Panni Lal
Vs. Rajinder Singh & Anr [1993] INSC 264 (5 May 1993)
Bharucha
S.P. (J) Bharucha S.P. (J) Punchhi, M.M.
CITATION:
1993 SCR (3) 589 1993 SCC (4) 38 JT 1993 (3) 340 1993 SCALE (2)806
ACT:
The
Hindu Minority and Guardianship Act, 1956: Section 8--Intent of--Whether
protects the property of a minor from the depredations of the parents even.
Words
and Phrases--Voidable and Void--Sale
of the property of the minor by his mother without permission of the court and
attested by the father Whether voidable or void.
Sale of the property of the minor by his
mother and attested by his father--Interpretation of--Whether amounts to a sale
by the natural guardian of the minor for legal necessity. and benefit of the
minor.
HEAD NOTE:
The
mother of the respondent minors, acting as their guardian, sold their land,
while they were still minors, to the appellant under a registered sale deed
dated July 30,1964. 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
appellant in his written statement and at the time of hearing of the suit
contended that the sale deed had been attested by the father of the respondents
and the.-.ale should, therefore, he deemed to have been a sale by the legal
guardian of the respondents. It was also pleaded that the sale had been for
legal necessity and the benefit of the respondents. It was also alleged that
the suit was barred by limitation because the sale was voidable and not void
and the suit had not been brought within three years of each of the respondents
attaining majority.
The
trial court framed appropriate issues and came to the conclusion that it had
not been proved that the sale was for legal necessity or for the benefit of the
respondents, that the sale by the respondent's mother without the permission of
the court was void, and the sale was void and not voidable and the suit was,
therefore, in time and was decreed.
590
The appeal filed by the appellant before the Additional Distt. Judge and the
High Court failed.
The
appellant, therefore, preferred this appeal by special leave.
Dismissing
the appeal, this court,
HELD :
1. The provisions of section 8 of the Hindu Minority and Guardianship Act, 1956
are devised to fully protect the property (.if a minor, even from the
depredations of his parents. Section 8 empowers only the legal guardian to
alienate a minor's immovable property provided it is for the necessity or
benefit of the minor or his estate and it further requires that such alienation
shall be effected after the permission of the Court has been obtained."
2. It
was difficult, therefore, to hold that the sale, by reason of the fact that the
mother of the minor respondents signed the sale deed and the father attested
it, was voidable, not void. (592-G)
3. The
attestation of the sale deed by the father showed 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 he held to be sale
by the father and natural guardian satisfying the requirements of section 8.
(592-E) Jijabai Vithalrao Gajre v. Pathankhan & Ors. AIR 1971 SC 315,
distinguished. (662-A)
CIVIL
APPELLATE JURISDICTION: Civil Appeal No. 2198 of 1986.
From
the Judgment and order dated 17.12.1985 of the Punjab and Haryana High Court in R.S.A No. 1155 of 1977.
S.M. Ashri
for the Appellant.
Ms. Kawaljit
Kochar for J.D. Jain for the Respondents.
The
Judgment of the Court was delivered by BHARUCHA,J. This appeal by special leave
challenges the judgment and 591 order of the Punjab & Harvana High Court
dismissing the appeal filed before it by the appellant.
The
suit relates to 9 Kanals 13 Marlas of land at village Qayampur. The said land
was owned by Rajinder Singh and Baldev Singh, the respondents, and was sold
while they were still minors by their mother Gurkirpal, acting as their
guardian, to the appellant under a registered sale deed dated 30th July, 1964. Upon attaining majority the
respondents 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 appellant in his written statement and at the time of hearing of the
suit relied heavily upon the fact that the sale deed had been attested by the
father of the respondents and that the sale should. therefore, be deemed to
have been a sale by the legal guardian of the respondents. It was also
contended that the sale had been for legal necessity and the benefit of the
respondents. The suit, it was also alleged, was barred by limitation because,
the sale being voidable and not void, it had not been brought within three
years of each of the respondents attaining majority. The trial court framed
appropriate issues and came to the conclusion that it had not been proved that
the sale was for legal necessity or for the benefit of the respondents; that
the sale by the respondent's mother without the permission of the court was
void; and that the sale was void and not voidable and the suit was, therefore,
in time. The appeals filed by the appellant before the Additional District
Judge. Ambala and the High Court failed.
Learned
counsel for the appellant placed great reliance upon the fact that the sale
deed had been attested by the father of the respondents and submitted that the
sale deed should, therefore, be taken to have been entered into by the natural
guardian of the respondents for legal necessity and their benefit.
Section
8 of the Hindu Minority and Guardianship Act sets out the powers of the natural
guardian of a Hindu minor.
The
natural guardian of a Hindu Minor has power, subject to the provisions of
section 8, to do all acts which are necessary or reasonable and proper for the
benefit of the minor or his estate. The natural guardian, however, may not
without the previous permission of the court sell any part of the immovable
property of the minor. Any disposal of immovable property which is not
necessary or reasonable and proper for the benefit of the minor or is without
the previous permission of the court is voidable at the instance of the minor.
In the
instant case, there, is, as found by the trial court and affirmed in appeal, no
evidence beyond the bare word of the appellant that the sale deed had been made
for the benefit of the minor respondents and his evidence had been eroded in
cross- 592 examination so that there was no "reliable evidence on record
to show that the alienation in dispute had been made for the legal necessity or
for the benefit of the plaintiffs. That the sale was effected without the
permission of the court is not dispute. The sale is, therefore, in any event, voidable.
The
question is whether, in the circumstances of the case, it may be said that the
sale was effected by the father and natural guardian of the respondents because
he had attested the sale deed executed by the mother of the respondents. In
this behalf our attention was invited to this Court's judgment in Jijabai Vithalrao
Gajre vs. Pathankhan and ors., AIR 1971 S.C. 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.
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, notwith standing 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.
The
Provisions of section 8 are devised to fully protect the property of a minor,
even from the depredations of his parents. Section 8 empowers only the legal
guardian to alienate a minor s immovable property provided it is for the
necessity or benefit of the minor or his estate and it further requires that
such alienation shall be effected after the permission of the court has been
obtained. It is difficult, therefore, to hold that the sale was voidable, not
void, by reason of the fact that the mother of the minor respondents signed the
sale deed and the father attested it.
In the
result, the appeal is dismissed with no order as to costs.
G.S.
Appeal dismissed.
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