performance is a discretionary power, yet the court, is not bount to grant such a relief merely because it is lawful to do so; but the discretion of the court is not arbitrary, but sound and reasonable, guided by judicial principles of law and capable of correction by a court of appeal. Therefore, the discretion should be properly exercised keeping in view the settled principles of law as envisaged in Section 20 of the Act. This case demonstrates that the High Court took irrelevant consideration into account to refuse to grant the decree for specific performance. It also committed manifest illegality in reversing the concurrent finding of facts recorded by the trial court as well as as the first appellate court, namely the appellant has always been ready and willing to perform his part of the contract.
Supreme Court of India
Surya Narain Upadhyaya vs Ram Roop Pandey And Others on 28 January, 1992
Equivalent citations: AIR 1994 SC 105, 1995 Supp (4) SCC 542
Bench: K Ramaswamy, S Mohan
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