Tuesday, 31 January 2017

Whether mother can sell property of minor without obtaining permission of court?

 In   the   present   case,   though   it   is   stated
that the property has been sold for the proper
benefit   of   the   minors,   their   protection,
education   and   marriage,there   is     nothing   on
record to suggest that previous permission of
the   Court   was     obtained   by   the   natural
guardian before transfer by sale  in question.
13. Where   the   father   dies   leaving   behind   only
minor   daughters   and   their   mother   as   natural
guardian,   the   share   of   the   daughters   became
definite;     the   question   of   family   partition
retaining the character of joint Hindu Family
property does not exist.  In the present case,
after   the   death   of   the   father,   the   property
has   been   shared   amongst   each   member   of   the
family   and recorded in the mutation register
having   1/4th   share   each.   In   such
circumstances,  the  provision of  sub­section
(3) of Section 8 shall attract as the  mother
sold the property without previous permission
of   the   Court.   Hence,   both   the   sale   deeds
executed by the second respondent in favour of
the first respondent shall become  voidable at
the instance  of the minor  i.e.  the  appellant
and the  Proforma­respondent nos.4&5.
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 10582 OF 2013
(arising out of SLP(C)No.27949 of 2012)
SAROJ 
V
SUNDER SINGH & ORS.
Dated:NOVEMBER 25,2013.

Leave granted. This appeal has been preferred
by   the   appellant   against   the   judgment   and   order
dated 14th December, 2011 passed by the High Court
of Judicature for Rajasthan, Jaipur Bench, Jaipur
in   S.B.   Civil   First   Appeal   No.   313   of   2009.   The
Appellate Court by the impugned judgment held that
there   is   no   illegality   or   perversity   in   the
findings recorded by the trial court and affirmed
the  order  of  the   trial   court   which   dismissed   the
suit preferred by the appellant­original plaintiff
seeking cancellation of sale deeds executed by the
second   respondent   in   favour   of   the   first
respondent. 
2.   The   brief   facts   giving   rise   to   the   present
appeal are as follows:
  The   appellant   along   with   her   two   sisters
(original plaintiffs) happened to be the daughters
of   respondent   No.2(original   defendant   No.2).
According to the appellant, she and her two sisters
were   minors   when   their   father   Khilluram   expired.
Thereafter, their mother i.e. second respondent, of
course   the   guardian,   sold   out   the   suit   property
which belonged to their father by executing a sale
deed   on   9th   December,   1988.   According   to   the
appellant,   since   the   suit   property   belonged   to
their   father   the   daughters   had   shares   in   the
property, the mother could not have sold the suit
property   to   the   first   respondent.   The   appellant,
therefore,   with   two   other   sisters   (proforma
respondent Nos.4 and 5 herein) preferred Civil Suit
No.6 of 2007 for declaration of the sale deed dated
9th December, 1988 as null and void in respect of
the   suit   land.   The   appellant   pleaded   that   the
second   respondent   as   the   mother   of   the   appellant
and two other sisters has no right or authority to
sell the suit land, as their shares are   part of
it.   The   sale   of   minors’   property   cannot   be   done
without   obtaining   the   prior   permission   of   the
Court.
3. The second respondent in her written statement
stated that the appellant and two others were her
minor daughters. She is the wife of Khilluram and
the   equal   shares   of   the   disputed   land   are
registered   in   the   name   of   the   appellant   and   two
daughters.   She   had   sold   the   entire   disputed   land
including   the   shares   of   the   daughters   vide   sale
deed   dated   1st     December,     1988   which   was
registered on 9th December, 1988. The consideration
amount received out of the said sale was spent to
fulfill   the   requirements   of   the   daughters­     i.e.
appellant     and   proforma   respondent   Nos.4   and   5
herein.  
4.   In   a   separate   written   statement   the   first
respondent accepted that the disputed land situated
in   village   Ujjaili,   Tehsil­Kot   Kasim   is   the
ancestral property of Khilluram. After the death of
Khilluram   the   said   suit   land   was   devolved   on
appellant,   two   other   sisters   and   the   second
respondent jointly in equal shares. The appellant
and  the  two  other  daughters  were   minor   and  their
mother   i.e.   second   respondent   herein   was   the
natural   guardian.   The   agricultural   work   was   done
jointly by the appellant, two other daughters and
the second respondent. It is stated that the suit
land was sold for proper maintenance of the minor
daughters. 
5. On   behalf   of   the   plaintiffs­appellant   herein
and two other sisters, Saroj (PW­1), Chandra Kanat
(PW­2)   and   Pop   Singh   (PW­3)   were   examined.   They
placed   on   record   the   documents   duly   exhibited   as
Exh.1 to 19. The respondents examined Sunder Singh
(DW­1),   Ramphal   (DW­2)   and   Ramotar   (DW­3)   and
placed on record documents duly exhibited as A­1 to
A­10.
6. Learned   Additional   District   Judge   framed   8
issues.   The   issue   Nos.1   to   3,   5   and   6       were
decided   in   favour   of   the   plaintiff­appellant
herein: 
Issue No.7 reads as follows:
“7. Whether   the   registered   sale­deeds   of
the land Survey No.5 and 6 made by the
Defendant   No.2   to   different   parties
has been done with the motive to cause
harm and usurp this land of plaintiffs
No.1 to 3, ownership and rights which
is   wrong   and   contrary   to   the
established provisions of law, and the
plaintiffs No.1 to 3 are entitled to
challenge these two sale­deeds against
their interests and rights.”
The   said   issue   was   decided   against   the
plaintiffs and in favour of the defendants. The 8th
issue   relating   to   plaintiffs’   entitlement   to   get
relief   against   the   defendant   Nos.1   and   2   was
thereby decided against the plaintiffs. 
7. By the impugned judgment dated 14th December,
2011 the First Appellate Court also dismissed the
appeal filed against the above order passed by the
trial   court   on   the   ground   that   there   is   no
illegality or perversity in the findings recorded
by the trial court.
8. Learned   counsel   for   the   appellant   submitted
that in view of the sub­section (2) of Section 8 of
the   Hindu   Minority   and   Guardianship   Act,   1956   it
was not open for the second respondent to mortgage
or charge, or transfer by sale, gift of the minor’s
property without previous permission of the court.
9. Per contra,  according to the respondents, for
taking   care  of   the  minor  daughters  and   for  their
livelihood the respondent was competent to sell the
property.   It   was   submitted   that   the   appellant’s
marriage   was   performed   by   the   second   respondent;
the mother bought a house at Daruhera in the year
1995. There was no partition amongst the appellant
other   minor   daughters   and   mother   with   respect   to
the   subject   agricultural   land   which   was   looked
after by the mother jointly. Therefore, it was for
all   purposes   the   joint   property   and   not   the
property of minors. Significantly, Ramphal who is
the   real   brother   of   Khilluram   in   his   evidence
stated that ever since the death of Khilluram the
minors   were   being   taken   care   of   by   the   second
respondent­mother   for   the   maintenance,   education,
etc.   and   the   second   respondent   performed   their
marriage. It is further contended that the second
respondent   sold   the   subject   land   for   their
necessity,   maintenance,   etc.   Likewise,   the   second
respondent in her counter claim admitted that the
money  received  from  the  sale  of  the  subject  land
was spent on the minors’ genuine requirements and
she prayed for dismissal of the suit.
10. The   trial   court   while   deciding   the   7th   issue
noticed   evidence   of   other   witnesses.   It   further
noticed that the property was devolved on the wife,
Smt.   Rishal   and   Saroj,   Manoj   and   Sanoj   in   equal
share of 1/4th   each. According to the entries in
the revenue record they were in possession of 1/4th
share   of   the   land.   The   total   amount   of   both   the
sale   deeds   executed   comes   to   Rs.66,000/­.   In   the
sale deeds it is mentioned that she is the birth
mother   of   Saroj,   Manoj   and   Sanoj,   and   is   their
natural   guardian.     For   their   maintenance,
sustenance,   education,   etc.,   the   suit   land   being
unproductive and being in parts,   was sold by two
registered sale­deeds marked as Exh. A­1 and A­2.
It was stated   that the plaintiffs’ share was in
joint account. The mother i.e. second respondent is
the head of the family and she sold this land to
the   defendant   for   the   sustenance,   maintenance,
education and marriage of her daughters. In view of
such   evidence,   the   trial   court   decided   the   issue
against   the   plaintiffs   and     in   favour   of   the
defendants   which     was   affirmed   by   the   First
Appellate Court.
11.Section   8   of   the   Hindu   Minority   and
Guardianship Act, 1956 deals with the   powers
of natural guardian of a Hindu minor and the
said   section     mandates   that   the   natural
guardian   has   power   to   do   all   acts   which   are
necessary   or   reasonable   and   proper   for   the
benefit of the minor or for the realisation,
protection   or   benefit   of   the   minor’s   estate,
etc. The provision  reads as follows:
“8 . Powers of natural guardian.­  (1) The
natural   guardian   of   a   Hindu   minor   has
power,   subject   to   the   provisions   of   this
section,   to   do   all   acts   which   are
necessary or reasonable and proper for the
benefit   of   the   minor   or   for   the
realization, protection or benefit of the
minor's estate; but the guardian can in no
case   bind   the   minor   by   a   personal
covenant. 
(2)   The   natural   guardian   shall   not,
without   the   previous   permission   of   the
court,­
(a)   mortgage   or   charge,   or   transfer
by   sale,   gift,   exchange   or   otherwise
any part of the immovable property of
the minor; or Page 8
-8
(b)   lease   any   part   of   such   property
for a term exceeding five years or for
a   term   extending   more   than   one   year
beyond   the   date   on   which   the   minor
will attain majority.
(3) Any disposal of immovable property by
a   natural   guardian,   in   contravention   of
sub­section   (1)   or   sub­section   (2),   is
voidable   at  the  instance   of  the  minor   or
any person claiming under him. 
(4) No court shall grant permission to the
natural   guardian   to   do   any   of   the   acts
mentioned   in   sub­section   (2)   except   in
case   of   necessity   or   for   an   evident
advantage to the minor.

    As per clause (a) of sub­section (2) of Section
8   no   immovable   property   of   the   minor   can   be
mortgaged or charged, or transferred by sale, gift,
exchange   or   otherwise   without   the   previous
permission of the Court. Under sub­section (3) of
Section 8   disposal of such an immovable property
by   a   natural   guardian,   in   contravention   of   subsection
(1) or sub­section (2) of Section 8,   is
voidable at the instance of the minor or any person
claiming under him.
12. In   the   present   case,   though   it   is   stated
that the property has been sold for the proper
benefit   of   the   minors,   their   protection,
education   and   marriage,there   is     nothing   on
record to suggest that previous permission of
the   Court   was     obtained   by   the   natural
guardian before transfer by sale  in question.
13. Where   the   father   dies   leaving   behind   only
minor   daughters   and   their   mother   as   natural
guardian,   the   share   of   the   daughters   became
definite;     the   question   of   family   partition
retaining the character of joint Hindu Family
property does not exist.  In the present case,
after   the   death   of   the   father,   the   property
has   been   shared   amongst   each   member   of   the
family   and recorded in the mutation register
having   1/4th   share   each.   In   such
circumstances,  the  provision of  sub­section
(3) of Section 8 shall attract as the  mother
sold the property without previous permission
of   the   Court.   Hence,   both   the   sale   deeds
executed by the second respondent in favour of
the first respondent shall become  voidable at
the instance  of the minor  i.e.  the  appellant
and the  Proforma­respondent nos.4&5.
14. In view of the finding recorded above,   we
set   aside   the   judgments   and   orders   passed   by
the   trial   court,   First   Appellate   Court   and
Second Appellate Court.  Accordingly,  the suit
stands decreed in favour of the appellant and
proforma respondent Nos.4 and 5.  The appeal is
allowed with no costs.
…………………………………………………………………….J.
         (SUDHANSU JYOTI MUKHOPADHAYA)
…………………………………………………………………….J.
          (V. GOPALA GOWDA)
NEW DELHI,
NOVEMBER 25,2013.
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