But since there need be no natural guardian for the minor's undivided interest in the joint family property, as provided under Sections 6 and 12 of the Act, the previous permission of the court under Section 8 for disposing of the undivided interest of the minor in the joint family property is not required. The joint Hindu family by itself is a legal entity capable of acting through its Karta and other adult members of the family in management of the Joint Hindu family property. Thus Section 8 in view of the express terms of Sections 6 and 12, would not be applicable where a joint Hindu family property is sold/disposed of by the Karta involving an undivided interest of the minor in the said joint Hindu family property. The question posed at the outset therefore is so answered."
12. This position of law has been followed by this Court in the case of Sandhya Rajan Antapurkar and others v. State of Maharashtra (supra), wherein it has been held as follows :-
"7. Under Section 6 of the Hindu Minority and Guardianship Act, 1956, the father and after him the mother is natural guardian of Hindu minor in respect of minor person as well as in respect of the minor's property. The undivided interest of the minor in joint family property has been specifically excluded by this Section.
8. Section 8 of the Hindu Minority and Guardianship Act, 1956 prevents natural guardian of Hindu minor to transfer by sale, gift, exchange or otherwise any part of the immovable property of the minor without previous permission of the Court. This restriction on the natural guardian in relation to the property of the minor applies only to the separate or absolute property of the minor. It does not include the minor's undivided share in the joint family property, as, under Section 6, there cannot be a natural guardian in respect of such property which is specifically excluded."
IN THE HIGH COURT OF BOMBAY (NAGPUR BENCH)
Second Appeal (SA) No. 582 of 2006
Decided On: 04.05.2018
Vasantrao Gulabrao Thakre Vs. Sudhakar Wamanrao Hingankar
Hon'ble Judges/Coram:
Manish Pitale, J.
Citation: 2018(5) MHLJ 121
1. The original defendant No. 1 is the appellant in this appeal, now represented through his legal representatives, who has challenged the reversal of order of the trial Court by the appellate Court, which has decreed the suit of respondent Nos. 1 to 4 (original plaintiffs). The question that arises for consideration in this appeal is, whether the mother of the said original plaintiffs could have justifiably alienated the suit property in favour of the appellant without seeking permission of the Court as contemplated under Section 8(2) of the Hindu Minority and Guardianship Act, 1956. It was the case of the said original plaintiffs that the aforesaid alienation undertaken by their mother without obtaining such permission was illegal and that they were entitled to possession of the suit property.
2. The suit property is land admeasuring 0.96 R out of which 1.77 HR land is in Survey No. 445 mouza Yeoda, Taluka Daryapur, District Amravati. The father of the said original plaintiffs had died in 1968 and their mother was looking after the welfare of the said plaintiffs. On 30.03.1974, their mother sold the aforesaid suit property to the appellant by a registered sale-deed. In the sale-deed itself, details of debts were specifically enumerated and it was stated that the sale was being undertaken due to the necessity of satisfying such debts.
3. It was the case of the said original plaintiffs that they were minors when the aforesaid sale-deed was executed in favour of the appellant and that upon attaining majority, they were entitled to challenge the same and to demonstrate that their mother could not have executed the same.
4. On this basis, on 14.07.1992, the said original plaintiffs filed Regular Civil Suit No. 55 of 1992 before the Court of Civil Judge, Senior Division, Daryapur for possession of the suit property and for enquiry into the mesne profit. The appellant was arrayed as defendant No. 1; while their brother Prabhakar was defendant No. 2, their mother was defendant No. 3 and their sister was defendant No. 4 in the aforesaid suit. On 03.12.1992, the defendant Nos. 2, 3 and 4 (brother, mother and sister of the plaintiffs) filed their written statement conceding to the prayers made in suit. The appellant filed his written statement on 20.04.1993, opposing the aforesaid suit. It was stated that the sale-deed was executed by mother of the plaintiffs due to legal necessity and this was evident from the details of the debts given in the sale-deed itself, which demonstrated that the claim made by the plaintiffs was not justified.
5. On the basis of pleadings and evidence placed on record by the parties, the trial Court dismissed the suit holding that the plaintiffs had failed to show that the aforesaid sale-deed had been executed by mother (defendant No. 3) without legal necessity. The trial Court placed reliance on the contents of the sale-deed itself to hold that there were encumbrances and that the sale of the land had become necessary to repay such debts and to remove the encumbrances. It was held that after the death of her husband, the mother of the plaintiffs was justified in executing the said sale-deed in order to repay the debts as she had no other source of income.
6. Aggrieved by the dismissal of the suit by the trial Court, the respondent Nos. 1 to 4 filed Regular Civil Appeal No. 5 of 1994, before the Court of District Judge, Achalpur (appellate Court). By the impugned judgment and order dated 28.10.2005, the appellate Court partly allowed the appeal and decreed the suit in favour of the respondent Nos. 2, 3 and 4, holding that they were entitled to recover the suit property to the extent of their respective shares from the appellant. The appellate Court held that the appellant had failed to discharge the onus of proving legal necessity in the present case and that reliance only on the contents of the sale-deed to prove the same was not justified. It was also held that it was imperative for the mother of the plaintiffs to have sought permission from the Court under Section 8(2) of the aforesaid Act before executing the sale-deed and that the suit was barred by limitation only in respect of the original plaintiff No. 1 and defendant No. 2.
7. Aggrieved by the said judgment and order, the appellant filed the present appeal. On 25.02.2008, this appeal was admitted on the following Substantial Questions of Law.
"(1) Whether the transaction in suit was hit by provisions of Section 8 sub Section (2) of Hindu Minority and Guardianship Act?
(2) Whether there was any necessity for the plaintiffs to have prayed for setting aside alienation?"
8. Shri G.R. Sadar, learned Counsel appearing on behalf of the appellant submitted that the Court below had committed a grave error in holding that Section 8(2) of the aforesaid Act was applicable in the present case and that as natural guardian, the mother of the original plaintiffs ought to have taken permission of the Court before executing the aforesaid sale-deed in favour of the appellant. It was submitted that a proper reading of Sections 6, 8 and 12 of the aforesaid Act demonstrates that insofar as undivided interest of minors was concerned, the mother was not required to seek permission from the Court. It was further submitted that when her husband had expired and she was the only responsible person left with the responsibility of taking care of the children and the property left behind, she could act as "Karta" and dispose of the property for legal necessity. According to the learned Counsel, the evidence and material on record demonstrated that such legal necessity was true and that the Court below erred in holding against the appellant. It was contended that the suit filed by the original plaintiffs only for possession, in the absence of seeking a specific declaration for cancellation of sale-deed, was not maintainable, which the appellate Court failed to appreciate. The learned Counsel placed reliance on the judgments of the Hon'ble Supreme Court in the case of Sri Narayan Bal and others v. Sridhar Sutar and others (reported in MANU/SC/0598/1996 : 1996 (8) SCC, 54; Gita Hariharan and others v. R.B.I. and others (reported in MANU/SC/0117/1999 : 1999 (2) Mh.L.J., 703); Nagappan v. Ammasai Gounder and others (reported in MANU/SC/1293/2004 : 2004 (13) SCC, 480 and the judgments of this Court in the case of Sandhya Rajan Antapurkar and others v. State of Maharashtra (reported in MANU/MH/0250/2000 : 2000 (2) Mh.L.J., 158; Kisan Ramchandra Kokane through LRs and others v. Anjani Laxman Kapase through LRs and others (reported in 2002 (5) Mh.L.J., 115) and Kisan Ramji Khandare v. Kaussalyabai Gangaram Korde and others (reported in MANU/MH/0137/2007 : 2007 (4) Mh.L.J., 43).
9. Per contra, Smt. Radhika Raskar, learned Counsel appearing on behalf of respondent Nos. 1 to 4 (original plaintiffs) submitted that the Court below was justified in decreeing the suit on the ground that the sale-deed executed by the mother of the said respondents in favour of the appellant was bad, in the absence of permission of the Court under Section 8(2) of the aforesaid Act. It was contended that mere statement in the sale-deed about alleged debts and encumbrances was not enough to prove legal necessity and that the evidence of the appellant was deficient to prove legal necessity and the burden had not been discharged by the appellant. It was contended that the mother could never be said to be "Karta" because at the relevant time, she was not even qualified to be coparcener. It was contended that when she could not have the status of "Karta", she could not have executed the aforesaid sale-deed on the purported ground of legal necessity. It was contended that when the aforesaid sale-deed was a void document, there was no question of seeking any declaration in respect of the same and that, therefore, the suit filed by the original plaintiffs simpliciter for possession was clearly maintainable. On this basis, it was contended that the appellate Court had correctly allowed the appeal and passed the decree and that too only in favour of those plaintiffs and defendant who were within limitation under Article 65 of the Limitation Act, 1963. It was submitted that since there was no error committed by the appellate Court, the present appeal deserved to be dismissed. Learned Counsel placed reliance on the judgments of the Hon'ble Supreme Court in the case of Saroj v. Sunder Singh and others (reported in MANU/SC/1191/2013 : 2013 (15) SCC, 727; Commissioner of Income Tax, M.P. v. Seth Govindram Sugar Mills (reported in MANU/SC/0170/1965 : AIR 1966 SC, 24); G. Annamalai Pillai v. District Revenue Officer and others (reported in MANU/SC/0490/1993 : 1993 (2) SCC, 402) and State of Maharashtra v. Pravin Jethalal Kamdar (reported in MANU/SC/0157/2000 : AIR 2000 SC, 1099).
10. The principal question that has arisen in this case is as to whether the mother of the original plaintiffs could have executed the aforesaid sale-deed dated 30.03.1974 in respect of the suit property without seeking permission of the Court as contemplated under Section 8(2) of the aforesaid Act. The appellate Court has reversed the order passed by the trial Court in the present case and it has partly decreed the suit in favour of the original plaintiffs (respondent Nos. 1 to 4 herein) on the basis that it was imperative for their mother to have obtained permission of the Court under the said provision as she was their natural guardian. It is an admitted position that the father of the original plaintiffs had died in 1968 and that their mother was the only responsible adult member in the family. A reading of Sections 6, 8 and 12 of the aforesaid Act is necessary to appreciate whether the mother of the original plaintiffs was mandatorily required to take permission of the Court before executing the aforesaid sale-deed in favour of the appellant, as the original plaintiffs were minors and they had a share in the property.
11. Section 6 of the aforesaid Act specifies as to who can be the natural guardian of a Hindu minor. The opening words state that such natural guardian of a Hindu minor shall be in respect of the property of the minor, excluding his or her undivided interest in joint family property. Thus, it is amply clear that when undivided interest of a Hindu minor in joint family property is concerned, there cannot be a natural guardian under Section 6. Section 8 of the Act pertains to the manner in which a natural guardian of a Hindu minor is to act. Section 12 of the said Act also becomes relevant in this context. While considering a similar question as to the necessity of seeking permission under Section 8 of the said Act before alienating property in which a Hindu minor has undivided interest, in the case of Sri Narayan Bal and others v. Sridhar Sutar and others (supra), the Hon'ble Supreme Court has read Sections 6, 8 and 12 conjointly to hold that since there need be no natural guardian for a Hindu minors undivided interest in joint family property, previous permission of the Court under Section 8 for disposing on the undivided interest is not required. The relevant portion of the said judgment reads as follows :-
"4. Section 6 of the Act inter alia provides that the natural guardians of a Hindu minor, in respect of the minor's person as well as in respect of the minor's property (excluding his or her undivided interest in joint family property), are - in the case of a boy or an unmarried girl - the father, and after him, the mother; provided that the custody of a minor who has not completed the age of five years shall ordinarily be with the mother. Section 8 thereof inter alia provides that 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. Furthermore, the natural guardian shall not, without the previous permission of the court, mortgage or charge, or transfer by sale, gift, exchange or otherwise, any part of the immovable property of the minor or 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. Any disposal of immovable property by a natural guardian, in contravention of subsection (1) or sub-section (2), is voidable at the instance of the minor or any person claiming on behalf of the minor. Section 12 provides that where a minor has an undivided interest in the joint family property and the property is under the management of an adult member of the family, no guardian shall be appointed for the minor in respect of such undivided interest: Provided that nothing in this section shall be deemed to affect the jurisdiction of a High Court to appoint a guardian in respect of such interest.
5. With regard to the undivided interest of the Hindu minor in joint family property, the provisions afore-culled are beads of the same string and need to be viewed in a single glimpse, simultaneously in conjunction with each other. Each provision, and in particular Section 8, cannot be viewed in isolation. If read together the intent of the legislature in this beneficial legislation becomes manifest. Ordinarily the law does not envisage a natural guardian of the undivided interest of a Hindu minor in joint family property. The natural guardian of the property of a Hindu minor, other than the undivided interest in joint family property, is alone contemplated under Section 8, whereunder his powers and duties are defined. Section 12 carves out an exception to the rule that should there be no adult member of the joint family in management of the joint family property, in which the minor has an undivided interest, a guardian may be appointed; but ordinarily no guardian shall be appointed for such undivided interest of the minor. The adult member of the family in the management of the joint Hindu family property may be a male or a female, not necessarily the Karta. The power of the High Court otherwise to appoint a guardian, in situations justifying, has been preserved. This is the legislative scheme on the subject. Under Section 8 a natural guardian of the property of the Hindu minor, before he disposes of any immovable property of the minor, must seek permission of the court. But since there need be no natural guardian for the minor's undivided interest in the joint family property, as provided under Sections 6 and 12 of the Act, the previous permission of the court under Section 8 for disposing of the undivided interest of the minor in the joint family property is not required. The joint Hindu family by itself is a legal entity capable of acting through its Karta and other adult members of the family in management of the Joint Hindu family property. Thus Section 8 in view of the express terms of Sections 6 and 12, would not be applicable where a joint Hindu family property is sold/disposed of by the Karta involving an undivided interest of the minor in the said joint Hindu family property. The question posed at the outset therefore is so answered."
12. This position of law has been followed by this Court in the case of Sandhya Rajan Antapurkar and others v. State of Maharashtra (supra), wherein it has been held as follows :-
"7. Under Section 6 of the Hindu Minority and Guardianship Act, 1956, the father and after him the mother is natural guardian of Hindu minor in respect of minor person as well as in respect of the minor's property. The undivided interest of the minor in joint family property has been specifically excluded by this Section.
8. Section 8 of the Hindu Minority and Guardianship Act, 1956 prevents natural guardian of Hindu minor to transfer by sale, gift, exchange or otherwise any part of the immovable property of the minor without previous permission of the Court. This restriction on the natural guardian in relation to the property of the minor applies only to the separate or absolute property of the minor. It does not include the minor's undivided share in the joint family property, as, under Section 6, there cannot be a natural guardian in respect of such property which is specifically excluded."
13. In the instant case, it is an admitted position that the original plaintiffs had only an undivided interest in the joint family property, which was subject matter of aforesaid sale-deed dated 30.03.1974 executed by their mother in favour of the appellant. Therefore, applying the position of law as laid down by the Hon'ble Supreme Court in the above quoted judgment of Sri Narayan Bal and others v. Sridhar Sutar and others (supra) and followed by this Court in the case of Sandhya Rajan Antapurkar and others v. State of Maharashtra (supra), it is evident that the mother of the original plaintiffs was not required to take permission of the Court under Section 8(2) of the aforesaid Act before executing the sale-deed in favour of the appellant. The appellate Court in the impugned judgment and order, thus, committed an error in holding that it was imperative for the mother of the original plaintiffs to have obtained permission of the Court before executing the aforesaid sale-deed. The judgment of the Hon'ble Supreme Court in the case of Saroj v. Sunder Singh and others (supra) relied upon by the learned Counsel for respondent Nos. 1 to 4 is distinguishable, because in that case the Court recorded that the share of daughters after the death of their father had become definite and it had been so recorded in the mutation register. In the present case, the Court is concerned admittedly with undivided share of the minors (original plaintiffs) and, therefore, Section 8 is clearly not applicable as laid down by the Hon'ble Supreme Court in the case of Sri Narayan Bal and others v. Sridhar Sutar and others (supra). Accordingly, the first question of law, on which this appeal was admitted, is answered in favour of the appellant and against respondent Nos. 1 to 4.
14. The second question pertains to whether it was necessary for the original plaintiffs to have prayed for setting aside of the sale-deed dated 30.03.1974 executed by their mother while seeking possession of the suit property. In the present case, the original plaintiffs have contended that they were minors when the aforesaid sale-deed was executed by their mother and that upon attaining majority, they were entitled to possession of the suit property as their mother could not have executed the aforesaid sale-deed. The Hon'ble Supreme Court in the case of Nagappan v. Ammasai Gounder and others (supra) held that when a minor claims that an alienation of property by a guardian was not sustainable, such alienation is voidable upon the minor attaining majority. In such a situation, the minor, upon attaining majority and in order to avoid such alienation must seek setting aside of such alienation and then seek possession of the suit property. It was held that in the absence of a prayer for setting aside alienation a suit seeking possession would not be maintainable. The aforesaid case was concerned with absence of permission under Section 8 of the aforesaid Act and it was held that in the absence of such permission when a sale-deed was executed, it was voidable at the instance of minor and that in such a situation a prayer for setting aside of the sale-deed was necessary.
15. In the case of Kisan Ramji Khandare v. Kaussalyabai Gangaram Korde and others (supra), this Court has placed reliance on the aforesaid judgment of the Hon'ble Supreme Court in the case of Nagappan v. Ammasai Gounder and others (supra) and the position of law has been followed to the effect that when the sale-deed was voidable at the instance of a minor, a prayer for setting aside the sale-deed was necessary.
16. The learned Counsel appearing on behalf of respondent Nos. 1 to 4 has relied upon the judgments of the Hon'ble Supreme Court in the case of G. Annamalai Pillai v. District Revenue Officer and others (supra) and State of Maharashtra v. Pravin Jethalal Kamdar (supra) to contend that there was no need to seek a declaration for setting aside of the sale-deed in the present case and that suit simpliciter for possession was maintainable. In the present case, since respondent Nos. 1 to 4 upon attaining majority, approached the Court to prove that the aforesaid sale-deed dated 30.03.1974 was not executed properly in the eyes of law by their mother without seeking permission of the Court, it was at best voidable at their instance. In such a situation, unless the respondent Nos. 1 to 4 prayed for setting aside of the aforesaid sale-deed, they could not have sought a decree for possession. Hence, the second substantial question of law framed by this Court is also answered in favour of the appellant and against respondent Nos. 1 to 4.
17. There were arguments addressed by the Counsel in respect of legal necessity as well as whether the mother of respondent Nos. 1 to 4 could act as "Karta" in the present case. On the question of whether a mother can act as "Karta", it would not be necessary to dilate on the said issue because, as held in the case of Sri Narayan Bal and others v. Sridhar Sutar and others (supra), in respect of undivided share of a minor in joint family property, there need be no natural guardian. Consequently no permission under Section 8 would be required while a responsible adult person was in charge of such property. On a conjoint reading of Sections 6, 8 and 12 of the aforesaid Act, it becomes clear that such permission was not required and an adult person in management of the joint Hindu family property could alienate said property for legal necessity. Therefore, it would not be necessary to discuss the contention raised on behalf of respondent Nos. 1 to 4 that as the law then stood, their mother could not have acted as "Karta" because she was not qualified to be a co-parcener in the joint Hindu family.
18. As regards the question of legal necessity, in the present case, the appellate Court has referred to the details of encumbrances and debts stated in the sale-deed itself. Various amounts stated in the sale-deed have been recorded but, the appellate Court has come to the conclusion that the amount of debts and the amount shown as consideration did not match up and that, therefore, there was lack of sufficient material to show legal necessity. But, a proper reading of the recitals in the sale-deed shows that the details of the debts with break up and total are mentioned in the sale-deed and the amount of consideration was paid by the appellant in satisfaction of such debts. The appellant has also mentioned about the same in his oral evidence and he has also stated in respect of receipts showing return of private loans. In this situation, apart from the detailed recitals in the sale-deed, there was oral evidence also given by the appellant regarding legal necessity and the burden had been discharged by him. In this regard, reliance placed on behalf of the appellant on the judgment of this Court in the case of Kisan Ramchandra Kokane through LRs and others v. Anjani Laxman Kapase through LRs and others (supra) is correct wherein it is held that recitals of the sale-deed are significant when they indicate the legal necessity for execution of the document and sale of the property. In the present case, the sale-deed was executed on 30.03.1974 and the suit was filed by respondent Nos. 1 and 4 on 14.07.1992. In such a situation, the burden on the appellant to demonstrate legal necessity stood sufficiently satisfied by the recitals in the sale-deed, coupled with documentary evidence in the form of receipts for repayment of private loans placed on record, which was corroborated by the oral evidence of the appellant. Therefore, the appellate Court had clearly erred on this aspect also.
19. As regards arguments advanced by the learned Counsel for the parties on the aspect of limitation and applicability of Article 65 of the Limitation Act, 1973 to the present case, even if it was held that the appellate Court was justified in holding that the suit was within limitation insofar as the share of plaintiff Nos. 2 to 4 and defendant No. 4 were concerned, on merits it has been found above that the decree granted by the appellate Court was not sustainable. Hence, the aspect of limitation is not being considered and discussed in detail.
20. In the light of the above, as the Substantial Questions of Law framed by this Court are answered in favour of the appellant, the instant appeal is allowed. The impugned judgment and order of the appellate Court is quashed and set aside and the suit filed by respondent Nos. 1 to 4 is dismissed. There shall be no order as to costs.
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