Karnataka High Court
Sri Basawanthraya @ Basayya vs Sri Venkob Rao on 7 February, 2012
Bench: N.Kumar, B.Sreenivase Gowda
IN THE HIGH COURT OF KARNATAKA CIRCUIT BENCH
AT GULBARGA
Dated this the th day of February 2012
PRESENT
THE HON'BLE MR.JUSTICE N.KUMAR
ANT)
THE HON'BLE MR. JUSTICE B. SREENIVASE GOWDA
REA No912 of 07 C/w 9 13/07 & 9 16/07
RFA 9 12/07
BETWEEN:
Sri Basawanthraya @ Basayya
S/o Sri Mallappagouda Paul,
Aged about 74 years,
0cc: Agriculture,
R/o. Talikoti.
Muddebihal Taluk.
Dist: : Bijapur.
Since deceased by his LRs
1) 1(a) Sri: Bapugouda
Sb Late Basavanthraya Bassavva,
Age: 50 years, 0cc: Employee in
Agricuh ure Departrnent,
R/ at Shahapur Taluk.
Dist: Gulbarga.
I
2 1(b) Sri, Appasaheb Sb Late Basavanthrayya
Basappa Age: 45 years, 0cc: Employee in LIC,
R/ at Bagalkot. Dist: Bagikote.
3) 1(c) Sri: Shantgowda
Sb Late Basawnthraya Basayya,
Age: 40 years, 0cc: Lab Technician,
In dept of Health,
R/at Talikote,
Tq: Muddebihal,
1)1st: Bijapur.
Appellants
(By Sri: GSV Associate Adv
Sri: SSN Associate & Sri: Jayandayya of Al (a).)
AND:
1) Sri Venkob Rao
S/o Late Sri. Lingoji Rao Munumdar.
Aged about 20 years,
RIo. Shorapur-585224,
Gulbarga District.
2) Sri Bhima Rao
S/o late Sri. Lingoji Rao Mujumdar.
Aged about 12 years.
R/o Shorapur, Gulbarga District,
Repted, by his natural guardian. mother,
And next friend Smt. Surekha Bai,
W/o. late Sri. Lingoji Rao Mujumdar,
Aged about 43 years.
Respondents
(By Sri: Veeresh .B. Patil, Adv. )
This RFA is filed under section 96 of CPC against the
judgernent and decree dated 31-01-2007 passed in
0.S.NoJ38/2004 on the file of the civil judge (Sr.Dn)
Shorapurt, decreeing the suit for declaration and injunction.
RFA 9 13/07
BETWEEN:
Sri, Srishaile
Sb Sri. Chandappa Aski,
Aged about 37 years,
0cc: Agriculturist,
R/o Shanthpur Post,
Itani Taluk, Shorapur-585224,
Dist: Gulbarga.
Appellant
(By Sri: Sreevasta, Sr. Counsel, for Sri: Sudarshan M.
G.S.V. Assts. V.K. Naik. B.C. Rajeeva Advs)
AND:
1) Sri: Venkob Rao
Sb Late Sri. Lingoji Rao Mujumdar.
Aged about 20 years.
R/o Shorapur.
Gulbarga District.
2) Sri. Bhirna Rao.
S/o Late Sri: Lingoji Rao Mujumdar
Aged about 12 years.
4
R/o. Shorapur. Gulbarga District.
Reptd by his natural guardian. moiher.
And next friend Srnt. Surekha Bai.
W/o Late Sri. Lingoji Rao Mujurndar.
Aged about 43 years.
.Respondents
(By Sri: Veeresh. B. Patil Advs for R- 1 & 2.)
This RFA is filed under section 96 of CPC against ihc
judgement and decree dated 31-01-2007 passed in
O.S.No. 136/2004 on the file of the civil judge (Sr.Dn) Shorapur.
decreeing the suit for declaration and injunction.
RFA 9 16/07
BETWEEN:
Shantgouda
Sb Basavanthraya © Basappa,
Age: About 36 years,
0cc: Agriculture.
R/o. Talikoli,
Tq: Muddehihal,
Dist: Bijapur- 522334.
Appellain
(By Sri: Ashok Patil & Sri: K.C. Patil Advs)
AND:
1. Venkobrao
S/o Late Lingojirao Mujumdar.
Age: About 19 years.
0cc: Student.
2. Bhimrao
Sb Late Lingojirao Mujumdar,
Age: 12 years.
Represented by his natural guardian
& next friend and mother.
Smt. Surekhabai W/o Late Lingojirao Mujumdar.
Age: About 41 years,
0cc: Household.
Both Resident of:
Mujumdar G alli. Near Venkateshwar Temple.
Shoraput. Dist: Gulbarga-585224.
Respondents
(By Sri:R-1 Served, R-2 Served.)
This RFA is filed under section 96 of CPC against the
judgement and decree dated 31 -01 -2007 passed in
0.S.No. 137/2004 on the file of the civil judge (Sr.Dn) Shorapur.
decreeing the suit for declaration and injunction.
These RFAs coming on for hearing, N Kumar J., delivered
the following:
6
JUDGMENT
These three appeals are filed by the defendants challenging the impugned judgment and decree passed by the trial court in three suits, where the suits of the plaintiffs are decreed as prayed for.
2. The plaintiffs in all the three suits are common, whereas, the defendants who are purchasers. are different. Though each purchaser has purchased different and distinct piece of land, the land purchased by all the three defendants form part of Sy.No.30/2 and 30/1 of Devapura village. Shorapur Taluk, Gulbarga District. Though in the impugned judgment. the trial Court has set out the pleadings in each case separately, the averments in each plaint is identical except the description of the schedule property. Therefore if we set out in this judgment, the averments in one suit, ii will be sufficient 71 7 to decide the points that arise for consideration in all these appeals.
3. The subject matter of O.S.No. 138/04 which corresponds to RFA 9 12/07 Is land measuring 8 acres In Sy.No.30/2 situate at Devapura village, Shorapur Taluk, Gulbarga District. The property which Is the subject matter of O.S.No.136/04 out of which RFA 913/07 has arisen, the land bearing Sy.No.30/2 measurIng 4 acres situated at Devapura Village. Shorapur Thu. Gulbarga District. In O.S.No.l37/04 which corresponds to TWA 9 16/07, the subject matter of the suit is land bearing Sy.No.30/l and 30/2 measuring 1 acre 31 guntas and 3 acres 22 guntas, respectively situated at Devapura Village, Shorapur Taluk. Gulbarga District.
4. For the purpose of convenience, we have set out the pleadings In O.S.No.138/04.
7- 8
5. The case of the plaintiff Is Surekha Bai, the natural mother of plaintiffs-i and 2. vIz., Venkoba Rao and Bhimrao, who are minors, is filing the suit as their next friend and guardian. She has no adverse Interest against the plaintiffs. It Is their case that Llngojirao, the father of the minor plaintiffs died on 06.12.2001. The paternal grand mother of the plaintiffs, by name Indlrabai died in or about the month of July 2000. The paternal grand father of plaintiffs died on 11.04.1986. All of them died true state. The family of the plaintiffs at Shorapur is known as Mjumdar family and the family owned lot of Immovable properties situated at different places which included inam and patta lands. The land In Sy.No.30/2 is one of the family properties. All immoveable properties In the hands of the late father of plaintiffs Including land In Sy.No.30/2 situated at Devapur are ancestral properties. The family comprising of plaintiffs, their father. mother and grand mother was a Hindu Undivided Family and a coparcenary. The minor plaintiffs are the only sons of their 9- 9 parents and they had no other Issues. The father of the plaintiffs was Karta of the family.
6. The father of the plaintiffs was addicted to bad habits like drinking, gambling and was a womanizer. besides being a spendthrift caring for his own being. Being so, the father of the plaintiffs went on disposing of the family properties one after the other, for throwaway prices. His mother and the mother of the plaintiffs out of fear, could not stop him. The land In Sy.No.30/2 measurIng 15 acres 22 guntas with RA of Rs.36-86 of Devapur Village stood In the name of the plaintiffs In the Revenue records and they were the owners of the said land. The father of the minor plaintiffs has sold the said land In Sy.No.30/2 In three bits. The middle portion measuring 8 acres which Is the suit land Is sold to the defendant under a registered sale deed bearing document No.181/96-97 dated 20.05.1996. The portion to the south of the suit land is sold to the son of the defendant by name Shantangouda along 'vith Sy.No.30/1. A certified copy of the sale deed pertaining to the 10 suit land is produced. The father of the plaintiffs has got the deed executed by the mother of the plaintiffs, their next friend in this suit. in favour of the defendant. Neither the mother of the plaintiffs received the consideration of Rs.2,3O,OOOOO mentioned in the sale deed nor with an intention to sell the suit. land executed the sale deed in favour of the defendant. Further during the life time of the father of the plaintiffs, their mother could not have acted as their guardian. much less to sell the property of minors. Moreover, neither the father nor the mother could have sold the suit land of plaintiffs without the permission of the competent Court. Therefore, the sale deed got executed, setting up the mother of the plaintiffs as their guardian is void, ub initio and does not bind the minor plaintiffs.
7. A fraud has been played on the mother of the plaintiffs inasmuch as she was not given to know that she is signing the document as a vendor and guardian of plaintiffs and that document pertains to land in Sv.No.30/2. The grand 11 mother and the mother of plaintiffs were simply asked to sign the document and they signed without knowing the contents of the document and also that one of them is signing as executant. Therefore the sale deed executed by the mother of the plaintiffs which is as a result of fraud. misrepresentation and under coercion of the father of the plaintiffs is void and ineffective. It is falsely stated in the sale dcccl that the land is being sold for necessity and for the purposes of minors and for their benefit. fri fact, there was no Hecessity of any kind, much less for the mother of the plaintiff. It is again falsely stated that the mother has delivered possession of the suit land to the defendant under the said document. It is falsely stated that the consideration amount is paid to the mother of the plaintiffs at the time of registration. The endorsement is also collusive and fraud played on the mother of the plaintiffs. The fact remains that by virtue of the said void document the defendant is in possession of the same. The minor plaintiffs are entitled to seek declaration and recover possession of the suit land liom the defendant. The above facts came to the knowledge of the next 12 friend of the plaintiffs and their guardian only after the death of their father and on obtaining a copy of the sale deed on 07.05.2002. Therefore the plaintiffs sought for a declaration that the registered sale deed bearing document No. 181/96-97 dated 20.05. 1996 is void, ineffective and not binding on minor plaintiffs and a direction to the defendants to put the suit land measuring 8 acres in Sy.No.30/2 situated at Devapur Taluk, Shorapur, in possession of the plaintiffs and for other consequential reliefs.
8. After service of summons, the defendant entered appearance and filed detailed written statement traversing all the allegations in the plaint. They contend that the plaintiffs family was known as Majumdar Family was owner of a big area of lands in different villages. The said lnarndar was Venkob Rao Majumdar and after his death, the plaintiffs father inherited the property of his father as his sole surviving co-parcener. The father of the plaintiff was an exclusive owner and lawful possessor of all the properties succeeded by him. So the 13 question of ancestral property is immaterial and after enforcement of Hindu Succession Act, there is no ancestral property. It was specifically denied that there was a co parcenar or co-parcenarv property in between plaintiffs and their late father Lingoji Rao. The plaintiffs' father was constrained to sell the property for the family needs, as they have no regular sources of income of their own. It is specifically denied that the plaintiffs' father Lingoji Rao was addicted to bad habits like drinking, gambling, womanizing and was a spendthrift. Further the allegation that plaintiffs' father disposed of the property for a throw away price is also denied. The allegation that p1aintifLs mother and grand mother out of fear could not stop the late Lingoji Rao from disposing of the property was denied. The plaintiffs, their mother and grand mother being beneficiaries of sale proceeds have not objected nor challenged the sale so far. Thus the sales are for valid price and for good cause.
14
9. The plaintiff& father Tingoji Rao as an absolute owner of the suit property sold the same to the defendant for a valid and adequate price. The sale deed Is executed by the mother of the plaintiffs as the name of the plaintiffs was recorded In the record of rights. Further Lingoji Rao has also consented for sale and has attested the sale deed. Thus the sale Is by Lingoji Rao and by his wife as guardian of minors. The mother of the plaintiffs can act as guardian of minor sons m the life time of their father. In specific circumstances. There Is no bar for the mother to act as guardian of her minor children even In the life time of her husband. Thus the sale under guardianship of mother Is proper and lawiul. The allegation that the sale deed by mother of plaintiff Is void abniuo and not binding the plaintiffs. Is denied. There was no necessity for the mother or father to obtain the permission of the Court if the sale Is by the Karta of the family. Further the sale by Llngoji Rao as an exclusive owner does not call for any permission from any authority. The allegation of fraud was denied. The allegation that mother of plaintiffs was made to 15 sign the deed of sale and she signed the deed without knowing the contents of the deed are all denied. The allegation that the sale deed is outcome of fraud, misrepresentation and coercion of father of the plaintiffs Is deified. The allegation that there is a false statement of necessity and for the benefits of minor is not correct So also the recital regarding possession. The defendant is in possession of the suit property under a void sale deed Is false. The plaintiffs are not entitled to recover possession of the suit property from the defendant.
10. The sale deed terms are in Kannada Language and plaintiffs' mother, father and grand mother are educated and are knowing the Kannada Language. The sale deed in question is attested by the relative of the plaintiffs and their father. So there is no fraud, coercion or misrepresentation. Further they contend that plaintiffs' mother, father and grand father have voluntarily participated in the completion of execution and registration of the sale deed No.181/96-97 dated 20.05. 1996 at Shorapur Town along with one Arvlnd Tapaskar. Mohan Inamdar and Ravi, who are closely related to the mother, i.e.. 0 16 Surekha BaL The plaintiffs' mother on 20.05.1996 has obtained totally a sum of Rs.5, 10,000-00 from the sale of entire Sy.No.30/1 measurIng 1 acre 31 guntas and Sy.No.30/2 measurIng 15 acres 22 guntas both of village Devapur Village. Shorapur 'Ibluk, Gulbarga District. The plaintiffs' mother on 21.05. 1996 deposIted a sum of Rs.1,50,000-00 In the name of the first plaintiff, under two cumulative deposit with Bank of Maharashtra Branch, Bijapur bearing CertIficate No.08 1772 and 224111. The plaintiffs' mother on 21.05.19% deposIted a sum of Rs.1,50,000-00 In the name of the second plaintiff, Bbimsen Rao under cumulative deposit with Bank of Maharashtra Branch, Bijapur bearing Certificate Nos.2241 10 for Rs. 1 lath and No.0801773 for Rs.50,000-00. The plaintiffs' mother has deposited a sum of Rs. 1 Iakh In her name In monthly Interest scheme with the Bank of Maharashtra, Branch Bijapur on 21.05. 1996 bearIng Certificate No.081771.
11. The above deposits made for the welfare of the minor plaintiffs with the paramount consideration of the welfare 1--
e 17 of the minor plaintiffs. Thus there is no meaning in saying that the plaintiffs' mother has not received the consideration amount from the defendant. If really the plaintiffs' mother has not received the sale consideration amount from the purchaser, then how she could deposit such a big amount in the Bank, In a day. The plaintiffs' mother has given an affidavit in the office of the Sub-Registrar. Shorapur. that out of the sale consideration amount she will safeguard the interest of her minor sons on 20.05.1996. The plaintiffs' mother hating executed the sale deed as guardian of them cannot file a suit for declaration of sale deed as not binding. The plaintiffs' mother is estopped from filing the suit. The suit of the plaintiffs for cancellation is not maintainable. The plaintiffs have no subsisting right In the suit property and therefore they sought for dismissal of the suit.
12. The trial Court framed separate Issues in all the three suits. They are as under:
Issues in O.S.No.l36/04
1' 18
1. Whether plaintiffs prove that sale deed executed by their mother infavour of defendant on 20-5-1996 is an out come of fraud coercion and mis-representation and it is not binding on their interest?
2. Whether plaintiffs prove that the alienation of suit land was not for any legal necessity and for the benefit of minors?
3. Whether defendant proves that mother of minor plaintiffs executed sale deed after receiving sale consideration and as Karta executed the sale deed for minor benefit and there was legal necessity. and sale deed is binding on minors interest?
4. Whether defendant proves that suit in the present form is not tenable?
5. Whether defendant proves that court fee paid is inadequate on the plaint?
6. Whether defendant proves that suit relief is time barred?19
7. Whether defendant proves that suit is bad for non-
joinder of necessary parties?
8. Whether plaintiffs are entitled for the relief of declaration and possession of suit land?
9. What order or decree?
Issues in O.S.No.137/04
1. Whether plaintiffs prove that. sale deed got executed by their mother under pretext of their Guardian is an out come of Fraud, Misrepresentation. and coercion and as such sale is void, abinitio and does not bind the interest of minor plaintiffs'?
2. Whether defendant proves that the sale deed executed by both Lingoji Rao and his wife as Guardian of minor, plaintiffs and as such, sale is binding on the plaintiffs?
3. Whether defendant proves that plaintilis mother is estopped form tilling the suit?
4. Whether defendant proves that. suit for declaration is not tenable in the absence of cancellation of sale deed?
5. Whether plaintiffs are entitled for declaration relief and possession of suit lands?
6. What order or decree?
Issues in OS.No.138/04
1. W1iether plaintiffs prove that they are absolute owners of suit land bearing Survey No. 30/02 situated at Devapur Village and the sale deed executed by them through minor guardian infavour of defendant is a void document and not binding on them and the said sale transaction is an out come of fraud. misrepresentation etc?
2. Whether defendant proves that father of plaintif Is and mother have executed the sale deed duly representing minors and the said deed is valid and supported by valuable consideration and binding on the plaintiffs?
21
3. Whether defendant proves that plaintiffs mother after receipt of sale consideration amount she has made fixed deposit In the name of minors and as such, minor guardian of plaintiffs made these deposits for the welfare of the plaintiffs who were minors?
4. Whether defendant proves that plaintiffs cause of action Is false?
5. Whether defendant proves that plaintiffs mother Is estopped from filing this suit?
6. Whether defendant proves that suit Is bad U/S 92 of the India Evidence Act?
7. Whether defendant proves that suit ified by the plaintiffs Is time barred?
8. Whether defendant proves that suit declaration Is not maintainable In the absence of cancellation of sale deed?
'S 22
9. Whether defendant proves that suit is false and vexacious and he is entitled for compensatory costs?
10. Whether plaintiffs are entitled for the relief of declaration and alternatively for possession of the suit land?
11. What order of decree?
13. The evidence was also recorded separately in all the three suits.
14. In O.S.No.136/04. Surekha Bal was examined as P.W-1. She produced 5 documents, which are marked as Exs.P-1 to P-5. On behalf of defendants. defendant was examined as D.W-1 and also examined two witnesses as D.Ws-2 and 3. Nine documents were produced, which were marked as Exs.D- 1 to D-9.
15. In O.S.No.137/04. the plaintiff-Sureka Bal was examined as P.W-1. She produced 7 documents, which are marked as Exs.P- 1 to P-7. Defendant. Shantagouda was examined as DW1. He also examined another witness Mudakappa as D.W-2. He produced 14 documents, which are marked as Exs.D-l to D-14.
16. In O.S.No.l38/04 Surekhabai was examined as P.W- 1 and produced 7 documents, which are marked as Exs.P 1 to P-7. On behalf of defendants, Shantgouda Basanthraya Patil was examined as D.W- 1. He examined another witness by name Mudakappa Narasappa Jingad as D.W-2. He produced two documents, which were marked as Ex.D-- 1 and D-2.
17. The trial Court on appreciation of the aforesaid oral and documentary evidence on record held that during the lifetime of the father. the mother cannot be a &uarc1ian. Therefore. the sale deed executed by the mother who was not competent to execute renders the sale deed void. Secondly ii held that the schedule property exclusively belongs to the minors. Therefore if the natural guardian has to alienate the r 24 property of the minor, he had to seek the pennission of the Court under Section 6-A of the Hindu Minor and Guardianship Act. Admittedly, no such permission was sought for and therefore, the sale of the suit property by an unauthorised person without the permission of the Court renders the sale void. It also held that though execution of the sale deed is admitted, the payment of consideration under the agreement is admitted an4 the consideration received under the sale deed is deposited in a fixed deposit in a Bank and the father of the minor sons raised loan on such fixed deposit and committed default in repayment of the loan and consequently, the Bank appropriated the amount in fixed deposit towards discharge of the loan and therefore the minor interest is seriously affected. It also held that there was no necessity to sell the property as the plaintiffs were young and they were taken care of their grand mother. For the aforesaid reasons, the trial Court was of the view that the sale deed executed by the mother as guardian of her sons in favour of the defendant-purchasers is void and therefore it decreed the suit of the plaintiff declaring that the p S 25 plaintiffs were the exclusive owners of the suit land bearing Sy.No.30/1 and 30/2 and the registered sale deeds executed in favour of the defendants are void documents, ineffective and not binding on the minor plaintiffs. Consequently. it directed the defendants to surrender possession of the suit land in favour of the plaintiffs and put the plaintiffs in possession of the suit lands within three months from the date of passing of the decree. The defendants were restrained permanently from alienating, transferring in any manner in respect of suit lands till the plaintiffs obtain possession of the suit lands. A direction was issued to the office to send the certified copy of the decree to the Sub-Registrar. Shorapur. for compliance of the decree as per Section 131(2) of the Specific Relief Act. 1963.
18. Aggrieved by the said judgment and decree of the trial Court, all the three defendants have preferred three independent appeals.
26
19. The learned Senior Counsel, appearing for the appellants contended that though the father is a natural guardian of a Hindu minor child. in the absence of father or father not taking care of the family and the minors, the mother can act as a natural guardian as held by the Apex Court in the case of Geetha Hariharan & another Vs. Reserve Bank of India reported In 1999 (2) SCC 228 and therefore. the finding recorded by the trial Court that the alienation made by the father and mother during the lifetime of the father is void, is ex fade ifiegal. Secondly he contended that it is the specific case of the plaintiffs that there was no partition In the Joint family. the schedule properties were all Joint family properties and ancestral properties. Merely because, mutation entries were made In the name of the minor-plaIntiffs. it did not become their exclusive and separate property. It continued to be the property of the Joint family. In order to alienate the Joint family property by the Karta of the family or guardian of the minors. no permission of the Court is required under Section 6 of the Hindu Minority and Guardianship Act. 1956. This aspect has S 27 not been property appreciated by the trial Court and thus It committed ifiegality. Thirdly, he contended that plaintiffS themselves have produced the records of the Bank to show that on the very next day of the sale, fixed deposits have been made In the names of the both minors as well as the mother, which clearly shows that consideration paid by these defendants have been deposited In the Bank for the benefit of the minor children. Therefore, aU that Is expected by a purchaser of the minor's property Is to ensure that the money which they have paid goes and utilized for the benefit of the minors, which burden they have discharged from the admitted evidence on record. If the father or mother of the minors raised loan on that deposit and they have not repaid the loan and the said fixed deposit Is appropriated towards discharge of loan, the purchasers cannot be held responsible in any manner. Lastly It was contended that though the plaintiff has averred that the sale deed was executed by her because of the fraud, misrepresentation. coercive and undue influence practiced In' the her husband, firstly, no evidence is adduced to substantiate the said 28 contention. Secondly, as long as the defendants have not played any fraud or practiced misrepresentation or coercion, the sale is not vitiated. The trial Court has not properly appreciated the controversy between the parties and not taken note of the law governing the point, It misdirected itself and committed serious error in decreeing the suit of the plaintiffs. Therefore. he submits that a case for interference is made out.
20. Per contra, the learned Counsel appearing for the respondents submitted that the law on the point is well settled. When the father was alive, the mother could not have acted as a guardian. The properties stand in the name of the minors. Even if the guardian has to alienate the property. prior permission of the Court is a must. When admittedly. such permission is not taken, the Court was justified in declaring it as void. Though consideration received under the sale deed is shown to have been deposited in fixed deposit, the evidence on record shows that not a pie in the said amount is utilized for the benefit of the minor children. On the contrary, the entire 29 amount in deposit has been appropriated by the Bank towards discharge of loan borrowed by the father of the plaintiffs. Now the minor-plaintiffs have attained majority and there was no family necessity, there was no legal necessity, sale transaction was not for the benefit of the minors and therefore the judgment and decree passed by the trial Court is legal and valid and do not call for any Interference.
21. In the light of the aforesaid facts and rival contentions, the points that arise for consideration in these appeals are as under
1) Whether the sale deed executed by the mother as a natural guardian of minors when father was alive, renders the sale deed void.
2) Whether the sale deed executed by the mother as natural guardian of her minor sons. without the permission of the Court under SectIon 6(a) of the Hindu Minority and Guardianship Act 1956 Is voidable.
frV 30 3 When the mother executed the sale deed as natural guardian of the mmors when the !tt her was very much alive, can she maintain a suit after the death of the father. challenging the alienation on the ground that she could not have acted as guardian when the father was alive and also on the ground that no prior permission was obtained.
4) Whether the alienation was jbr the benefit of minor and whether there was any legal necessity for such alienation?
5.) What order?
Point No.1:
22. The material on record discloses that Smt. Surekabai. the mother and guardian of plaintiffs No. 1 and 2 is the wife of late Lingoji Rao. She belongs to a respectable family called by name Mujumdar family which owns thousand of acres of land situated at Shorapur, Shahapur and Jewargi Taluks, Lingoji Rao's father was Pradhan of the erstwhile Shorapura. It 31 is the specific ease of the natural guardian of the plaintiffs that her husband was addicted for had habits like drinkin.
gambling and womanizing and was a spend thrift. He was ill- treating her. When it became impossible to live with him. she left his company and went to her mother's place at Bijapur. For some time she also resides with her elder sister at Gokak. The plaintiffs first son was studying in first PUG at Bijapur and second son was studying in 9t1 standard at Shorapur. It is her grievance that there was no partition between her sons and their father i.e. her husband, Her lhther in law had four children, out of them two male and two female. Even between them there was no partition. Her husband alienated the joint family properties one after another which was against the interest of the family and the minor sons. It is at that stat, e 5 30/1 steps were taken to get the lands in Sv. Nos30/2/ and mutated in the name of minor sons to prevent the father from alienating the property. Thougth the plaintiffs had their natural . On father very much around them he was no use to the family the contrary he was acting against their interest. It is in such 32 circumstances. It Is she who Is taking care of those minor children.
22. It Is an admitted fact that she Is the natural guardian of the plaintiffs who had executed three registered sale deeds hi favour of the defendant in the three suits on 20.05.1996 as per Ex. p 4. P5 and p 7. She received a sum of Rs.2,30,000/- under Ex. P4, a sum of Rs. 1,15,000/- under Ex. P 5 and Rs. 1.65.000/- under Ex. P 7 towards sale consideration. The sale deeds are attested by her husband. Then It was attested by her slster& husbands Aravind. Mohan and Rail and also Venkoba Rao a relative of the plaintiffs. It Is also clear from the material on record that out of the said sale consideration a sum of Rs. 1,00,000/ - was deposited In the name of plaintiff No. 1. another sum of Rs. 1.00.000/- in the name of plaintiff No.2 and a sum of Rs. 1.00.000/- in the name of Surekabal and another sum of Rs. 1.00.000/-In the name of plaintiff No. 1 and Rs.50,000/- In the name of plaintiffs No. 2. In all Rs.500,000/- was deposited out of the total consideration of Rs.5, 10,000/- received. It is also on record that from the State Bank of Maharashtra, Bijapur Branch where this F.D. was created the mother borrowed loans, and loans were not repaid they became defaulter and the amount deposited in F.D. was appropriated towards the said loan amount. The case of the plaintiffs is they were minors, their mother was innocent. She was victim of fraud played by her husband by taking her signature to the sale deeds, took her to sub-Registrar's office get the documents registered. Again he took her to the hank made the amount deposited in the bank and then raised loan and not repaving the amount borrowed the amount in F.D. has been appropriated. Therefore, it was contended that the alienation made by the mother acting as natural guardian of her sons is void. When the father was alive the mother could not have acted as guardian. In support of their contention they have relied on Section 6 of the Hindu Minority and Guardianship Act. 1956 (for short hereinafter referred to as 'the Act"). 'V 34
23. Section 6 of the Act provides the natural guardian of a Hindu minor, in respect of minor person as well as in respect of minor property excluding his/her undivided interest in the joint family property or in the case of boy of unmarried of in order to father and after him the mother provides the interest of a minor who has not completed the age of 5 years shall with the mother, Therefore it was contended only after the death of the father the mother could be regarded as guardian. When the father was very much alive the alienation made by the mother as natural guardian of the minor children is void ab initio. In fact this argument of the plaintiff has been accepted by the trial Court and it is held the sale deed is void. The word 'after' used in Section 6 has been the subject matter of interpretation by the Apex Court, in the case of GITHA HARIHARAN (MS) AND ANOTHER VS RESERVE BANK OF INDIA AND ANOTHER reported in 1999(2) SC PAGE 228 explaining the meaning of the word 'after' as under:
35
"8. Whenever a dispute concerning the guardianship of a minor, between the father and mother of the minor is raised in a court of law, the word "after" in the section would have no sigr4ficance, as the court is primarily concerned with the best interests of the minor and his wefare in. the widest sense while determining the question as regards custody and guardianship of the minor.
The question. however, assumes importance only when the mother acts as the guardian of the minor during the lifetime of the father. without the matter going to the Court, and the validity qf such an action is challenged on the ground that she is not the legal guardian of the minor in view of Section 6(a) (supra). In the present case, the Reserve Bank of India has questioned the authority of the mother, even when she had acted with the concurrence oj the father. because in its opinion she could function as a guardian only after the lijëtime of the father and not during his lifetime.
9. Is that the correct way of understanding the section and does the word "after" in the section mean only "after the lift'time"? If this question is answered in the affirmative, the section has to be 36 struck down as unconstitutional as it undoubtedly violates qender equality, one of the basic principles of our Constitution. The 11MG Act caine into force in 1956. i.e., six years after the Constitution. Did Parliament intend to transgress the constitutional limits or ignore the fundamental rights guaranteed by the Constitution which essentially prohibits discrimination on the grounds of sex? In our opinion -- No. It is well settled that f on one construction a given statute u'ill become unconstitutional, whereas on another construction which may be open, the statute remains within the r constitutional limits, the court will prefer the latte on the ground that the legislature is presumed to have acted in accordance with the Constitution and courts generally lean in ftivour Qf the constitutionality of the statutory provisions.
10. We are of the view that Section 6(a, (supra) it is capable of such construction as would retain, r"
within the constitutional limits, The word "afte need not necessarily mean "after the lifetime". In the context in which it appears in Section 6(a) (supra), it means "in the absence of. the word "absence" therein referring to the frither's absence 4 37 from the care of the minor's property or person for any reason whatever. the father is wholly incl(fferent to the matters of the minor even (f he is living with the mother or (f by virtue of mutual understanding between the father and the mother. the latter is put exclusively In charge of the minor. or the father Is physically unable to take care of the minor either because of his staying away from the place where the mother and the minor are living or because of his physical or mental incapacltij in all such like situations, the father can be considered to be absent and the mother being a recognized notural guardian. can act validly on behalf of the minor as the guardian.. Such an inteipretation will be the natural outcome of a harmonious construction of SectIon 4 and Section 6 of the 11MG Act, without causing any violence to the language of SectIon 6(a) (supraj.
23. The Apex Court held the "after" need not necessarily mean 'after the lifetime". In the context in which It appears in Section 6(a) (supra). it means "in the absence of. the word "absence" therein referring to the father's absence from 38 the care of the minor's property or person for any reason whatever. If the lather is wholly indifferent to the matters of the minor even if he is living with the mother or if by virtue of mutual understanding between the father and the mother, the latter is put exclusively in charge of the minor, or If the father is physically unable to take care of the minor either because of his staying away from the place where the mother and the minor are living or because of his physical or mental incapacity, in all such like situations, the father can be considered to be absent and the mother being a recognized natural guardian, can act validly on behalf of the minor as the guardian.
24. In the Instant case the father of the minor sons was very much around them, but it Is their specific case he was addicted by bad vices such as drinkIng, gambling and womanizing, he was making attempt to sell away the property. he was not taking care of the minors, therefore the mother was constrained to leave his company and go with her parents and she took the children also. Therefore, though the father was very much alive and he neglected the wife and minor children, 39 In those circumstances, the mother would be the natural guardian. Further, though he was very much alive there was no partition. By consent mutation was made In respect of the properties In dispute, In the name of the minor sons. It only shows father was not acting as natural guardian of the said properties. Thus, the material on record discloses that neither the plaintiffs nor their mother nor father were cultivating the land as they are hailing from a respectable family of landlords who are unable to cultivate the lands. Therefore, these lands had no use to them. There was necessity for the mother to sell these properties In order to meet the educational expenses of her children who are studying In college and high school. It Is only m that context she decided to sell the property for valuable consideration to the defendants In these three suits. It was contended that she had no authority to execute the sale deed. In fact the purchasers were well aware that the father is very much alive. Though mutation stood In the name of the minor sons and they have no authority to sell the same as they belong to Joint family members, they Insisted on the signature of the C 40 father and other relatives of the mother. when she executed the sale deed. Therefore. we find in the sale deed not only the signature of the minor's mother but also their father, the mother's sister's husband and grand mother. So It cannot be said in the facts of this case. the mother had no authority to sell the property merely because her husband was alive. In view of the law declared by the Apex Court in the aforesaid Judgment, the sale deed executed by the mother as a natural guardian who was taking care of the minor children when her husband neglected her and her minor sons is not hit by Section 6(a) as held by the trial Court. Therefore. the said finding cannot be sustained and accordingly it is set aside. The sale deed executed by the mother as natural guardian though the father was very much alive is valid and legal.
Point No2:-
25. It is contended on behalf of the plaintiffs even It is held the mother Is the natural guardian duly authorized to execute the sale deed when she was selling the property of her La-
41minor children, sub Section (2) of Section 8 of the Act imposes an obligation on such guardian to obtain prior permission of the Court before the sale deed is executed.
26. Section 8 of the Act provides "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 realisation, protection or benefit of the minor's estate; but the guardian can in no case bind the minor by a personal covenant.
27. Sub-Section (2) of Section 8 of the Act provides "The natural guardian shall not, without the previous permission of the Court.
a) mortgage or charge. or transfer by sale, gtf exchange or otherwise, antj part of the immovable property of the minor: or -
bi Lease any part of such property for a term exceeding five years or for a term extending 42 more than one year beyond the date on which the minor will attain majority.
28. Sub --Section (3) provides that. any disposal of immovable property by a natural guardian, in contravention of nce of sub-section (1) or sub-section (2), is voidable at the insta ion (4) the minor or by any person claiming under him. Sub-Sect n to the makes it clear that no Court shall grant permissio section natural guardian to do any of the acts mentioned in sub-
ntage (2) except in the case of necessity or for an evident adva consider to the minor. The Supreme Court had an occasion to the scope of Sections 6. 8 and 12 of the Act. It was held that r in joint with regard to the undivided interest of a Hindu mino family property, Sections 6. 8 and 12 of the Act are beads of glimpse.
the same string and need to be viewed in a single other. Each simultaneously in conjunction with each viewed in provision, and in particular Section 8, cannot he isolation. If read together the intent of the legislature in this 43 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 Hindu minor, other than the undivided Interest In joint family property, Is alone contemplated under Section 8, 1r his powers and duties are defined.
where unde 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 ml 44 guardian for the minor's undMded 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.
29. Therefore, the law on the point is well settled. The appointment of guardian under Section 6(a) of the Act can only be to a property of the minor exclusively. Section 6 makes it clear It Is not applicable to his or her undivided interest in joint family property. Corresponding Section 12 mandates that where a minor has an undivIded interest in joint family property and the property Is under the management of an adult member of 45 the family. no guardian shall be appointed for the minor in respect of such undivided Interest. Therefore. in respect of minors who are members of a Joint family who have Interest in the Joint family property as the Joint family Is managed by the Karta or any of the members of the Joint family such person would take care of the minor's Interest also. Therefore there is no need to appoint a guardian of such minor. At any rate such minor's undivided interest in the Joint family property involves in cases where property exclusively belongs to the minor, then question of appointing guardian of such minor would arise and if minor's property is to be alienated Section 8 enJoins previous permission of the court is a must If permission is not taken and property is alienated it Is not void It Is voidable at the instance of the minor. Here the trial Court has committed a serious error in holding that even if the mother has right to alienate the properties is admitted she has not obtained previous permission of the Court and proceeded to hold that the transaction Is void. The said finding of the trial Court is contrary to law. In the instant A. 46 case the specific case of the mother was there is no partition In the family and the property belongs to joint family because the father had bad vices and In order to protect the interest of the minors by consent mutated the property In the name of the minors who are under the care of their mother who was managing the property. It Is In that context when the mother wanted to alienate the property for the benefit of the minors there was no necessity for her to apply to the Court under SectIon 8 of the Act and seek permission. As pointed out by the Apex Court, the Act Itself Is not attracted to an undivided interest of a minor In the joint family property and the question of appointing guardian of such minor also would not arise. On the contrary SectIon 12 of the Act expressly provides that no guardian shall be appointed for the minor In respect of such undivided interest. In this case, when natural guardian mother alienated the property belonging to the minors which Is a joint family property, previous permission of the Coun under Section 8 of the Act was not necessary. Therefore. for want of such pennisslon the said alienation is not vitiated to any extent 47 whatsoever as the property was standing in the name of the minors.
Point No.3:
30. In the instant case, the mother has executed the sale deed on behalf of herself and her minor sons alienating the undivided interest, the minors had in the joint family property.
After alienating the property she has filed the present suit after the death of her husband alleging that it is the husband who played fraud on her and made her to execute the sale deed. The said sale deed executed is not for the benefit of her minor sons and there was no legal necessity for the family and therefore she wants the alienation to be set aside. Though it is contended that the sale deed was executed by her because of the fraud played on her by her husband by misrepresentation etc. Absolutely no evidence is adduced to substantiate the said t contention. Therefore. the said plea remains as a plea withou being proved in accordance with law. Even otherwise it is not the case where defendant had played fraud in obtaining the sale .
48deed. If the husband played fraud on the wife, it is between the husband and wife and the purchaser has no role to play in any manner on his part in obtaining the registered sale deed in his favour by paying sale consideration. The sale consideration paid by him is in fixed deposit in the Bank. Thus, the purchasers had taken care to see that the sale consideration paid by them did not go to a wrong hand by misuse or abuse. When these were admitted facts on record merely because the husband died, the wife gets no right to ifie the present suit on behalf of herself and her minor sons challenging the alienation made by her in favour of the defendant which lacks bona fldes. It shows that she is making an attempt to make wrongful gain. Assuming that the said alienation was ifiegal. contrary to law, it is for the minors who should chauenge the said alienation after they attain majority. The person who made alienation in the capacity of natural guardian of minor children has no locus stanch to the a suit, challenging the alienation made by herself merely because her husband died and that could not be a cause of action for setting aside the said alienation. Therefore. In our 49 view, the mother of the plaintiffs under the guise of natural guardian has no locus standi to challenge alienation made by her by tIling a suit through her minor children as mentioned in para 4 of the plaint. The material on record discloses that the father of the minors-plaintiffs neglected them. He was neither maintaining his wife nor her minor children, they were constrained to go to their maternal grand parents house and one of the minor boy was admitted to college in Bijapur where his mother was staving with her parents. The material on record does not disclose what was the income of the family . It also does not disclose whether the father had paid any attention in taking care of these minor children and the minors were taken care. If the husband by taking her signature obtained loan from the bank by playing fraud and in those circumstances if the natural guardian failed to repay the loan. when they are unable to cultivate their lands and the same was not yielded any income and the best interest of the minors would he by selling the property and got the money invested in fixed deposit which may he utilised for the education of the V 6 50 chIldren, it cannot be stated that there was no legal necessity or the alienation was not for the benefit of the minor children. The. evidence on record shows, out of Rs.5, 10,000/- received towards sale consideration Rs.4,50,000/- is deposited in F.D. in State Bank of Maharashtra In the name of the minors and the mother. It is after such deposit the mother raises the loan on the security of the said deposit and on default in repaying the loan amount the Bank appropriated the said amount from the F.D. to recover the loan amount. The person who raises the loan In whose name the amount is in deposit can be appropriated. But not the deposit made in the name of minors, as the loan raised was not for the benefit of the minors and there was no necessity to raise a loan. The evidence on record clearly discloses that alienation was made in the interest of the minors. Unfortunately the trial Court has not appreciated the evidence on record and it's reasoning on the face of it Is perverse and therefore It cannot be sustained. Hence, we pass the following order 51
1) All the three appeals are allowed.
ii) The judgment and decree passed by the rricil Court in all the three suits are hereby set aside:
iii) The suits of the plaintiffs for setting aside the ctliei iatiort are hereby dis missed ie) Parties to bear their own costs.
Sd/ JUDGE KspLVbL JUDGE