Bombay High Court
Shripati S/O. Santu Mane vs Goroba S/O. Nivarti Ghutukade on 1 July, 2008
Author: P.R. Borkar
Bench: P.R. Borkar
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD.
SECOND APPEAL NO. 149 OF 1999
Shripati s/o. Santu Mane ]..Appellant
Age 50 years, Occ. Service,
R/o. Wanewadi, at present Pune,
in front of Gorpadi High School,
Block No.149, Pune - 1.
VERSUS
1. Goroba s/o. Nivarti Ghutukade ]..Respondents
Age 34 years, Occ. Agriculture,
R/o. Wanewadi, Tq. and Dist.
Osmanabad.
2. Chandrabhagabai w/o. Nivarti Ghutukade
Age 67 years, Occ. Agriculture,
R/o. Wanewadi, Tq. & Dist.
Osmanabad.
Shri P.R. Katneshwarkar, Advocate for the appellant.
Shri V.J. Dixit, Sr. Counsel h/f. Shri R.V.
Naiknaware, Advocate for respondents.
CORAM : P.R. BORKAR,J.
RESERVED ON : 27.06.2008
PRONOUNCED ON : 01.07.2008
JUDGMENT :
. The appellant is the original defendant and he filed this appeal being aggrieved by the decree passed by the Joint District Judge, Osmanabad in Regular Civil Appeal No.47 of 1999 dated 02.02.1999 whereby the learned Judge set aside the judgment and decree passed by the Joint Civil Judge, Senior Division, ::: Downloaded on - 09/06/2013 13:32:51 ::: ( 2 ) Osmanabad in Regular Civil Suit No. 313 of 1984 decided on 02.01.1991 and directed the present appellant to hand over possession of the suit-land to respondent No.1 Goroba on payment of Rs.9000/- within three months from the date of decree and in-case he fails to hand over possession, Goroba is entitled to get possession through Court. There is also direction for mesne profit.
2. Briefly stated facts giving rise to this appeal may be stated as below:-
. Appellant - Shripati Santu Mane is brother of respondent No.2 - Chandrabhagabai. Respondent No.1 -
Goroba is son of respondent No. 2 - Chandrabhagabai.
Survey No.65/9 admeasuring 3 Acres 10 Gunthas situated at village Wanewadi, Tal. & Dist. Osmanabad is the suit property. Prior to 20.03.1976 the suit property which was ancestral property of the respondents. The suit-land had been given to one Bhagirathibai Krishnath Umbare resident of Wagholi as a security for loan of Rs.6000/- and a nominal sale-deed was executed by the respondent in favour of Bhagirathibai on condition that after satisfaction of the loan, Bhagirathibai would reconvey the suit property to ::: Downloaded on - 09/06/2013 13:32:51 ::: ( 3 ) respondents who are original plaintiffs.
Bhagirathibai was enjoying income of the suit-land as interest on the amount paid.
3. It is further case of the respondents that the respondents were in need of money for repaying the loan amount obtained from Bhagirathibai and therefore respondent NO.2 - Chandrabhagabai approached the appellant - her brother Shripati and obtained loan of Rs.9000/-. On 20.03.1976 the amount was paid to Bhagirathibai name of and she reconveyed the property in respondent No.1-Goroba (then minor).
the Respondent No.1 Goroba through his guardian mother (respondent No.2) on the same day executed sale-deed in favour of the appellant for Rs.9000/- and possession of the property was handed over to the appellant. It is case of the appellant that the sale-deed was nominal and it was a loan transaction.
The property was to be reconveyed on payment of Rs.9000/-. It is alleged that since respondent No.1 -
Goroba was minor, the sale-deed on his behalf without permission of the District Court was null and void.
Moreover, there was incumbrance of Co-operative
Society on the suit-land and therefore the sale-deed
is also hit by Section 48 of the Maharashtra
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Co-operative Societies Act. In the circumstances the
suit was filed for declaration of sale-deed dated
20.03.1976 executed by respondents in favour of the
appellant was nominal, sham, bogus and not binding on
the respondents and it was executed as security for
loan of Rs.9000/-. It is further prayed that the
respondent/plaintiff be put into the possession of the suit property on payment of Rs.9000/-.
4. The Trial Court dismissed the suit, whereas the the dismissal, learned Joint District Judge, Osmanabad set aside refused declaration sought, but directed that the appellant should handover possession of the suit-land to respondent No.1-Goroba on payment of Rs.9000/-. There was also direction of enquiry for determining mesne profits.
5. The Trial Court held that the sale transaction dated 20.03.1976 was not sham or bogus. The transaction was not null and void eventhough no permission of the District Court was obtained under the Guardians and Wards Act and plaintiff No.1 -
Goroba was minor at the material time. He also held that the sale transaction is not void under Section 48 of the Maharashtra Co-operative Societies Act. He ::: Downloaded on - 09/06/2013 13:32:51 ::: ( 5 ) further stated that the suit was barred by limitation and the plaintiffs/respondents were not entitled to any relief.
6. The learned Joint District Judge held that the suit is within limitation. The suit is not void under Section 48 of the Maharashtra Co-operative Societies Act. There was no agreement to reconvey the land.
However, the sale-deed is illegal and void because it
was without permission of the District Court and
therefore,
possession
respondent No.1 is
of the suit-land on payment of
entitled to
Rs.9000/-.
the
It is this judgment and decree which are challenged
before this Court.
7. This Second Appeal is admitted on the
following two points by order dated 11.08.1999.
(1) Was it necessary to have permission to dispose of the undivided share of minor in the ancestral property of the joint family?
(2) Whether the judgment and order of the lower Appellate Court can be said to be correct in view of the principles laid down by this Court in 1974 (76) BLR 267 and 1991 Mh.L.J. 165?
8. It is argued before this Court on behalf of the respondents that after reconveyance by ::: Downloaded on - 09/06/2013 13:32:51 ::: ( 6 ) Bhagirathibai on 20.03.1976 in the name of respondent No.1-Goroba, who was minor, the property became the property of minor and therefore permission ought to have been obtained under Section 8 of the Hindu Minority and Guardianship Act, 1956 (hereinafter referred to as "the Hindu Minority Act") and in absence of this the sale-deed is null and void and the decree passed by the learned Joint District Judge is legal and proper and no interference in it be made.
It is argued by the learned advocate that considering
in para 1
the case-law it was an ancestral property as mentioned of the plaint. The purchase money for obtaining sale-deed from Bhagirathibai was obtained by respondent No.2 - Chandrabhagabai by way of loan from her brother- who is the appellant and therefore, it cannot be said that suit-land was minor's property.
The funds for obtaining sale-deed have not been raised out of minor's estate and therefore, even assuming that the sale-deed in favour of Bhagirathibai was nominal sale executed as security for the loan, the suit-land continues to be ancestral land and both respondent Nos. 1 and 2 have share therein, being son and mother. It is further stated that as the father was not alive, mother - Chandrabhagabai as natural guardian had legal right to execute the sale-deed on ::: Downloaded on - 09/06/2013 13:32:51 ::: ( 7 ) behalf of her minor son and therefore, the sale-deed is not void, but at most voidable and Section 8 of the Hindu Minority Act is not applicable.
9. Various authorities have been cited before me.
Various provisions of Hindu Minority Act were relied upon so also legal position under the old Hindu Law was also referred to.
10. In the case of Gowli Buddanna:Biharilal Kanaiyalal AIR 1966 S.C. V/s. Commissioner of Income Tax, 1523, 1523 the Hindu joint family consisted Mysore, of sole male surviving coparcener and his widow mother and sisters, the question was whether there could be such undivided joint family and at the end of para 14, it is observed as follows:-
"The family, a body fluctuating in numbers and comprised of male and female members, may equally well be said to be owners of the property, but owners whose ownership is qualified by the powers of the coparceners. There is in fact nothing to be gained by the use of the word 'owner' in this connexion. It is only by analysing the nature of the rights of the members of the undivided family, both those in being and those yet to be born, that it can be determined whether the family property can properly be described as 'joint property' of the undivided family. Property of a joint family therefore does not cease to belong to the family merely because the family is represented by a single coparcener who ::: Downloaded on - 09/06/2013 13:32:51 ::: ( 8 ) possesses rights which an owner of property may possess. In the case in hand the property which yielded the income originally belonged to a Hindu undivided family. On the death of Buddappa the family which included a widow and females born in the family was represented by Buddanna alone but the property still continued to belong to that undivided family and income received therefrom was taxable as income of the Hindu undivided family."
11. The learned advocate for the respondents stated that under Section 8(2) of the Hindu Minority Act, the natural guardian has no right without prior permission of the Court to sell immovable property of a which minor.
lays He also drew my attention to Sub-Section down that any disposal of immovable 3 property by a natural guardian, in contravention of sub-section (1) or sub-section (2), is voidable at the instance of minor and in this suit the Appellate Court has held that the suit was filed within three years after attaining majority. So the sale is properly avoided and is not binding on respondent No.1 -
Goroba.
12. The learned advocate for the appellant drew my attention to Section 6 of the Hindu Minority Act. It lays down that the natural guardians of a Hindu minor, in respect of minor's property (excluding his or her undivided interest in joint family property), are in ::: Downloaded on - 09/06/2013 13:32:51 ::: ( 9 ) the case of a boy the father, and after him, the mother. He also pointed out Section 12 of the Hindu Minority Act in which it is laid down that where the minor has an undivided interest in the joint family property and the property is under the management of an adult member of the family, no guardian shall be appointed for the minor in respect of such undivided interest. The learned advocate argued that here phrase used is "the property is under the management of an adult member of the family". Section 12 does not member'.
speak So about 'karta' or 'manager' or 'male it includes also female adult adult member.
So, if we consider Sections 6,8 and 12 together, it is clear that Section 8 does not apply to alienation by natural guardian of minor's undivided interest in the joint family property.
13. The learned advocate for the respondent has relied upon a case of Subhashappa s/o. Pundlikappa Meti Vs. Maroti Laxmanrao Sawarkar,2006(2) ALL MR
434. In para 18 of that case it is stated that the alienation by the mother of the property of the minor plaintiff, without obtaining the permission of the District Judge, was invalid and void ab initio. In that case plaintiff's father Pundlikappa was the owner ::: Downloaded on - 09/06/2013 13:32:51 ::: ( 10 ) of the suit property and one Narayan Patil had instituted Civil Suit against Pundlikappa which came to be decreed on 27.07.1953. In the execution of the decree the property came to be auctioned by the Civil Court and was purchased by Amrut Gawai. The purchaser was put into possession of the property. Thereafter, said property was re-purchased in the name of Subhashappa who was then minor and was shown to be under Guardianship of his natural mother. Amrut Gawai executed registered sale-deed in favour of the minor on 19.12.1965.
Rs.500/-
ig On 06.04.1964 for consideration minor's mother Parvati executed sale-deed in of favour of one Wamanrao and that sale was disputed.
So, in the facts involved in that matter, the suit property was minor's property. It was not a case of sale of undivided interest of minor in joint family property. So, the case cited by the learned advocate for the respondent is not applicable to the facts of the case.
14. Reliance was placed on Sakharam Sheku Shinde V/s. Shiva Deorao Jamale, 76 (1973) B.L.R.267.
B.L.R.267 In
that case respondent No.2 was wife of respondent No.3
and respondent Nos. 1,4 & 5 were their sons. These
five respondents along with Maruti - uncle of
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respondent No.3 formed a joint Hindu family. The suit
property belonged to this joint family. Respondent
No.3, the father along with his eldest son Bhimrao,
respondent No.4 and his uncle Maruti executed a deed
of sale in respect of their property in favour of the
appellant. Subsequently, the minor sons challenged
the sale through their mother. After considering
Sections 4,6 and 8 of the Hindu Minority Act,
following observations are made:-
"The restrictions contained in S.8, therefore, do not apply in respect of the undivided interest of a minor in joint family property and consequently S.8 does not debar the manager or Karta of a joint Hindu family from alienating joint family property including the interest of minor without obtaining the previous permission of the Court, even if the manager of Karta happens to be the natural guardian in respect of the separate property of any one or more of the minor coparceners. Of course, the alienation would have to be justified under Hindu law but S.8 does not require that any previous permission of the Court should be obtained before effecting such alienation. Under Hindu law a manager and Karta of a joint Hindu family can alienate joint family property so as to bind the interest of minor coparceners in such property provided the alienation is either for legal necessity or for the benefit of the estate. If the manager and Karta happens to be the father, he has certain additional powers of alienation under Hindu law and in exercise of those powers he can alienate joint family property so as to bind the interest of his minor coparceners in such property. These powers are not at all curtailed or affected in any way by the provisions of the Hindu Minority and Guardianship Act."::: Downloaded on - 09/06/2013 13:32:51 :::
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. It is argued that mother cannot be Karta or
manager and so she has no right to alienate minor's
undivided interest in joint family property.
15. The another case cited is Sunamani Dei V. Babaji Das and others, AIR 1974 ORISSA 184. In that case it is held that when the minor and his mother constitute a Hindu joint family each with a moiety undivided interest in the house belonging to the family, natural in guardian absence of the father, can alienate even the minor's the mother as half share in the house under the personal law. Section 8 of the Hindu Minority Act will not apply to such alienation. Further the alienation is only voidable and on attaining majority the minor may accept the sale or repudiate it. In that case the house was in a flood affected area and as a prudent manager, mother makes the alienation and purchases out of the proceeds a more useful property, it was held that certainly she was competent to do so. The minor having been fully benefited by the alienation may not repudiate it. The alienation hence held valid and minor's suit for cancellation of alienation was dismissed. So, the mother can very well sell the property of minor for ::: Downloaded on - 09/06/2013 13:32:51 ::: ( 13 ) legal necessity or for benefit of the estate.
16. Here I may refer to Article 525, page 524 of Mulla's Principles of Hindu Law, Twentieth Edition, Vol-I. It is laid down that the natural guardian of a Hindu minor has power in the management of his estate, to mortgage or sell any part thereof in a case of necessity or for the benefit of the estate. If the alienee does not prove any legal necessity or that he made reasonable inquiries, the sale is invalid. So, where guardian.
father
Under
is not alive, the
the old Hindu Law, the
mother is
mother
natural
had
right to alienate minor's property for legal necessity or benefit of the estate.
17. In the case of Narayan Laxman Gilankar Vs. Udaykumar Kashinath Kaushik and others, 1993 Mh.L.J.1653, this Court was dealing with the case of mother and her two minor sons. The mother had sold joint family property owned by mother and her sons and the question raised for consideration of the Court was
- Does Section 9 of the Hindu Minority and Guardianship Act apply to the disposal of minor's undivided interest in the joint family property by the natural guardian. The law laid down in paras 3,4 and ::: Downloaded on - 09/06/2013 13:32:51 ::: ( 14 ) 5 is as follows:-
"3. Now the following positions are undisputed:
(i) property was a joint family property owned by the widow mother and her two minor sons,
(ii) mother was the natural guardian, and
(iii) property was not divided by metes and bounds and the minors had only undivided unspecified share in the same.
4. As the preamble suggests, the Act is passed to amend and codify only certain parts of law relating to minority and guardianship among Hindus. It does not purport to cover the whole range of subject of guardianship. Section 2 makes it abundantly clear that the provisions of the Act are in addition to and not in derogation of the Guardians and Wards Act, 1890. Section 5 gives overriding effect to the provisions on the matters dealt with in it and repeals all existing law - customary or statutory on those topics. Section 6 deals with natural guardians of a Hindu minor in respect of his person as well as minor's property. His or her undivided interest in joint family property is, however, specifically excluded from that section. Section 12 clearly lays down that guardian is not to be appointed for minor's undivided interest in joint family property, where the property is under the management of an adult member of the family. The interest of the minor in the joint family property is thus kept outside the reach of these provisions, leaving it to the natural guardian to deal with it in accordance with customary Hindu Law. Section 8 with which this matter is concerned, will have to be viewed and interpreted keeping these basic features of the Act in view. Section 8 speaks of power of natural guardian in relation to "immovable property of minor", which would mean minor's definite property and not his fluctuating indefinite interest in the joint family property. Language employed in section 8 seems to be in pari materia with section 29 of ::: Downloaded on - 09/06/2013 13:32:51 ::: ( 15 ) the Guardians and Wards Act and hence both will have to be viewed and construed similarly. Thus, it appears that intention of Section 8 is not to fetter the customary power of natural guardian in the matter of dealing with joint family property including minor's undivided share.
5. It is true that section 8, unlike section 6, does not expressly exclude the undivided interest in the joint family property, but that feature by itself does not affect the issue, in case the statute as a whole is kept in view. Essence of coparcenary property under Mitakshara Law is the unity of ownership in the whole body of coparcenary and notion is well known that no individual family member can predicate any definite share in the said property. Interest is even fluctuating depending upon exit and entry in the family by natural process or otherwise. It is only upon a partition that a definite share can be culled out. Restriction imposed by section 8 by their very nature and scheme cannot apply in practical life to a fluctuating interest of a minor. There is thus intrinsic evidence in the provision itself to show that such undivided interest in untouched."
18. Another case cited is Sri Narayan Bal and others V. Sridhar Sutar and others, (1996) 8 SCC 54.
In that case Karta of the joint Hindu family along with his widowed mother and widowed aunt for themselves and as guardians of their minor sons, executed a sale pertaining to joint family lands. In para 5 following observations are made:-
"5. With regard to the undivided interest of the Hindu minor in joint family property, the provisions afore-culled are beads of the same string and need to be viewed in a single ::: Downloaded on - 09/06/2013 13:32:51 ::: ( 16 ) glimpse, simultaneously in conjunction with each other. Each provision, and in particular Section 8, cannot be viewed in isolation. If read together the intent of the legislature in this beneficial legislation becomes manifest. Ordinarily the law does not envisage a natural guardian of the undivided interest of a Hindu minor in joint family property. The natural guardian of the property of a Hindu minor, other than the undivided interest in joint family property, is alone contemplated under Section 8, whereunder his powers and duties are defined. Section 12 carves out an exception to the rule that should there be no adult member of the joint family in management of the joint family property, in which the minor has an undivided interest, a guardian may be appointed; but ordinarily no guardian shall be appointed for such undivided interest of the minor. The adult member of the family in the management of the joint Hindu family property may be a male or a female, not necessarily the Karta. The power of the High Court otherwise to appoint a guardian, in situations justifying, has been preserved. This is the legislative scheme on the subject. Under Section 8 a natural guardian of the property of the Hindu minor, before he disposes of any immovable property of the minor, must seek permission of the Court. But since there need be no natural guardian for the minor's undivided interest in the joint family property, as provided under Sections 6 and 12 of the Act, the previous permission of the Court under Section 8 for disposing of the undivided interest of the minor in the joint family property is not required. The joint Hindu family by itself is a legal entity capable of acting through its Karta and other adult members of the family in management of the joint Hindu family property. Thus Section 8 in view of the express terms of Sections 6 and 12, would not be applicable where a joint Hindu family property is sold/disposed of by the Karta involving an undivided interest of the minor in the said joint Hindu family property. The question posed at the outset therefore is so answered.::: Downloaded on - 09/06/2013 13:32:51 :::
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19. Thus, the law is well settled. Respondent No.2 - Chandrabhagabai had legal right to sell minor's undivided interest in the joint family property. It is ancestral property, both respondent Nos. 1 and 2 would have equal interest in it when the sale was executed in favour of the appellant and therefore the sale is not null and void as held by the learned District Judge. It is only voidable in-case it is not proved that the sale was for legal necessity and for the benefit of the estate.
20. If we have a glance at the written statement filed by appellant at Exh.31, it is mentioned in para 3 that Bhagirathibai Krishnath Umbre r/o. Wagholi was doing money lending business. For the benefit of the family as well as to maintain family and to satisfy the claim and debts of Bhagirathi as well as to purchase other immovable property, the respondents have sold the property for consideration of Rs.9000/-.
It was out and out sale. The appellant was not money lender and so no question of giving loan by him arises. There is no evidence to show what other land was purchased by the respondents. Appellant Shripati is examined at Exh.95 and in his statement on oath he stated that he owned house at Wanewadi and then he ::: Downloaded on - 09/06/2013 13:32:51 ::: ( 18 ) shifted to Pune in 1973. He purchased the suit-land in 1976 for Rs.9000/-. It was out and out sale.
Plaintiff No.2 - Chandrabhagabai was looking after the family affairs. Her husband had died in 1975.
Plaintiff/respondent No.2 was guardian of plaintiff/respondent No.1. The sale-deed was executed because respondent was in need of money to discharge private debts and to redeem mortgaged land and for marriage of daughter of plaintiff No.2. The property was mortgaged to Bhagirathibai Umbre for Rs. 6000/-.
He stated that he had paid Rs.3000/- earlier in village and Rs.6000/- were paid to respondent No.2, so the that she could pay the amount to Bhagirathibai and thereafter respondent No.2 executed sale-deed in his name.
21. No question regarding the alleged necessity was asked to respondent No.1 Goroba, examined at Exh.61, in his cross-examination. But, it may be noted that he was then minor and hardly 12 years old.
However, the questions are put to respondent No.2 -
Chandrabhagabai who is examined at Exh.72. In the cross-examination she admitted that after death of her husband she was managing the family property. So she was in the management of estate at the time of sale.
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Survey Nos. 78/5, 79/8, 65/5 and 65/9 came to their
share in partition between her husband and his two
brothers. The total area of land was 10 acres. She
further admitted that she was in need of money for
paying marriage expenses of her daughter, therefore,
she had given land to Bhagirathibai and she got it
reconveyed. She further stated that she had taken
loan of Rs.4000/- from the Land Development Bank on
the suit-land. She had taken total Rs.9000/- from the
appellant at the time of transfer of the land. The
appellant
the
discharged all encumbrances outstanding suit land and all the debts on the suit-land were on discharged prior to filing of the suit. So testimony of respondent No.2 - Chandrabhagabai proves that there were other debts beside debt to Bhagirathibai and so the suit-land was sold. Respondent No. 2 -
Chandrabhagabai further admitted that she was guardian of respondent No.1-Goroba. She was looking after family. She had carried out the transaction of sale of the suit-land for the benefit of herself and her son. So, these statements clearly prove that there was legal necessity and there was benefit of estate in selling the property.
22. It may be noted that earlier in para 3 ::: Downloaded on - 09/06/2013 13:32:51 ::: ( 20 ) respondent No.2 Chandrabhagabai admitted that two years after marriage first daughter was born to her.
Second daughter was born one year thereafter. She gave birth to four daughters and thereafter she gave birth to respondent No.1. There was gap of one year in birth of daughters & son. If loan was obtained from Bhagirathibai for defraying marriage expenses of one of her daughters, then other daughters who were elder to respondent No.1 must also have attained marriageable age. So possibility of the sale of land to No.1 cannot the appellant for marriage of sister of respondent be said to be improbable or false.
Moreover, the appellant is brother of respondent No.1 and would naturally be knowing all family affairs of his sister Chandrabhagabai, who was given in marriage in the same village Wanewadi. The appellant being brother of respondent No.2 need not say that he made enquiries with strangers regarding legal necessity faced by his sister.
23. So, in these circumstances, the appellant has proved that the transaction was for legal necessity as admitted by Chandrabhagabai in her cross-examination.
The transaction was for the benefit of the respondents. So, in the circumstances, the ::: Downloaded on - 09/06/2013 13:32:51 ::: ( 21 ) transaction is binding on the respondents and it is legal and valid inspite of non-obtaining of permission from the District Court. In this view of the matter, the appeal needs to be allowed. In the circumstances I answer both the points raised in the case in the negative and pass following order:-
(i) The appeal is allowed.
(ii) The judgment and decree passed by the learned
Joint District Judge, Osmanabad in Regular Civil Appeal No. 47 of 1991 decided on 02.02.1999 is hereby set aside and the suit
(ii) filed by the respondent is hereby dismissed.
The parties to bear their own costs.
[P.R. BORKAR, J.] snk/JUN08/sa149.99 ::: Downloaded on - 09/06/2013 13:32:51 :::