Jharkhand High Court
Durga Sahu And Ors. vs Deo Chand Sahu And Ors. on 22 March, 2004
Equivalent citations: [2004(3)JCR61(JHR)], 2004 AIR - JHAR. H. C. R. 1651, 2004 A I H C 2672, (2005) 1 MARRILJ 536, (2005) 1 JLJR 374, (2004) 3 JCR 61 (JHA), (2004) 20 ALLINDCAS 851 (JHA), (2005) 1 CIVLJ 86
Author: Vishnudeo Narayan
Bench: Vishnudeo Narayan
JUDGMENT Vishnudeo Narayan, J.
1. This appeal at the instance of defendants-appellant has been preferred against the impugned judgment and decree dated 14.2.1984 and 28.2.1984 passed in Title Appeal No. 32 of 1982 by Shri A.N.K.N. Sinha, District Judge, Giridih whereby and whereunder the judgment and decree dated 28.8.1982 and 4.9.1982 passed in Partition Suit No. 23 of 1977 by Sub-ordinate Judge, Giridih was set aside and the appeal was partly allowed and the suit was decreed for carving out a separate Takata of the plaintiffs-respondent to the extent of their share which is 3 annas and 8-2/3 pie in the suit property.
2. The plaintiffs respondent had filed the said suit for metes and bounds partition of the suit property of Khata No. 62 situate in village-Palmo in the district of Giridih detailed at the food of the plaint in which they had claimed 7 annas and 4 pie share.
3. The case of the plaintiffs-respondent, in brief, is that Battu Tell was the common ancestor of the parties and he had four sons, namely Sona Teli, Gangu Tell, Bhukhan Teli and Laxman Teli and the land of Khata No. 62 stands jointly recorded in their names in the cadastral survey record of rights and they were the members of the joint Hindu family and they have also acquired the land of Khata No. 63 jointly and excavated a tank with a big Pinda and a Nala and they were in possession in defined share in respect thereof and the land of Khata No. 63 also stands' recorded in the cadastral Survey Records of Right in their names and they also enjoyed the usufruct of the tank under Khata No. 63 separately and the land of Khata No. 63 being tank and its Pinda and Nala is impartable and is, therefore, not the subject matter of partition in this suit. Bhukhan Teli and Laxman Teli have died issueless about 50 years ago in quick succession in the state of jointness with their brothers, namely, Sona Teli and Gangu Teli who inherited them by survivorship and thereafter there had been disruption and separation of the joint family as per the mutual consent between Sona Teli and Gangu Teli and they started cultivating the suit land as per their conveyance without any partition by metes and bounds and they "also enjoyed the usufruct of the tank aforesaid separately. Sona Teli died in the year 1934 leaving behind his widow Meghani and two sons, namely, Janki Saw and Mani Saw and they came in separate possession of the land of Khata No. 62 as well as over the tank of Khata No. 63 as per their respective share. Gangu Teli also died about 35 years ago leaving behind his three sons, namely, Mukku, Bhikhan and Chirmat and they inherited the suit land separately. Mani Teli aforesaid died a year or two after the death of Gangu Teli leaving behind his widow Most Saro and a son Deo Chand Sahu, the plaintiffs in the suit and they came in possession of the suit land of Khata Nos. 62 and 63 and of Khata No. 17 jointly with Janki Sahu, Mukku Sahu aforesaid died about 30 years ago leaving behind his widow defendant No. 5 Most Jhalia and four sons, namely, defendant No. 1 Durga, defendant No. 2 Kirmat, defendant No. 3 Suraj and defendant No. 4 Lochan. Bhikhan Sahu died about 18 years ago leaving behind his three sons, namely defendant No. 6 Tej Lal, defendant No. 7 Ganpat and defendant No. 8 Tusu. Khirmat died 20 years ago leaving his only son Kanhu and he sold the land of his share by virtue of the registered sale deed in favour bf defendant Nos. 1, 7 and 10 and thereafter he left the village. Defendant No. 8 Tuso also sold his entire share in favour of defendant Nos. 1 and 7. Janki Sahu died in the year 1963 leaving behind his widow, defendant No. 11 Most Nanhki, four sons, namely, defendant No. 12 Hari Sahu, defendant No. 13 Sukar Sahu, defendant No. 14, Murli Sahu and defendant No. 17, Tarkeshwar Sahu, besides two daughters, namely, defendant No. 15, Kaili Devi and defendant No. 16, Brinda Devi and they all had succeeded Janki Teli and thereafter Most Nanhki for herself and for natural guardian of her three minor sons, namely, Sukar Sahu, Murli Sahu and Tarkeshwar Sahu along with her major son Hari Sahu executed a sale deed dated 13.7.1964, in respect of 1.85 1/2 acres of land out of Khata No. 62 and 19 3/4 decimals of land out of Khata No. 63, in favour of defendant No. 5 Most. Jhalia and the said sale deed is voidable to the extent of the interest of the minors aforesaid and also to the extent of the shares of the two daughters of Janaki Sahu aforesaid and defendant No. 13 Sukar Sahu and defendant No. 14 Murli Sahu after attaining majority in the year 1974, had repudiated the sale made on their behalf by their natural guardian, defendant No. 11. Most Nanhki, by executing sale deeds dated 6.9.1976 and 16.7.1976 respectively in favour of the plaintiffs in respect of their share in the suit property and defendant No. 16 Brinda Devi, the daughter of Janki Saw aforesaid had also executed a sale deed in respect of the suit property in favour of the plaintiffs along with Murli Sahu aforesaid and the plaintiffs have acquired valid title by virtue of sale deeds aforesaid. The further case of the plaintiffs-respondent is that one Ishwar Sahu and Jagdish Sahu got a sale deed executed in their favour on 13.7.1964 by Meghani Telian in respect of land of Khata Nos. 62 and 63 practising fraud which she subsequently cancelled by executing a registered deed of cancellation dated 15.2.1965 stating therein that Sonia Teli has died about 50 years ago and the suit property was succeeded by his two sons alone and she has not inherited her deceased-husband and again she was duped by practicising fraud and deception by defendant No. 1 Durga Sahu and he got a sale deed executed by her on 10.11.1967 in favour of his son defendant No. 9 Puran Sahu in respect of 1. 04 1/2 acres of land of Khata No. 62 and 19 3/4 acres of land of Khata No. 63 which was much in excess of her share and the said sale deed is invalid, illegal and without consideration and said Meghani Telian died about five years prior to the suit. The plaintiffs-respondent demanded metes and bounds partition of the suit land which was evaded by the defendants-appellant and hence the necessity for the suit.
4. The case of the contesting defendants-appellant in their written statement, inter alia, is that Sona Teli had died in the year 1962 leaving behind his widow Most. Meghani Telian and a son Janki Saw and his other son Mani Saw had predeceased him and said Mani Saw Had committed suicide in the year 1952 when plaintiff Deo Chand Sahu was in the womb of his mother, co-plaintiff Most. Saro, who had left the village and went to reside in the parent's house in village Karkatta and Mani Saw or his wife Most. Saro and his posthumous son Deo Chand Sahu have never inherited and possessed the suit land, rather, Janki Saw and his wife Most. Nanhki inherited Sona Teli on his demise. After the death of Janki Saw, his family faced with big financial crisis and had to discharge the antecedent loan and in order to reshape the cultivation of Karnatand where Janki Saw was residing severing of his relationship with village-Palmo, defendant No. 12 Hari Sahu being the Karta of her family and Most. Nanhki aforesaid validly and for consideration and for the benefit of her family sold the land of Janki Teli to defendant No. 5 Most Jhalia by executing a sale deed dated 13.7.1964 and this sale deed is not voidable and said three minor sons of Janki Saw had no right, title and interest in the suit land and as such the question of repudiation by them of the said sale deed does not arise and the said sale deed cannot be repudiated as the said sale deed is for legal necessity and for the benefit of the family to the full knowledge of defendant No. 15 Kaili Devi and defendant No. 16 Brinda Devi, the daughter of Janki Saw (deceased) and these defendants-appellant are in peaceful continuous and uninterrupted possession for more than 12 years over the suit land and has acquired valid title by adverse possession and ouster and sale deed alleged to have been executed by aforesaid Sukar Sahu, Murli Sahu and Brinda Devi in favour of the plaintiffs-respondent has no legal effect conferring any title on them in respect thereof. Their further case is that death of Sona Tell in the year 1934 and Most. Meghani not inheriting Sona Teli and Mani Saw inheriting Sona Teli on his demise are palpably false and incorrect and is falsified in view of the fact that plaintiff-respondent Deo Chand Sahu acquired the land of Khata No. 17 by virtue of the sale deed executed by Most. Meghani aforesaid. Most Meghani had sold her entire interest in respect of land of Khata Nos. 62 and 63 by executing sale deed dated 10.11.1967 in favour of the defendant Puran Saw and the said sale deed is legal, valid and for consideration and defendant Nos. 1 to 9 are coming in peaceful continuous possession over the land of Khata Nos. 62 and 63 by virtue of the said sale deed and the plaintiffs-respondent have never acquired or have any share in the suit land and the entire suit land is in possession of defendants-appellant to the exclusion and ouster of the plaintiffs-respondent and as such the story of demand of partition is false.
5. In view of the pleadings of the parties, the learned Trial Court has framed the following issues for adjudication in the said suit :
(i) Is the suit maintainable in the present form ?
(ii) Have the plaintiffs got any cause of action in the suit?
(iii) Is the suit barred by limitation, adverse possession, ouster, estoppel and acquiescence?
(iv) Whether the sale deed executed by Mosomat Meghani in favour of Puran Sahu S/o defendant No. 1 and the sale deed executed by the heirs of Janki Sahu in favour of the defendants are illegal, invalid, inoperative and null and void?
(v) Are the plaintiff entitled for a decree for partition as claimed in this suit and if so, to what extent?
(vi) To what relief or reliefs, if any, the plaintiffs are entitled in this suit?
6. While deciding Issue No. (iv) the learned Court below has held that Sona Teli had died in the year 1962 and Most. Meghani has inherited Sona Teli and she was in possession over the properties after the death of her husband Sona Teli and she was entitled to her share in the joint family properties after the death of her husband and the sale deed dated 10.11.1967 (Ext. A/5) executed by Most. Meghani in favour of defendant No. 9 Puran is legal, valid and for consideration. The learned Trial Court has further held that the sale deed dated 13.7.1964 executed by Most. Nanhki for self and as natural guardian of her minor sons, namely, Sukar Sahu. Tarkeshwar Sahu and Murli Sahu along with her major son Hari Sahu in favour of defendant No. 5 Most. Jhalia is voidable at the instance of the aforesaid minor sons of Janki Saw and they can avoid the said sale deed by their conduct without filing a regular suit and defendant No. 13 Sukar Sahu and defendant No. 14 Murli Sahu have repudiated the sale deed executed by Most Nanhki in favour of Most Jhalia by executing sale deeds in respect of property of their share along with defendant No. 16 Brinda Devi in favour of the plaintiff to the extent of their share. However, defendant Tarkeshwar Sahu has not repudiated the said sale deed aforesaid but in the circumstances of the case it is difficult to uphold the claim of the plaintiffs that the alleged sale deed purported to have been executed by Most Nanhki for self and on behalf of her minor sons along with defendant Hari Sahu is illegal, void and inoperative. The learned Trial Court while deciding Issue Nos. (iii) and (i) has also held that the defendants have not acquired title in respect of the suit land of Khata Nos. 62 and 63 by adverse possession or by ouster of the plaintiffs from the suit land and the suit is not maintainable due to mis-joinder of the causes of action and for partial partition as the land of Khata Nos. 63 and 17 has not been included as suit property in the suit. In view of the findings aforesaid, the learned Trial Court dismissed the suit of the plaintiffs-respondent.
7. Aggrieved by the judgment and decree of the Trial Court, plaintiff preferred Title Appeal No. 32 of 1982. The lower appellate Court below on reappraisal and re-appreciation of the evidence oral and documentary on the record had set aside the judgment and decree of the Trial Court and allowed the appeal in part as per the impugned judgment and decreed the suit in part for metes and bound partition of the suit property in which the plaintiffs-respondent were held entitled for 0/3/8 2/3 pie share. The appellate Court below came to the finding that Sona Teli had died in the year 1962 and not in the year 1934 and his widow Meghani was quite competent to dispose of her interest in the suit property to defendant No. 9 Puran Saw by virtue of registered sale deed dated 10.11.1967 and the said sale deed is legal, valid and for consideration. The learned appellate Court has further held that the sale deed executed by defendant No. 11 Most. Nanhki for self and as natural guardian of her three minor sons, namely, defendant Nos. 13, 14 and 17 along with her major son Hari Sahu in favour of defendant No. 5 Jhalia in respect of the suit land is in contravention of Section 8 of the Hindu Minority and Guardianship Act, 1956 (hereinafter referred to as the said Act) and as such it is voidable document to the extent of the share of her aforesaid minor sons and as such the interest of defendant Nos. 13 and 14 could not pass to defendant No. 5 by virtue of the said sale deed and interest of defendant Nos. 15 and 16 also did not pass in favour of the defendant No. 5, rather, the interest of defendant No. 16 has passed to the plaintiff by virtue of the sale deed executed by defendant No. 16. It has also been held that the suit of the plaintiff-respondent is maintainable and not bad for partial partition as land of Khata No. 17 was not a joint family property and also for misjoinder for causes of action and the case of the ouster as alleged by the defendant-appellant does not at all stand substantiated as per the evidence on the record. Lastly it has been held that the plaintiffs-respondent being the members of the joint family has right, title and interest in the suit property and are entitled for metes and bounds partition of the suit property and the share of the plaintiffs-respondent shall be Rs. 0/3/8 2/3 pie in the suit property.
8. While admitting the appeal vide order dated 22.11.1985, this Court has formulated the substantial question of law which runs thus :
"Whether the transfer in favour of the appellants can be held to be hit by the provision of Section 8(2) of the Hindu Minority and Guardianship Act."
9. Assailing the impugned judgment it has been submitted by the defendants-appellant that the sale deed dated 13.7.1964 (Ext. A/2) executed by Most. Nanhki for self and as natural guardian of her three minor sons along with her major son Hari Sahu was for legal necessity and for the benefit of the minors and thus the sale deed is legal and valid conferring title on defendant No. 5 Most Jhalia. It has also been contended that there is no averment in the plaint that the said sale deed was without legal necessity. The simple averment in the plaint is that the said sale deed is voidable to the extent of the interest of the minors and defendant Nos. 13 and 14 after attaining majority in the year 1974 has repudiated the sale made on their behalf by their natural mother and guardian. Most Nanhki by executing sale deeds dated 6.9.1976 and 16.7.1976 respectively in favour of the plaintiffs-respondent in respect of their share in the suit property and in view of the averment stated above there was no necessity at all to go into the question of legal necessity, as such case was not pleaded at all in the plaint. It has also been submitted that in the case of legal necessity it was not necessary for the vendee to prove that there was any compulsion for selling the land and it is enough for the vendee to prove that he had made proper enquiries regarding the legal necessity and thus the sale deed dated 12.7.1964 executed by Most Nanhki is for the benefit of her minor sons and question of contravention of Section 8 of the said Act does not arise at all in this case. It has also been submitted that in case of alienation of undivided interest in a property belonging to joint Hindu family by the mother as natural guardian the provisions of Section 8 of the said Act do not apply, and as such there was no necessity to obtain any sanction from any Court in case of such alienation and the learned appellate Court below has committed a manifest error in coming to the finding that the sale deed aforesaid is illegal and invalid to the extent of the shares of the aforesaid minors. In support of his contention reliance has been placed upon the ratio of the case of Girdhar Singh and Anr. v. Anand Singh and Ors., (AIR 1982 Rajasthan 229), in which it has been observed that "as regards the question of taking permission from a competent Court of law in this case. I am in agreement with the view taken in Sunamani Dei v. Babaji Das, AIR 1974 Orissa 184, that when the minor and his mother constitute a Hindu Joint Family, each with a moiety of undivided interest in any immoveable property belonging to the family, in the absence of the father, the mother as natural guardian, can alienate even the minor's half share in the immoveable property under the personal law Section 8 of the Hindu Minority and Guardianship Act, will not apply to such alienation. This view finds support from Smt. Suga Bai v. Hira Lal, AIR 1969 MP 32. It has also been submitted that Most. Jhalia has acquired perfect right, title and interest in the suit property by virtue of the sale deed dated 13.7.1964 (Ext. A/2) in respect of the suit property and the plaintiffs-respondent have not acquired any title by virtue of the sale deed executed by defendants Sukar Sahu and Murli Sahu in their favour after attaining majority and thus the share of the plaintiffs as determined by the appellate Court below shall be reduced by about one anna and hence the impugned judgment is unsustainable.
10. In contra it has been submitted by the learned counsel for the plaintiffs-respondent that the sale deed dated 13.7.1964 executed by Most. Nanhki as self and as guardian of her minor sons, Sukur Sahu, Murli Sahu and Tarkeshwar Sahu along with her major son Hari Sahu in respect of undivided ancestral property in favour of the defendant-appellant Most. Jhalia is in contravention of Section 8(2) of the said Act and Sukar Sahu and Murli Sahu after attaining majority have repudiated the said sale deed by executing sate deeds dated 6.9.1976 and 16.7.1976 in favour of the plaintiffs-respondent in respect of their shares in the suit property. It has also been submitted that as per Section 6 of the said Act the natural mother in absence of father shall be the natural guardian of a Hindu minor in respect of his person as well as in respect of his property but excluding his or her undivided interest in the joint family property and Most. Nanhki, therefore, cannot act as the natural guardian in disposing of the undivided interest of her minor sons in respect of their ancestral properties by executing sale deed without the previous permission of the competent Court in respect thereof. It has also been submitted that the mother cannot act as Karta/ Manager in respect of the joint family properties consisting of herself and her minor sons besides her one major son. It has further been submitted that there was no legal necessity for Most. Nanhki for disposing of the joint family property in favour of the Most. Jhalia and there is also no legal evidence on the record to show that Most. Jhalia i.e. vendee had made any enquiry into the existing necessity for the sale of the said land and further the burden lies on the vendee to prove either that there was a legal necessity, in fact, or that she had made proper bona fide enquiry as to the existence of such necessity and she did all that was reasonable to satisfy herself as to the existence of such necessity and furthermore. Most Jhalia has also not taken earth in this case to substantiate the fact regarding the existence of legal necessity for Most. Nanhki executing the said sale deed for self and as natural guardian of her minor sons and such transfer deed is voidable which can be repudiated by the said minor on attaining majority and here in this case. Sukar Sahu and Murli Sahu after attaining majority have repudiated the said sale deed executed by Most. Nanhki in favour of Most Jhalia by executing sale deeds to the extent of their share in the suit property in favour of the plaintiffs-respondent and for that repudiation no suit for setting aside the said sale deed is at all imperative and the minor on attaining majority may affirm or disaffirm the transaction without the suit. In support of his contention reliance has been placed upon the ratio of the case of Iruppakkatt Veettil Viswanantha's wife Santha v. Deceased Kandan's L Rs wife Cherukutty and Ors., AIR 1972 Ker 71, and thus, there is no illegality in the impugned judgment requiring an interference therein.
11. There is no denying the fact that Janki Saw died in the year 1963 in the state of jointness leaving behind his widow Most. Nanhki, one major son defendant No. 12 Hari Sahu and three minor sons, namely, defendant No. 13 Sukar Sahu, defendant No. 14 Murli Sahu and defendant No. 17 Tarkeshwar Sahu besides two daughters defendant No. 15 Kaili Devi and defendant No. - 16 Brinda Devi and his mother Meghani. Most. Nanhki aforesaid had executed a sale deed dated 13.7.1964 in respect of the entire properties of Janki Saw, deceased, in favour of defendant No. 5 Most. Jhalia as self and as natural guardian of her three minor sons aforesaid along with Hari Sahu, but defendant No. 13 Sukar Sahu and defendant No. 14 Murli Sahu on attaining majority had repudiated the sale deed executed by her natural mother Most. Nanhki in respect of their shares by executing sale deeds in favour of plaintiffs-respondent It is needless to say that a manager of a joint Hindu family alienating joint family property has only limited powers. So is the case of a Hindu widow. A guardian of a minor stands more or less on the same footing. A widow mother even though she has adult son she would be the guardian of her minor sons but she would not be the manager of the joint family in view of the fact that though she is the member of the joint family but not being a coparcener she cannot act as Karta/ Manager of the said joint family. The right to become a manager depends upon the fundamental fact that the persons on whom the right devolved was a coparcener of a joint family and this right is confined to the male members of the family as the female members are not treated as coparcener. It has been laid down more than a century age in the case of Hanooman Prasaud v. Mussumat Babooee, (1856) 6 Moo IA 393, that the power of the manager for an infant heir to charge an estate, not his/her own, is under the Hindu Law limited and qualified power. It can only be exercised rightly in a case of need or for the benefit of the estate. The actual pressure on the estate, the danger to be averted or the benefit to be conferred upon it is the thing to be regarded Article 242 of the Mulla's Hindu Law is relevant in this connection which states that the power of the manager of the joint Hindu family to alienate joint Hindu family property is analogous to that of a manager for an infant heir as laid down in the ratio of the case of Hanooman Prasaud (supra) and the said alienation binds the interest of both adult and minor coparcener in the property provided that the alienation is made for legal necessity or for the benefit of the estate or for the satisfaction of an antecedent date of the minor's father and alienation by the manager of the joint family made without legal necessity is not void but voidable at the option of the minor coparceners and they may affirm it or they may repudiate it. Here in this case. Most. Nanhki is said to have executed the sale deed dated 13.7.1964 in favour, of defendant No. 5 Jhalia for self and on behalf of her three minor sons aforesaid along with her major son Hari Sahu. There is averment in para-12, of the written statement that after the death of Janki Saw his family was faced with big financial crises and had to discharge the loans of different creditors and in order to reshape the cultivation of Karnatand, defendant No. 12 Hari Sahu as the Karta of the family along with her mother Most. Nanhki validly and for consideration and for the benefit of the family had sold the lands of Janki Saw to defendant No/5. It is pertinent to mention here that Janki Saw had shifted to village-Karnatand where he was possessed with sufficient agricultural land. In paras-9 and 10 of his evidence, defendant appellant No. 1 Durga Sahu has deposed that Most. Nanhki had fallen in need of money and the economic condition of her family was precarious due to dacoity committed in her house which has caused her to dispose of her properties situate in village-Palmo and in para-33 of his evidence he has deposed that Janki Saw had land at village-Karnatand but he cannot say its acreage. He has also deposed that he cannot say as to whether the land at Karnatand was sufficient for the maintenance of the family of Janki Saw or riot. There is no tangible evidence on the record to show that in fact. Most Nanhki has any compelling legal necessity to execute the sale deed in favour of Most. Jhalia. Legal necessity to support the sale must, however, be established by the alienee. Most Nanhki owned the land in dispute as a limited owner as guardian of her minor sons along with her major son. She was competent to dispose of the whole estate in the property for legal necessity or for benefit to the estate. In adjudging whether the sale conveys the whole estate, the actual pressure on the estate, the danger to be averted, and the benefit to be conferred upon the estate in the particular insistence must be considered. Legal necessity does not mean actual compulsion, it means pressure upon -the estate which in law may be regarded as serious and sufficient. The onus of proving legal necessity may be discharged by the alienee by proof of actual necessity or by proof that he made proper and bona fide enquiries about the existence of the necessity and that he did all that was reasonable to satisfy himself as to the existence of the necessity. The recitals in the sale deed dated 13.7.1964 does not by themselves prove legal necessity. The recitals are, however, admissible in evidence, their value varying according to the circumstances in which the transaction was entered into. The recitals may be used to corroborate other evidence of the existence of legal necessity. Here in the facts and circumstances of the case, there is no legal evidence on the record brought by the defendants-appellant to substantiate the fact of existence of legal necessity compelling Most. Nanhki to sell the entire land after the death of her husband Janhki binding the interest of her three minor sons
12. Section 6 of the said Act is relevant which runs thus :
"6. Natural guardians of a Hindu minor.--The natural guardian of a Hindu minor, in respect of the minor's person as well as in respect of the minor's property (excluding his or her undivided interest in joint family property), are
(a) in the case of a boy or an unmarried girl-the father, and after him, the mother ; provided that the custody of a minor who has not completed the age of five years shall ordinarily be with the mother :
xx xx xx xx xx xx xx xx xx xx xx xx xx xx It appears as per the mandate of the law quoted above that father is the natural guardian of the person and of the separate property of his minor children and next to him the mother. No relation except the parents is entitled as of right to the guardianship of a minor. If the minor is a member of joint family governed by Mitakshara Law the father as Karta is entitled to the management of the whole coparcenary property including the minor's interest. After the father's death, the management of the property including the minor's interest therein passes to the eldest son as Karta. The mother as natural guardian is not entitled to the custody of the undivided interest of her minor son in the joint family property because such property is not separate property though she is entitled as guardian to the custody of his person and his separate property, if any. The provisions quoted above thus apply to the custody of the separate property of the minor as distinguished from his undivided interest in coparcenary property in case governed by Mitakshara Law. Here in this case, Janki Saw is dead and has left behind him his widow Most Nanhki, one major son Hari Sahu, three minor sons, namely, Sukar Sahu, Murli Sahu and Tarkeshwar Sahu, besides two daughters. There is nothing on the record to show as to whether both daughters of Janki Saw, deceased, were minor and married at the time of his death. Therefore, in such a situation, Most. Nanhki as natural mother of her three minor sons is their guardian of their person and separate property. But the land transferred by her vide sale deed dated 13.7.1964 in favour of Most. Jhalia as self and as guardian of their three minor sons along with her major son Hari Sahu is in respect of ancestral joint family property. Now Section 8 of the said Act has its relevancy which runs thus :
"8. Powers of natural guardian.--(1) The natural guardian, of a Hindu minor, has power, subject to the provisions of this section, to do all acts which are necessary or reasonable and proper for the benefit of the minor or for the realisation, protection or benefit of the minor's estate; but the guardian can in no case bind the minor by a personal covenant.
(2) The natural guardian shall not, without the previous permission of the Court--
(a) mortgage or charge, or transfer by sale, gift, exchange or otherwise, any part of the immoveable property of the minor : or
(b) lease any part of such property for a term exceeding five years or for a term extending more than one year beyond the date on which the minor will attain majority.
(3) Any disposal of immoveable property by a natural guardian, in contravention of Sub-section (1) or Sub-section (2), is voidable at the instance of the minor or by any person claiming under, him.
(4) No Court shall grant permission to the natural guardian to do any of the acts mentioned in Sub-section (2) except in the case of necessity or for an evident advantage to the minor.
(5) xx xx xx xx xx xx xx x (6) xx xx xx xx xx xx xx."
It is indisputable in the case at hand that Most. Nanhki has not taken prior sanction of the Court for the alienation of the undivided interest of her three minor sons in the joint family property in favour of Most. Jhalia acting as the guardian of her three minor sons and therefore, the sale deed thus executed by her on 13.7.1964 in favour of Most Jhalia is in flagrant violation of Section 8(2) of the said Act quoted above and it attracts Section 8(3) of the said Act and the disposal of the property even though by a natural guardian becomes voidable at the instance of the minor which may be repudiated by the minor on attaining majority by his own act. The minor may also affirm the said transaction. It all depends upon his conduct. Here in this case, defendant No. 13 Sukar Sahu and defendant No. 14 Murli Sahu after attaining majority have repudiated the said voidable transaction of sale by executing sale deeds in favour of the plaintiffs. When a minor is entitled to avoid a transfer effected by his guardian on the ground of absence of permission of the Court, the said transfer becomes a nullity on his unilateral act. He can merely avoid it by his conduct and there is no need to file a suit for avoiding the transfer. Therefore, the alienation in question of the undivided interest of the minors by their natural mother Nanhki in favour of Most. Jhalia is avoidable at the minor's instance and the minor can treat the said transaction as void without the assistance of the Court. The statutory provision aforesaid enables the minor to affirm or disaffirm the transaction without suit. Therefore, the plaintiffs-respondent have acquired valid title by virtue of the sale deeds dated 6.9.1976 and 16.7.1976 executed by Sukar Sahu as well as Murli Sahu with Brinda Devi respectively in favour of the plaintiffs-respondent. There is substance in the contention of the learned counsel for the plaintiffs-respondent and the ratio of the case of Iruppakkatt Veettil Viswanatha's wife Santha (supra) squarely covers the matter in controversy. Thus the substantial question is answered in the affirmative as the transfer in favour of the appellants is hit by the provision of Section 8(2) of the said Act. Viewed thus, there is no illegality in the impugned judgment of the appellate Court below requiring an interference therein.
13. There is no merit in this appeal and it fails. The appeal is hereby dismissed. No order as to costs in the facts and circumstances of this case.