In the light of these facts, it is crystal clear that when the
property inherited and owned by the plaintiff which is not a Hindu
Joint Family property or interest in the joint Hindu Family and when
father was not shown to be not taking care of the minor, mother is
not natural guardian. She as a de facto guardian has no right to
alienate the property of her minor son.
21. When the transaction is voidable, it is voidable at the
option of the minor. Minor's father or natural guardian cannot
exercise the option which a minor alone can exercise. Obviously, the
minor can exercise it after attaining the majority. Therefore, when
the sale is voidable, the ruling in Narayan Gilankar's (supra) would
be applicable but when the sale is void and there was threat of
dispossession or there was actual dispossession, it was not necessary
for minor to wait for attaining majority. His natural guardian could
have filed suit to protect his interest and his civil rights in the
property. Thus, the suit filed by the plaintiff during his minority
through his father a natural guardian as next friend is certainly
maintainable. The period of limitation in such matters will be 12
years and not 3 years as there is no necessity of claiming any
declaration. The question of legal necessity as held in Vishwambhar's
case (supra) is irrelevant. The sale is void and the transfer can be
repudiated on attaining majority. I therefore find that the learned
first appellate Court committed error in not properly appreciating the
above facts and did not follow the settled principles of law as laid
down in the above rulings. The sale could have been voidable only if
father was neglecting the child and was in care, custody and
maintenance of the mother. In this regard, reliance can be placed on
the judgment of the Apex Court in Githa Hariharan (Ms) Vs.
Reserve Bank of India reported in (1999) 2 SCC 228.
46. In our opinion, the word 'after” shall have to be
given a meaning which would subserve the need of the
situation, viz., the welfare of the minor and having due
regard to the factum that law courts endeavour to retain the
legislation rather than declare it to be void, we do feel it
expedient to record that the word “after” does not necessarily
mean after the death of the father, on the contrary, it depicts
an intent so as to ascribe the meaning thereto as “in the
absence of” be
it temporary or otherwise or total apathy of
the father towards the child or even inability of the father by
reason of ailment or otherwise and it is only in the event of
such a meaning being ascribed to the word “after” as used in
Section 6 then and in that event, the same would be in
accordance with the intent of the legislation, viz., the welfare
of the child.
47. In that view of the matter, the question of ascribing
the literal meaning to the word “after” in the context does not
and cannot arise having due regard to the object of the
statute, read with the constitutional guarantee of gender
equality and to give a full play to the legislative intent, since
any other interpretation would render the statute void and
which situation, in our view, ought to be avoided.
22. There are neither pleadings nor evidence to make out these
situations which could have made the mother as natural guardian.
Hence, the sale effected by mother is void and the suit filed for
challenging the same and for claiming perpetual injunction and later
on for possession was perfectly maintainable.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
BENCH AT AURANGABAD.
SECOND APPEAL NO. 650 OF 2003
Rameshwar Babasaheb Paul, Vs Shivaji Eknathrao Paul,
CORAM : A. M. DHAVALE, J.
DATED : 21.01.2019.
Citation: AIR 2019 Bom 77
A minor plaintiff's suit filed through his father as next
friend for declaration that the sale of his share by his mother was
void & illegal, was decreed with costs by the trial Court. The first
Appellate Court allowed the appeal and reversed the judgment.
Hence, the plaintiff has filed this Second Appeal.
2. The appellantoriginal
plaintiff was aged 12 years when his
father as next friend filed Reg. Civil Suit No. 56/89 in the court of
Civil Judge Jr. Division, Selu, Dist. Parbhani. As per the plaint, land
adm. 2H 90R at Gut No. 254 at Digras was belonging to the plaintiff.
Kushavartabai / defendant No. 1 (his mother) had no title or right or
interest. Defendant Nos. 2 and 3 by use of undue influence, coercion
and force got a sale deed of the suit land executed in their name
without any consideration. That time, defendant No. 1 as mother
acted as a guardian when his father was alive. She had no authority
to act as guardian and to execute the sale deed. No permission of the
court was obtained for sale of minor's property. Initially, the suit was
for declaration that the sale deed was void and for perpetual
injunction but in 1990, the plaintiff claimed that he was forcibly
dispossessed and by amending the plaint he claimed possession of the
suit land. Defendant No. 2 – Shivaji alone contested the suit. He
claimed that, there was partition between the plaintiff, his father and
his mother before execution of the sale deed and the suit land was
allotted to defendant No. 1 and the plaintiff. The suit land was sold
for legal necessity and for the benefit of the minor. The sale is legal
and binding on the plaintiff. There was no coercion or undue
influence or force. The suit proceeded without written statement of
defendants No. 1 and 3.
3. The learned trial Judge framed issues and after recording
the evidence he came to the conclusion that the plaintiff was
exclusive owner of the suit land. The sale deed was obtained by
undue influence and without consideration. It was not for legal
necessity or benefit of the minor. With these findings, he granted a
decree of declaration that the sale deed was null and void and not
binding on the plaintiff and for possession.
4. Defendant No. 2 challenged the judgment and decree by
way of Reg. Civil Appeal No. 177/1994 before the District Judge,
Parbhani. The learned District Judge held that, the said sale deed
could not be challenged during the minority of the plaintiff. The
plaintiff alone can challenge it after attaining majority. Hence she
allowed the appeal and dismissed the suit. Hence, this appeal.
5. By order dt. 25.07.2005, the appeal was admitted on
grounds No. 2 and 3 as substantial questions of law, which read as
under:
(i) Whether the property of the minor can be alienated
without the permission of the court?
(ii) Whether the sale of a property in the name of minor can be
sold (valid) without there being any legal necessity and
whether property of the minor can be sold for the necessity
of the other family members?
6. Ms Priyanka Matlane, learned counsel for the appellant
argued that, the property was belonging to the plaintiff/minor. At
the time of sale, his father was alive and his mother could not be his
natural guardian. The sale effected by the plaintiff's mother was void
and not voidable. In this regard, she relied on Narain Singh Vs.
Sapurna Kaur and Ors. reported in 1968 (16) BLJ R898. In this
case, it is held that, when the father was alive but he refused to act as
natural guardian, the disposal of the property of the minor by the
mother is not valid as she has not legally obtained the permission to
dispose of the property. She could have taken recourse to the legal
proceedings to act as minor's guardian.
7. Per contra, Mr V. D. Hon, learned Sr. Counsel for
respondent No. 1 submitted that, learned first appellate Court has
rightly relied on the judgment of the Apex Court in Narayan
Laxman Gilankar v. Udaykumar Kashinath Kaushik reported in
AIR 1994 BOMBAY 152, to hold that the suit filed by the father of a
minor during his minority was not maintainable. He submitted that,
respondent No. 5 has purchased the suit property after the judgment
of the first appellate court. The appeal was admitted after
condonation of delay. Respondent No. 5 is a bona fide purchaser. In
this situation, the doctrine of lis pendens will not be applicable. In
this regard, he relied on the judgment Amrit Lal Jain v. Haryana
Urban Development Authority and others reported in AIR 1995
Punjab & Haryana 1417. He also argued that, though sale
transaction was executed by the mother of the plaintiff, the plaintiff's
father was a witness to it. It was sold for the benefit of the minor.
No substantial question of law is involved and therefore the appeal be
dismissed.
8. The substantial questions of law with my findings are as
follows:
(i) Whether the property of the minor can be alienated
without the permission of the court?
…. Not by mother, who is not natural guardian.
(ii) Whether the sale of a property in the name of minor can be
sold (valid) without there being any legal necessity and
whether property of the minor can be sold for the necessity
of the other family members?
….When sale is not by natural guardian, legal
necessary is immaterial – In the negative.
(iii) What order? ...... The appeal is allowed. The judgment
and decree of the first appellate court are set aside and the
judgment and decree of the trial Court is restored.
9. In view of argument of learned Advocate Mr. Hon,
following additional substantial question of law is framed.
(i) Whether the decree would be binding on respondent No. 5
or not ? …... Decree would be binding.
REASONS
10. From the pleadings and evidence on record, it is not
disputed that the suit land was belonging to the plaintiff, aged 12
years. In fact, the defendant has purchased the land assuming that it
is belonging to the plaintiff and through his mother.
11. Admittedly, defendant No. 1mother
of the plaintiff during
his minority on 17.02.1989 executed sale deed of the suit land adm.
1H 1R in favour of defendant No. 2 – Shivaji, for Rs. 30,000/.
The
same is signed on behalf of the plaintiff by defendant No. 1 –
Kushavartabai. It is attested by the plaintiff's father. Sale deed was
executed on 17.02.1989 and the suit is filed on 16.03.1989. The sale
deed is in favour of defendant No. 2 alone. Defendant No. 3 is not
concerned. It was contention that, the sale was without
consideration however it is a registered sale deed. There is evidence
of the defendant about payment of consideration. There is nothing
suspicious to suggest that the sale deed executed was without
payment of consideration. The ld. trial Judge held that, the sale was
without consideration but he overlooked the fact that there was a
registered sale deed which has presumptive value. In this regard, I
rely on Vimal Chand Ghevarchand Jain & Ors. Versus Ramakant
Eknath Jajoo reported in 2009 (5) Mh.L.J. 597. There is no material
to suggest that defendant No. 1 – Kushavartabai was under any
pressure and she could have executed the sale deed without
consideration. The plaintiff has not examined Kushavartabai. In the
light of these facts, the learned first appellate Court rightly set aside
the finding that the sale was without consideration.
12. The learned trial Judge held that, when the plaintiff's father
was alive, his mother was not a natural guardian and was not
entitled to execute the sale deed on behalf of the minor. He also held
that, there was no legal necessity.
13. The first appellate Court relied on Narayan Gilankar's
case (supra), wherein it is held that when sale transaction is without
permission of the court it is not void ab initio but is voidable at the
option of the minor and challenge to the sale can be made by the
minor only after attaining majority and not during his minority
through next friend. It was observed by the first appellate Court that
the plaintiff filed application dt. 04.12.99 during the pendency of the
appeal to remove the natural guardian and sought permission to
contest the suit of his own. This was made after he had completed
three years after attaining majority (aged 22 years). Therefore, his
claim was barred by limitation.
14. In Narayan's case (supra), one Kashinath Kaushik was the
common ancestor. He died in 1951 leaving behind a widow and two
minor sons. Half portion of the property was sold in court auction in
November – 1952 in execution of decree passed against deceased
Kashinath.
On 04.10.1962, Rukhminibai sold the remaining ½ part
on behalf of heirs and natural guardian. In the year 1968,
Udaykumar the elder son filed a suit for himself and as next friend of
minor brother Babulal, against the purchaser Narayan Gilankar and
mother Rukminibai for a declaration that the transaction of sale was
void and for partition and separate possession of 2/3rd share. There
was no dispute that the mother was the natural guardian and the
property was not divided by metes and bounds and the minors had
only undivided unspecified shares in the same. It was held that,
essence of coparcenary property under Mitakshara is the unity of
ownership in the whole body of coparcenary. Relying on subclause
2 & 3 of Section 8 of the Hindu Minority and Guardianship Act, 1956,
it was held that, sale transaction without permission of the Court is
not void ab initio, but is voidable at the option of the minor or any
person claiming under him and the said option can be exercised by
him only after attaining the majority and not during minority through
next friend.
15. The learned first appellate Court erred in not considering
the peculiar facts and circumstances of the case which are quite
distinct from the case of Narayan Gilankar's (supra). In that case,
the brother was not natural guardian and father was dead. In the
present case, father was alive and mother has executed the sale deed
of the property of the minor and father was attesting witness.
16. In Panni Lal Versus Rajinder Singh and another reported
in (1993) 4 SCC 38. Mother Gurkirpal sold the land owned by her
minor sons Rajendra & Baldeo during their minority by registered
sale deed dt. 30.07.1964. The respondents, upon attaining majority,
sued the appellant for possession of the said land on the ground that
the sale thereof, having been made without the permission of the
court, was void. The appellants heavily relied on the fact that sale
deed had been attested by the father of the respondents and that the
sale must be deemed to have been a sale by the legal guardian. It
was also contended that the sale had been for legal necessity and for
the benefit of the respondents. In the light of these facts, the apex
Court observed as follows:
6. …..... In this behalf our attention was invited to
this Court's judgment in Jijabai Vithalrao Gajre vs.
Pathankhan and ors., AIR 1971 SC 315. This was a case in
which it was held that the position in Hindu law was that
when the father was alive he was the natural guardian and
it was only after him that the mother became the natural
guardian. Where the father was alive but had fallen out
with the mother of the minor child and was living
separately for several years without taking any interest in
the affairs of the minor, who was in the keeping and care of
the mother, it was held that, in the peculiar circumstances,
the father should be treated as if nonexistent and,
therefore, the mother could be considered as the natural
guardian of the minor's person as well as property, having
power to bind the minor by dealing with her immovable
property.
7. In the present case, there is no evidence to show
that the father of the respondents was not taking any
interest in their affairs or that they were in keeping and
care of the mother to the exclusion of the father. In fact, his
attestation of the sale deed shows that he was very much
existent and in the picture. If he was, then the sale by the
mother, notwithstanding the fact that the father attested it,
cannot be held to be a sale by the father and natural
guardian satisfying the requirements of section 8.
17. The present case is squarely covered by the above judgment
in the facts of the present case.
18. In Vishwambhar and others v. Laxminarayana AIR 2001
SC 2607, there was alienation of minors property by mother as
guardian and the suit was filed by minor for recovery of possession
from the purchaser. It was held that, the sales made by guardian
were ab initio void and liable to be ignored. It was held that, the suit
should have been for setting aside the sales. There was no such
prayer initially and the plaint was amended but the amendment was
barred by limitation of three years from the date of sale deed. In this
case also, the father Dattatraya died and the minors were in care and
custody of their widowed mother. She was managing the properties
left by Dattatraya as guardians of the minors. She executed sale
deeds in 1967. The declaration for setting aside the sale deed would
be necessary if the sale deed is executed by natural guardian which
would be voidable u/s 8. Such prayer will not be necessary if the sale
is effected by de facto guardian. It is governed by Section 11 which
declares the sale as void.
19. In this regard, I rely on Madhegowda v. Ankegowda AIR
2002 SC 215. In this case, the original owner Ninjegowda died
leaving behind two daughters Sakamma and Madamma. While
Sakamma was minor, Madamma acting as guardian sold her share by
registered sale deed to Madhegowda on 24.04.1961. It was sold for
collecting funds for marriage of Sakamma. The appellant was also
put in possession of the property. Sakamma after attaining majority
sold her share of the property to Ankegowda, predecessor of
respondent nos.1 to 9 therein, by a registered Sale Deed dated
1.7.1967. In the light of these facts, relying on Section 11 prohibiting
de facto guardian from alienating the property of minor, it was held
that,
“Section 11 had done away with the authority of any
person to deal with or dispose of any property of a Hindu
minor on the ground of his being the de facto guardian of
such minor. Any alienation by a de facto guardian will be
governed by the provisions in Section 11 of the Act. The
alienation, being against the statutory prohibition, would
be void ab initio and the alienee would not acquire any title
to the property.
The apex Court observed, “it is to be kept in mind that this
is not a case of alienation of minor's interest in a joint
family property. As noted earlier, Ninge Gowda died
leaving his two daughters, namely Smt. Sakamma and Smt.
Madamma. It is not the case of any of the parties that the
suit property was a joint family property in the hands of
Ninge Gowda or that the alienation by Smt. Madamma,
who is the sister of the minor, was a transfer of the minors
interest in the joint family property. Therefore, the question
whether the provision in Section 11 is applicable in the
case of transfer of minors interest in a joint family does not
arise for consideration here. Section 11 includes all types of
properties of a minor. No exception is provided in the
Section. Undoubtedly Smt. Madamma, sister of the minor,
is not a guardian as defined in Section 4(b) of the Act.
Therefore, she can only be taken to be a de facto guardian
or more appropriately de facto manager. To a transfer in
such a case Section 11 of the Act squarely applies.
Therefore, there is little scope for doubt that the transfer of
the minors interest by a de facto guardian/manager having
been made in violation of the express bar provided under
the Section is per se invalid. The existence or otherwise of
legal necessity is not relevant in the case of such invalid
transfer. A transferee of such an alienation does not acquire
any interest in the property. Such an invalid transaction is
not required to be set aside by filing a suit or judicial
proceeding. The minor, on attaining majority, can
repudiate the transfer in any manner as and when occasion
for it arises. After attaining majority if he/she transfers
his/her interest in the property in a lawful manner
asserting his/her title to the same that is sufficient to show
that the minor has repudiated the transfer made by the de
facto guardian/manager.”
20. In the light of these facts, it is crystal clear that when the
property inherited and owned by the plaintiff which is not a Hindu
Joint Family property or interest in the joint Hindu Family and when
father was not shown to be not taking care of the minor, mother is
not natural guardian. She as a de facto guardian has no right to
alienate the property of her minor son.
21. When the transaction is voidable, it is voidable at the
option of the minor. Minor's father or natural guardian cannot
exercise the option which a minor alone can exercise. Obviously, the
minor can exercise it after attaining the majority. Therefore, when
the sale is voidable, the ruling in Narayan Gilankar's (supra) would
be applicable but when the sale is void and there was threat of
dispossession or there was actual dispossession, it was not necessary
for minor to wait for attaining majority. His natural guardian could
have filed suit to protect his interest and his civil rights in the
property. Thus, the suit filed by the plaintiff during his minority
through his father a natural guardian as next friend is certainly
maintainable. The period of limitation in such matters will be 12
years and not 3 years as there is no necessity of claiming any
declaration. The question of legal necessity as held in Vishwambhar's
case (supra) is irrelevant. The sale is void and the transfer can be
repudiated on attaining majority. I therefore find that the learned
first appellate Court committed error in not properly appreciating the
above facts and did not follow the settled principles of law as laid
down in the above rulings. The sale could have been voidable only if
father was neglecting the child and was in care, custody and
maintenance of the mother. In this regard, reliance can be placed on
the judgment of the Apex Court in Githa Hariharan (Ms) Vs.
Reserve Bank of India reported in (1999) 2 SCC 228.
46. In our opinion, the word 'after” shall have to be
given a meaning which would subserve the need of the
situation, viz., the welfare of the minor and having due
regard to the factum that law courts endeavour to retain the
legislation rather than declare it to be void, we do feel it
expedient to record that the word “after” does not necessarily
mean after the death of the father, on the contrary, it depicts
an intent so as to ascribe the meaning thereto as “in the
absence of” be
it temporary or otherwise or total apathy of
the father towards the child or even inability of the father by
reason of ailment or otherwise and it is only in the event of
such a meaning being ascribed to the word “after” as used in
Section 6 then and in that event, the same would be in
accordance with the intent of the legislation, viz., the welfare
of the child.
47. In that view of the matter, the question of ascribing
the literal meaning to the word “after” in the context does not
and cannot arise having due regard to the object of the
statute, read with the constitutional guarantee of gender
equality and to give a full play to the legislative intent, since
any other interpretation would render the statute void and
which situation, in our view, ought to be avoided.
22. There are neither pleadings nor evidence to make out these
situations which could have made the mother as natural guardian.
Hence, the sale effected by mother is void and the suit filed for
challenging the same and for claiming perpetual injunction and later
on for possession was perfectly maintainable.
23. As far as the arguments of learned Advocate Shri. Hon for
respondent No. 5 are concerned, he claims to be a bona fide
purchaser after the First Appeal was dismissed before it was restored.
He claims that the lis pendens would not be applicable and the
decree would not be binding on him.
24. In the light of the above discussion, it is apparent that
defendant No. 2 got no rights by virtue of sale deed executed by
defendant No. 1 as the same was void. When defendant No. 2 had no
rights, defendant No. 5 Karbhani
would have got no rights of title or
interest by virtue of sale deed executed in his favour by defendant
No.2. The issue of lis pedens applies when the rights or interests are
in question. In the present case, respondent No. 5 is only in
possession through respondent No. 1 Shivaji
(defendant No.2). The
issue of lis pendens is not involved when there is no transfer of any
rights as defendant No. 2 Shivaji
himself was having no right. As
far as possession is concerned, decree passed against defendant No.2
Shivaji
would be binding on the persons claiming through him. The
facts in Amrutlal Jain's case were quite different. In that case, the
subsequent purchaser was not made a party and there was allotment
of the disputed plot in his favour. The said ruling is not applicable to
the facts of the present case. Therefore, the judgment and decree of
the first appellate Court will have to be set aside and the judgment
and decree of the trial court will have to be restored. Since there is a
registered Sale Deed, copy of this judgment and decree needs to be
sent to SubRegistrar
before whom the sale deed was executed.
Hence, I allow the appeal as follows:
ORDER
(i) The Second Appeal is allowed with costs.
(ii) The judgment and decree of the first appellate Court is set
aside.
(iii) The judgment and decree of the trial Court is restored.
(iv) The trial Court is directed to forward the copy of this
judgment and decree of the trial Court as well as this Court
to the concerned SubRegistrar
before whom the sale deed
declared as void was executed.
[ A. M. DHAVALE ]
JUDGE
Print Page
property inherited and owned by the plaintiff which is not a Hindu
Joint Family property or interest in the joint Hindu Family and when
father was not shown to be not taking care of the minor, mother is
not natural guardian. She as a de facto guardian has no right to
alienate the property of her minor son.
21. When the transaction is voidable, it is voidable at the
option of the minor. Minor's father or natural guardian cannot
exercise the option which a minor alone can exercise. Obviously, the
minor can exercise it after attaining the majority. Therefore, when
the sale is voidable, the ruling in Narayan Gilankar's (supra) would
be applicable but when the sale is void and there was threat of
dispossession or there was actual dispossession, it was not necessary
for minor to wait for attaining majority. His natural guardian could
have filed suit to protect his interest and his civil rights in the
property. Thus, the suit filed by the plaintiff during his minority
through his father a natural guardian as next friend is certainly
maintainable. The period of limitation in such matters will be 12
years and not 3 years as there is no necessity of claiming any
declaration. The question of legal necessity as held in Vishwambhar's
case (supra) is irrelevant. The sale is void and the transfer can be
repudiated on attaining majority. I therefore find that the learned
first appellate Court committed error in not properly appreciating the
above facts and did not follow the settled principles of law as laid
down in the above rulings. The sale could have been voidable only if
father was neglecting the child and was in care, custody and
maintenance of the mother. In this regard, reliance can be placed on
the judgment of the Apex Court in Githa Hariharan (Ms) Vs.
Reserve Bank of India reported in (1999) 2 SCC 228.
46. In our opinion, the word 'after” shall have to be
given a meaning which would subserve the need of the
situation, viz., the welfare of the minor and having due
regard to the factum that law courts endeavour to retain the
legislation rather than declare it to be void, we do feel it
expedient to record that the word “after” does not necessarily
mean after the death of the father, on the contrary, it depicts
an intent so as to ascribe the meaning thereto as “in the
absence of” be
it temporary or otherwise or total apathy of
the father towards the child or even inability of the father by
reason of ailment or otherwise and it is only in the event of
such a meaning being ascribed to the word “after” as used in
Section 6 then and in that event, the same would be in
accordance with the intent of the legislation, viz., the welfare
of the child.
47. In that view of the matter, the question of ascribing
the literal meaning to the word “after” in the context does not
and cannot arise having due regard to the object of the
statute, read with the constitutional guarantee of gender
equality and to give a full play to the legislative intent, since
any other interpretation would render the statute void and
which situation, in our view, ought to be avoided.
22. There are neither pleadings nor evidence to make out these
situations which could have made the mother as natural guardian.
Hence, the sale effected by mother is void and the suit filed for
challenging the same and for claiming perpetual injunction and later
on for possession was perfectly maintainable.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
BENCH AT AURANGABAD.
SECOND APPEAL NO. 650 OF 2003
Rameshwar Babasaheb Paul, Vs Shivaji Eknathrao Paul,
CORAM : A. M. DHAVALE, J.
DATED : 21.01.2019.
Citation: AIR 2019 Bom 77
A minor plaintiff's suit filed through his father as next
friend for declaration that the sale of his share by his mother was
void & illegal, was decreed with costs by the trial Court. The first
Appellate Court allowed the appeal and reversed the judgment.
Hence, the plaintiff has filed this Second Appeal.
2. The appellantoriginal
plaintiff was aged 12 years when his
father as next friend filed Reg. Civil Suit No. 56/89 in the court of
Civil Judge Jr. Division, Selu, Dist. Parbhani. As per the plaint, land
adm. 2H 90R at Gut No. 254 at Digras was belonging to the plaintiff.
Kushavartabai / defendant No. 1 (his mother) had no title or right or
interest. Defendant Nos. 2 and 3 by use of undue influence, coercion
and force got a sale deed of the suit land executed in their name
without any consideration. That time, defendant No. 1 as mother
acted as a guardian when his father was alive. She had no authority
to act as guardian and to execute the sale deed. No permission of the
court was obtained for sale of minor's property. Initially, the suit was
for declaration that the sale deed was void and for perpetual
injunction but in 1990, the plaintiff claimed that he was forcibly
dispossessed and by amending the plaint he claimed possession of the
suit land. Defendant No. 2 – Shivaji alone contested the suit. He
claimed that, there was partition between the plaintiff, his father and
his mother before execution of the sale deed and the suit land was
allotted to defendant No. 1 and the plaintiff. The suit land was sold
for legal necessity and for the benefit of the minor. The sale is legal
and binding on the plaintiff. There was no coercion or undue
influence or force. The suit proceeded without written statement of
defendants No. 1 and 3.
3. The learned trial Judge framed issues and after recording
the evidence he came to the conclusion that the plaintiff was
exclusive owner of the suit land. The sale deed was obtained by
undue influence and without consideration. It was not for legal
necessity or benefit of the minor. With these findings, he granted a
decree of declaration that the sale deed was null and void and not
binding on the plaintiff and for possession.
4. Defendant No. 2 challenged the judgment and decree by
way of Reg. Civil Appeal No. 177/1994 before the District Judge,
Parbhani. The learned District Judge held that, the said sale deed
could not be challenged during the minority of the plaintiff. The
plaintiff alone can challenge it after attaining majority. Hence she
allowed the appeal and dismissed the suit. Hence, this appeal.
5. By order dt. 25.07.2005, the appeal was admitted on
grounds No. 2 and 3 as substantial questions of law, which read as
under:
(i) Whether the property of the minor can be alienated
without the permission of the court?
(ii) Whether the sale of a property in the name of minor can be
sold (valid) without there being any legal necessity and
whether property of the minor can be sold for the necessity
of the other family members?
6. Ms Priyanka Matlane, learned counsel for the appellant
argued that, the property was belonging to the plaintiff/minor. At
the time of sale, his father was alive and his mother could not be his
natural guardian. The sale effected by the plaintiff's mother was void
and not voidable. In this regard, she relied on Narain Singh Vs.
Sapurna Kaur and Ors. reported in 1968 (16) BLJ R898. In this
case, it is held that, when the father was alive but he refused to act as
natural guardian, the disposal of the property of the minor by the
mother is not valid as she has not legally obtained the permission to
dispose of the property. She could have taken recourse to the legal
proceedings to act as minor's guardian.
7. Per contra, Mr V. D. Hon, learned Sr. Counsel for
respondent No. 1 submitted that, learned first appellate Court has
rightly relied on the judgment of the Apex Court in Narayan
Laxman Gilankar v. Udaykumar Kashinath Kaushik reported in
AIR 1994 BOMBAY 152, to hold that the suit filed by the father of a
minor during his minority was not maintainable. He submitted that,
respondent No. 5 has purchased the suit property after the judgment
of the first appellate court. The appeal was admitted after
condonation of delay. Respondent No. 5 is a bona fide purchaser. In
this situation, the doctrine of lis pendens will not be applicable. In
this regard, he relied on the judgment Amrit Lal Jain v. Haryana
Urban Development Authority and others reported in AIR 1995
Punjab & Haryana 1417. He also argued that, though sale
transaction was executed by the mother of the plaintiff, the plaintiff's
father was a witness to it. It was sold for the benefit of the minor.
No substantial question of law is involved and therefore the appeal be
dismissed.
8. The substantial questions of law with my findings are as
follows:
(i) Whether the property of the minor can be alienated
without the permission of the court?
…. Not by mother, who is not natural guardian.
(ii) Whether the sale of a property in the name of minor can be
sold (valid) without there being any legal necessity and
whether property of the minor can be sold for the necessity
of the other family members?
….When sale is not by natural guardian, legal
necessary is immaterial – In the negative.
(iii) What order? ...... The appeal is allowed. The judgment
and decree of the first appellate court are set aside and the
judgment and decree of the trial Court is restored.
9. In view of argument of learned Advocate Mr. Hon,
following additional substantial question of law is framed.
(i) Whether the decree would be binding on respondent No. 5
or not ? …... Decree would be binding.
REASONS
10. From the pleadings and evidence on record, it is not
disputed that the suit land was belonging to the plaintiff, aged 12
years. In fact, the defendant has purchased the land assuming that it
is belonging to the plaintiff and through his mother.
11. Admittedly, defendant No. 1mother
of the plaintiff during
his minority on 17.02.1989 executed sale deed of the suit land adm.
1H 1R in favour of defendant No. 2 – Shivaji, for Rs. 30,000/.
The
same is signed on behalf of the plaintiff by defendant No. 1 –
Kushavartabai. It is attested by the plaintiff's father. Sale deed was
executed on 17.02.1989 and the suit is filed on 16.03.1989. The sale
deed is in favour of defendant No. 2 alone. Defendant No. 3 is not
concerned. It was contention that, the sale was without
consideration however it is a registered sale deed. There is evidence
of the defendant about payment of consideration. There is nothing
suspicious to suggest that the sale deed executed was without
payment of consideration. The ld. trial Judge held that, the sale was
without consideration but he overlooked the fact that there was a
registered sale deed which has presumptive value. In this regard, I
rely on Vimal Chand Ghevarchand Jain & Ors. Versus Ramakant
Eknath Jajoo reported in 2009 (5) Mh.L.J. 597. There is no material
to suggest that defendant No. 1 – Kushavartabai was under any
pressure and she could have executed the sale deed without
consideration. The plaintiff has not examined Kushavartabai. In the
light of these facts, the learned first appellate Court rightly set aside
the finding that the sale was without consideration.
12. The learned trial Judge held that, when the plaintiff's father
was alive, his mother was not a natural guardian and was not
entitled to execute the sale deed on behalf of the minor. He also held
that, there was no legal necessity.
13. The first appellate Court relied on Narayan Gilankar's
case (supra), wherein it is held that when sale transaction is without
permission of the court it is not void ab initio but is voidable at the
option of the minor and challenge to the sale can be made by the
minor only after attaining majority and not during his minority
through next friend. It was observed by the first appellate Court that
the plaintiff filed application dt. 04.12.99 during the pendency of the
appeal to remove the natural guardian and sought permission to
contest the suit of his own. This was made after he had completed
three years after attaining majority (aged 22 years). Therefore, his
claim was barred by limitation.
14. In Narayan's case (supra), one Kashinath Kaushik was the
common ancestor. He died in 1951 leaving behind a widow and two
minor sons. Half portion of the property was sold in court auction in
November – 1952 in execution of decree passed against deceased
Kashinath.
On 04.10.1962, Rukhminibai sold the remaining ½ part
on behalf of heirs and natural guardian. In the year 1968,
Udaykumar the elder son filed a suit for himself and as next friend of
minor brother Babulal, against the purchaser Narayan Gilankar and
mother Rukminibai for a declaration that the transaction of sale was
void and for partition and separate possession of 2/3rd share. There
was no dispute that the mother was the natural guardian and the
property was not divided by metes and bounds and the minors had
only undivided unspecified shares in the same. It was held that,
essence of coparcenary property under Mitakshara is the unity of
ownership in the whole body of coparcenary. Relying on subclause
2 & 3 of Section 8 of the Hindu Minority and Guardianship Act, 1956,
it was held that, sale transaction without permission of the Court is
not void ab initio, but is voidable at the option of the minor or any
person claiming under him and the said option can be exercised by
him only after attaining the majority and not during minority through
next friend.
15. The learned first appellate Court erred in not considering
the peculiar facts and circumstances of the case which are quite
distinct from the case of Narayan Gilankar's (supra). In that case,
the brother was not natural guardian and father was dead. In the
present case, father was alive and mother has executed the sale deed
of the property of the minor and father was attesting witness.
16. In Panni Lal Versus Rajinder Singh and another reported
in (1993) 4 SCC 38. Mother Gurkirpal sold the land owned by her
minor sons Rajendra & Baldeo during their minority by registered
sale deed dt. 30.07.1964. The respondents, upon attaining majority,
sued the appellant for possession of the said land on the ground that
the sale thereof, having been made without the permission of the
court, was void. The appellants heavily relied on the fact that sale
deed had been attested by the father of the respondents and that the
sale must be deemed to have been a sale by the legal guardian. It
was also contended that the sale had been for legal necessity and for
the benefit of the respondents. In the light of these facts, the apex
Court observed as follows:
6. …..... In this behalf our attention was invited to
this Court's judgment in Jijabai Vithalrao Gajre vs.
Pathankhan and ors., AIR 1971 SC 315. This was a case in
which it was held that the position in Hindu law was that
when the father was alive he was the natural guardian and
it was only after him that the mother became the natural
guardian. Where the father was alive but had fallen out
with the mother of the minor child and was living
separately for several years without taking any interest in
the affairs of the minor, who was in the keeping and care of
the mother, it was held that, in the peculiar circumstances,
the father should be treated as if nonexistent and,
therefore, the mother could be considered as the natural
guardian of the minor's person as well as property, having
power to bind the minor by dealing with her immovable
property.
7. In the present case, there is no evidence to show
that the father of the respondents was not taking any
interest in their affairs or that they were in keeping and
care of the mother to the exclusion of the father. In fact, his
attestation of the sale deed shows that he was very much
existent and in the picture. If he was, then the sale by the
mother, notwithstanding the fact that the father attested it,
cannot be held to be a sale by the father and natural
guardian satisfying the requirements of section 8.
17. The present case is squarely covered by the above judgment
in the facts of the present case.
18. In Vishwambhar and others v. Laxminarayana AIR 2001
SC 2607, there was alienation of minors property by mother as
guardian and the suit was filed by minor for recovery of possession
from the purchaser. It was held that, the sales made by guardian
were ab initio void and liable to be ignored. It was held that, the suit
should have been for setting aside the sales. There was no such
prayer initially and the plaint was amended but the amendment was
barred by limitation of three years from the date of sale deed. In this
case also, the father Dattatraya died and the minors were in care and
custody of their widowed mother. She was managing the properties
left by Dattatraya as guardians of the minors. She executed sale
deeds in 1967. The declaration for setting aside the sale deed would
be necessary if the sale deed is executed by natural guardian which
would be voidable u/s 8. Such prayer will not be necessary if the sale
is effected by de facto guardian. It is governed by Section 11 which
declares the sale as void.
19. In this regard, I rely on Madhegowda v. Ankegowda AIR
2002 SC 215. In this case, the original owner Ninjegowda died
leaving behind two daughters Sakamma and Madamma. While
Sakamma was minor, Madamma acting as guardian sold her share by
registered sale deed to Madhegowda on 24.04.1961. It was sold for
collecting funds for marriage of Sakamma. The appellant was also
put in possession of the property. Sakamma after attaining majority
sold her share of the property to Ankegowda, predecessor of
respondent nos.1 to 9 therein, by a registered Sale Deed dated
1.7.1967. In the light of these facts, relying on Section 11 prohibiting
de facto guardian from alienating the property of minor, it was held
that,
“Section 11 had done away with the authority of any
person to deal with or dispose of any property of a Hindu
minor on the ground of his being the de facto guardian of
such minor. Any alienation by a de facto guardian will be
governed by the provisions in Section 11 of the Act. The
alienation, being against the statutory prohibition, would
be void ab initio and the alienee would not acquire any title
to the property.
The apex Court observed, “it is to be kept in mind that this
is not a case of alienation of minor's interest in a joint
family property. As noted earlier, Ninge Gowda died
leaving his two daughters, namely Smt. Sakamma and Smt.
Madamma. It is not the case of any of the parties that the
suit property was a joint family property in the hands of
Ninge Gowda or that the alienation by Smt. Madamma,
who is the sister of the minor, was a transfer of the minors
interest in the joint family property. Therefore, the question
whether the provision in Section 11 is applicable in the
case of transfer of minors interest in a joint family does not
arise for consideration here. Section 11 includes all types of
properties of a minor. No exception is provided in the
Section. Undoubtedly Smt. Madamma, sister of the minor,
is not a guardian as defined in Section 4(b) of the Act.
Therefore, she can only be taken to be a de facto guardian
or more appropriately de facto manager. To a transfer in
such a case Section 11 of the Act squarely applies.
Therefore, there is little scope for doubt that the transfer of
the minors interest by a de facto guardian/manager having
been made in violation of the express bar provided under
the Section is per se invalid. The existence or otherwise of
legal necessity is not relevant in the case of such invalid
transfer. A transferee of such an alienation does not acquire
any interest in the property. Such an invalid transaction is
not required to be set aside by filing a suit or judicial
proceeding. The minor, on attaining majority, can
repudiate the transfer in any manner as and when occasion
for it arises. After attaining majority if he/she transfers
his/her interest in the property in a lawful manner
asserting his/her title to the same that is sufficient to show
that the minor has repudiated the transfer made by the de
facto guardian/manager.”
20. In the light of these facts, it is crystal clear that when the
property inherited and owned by the plaintiff which is not a Hindu
Joint Family property or interest in the joint Hindu Family and when
father was not shown to be not taking care of the minor, mother is
not natural guardian. She as a de facto guardian has no right to
alienate the property of her minor son.
21. When the transaction is voidable, it is voidable at the
option of the minor. Minor's father or natural guardian cannot
exercise the option which a minor alone can exercise. Obviously, the
minor can exercise it after attaining the majority. Therefore, when
the sale is voidable, the ruling in Narayan Gilankar's (supra) would
be applicable but when the sale is void and there was threat of
dispossession or there was actual dispossession, it was not necessary
for minor to wait for attaining majority. His natural guardian could
have filed suit to protect his interest and his civil rights in the
property. Thus, the suit filed by the plaintiff during his minority
through his father a natural guardian as next friend is certainly
maintainable. The period of limitation in such matters will be 12
years and not 3 years as there is no necessity of claiming any
declaration. The question of legal necessity as held in Vishwambhar's
case (supra) is irrelevant. The sale is void and the transfer can be
repudiated on attaining majority. I therefore find that the learned
first appellate Court committed error in not properly appreciating the
above facts and did not follow the settled principles of law as laid
down in the above rulings. The sale could have been voidable only if
father was neglecting the child and was in care, custody and
maintenance of the mother. In this regard, reliance can be placed on
the judgment of the Apex Court in Githa Hariharan (Ms) Vs.
Reserve Bank of India reported in (1999) 2 SCC 228.
46. In our opinion, the word 'after” shall have to be
given a meaning which would subserve the need of the
situation, viz., the welfare of the minor and having due
regard to the factum that law courts endeavour to retain the
legislation rather than declare it to be void, we do feel it
expedient to record that the word “after” does not necessarily
mean after the death of the father, on the contrary, it depicts
an intent so as to ascribe the meaning thereto as “in the
absence of” be
it temporary or otherwise or total apathy of
the father towards the child or even inability of the father by
reason of ailment or otherwise and it is only in the event of
such a meaning being ascribed to the word “after” as used in
Section 6 then and in that event, the same would be in
accordance with the intent of the legislation, viz., the welfare
of the child.
47. In that view of the matter, the question of ascribing
the literal meaning to the word “after” in the context does not
and cannot arise having due regard to the object of the
statute, read with the constitutional guarantee of gender
equality and to give a full play to the legislative intent, since
any other interpretation would render the statute void and
which situation, in our view, ought to be avoided.
22. There are neither pleadings nor evidence to make out these
situations which could have made the mother as natural guardian.
Hence, the sale effected by mother is void and the suit filed for
challenging the same and for claiming perpetual injunction and later
on for possession was perfectly maintainable.
23. As far as the arguments of learned Advocate Shri. Hon for
respondent No. 5 are concerned, he claims to be a bona fide
purchaser after the First Appeal was dismissed before it was restored.
He claims that the lis pendens would not be applicable and the
decree would not be binding on him.
24. In the light of the above discussion, it is apparent that
defendant No. 2 got no rights by virtue of sale deed executed by
defendant No. 1 as the same was void. When defendant No. 2 had no
rights, defendant No. 5 Karbhani
would have got no rights of title or
interest by virtue of sale deed executed in his favour by defendant
No.2. The issue of lis pedens applies when the rights or interests are
in question. In the present case, respondent No. 5 is only in
possession through respondent No. 1 Shivaji
(defendant No.2). The
issue of lis pendens is not involved when there is no transfer of any
rights as defendant No. 2 Shivaji
himself was having no right. As
far as possession is concerned, decree passed against defendant No.2
Shivaji
would be binding on the persons claiming through him. The
facts in Amrutlal Jain's case were quite different. In that case, the
subsequent purchaser was not made a party and there was allotment
of the disputed plot in his favour. The said ruling is not applicable to
the facts of the present case. Therefore, the judgment and decree of
the first appellate Court will have to be set aside and the judgment
and decree of the trial court will have to be restored. Since there is a
registered Sale Deed, copy of this judgment and decree needs to be
sent to SubRegistrar
before whom the sale deed was executed.
Hence, I allow the appeal as follows:
ORDER
(i) The Second Appeal is allowed with costs.
(ii) The judgment and decree of the first appellate Court is set
aside.
(iii) The judgment and decree of the trial Court is restored.
(iv) The trial Court is directed to forward the copy of this
judgment and decree of the trial Court as well as this Court
to the concerned SubRegistrar
before whom the sale deed
declared as void was executed.
[ A. M. DHAVALE ]
JUDGE
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