Gujarat High Court
Minor Saumya Pradipkumar Patel Through ... vs Shrimad Construction on 15 June, 2022
Author: A. P. Thaker
Bench: A. P. Thaker
C/AO/6/2021 JUDGMENT DATED: 15/06/2022
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/APPEAL FROM ORDER NO. 6 of 2021
With
CIVIL APPLICATION (FOR STAY) NO. 1 of 2021
In R/APPEAL FROM ORDER NO. 6 of 2021
FOR APPROVAL AND SIGNATURE:
HONOURABLE DR. JUSTICE A. P. THAKER
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1 Whether Reporters of Local Papers may be allowed No
to see the judgment ?
2 To be referred to the Reporter or not ? No
3 Whether their Lordships wish to see the fair copy No
of the judgment ?
4 Whether this case involves a substantial question No
of law as to the interpretation of the Constitution
of India or any order made thereunder ?
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MINOR SAUMYA PRADIPKUMAR PATEL THROUGH HARESHKUMAR
KESHAVLAL PATEL
Versus
SHRIMAD CONSTRUCTION
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Appearance:
MR AMIT M BAROT(5868) for the Appellant(s) No. 1
MR. JAL UNWALA, SR. ADVOCATE WITH MR JIGAR G GADHAVI(5613) for
the Appellant(s) No. 1
MR. KAMAL TRIVEDI, SR. ADVOCATE WITH MR TATTVAM K
PATEL(5455) for the Respondent(s) No. 1
RULE SERVED for the Respondent(s) No. 3,4,5,6,7,8
RULE SERVED BY DS for the Respondent(s) No. 2
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CORAM:HONOURABLE DR. JUSTICE A. P. THAKER
Date : 15/06/2022
ORAL JUDGMENT
1. Being aggrieved and dissatisfied with the order dated 4.1.2021 passed below Exh-5 in Special Civil Suit No. 120 of Page 1 of 87 Downloaded on : Thu Jun 16 21:17:56 IST 2022 C/AO/6/2021 JUDGMENT DATED: 15/06/2022 2020 by the learned 4th Additional Senior Civil Judge, Ahmedabad (Rural) at Mirzapur, the appellant who is the original plaintiff has filed the present Appeal from Order under Order 43 Rule 1(r) of CPC.
2. The appellant is the plaintiff and respondents are original defendant before the trial Court. For the sake of brevity and convenience, the parties are referred to in this order, as per the status assigned to them before the trial Court i.e. plaintiff and defendants.
3. The brief facts of the present appeal in nutshell, are as under:
3.1 The plaintiff minor Saumya S/o. Pradipkumar Sunilbhai Patel has preferred the suit, through his next friend namely Haresh Kumar Keshavlal Patel, who is alleged to be maternal uncle of the mother of the minor and he has no adverse interest to that of the minor, for cancellation of the Banakhat dated 15.6.2019 as well as 16.11.2019 General Power of Attorney dated 16.11.2019 as well as sale executed dated 16.11.2019 on the ground that without obtaining required permission under Section 8(2) of the Hindu Minority and Guardianship Act, 1956 (hereinafter referred to as "the Act") property having his share has been sold out by sale deed. Along with the plaint, the plaintiff has also moved an application for temporary injunction restraining the defendant No.1 from putting any construction over the suit land and for making any improvement in respect of the suit Page 2 of 87 Downloaded on : Thu Jun 16 21:17:56 IST 2022 C/AO/6/2021 JUDGMENT DATED: 15/06/2022 property till disposal of the suit and from selling, transferring or creating any charge or creating any third party right or otherwise in the suit property or dealing with the suit in any manner till the disposal of the suit. The said application for interim injunction came to be dismissed by the trial Court. This order has been challenged by the plaintiff mainly on the ground that without prior permission of the Court, the Share of the plaintiff could not have been sold and no title to the property could be said to be passed in favour of the defendant No.1. It is also contended that the sale transaction was no for the necessity of the minor and since the transaction was in breach of provision of Section 8(2) of the Hindu Minority and Guardianship Act, 1956, the trial Court ought to have granted interim injunction against defendant No.1.
4. Heard Mr. Jal Unwala, learned Senior Counsel with Mr. Jigar Gadhvi, learned advocate for the appellant, Mr. Kamal Trivedi, learned Senior Counsel with Mr. Tattvam Patel, learned advocate for the caveator- defendant No.1. None has remained present for other respective respondents, though served. Perused the material placed on record and the decisions cited at bar.
5. Mr. Jal Unwala, learned Senior Counsel assisted by Mr. Jigar Gadhvi, learned advocate for the plaintiff- appellant, has vehemently submitted that in the present case, without prior permission of the concerned Court, the share of the minor has been sold by the mother of the minor. He has Page 3 of 87 Downloaded on : Thu Jun 16 21:17:56 IST 2022 C/AO/6/2021 JUDGMENT DATED: 15/06/2022 submitted that as per Section 8 of the Hindu Minority and Guardianship Act, the prior permission of the Court is required if the share of the minor is proposed to be disposed of by the guardian. He has submitted that in the present case, as per the averment made in the agreement to sell, there was recital to pay Rs. 20 Lakh to the minor and there was also recital that prior permission of the Court would be obtained. He has also submitted that inspite of this averment, share of the minor has been sold by his mother without any prior permission of the Court. He has also submitted that even the purchaser has not persisted for such permission. According to him, in view of the bifurcation of the amount of share transaction and specific amount has been fixed for payment of the minor, it would mean that there is severance of jointness of the property, and therefore, without prior permission of the Court, no sale transaction ought to have been entered into by mother. He has submitted that since specific share has been divided, under Section 8 of the Guardianship Act, the permission of the Court is sine qua none. He has also submitted that even as per the recital of the sale-deed, the mother has not deposited the entire amount in favour of the minor. He has submitted that to protect the right of the minor, the present guardian has filed the suit. He has also submitted that as per Section 23 of the Contract Act, the agreement of the sale transaction is void since it is hit by sub-section (2) of Section 8 of the Hindu Minority and Guardianship Act. He has submitted that the minor has every right to challenge the said transaction as it is illegal and transaction affecting the Page 4 of 87 Downloaded on : Thu Jun 16 21:17:56 IST 2022 C/AO/6/2021 JUDGMENT DATED: 15/06/2022 share of the minor. He has submitted that trial Court has completely overlooked the legal provisions in relation to the right of the minor in view of the above property and has also lost sight of the ingredients to granting interim injunction in favour of the plaintiff. He has submitted that in the present case all the three ingredients are fully satisfied and, therefore, the trial Court ought to have granted the interim injunction restraining the defendant dealing with the suit property in any manner till the final disposal of the Suit.
5.1 While relying upon the following decisions, Mr. Unwala, learned Senior Counsel has prayed to allow the present Appeal from Order and to grant interim injunction against defendant No.1, as prayed for in Exh-5 Application:
1. Arshnoor Singh v. Harpal Kaur, reported in AIR 2019 SC 3098, in paras-8 and 9 has observed as under:
8. The second issue which has arisen for consideration is whether the two Sale Deeds dated 01.09.1999 executed by Dharam Singh in favour of Respondent No. 1, were valid or not.
8.1. It is settled law that the power of a Karta to sell coparcenary property is subject to certain restrictions viz.
the sale should be for legal necessity or for the benefit of the estate., Vijay A. Mittal & Ors v. Kulwant Rai (Dead) through Lrs & Ors., (2019) 3 SCC 520; Mulla on Hindu Law (22nd Edition), Pg. 372. The onus for establishing the existence of legal necessity is on the alienee.
In Rani & Anr. v. Santa Bala Debnath & Ors.,6 this Court held that:
Page 5 of 87 Downloaded on : Thu Jun 16 21:17:56 IST 2022C/AO/6/2021 JUDGMENT DATED: 15/06/2022 "10. Legal necessity to support the sale must however be established by the alienees. Sarala owned the land in dispute as a limited owner. She was competent to dispose of the whole estate in the property for legal necessity or benefit to the estate. In adjusting 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 instance 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 providing legal necessity may be discharged by the alienee by proof of actual necessity or by proof that he made proper and bona fide enquires about the existence of the necessity and that he did all that was reasonable to satisfy himself as to the existence of the necessity."
(emphasis supplied) 8.2. In the present case, the onus was on the alienee i.e. Respondent No. 1 to prove that there was a legal necessity, or benefit to the estate, or that she had made bona fide enquiries on the existence of the same.
8.3. Respondent No. 1 has completely failed to discharge the burden of proving that Dharam Singh had executed the two Sale Deeds dated 01.09.1999 in her favour out of legal necessity or for the benefit of the estate. In fact, it has come on record that the Sale Deeds were without any consideration whatsoever.
Dharam Singh had deposed before the Trial Court that he sold the suit property to Respondent No. 1 without any consideration. Respondent No. 1 had also admitted before the Collector, Ferozepur that the Sale Deeds were without Page 6 of 87 Downloaded on : Thu Jun 16 21:17:56 IST 2022 C/AO/6/2021 JUDGMENT DATED: 15/06/2022 consideration. Hence, the ground of legal necessity or benefit of the estate falls through.
8.4. As a consequence, the Sale Deeds dated 01.09.1999 are hereby cancelled as being illegal, null and void. Dharam Singh could not have sold the coparcenary suit property, in which the Appellant was a coparcener, by the aforesaid alleged Sale Deeds.
9. Since Respondent No. 1 has not obtained a valid and legal title to the suit property through the Sale Deeds dated 01.09.1999, she could not have passed on a better title to Respondent Nos. 2 & 3 either.
The subsequent Sale Deed dated 30.10.2007 executed by Respondent No. 1 in favour of Respondent Nos. 2 & 3 is hit by the doctrine of lis pendens. The underlying principle of the doctrine of lis pendens is that if a property is transferred pendente lite, and the transferor is held to have no right or title in that property, the transferee will not have any title to the property.7 The Sale Deed dated 30.10.2007 executed by Respondent No. 1 in favour of Respondent Nos. 2 & 3 being null and void, is hereby cancelled.
2. Subodhkumar and Others v. Bhagwant Namdeorao Mehetre and others, reported in (2007) 10 SCC 571, paras-11 and 12 read as under:
"11. We do not find any merit in the above civil appeal. Even assuming for the sake of argument that the conveyance dated 31.3.75 executed by Nimbaji and his four sons was not for legal necessity even then the defendants' position cannot improve. Nimbaji was the Karta of the Hindu Undivided Family. Lands admeasuring Page 7 of 87 Downloaded on : Thu Jun 16 21:17:56 IST 2022 C/AO/6/2021 JUDGMENT DATED: 15/06/2022 9 acres and 16 gunthas was an ancestral property of Nimbaji. Nimbaji had five sons. Nimbaji and his four sons agreed to sell their ancestral lands to the plaintiffs. Agreement was reduced into writing. Agreement was registered. Agreement was followed by a conveyance. Conveyance was followed by possession given to the plaintiffs who claim to be forcibly dispossessed. Defendant nos.1 to 5 failed to institute proceedings for general partition. The primary step of defendant nos.1 to 5 was to sue for partition. They failed to take any steps in this regard. No consequential relief was claimed by them for partition and for demarcation for their share. The plaintiffs had instituted the suit for possession on the ground that they were forcibly dispossessed by defendant nos.1 to 5. Since the Karta of Hindu Undivided Family with his four sons had executed the conveyance in favour of the plaintiffs, the suit filed by the plaintiffs for possession cannot be dismissed on the ground of lack of legal necessity. A karta has power to alienate for value the joint family property either for necessity or for benefit of the estate. He can alienate with the consent of all the coparceners of the family. When he alienates for legal necessity he alienates an interest which is larger than his undivided interest. When the Karta, however, conveys by way of imprudent transaction, the alienation is voidable to the extent of the undivided share of the non-consenting coparcener which in the present case was Panditrao. In the present case, Panditrao did not sue for partition. He did not ask for demarcation of his share. Defendant nos.1 to 5 who claim through Panditrao seek possession of a specific portion of the land to be demarcated without filing a suit for partition by metes and bounds. The conveyance by Nimbaji and his four sons is not disputed by the said coparceners. The conveyance executed by Nimbaji Page 8 of 87 Downloaded on : Thu Jun 16 21:17:56 IST 2022 C/AO/6/2021 JUDGMENT DATED: 15/06/2022 and others is true which is different from saying that it is an imprudent transaction. Once it is found that the conveyance executed by Nimbaji and others is true under which the plaintiffs were put in possession and later on disposed, in the suit for possession, in such an event, the issue of legal necessity becomes irrelevant. A mere declaration that transaction was imprudent or was not for legal necessity in such a suit cannot give any right to defendant nos.1 to 5 to get the demarcated portion of 2 acres 2 gunthas of land on the southern side without the said defendants taking appropriate proceedings in accordance with law.
12. In Sunil Kumar v. Ram Parkash, this Court has held that the right to obstruct alienation is different from the right to challenge the alienation. The coparcener has a right to challenge the alienation. However, he has no right to interfere in the act of management of the joint family affairs. In this connection, the following observations in paras 21 to 26 of this Court are relevant to be noted:
"21. In a Hindu family, the karta or manager occupies a unique position. It is not as if anybody could become manager of a joint Hindu family. "As a general rule, the father of a family, if alive, and in his absence the senior member of the family, is alone entitled to manage the joint family property." The manager occupies a position superior to other members. He has greater rights and duties. He must look after the family interest. He is entitled to possession of the entire joint estate. He is also entitled to manage the family properties. In other words, the actual possession and management of the joint family property must vest in him. He may consult the members of the Page 9 of 87 Downloaded on : Thu Jun 16 21:17:56 IST 2022 C/AO/6/2021 JUDGMENT DATED: 15/06/2022 family and if necessary take their consent to his action but he is not answerable to every one of them.
22. The legal position of karta or manager has been succinctly summarised in the MAYNE'S Hindu Law (12th Ed. Para 318) thus:
318. Manager's Legal position "The position of a karta or manager is sui generis: the relation between him and the other members of the family is not that of principal and agent, or of partners, it is more like that of a trustee and cestui que trust. But the fiduciary relationship does not involve all the duties which are imposed upon trustees.
23. The managing member or karta has not only the power to manage but also power to alienate joint family property. The alienation may be either for family necessity or for the benefit of the estate. Such alienation would bind the interests of all the undivided members of the family whether they are adults or minors. The oft quoted decision in this aspect, is that of the Privy Council in Hanuman Parshad v. M.T. Babooee (1956) 6 Moo Ind. App.
393. There it was observed at p. 423: (1) "The power of the manager for an infant heir to charge an estate not his own is, under the Hindu law, a limited and qualified power. It can only be exercised rightly in case of need, or for the benefit of the estate." This case was that of a mother, managing as guardian for an infant heir. A father who happens to be the manager of an undivided Hindu family certainly has greater powers to which I will refer a little later. Any other manager however, is not having anything less than those stated in the said case.Page 10 of 87 Downloaded on : Thu Jun 16 21:17:56 IST 2022
C/AO/6/2021 JUDGMENT DATED: 15/06/2022 Therefore, it has been repeatedly held that the principles laid down in that case apply equally to a father or other coparcener who manages the joint family estate.
Remedies against alienations:
24. Although the power of disposition of joint family property has been conceded to the manager of joint Hindu family for the reasons aforesaid, the law raises no presumption as to the validity of his transactions. His acts could be questioned in the Court of law. The other members of the family have a right to have the transaction declared void, if not justified. When an alienation is challenged as being unjustified or illegal it would be for the alienee to prove that there was legal necessity in fact or that he made proper and bona fide enquiry as to the existence of such necessity. It would be for the alienee to prove that he did all that was reasonable to satisfy himself as to the existence of such necessity. If the alienation is found to be unjustified, then it would be declared void. Such alienations would be void except to the extent of manager's share in Madras, Bombay and Central Provinces. The purchaser could get only the manager's share. But in other provinces, the purchaser would not get even that much. The entire alienation would be void. [Mayne's Hindu Law 11th ed. para 396].
25. In the light of these principles, I may now examine the correctness of the contentions urged in this appeal. The submissions of Mr. H.N.Salve, as I understand, proceeded firstly on the premise that a coparcener has as much interest as that of karta in the coparcenary property. Second, the right of coparcener in respect of his share in the ancestral property would remain unimpaired, if the alienation is not for legal necessity or for the benefit of Page 11 of 87 Downloaded on : Thu Jun 16 21:17:56 IST 2022 C/AO/6/2021 JUDGMENT DATED: 15/06/2022 the estate. When these two rights are preserved to a coparcener, why should he not prevent the karta from dissipating the ancestral property by moving the Court? Why should he vainly wait till the purchaser gets title to the property? This appears to be the line of reasoning adopted by the learned Counsel.
26. I do not think that these submissions are sound. It is true that a coparcener takes by birth an interest in the ancestral property, but he is not entitled to separate possession of the coparcenary estate. His rights are not independent of the control of the karta. It would be for the karta to consider the actual pressure on the joint family estate. It would be for him to forsee the danger to be averted. And it would be for him to examine as to how best the joint family estate could be beneficially put into use to subserve the interests of the family. A coparcener cannot interfere in these acts of management. Apart from that, a father-karta in addition to the aforesaid powers of alienation has also the special power to sell or mortgage ancestral property to discharge his antecedent debt which is not tainted with immorality. If there is no such need or benefit, the purchaser takes risk and the right and interest of coparcener will remain unimpaired in the alienated property. No doubt the law confers a right on the coparcener to challenge the alienation made by karta, but that right is not inclusive of the right to obstruct alienation. Nor the right to obstruct alienation could be considered as incidental to the right to challenge the alienation. These are two distinct rights. One is the right to claim a share in the joint family estate free from unnecessary and unwanted encumbrance. The other is a right to interfere with the act of management of the joint family affairs. The coparcener cannot claim the latter Page 12 of 87 Downloaded on : Thu Jun 16 21:17:56 IST 2022 C/AO/6/2021 JUDGMENT DATED: 15/06/2022 right and indeed, he is not entitled for it. Therefore, he cannot move the court to grant relief by injunction restraining the karta from alienating the coparcenary property."
3. Smt. Rani and Another v. Smt. Santa Bala Debnath and others, reported in 1970 (3) SCC 722, paras-10 and 11 read as under:
"10. Legal necessity to support the sale must however be established by the alienees. Sarala owned the land in dispute as a limited ,owner. She was competent to dispose of the whole estate in the property for legal necessity or benefit to the estate. In adjusting 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 insistance 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 providing legal necessity may be discharged by the alienee by proof of actual necessity or by proof that he made proper and bona fide enquires about the existence of the necessity and that he did all that was reasonable to satisfy himself as to the existence of the necessity.
11. Recitals in a deed of legal necessity do 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. The, weight to be attached to the recitals varies according to the circumstances. Where the evidence which could be Page 13 of 87 Downloaded on : Thu Jun 16 21:17:56 IST 2022 C/AO/6/2021 JUDGMENT DATED: 15/06/2022 brought before the Court and is within the special knowledge of the person who seeks to set aside the sale is withheld, such evidence being normally not available to the alienee, the recitals go to his aid with greater force, and the Court may be justified in appropriate cases in raising an inference against the party seeking to set aside the sale on the ground of absence of legal necessity wholly or partially when he withholds evidence in his possession."
4. Sunil Kumar and Another v. Ram Prakash and Others, reported in (1988) 2 SCC 77, it is observed in Paras- 6, 24 and 25 as under:
"6. In this appeal the Court was called upon to decide the only question whether the suit for permanent injunction restraining the Karta of the joint Hindu family from alienating house property belonging to the joint Hindu family in pursuance of the agreement to sell executed in favour of the predecessor of the appellants, Jai Bhagwan,since deceased, was maintainable.It is well- settled that in a Joint-Hindu Mitakshara family, a son acquires by birth an interest equal to that of the father in the ancestral property. The father by reason of his paternal relation and his position as the head of the family is its manager and he is entitled to alienate the joint family property so as to bind the interests of both the adult and minor coparceners in the property, provided that the alienation is made for legal necessity or for the benefit of the estate or for meeting an antecedent debt. The power of the Manager of a joint Hindu family property is analogous to that of a Manager for an infant heir as observed by the Judicial Committee Page 14 of 87 Downloaded on : Thu Jun 16 21:17:56 IST 2022 C/AO/6/2021 JUDGMENT DATED: 15/06/2022 in Hunoomanpersaud Pandey v. Mussumat Bobooee Munraj Koonweree.
"The power of a Manager for an infant heir to charge ancestral estate by loan or mortgage, is, by the Hindu Law, a limited and qualified power, which can only be exercised rightly by the Manager in a case of need, or for the benefit of the estate. But where the charge is one that a prudent owner would make in order to benefit the estate, a bona fide lender is not affected by the precedent mismanagement of the estate. The actual pressure on the estate, the danger to be averted, or the benefit to be conferred, in the particular instance, or the criteria to be regarded. If that danger arises from any misconduct to which the lender has been a party, he cannot take advantage of his own wrong to support a charge in his favour against the heir, grounded on a necessity which his own wrong has helped to cause.
A lender, however, in such circumstances, is bound to inquire into the necessities of the loan, and to satisfy himself as well as he can, with reference to the parties with whom he is dealing, that the Manager is acting in the A particular instance for the benefit of the estate. If he does inquire, and acts honestly, the real existence of an alleged and reasonably- credited necessity is not a condition precedent to the validity of his charge, which renders him bound to see to the application of the money."
24. The managing member or karta has not only the power to manage but also power to alienate joint family Page 15 of 87 Downloaded on : Thu Jun 16 21:17:56 IST 2022 C/AO/6/2021 JUDGMENT DATED: 15/06/2022 property. The alienation may be either for family necessity or for the benefit of the estate. Such alienation would bind the interests of all the undivided members of the family whether they are adults or minors. The oft quoted decision in this aspect, is that of the Privy Council in Hanuman Parshad v. Mt. Babooee.There it was observed at p. 423: "That the power of the manager for an infant heir to charge an estate not his own is, under the Hindu law, a limited and qualified power. It can only be exercised rightly in case of need, or for the benefit of the estate." This case was that of a mother, managing as guardian for an infant heir. A father who happens to be the manager of an undivided Hindu family certainly has greater powers to which I will refer a little later. Any other manager however, is not having anything less than those stated in the said case. Therefore, it has been repeatedly held that the principles laid down in that case apply equally to a father or other coparcener who manages the joint family estate."
25. Remedies against alienations:
Although the power of disposition of joint family property has been conceded to the manager of joint Hindu family for the reasons aforesaid, the law raises no presumption as to the validity of his transactions. His acts could be questioned in the Courts of law. The other members of the family have a right to have the transaction declared void, if not justified. When an alienation is challenged as being unjustified or illegal it would be for the alienee to prove that there was Iegal necessity in fact or that he made proper and bonafide enquiry as to the existence of such- necessity. It would be for the alienee to prove that he did all that was reasonable to satisfy himself as to the existence of such necessity. If the alienation is found to be Page 16 of 87 Downloaded on : Thu Jun 16 21:17:56 IST 2022 C/AO/6/2021 JUDGMENT DATED: 15/06/2022 unjustified, then it would be declared void. Such alienations would be void except to the extent of manager's share in Madras, Bombay and Central Provinces. The purchaser could get only the manager's share. But in other provinces, the purchaser would not get even that much. The entire alienation would be void. [Mayne's Hindu Law 11th ed. para 396]".
5. Narayan v. Babasaheb, reported in 2016 (6) SCC 725, Para-23 reads as under:
"23. A bare reading of Section 8(1) of the 1956 Act indicates that it empowers the natural guardian to do all the acts which are necessary or reasonable or proper for the benefit of the minor. Section 8(2)(a) of the 1956 Act prescribes that either the purchaser or the seller should obtain the permission of the District Court to transfer the property by sale.
6. M. Arumugam v. Ammaniammal, reported in 2020 (11) SCC 103, para-17 read as under:
"17. A Karta is the manager of the joint family property. He is not the guardian of the minor members of the joint family. What Section 6 of the Act provides is that the natural guardian of a minor Hindu shall be his guardian for all intents and purposes except so far as the undivided interest of the minor in the joint family property is concerned. This would mean that the natural guardian cannot dispose of the share of the minor in the joint family property. The reason is that the Karta of the joint family property is the manager of the property. However, this principle would not apply when a family settlement is Page 17 of 87 Downloaded on : Thu Jun 16 21:17:56 IST 2022 C/AO/6/2021 JUDGMENT DATED: 15/06/2022 taking place between the members of the joint family. When such dissolution takes place and some of the members relinquish their share in favour of the Karta, it is obvious that the Karta cannot act as the guardian of that minor whose share is being relinquished in favour of the Karta. There would be a conflict of interest. In such an eventuality it would be the mother alone who would be the natural guardian and, therefore, the document executed by her cannot be said to be a void document. At best, it was a voidable document in terms of Section 8 of the Act and should have been challenged within three years of the plaintiff attaining majority".
7. Rajnikant Chhotabhai Patel v. Patel Kantibhai Fulabhai Bin Mathurbhai Deed Thro. Heirs, reported in 2013 (2) GLR 1550, paras-20 and 21 read as under:
"20. In the case of Madhegowda (D) by L. Rs. (Supra), the Hon'ble Supreme Court in para 15 and 16 has observed as under:-
["15. In sub-section (5) of Section 8, it is provided that "the Guardians and Wards Act, 1890 (8 of 1890), shall apply to and in respect of an application for obtaining the permission of the Court under sub-section (2) in all respects as if it were an application for obtaining the permission of the Court under Section 29 of that Act."] Section II of the Act reads as follows :
["De facto guardian not to deal with minor's property - After the commencement of this Act, no person shall be entitled to dispose of, or Page 18 of 87 Downloaded on : Thu Jun 16 21:17:56 IST 2022 C/AO/6/2021 JUDGMENT DATED: 15/06/2022 deal with, the property of a Hindu minor merely on the ground of his or her being the de facto guardian of the minor." This Section brings about a material change in the law relating to de facto guardians or de facto managers of a Hindu minor's estate by enacting in express terms that after the commencement of the Act no person has the right or authority to do any act as a de facto guardian of such minor. Although the expression 'de facto guardian' is often used in judgments, there is in law nothing like a de facto guardian. The statute recognises a natural guardian or a testamentary guardian or a guardian appointed by the Court. In law a person who is not a guardian as aforementioned who takes interest upon himself, the general management of the estate of a minor can be more appropriately described as 'de facto manager'. Before enforcement of the Act some confusion prevailed over the powers of de facto guardian or manager for alienating the property of his/her ward. It was held by the Privy Council in Hunooman Persuad Pandey's case 6 MIA 393, that a de-facto guardian had the same power of alienating the property of his ward as a natural guardian. Section 11 had done away with the authority of any person to deal with or dispose of any property of a Hindu minor on the ground of his being the de facto guardian of such minor. Any alienation by a de facto guardian will be governed by the provisions in Section 11 of the Act. The alienation, being against the statutory prohibition, would be void ab initio and the alienee Page 19 of 87 Downloaded on : Thu Jun 16 21:17:56 IST 2022 C/AO/6/2021 JUDGMENT DATED: 15/06/2022 would not acquire any title to the property. Section 12 of the Act reads as follows : "Guardian not to be appointed for minor's undivided interest in joint family property where a minor has an undivided interest in 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:- Provided that nothing in this section shall be deemed to affect the jurisdiction of a High Court to appoint a guardian in respect of such interest." ] [16. From the statutory provisions noted above, it is clear that with the avowed object of saving the minor's estate being misappropriated or squandered by any person, by a relation or a family friend claiming to be a well- wisher of the minor Section 11 was enacted to prohibit any such person from alienating the property of the minor. Even a natural guardian is required to seek permission of the Court before alienating any part of the estate of the minor and the Court is not to grant such permission to the natural guardian except in case of necessity or for an evident advantage to the minor. So far as de facto guardian or de facto manager is concerned, the statute has in no uncertain terms prohibited any transfer of any part of minor's estate by such a person. In view of the clear statutory mandate, there is little scope for doubt that any transfer in violation of the prohibition incorporated in Section 11 of the Act is ab initio void." ] Page 20 of 87 Downloaded on : Thu Jun 16 21:17:56 IST 2022 C/AO/6/2021 JUDGMENT DATED: 15/06/2022
21. In light of the above, in no way the plaintiffs are entitled to recover possession of the suit property from the defendant No.1."
8. Gangubai Bablya Chaudhary and Others v. Sitaram Bhalchandra Sukhtankar and others, reported in (1983) 4 SCC 31, wherein Para-6 read as under:
"6. When an interim injunction is sought, the Court may have to examine whether the party seeking the assistance of the Court, was at any time in lawful possession of the property and if it is so established one would prima facie ask the other side contesting the suit to show how the plaintiffs were dispossessed ? We pin-pointed this question and heard the submission. We refrain from discussing the evidence and recording our conclusions because evidence is still to be led and the contentions and disputes have to be examined in depth and any expression of opinion by this Court may prejudice one or the other party in having a fair trial and uninhibited decision. Having given the matter our anxious consideration, we are satisfied that this is not a case in which interim injunction could be refused. Similarly we are of the opinion that if respondents are allowed to put up construction by the use of the F.S.I. for the whole of the land including the land involved in dispute, the situation may become irreversible by the time the dispute is decided and would preclude fair and just decision of the matter. If on the contrary injunction is granted as prayed for the respondents are not likely to be inconvenienced because they are in possession of about 9,000 sq. metres of land on which they can put up construction".Page 21 of 87 Downloaded on : Thu Jun 16 21:17:56 IST 2022
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9. Maharwal Khewaji Trust (Regd) Faridkot v. Baldev Dass, reported in (2004) 8 SCC 488, wherein Para-10 reads as under:
"Be that as it may, Mr. Sachhar is right in contending that unless and untill a case of irreparable loss or damage is made out by a party to the suit, the court should not permit the nature of the property being changed which also includes alienation or transfer of the property which may lead to loss or damage being caused to the party who may ultimately succeed and may further lead to multiplicity of proceedings. In the instant case no such case of irreparable loss is made out except contending that the legal proceedings are likely to take a long time, therefore, the respondent should be permitted to put the scheduled property to better use. We do not think in the facts and circumstances of this case, the lower appellate court and the High Court were justified in permitting the respondent to change the nature of property by putting up construction as also by permitting the alienation of the property, whatever may be the condition on which the same is done. In the event of the appellant's claim being found baseless ultimately, it is always open to the respondent to claim damages or, in an appropriate case, the court may itself award damages for the loss suffered, if any, in this regard. Since the facts of this case do not make out any extraordinary ground for permitting the respondent to put up construction and alienate the same, we think both the courts below, namely, the lower appellate court and the High Court erred in making the impugned orders. The said orders are set aside and the order of the trial court is restored. The appeal is allowed."
10. Asha John Divianathan v. Vikram Malhotra, reported Page 22 of 87 Downloaded on : Thu Jun 16 21:17:56 IST 2022 C/AO/6/2021 JUDGMENT DATED: 15/06/2022 in AIR 2021 SC 2932, paras-19 and 20 read as under:
"19. At this stage, it may be useful to keep in mind the purport of expression "void" and "voidable". For that, we may advert to the exposition in the case ofDhurandhar Prasad Singh v. Jai Prakash University & Ors.16, which had noted the dictum of Lord Denning inR. v. Paddington Valuation Officer, ex p Peachey Property Corpn. Ltd.17 and also in Judicial Review of Administrative Action by de Smith, Woolf and Jowell and in Judicial Remedies in Public Law by Clive Lewis, the same read thus:
"19. This question was examined by the Court of Appeal in the case ofR. v. Paddington Valuation Officer, ex p Peachey Property Corpn. Ltd. [(1965) 2 All ER 836 : (1966) 1 QB 380 : (1965) 3 WLR 426 (CA)] where the valuation list was challenged on the ground that the same was void altogether. On these facts, Lord Denning, M.R. laid down the law, observing at p. 841 thus:
"It is necessary to distinguish between two kinds of invalidity. The one kind is where the invalidity is so grave that the list is a nullity altogether. In which case there is no need for an order to quash it. It is automatically null and void without more ado. The other kind is when the invalidity does not make the list void altogether, but only voidable. In that case it stands unless and until it is set aside. In the present case the valuation list is not, and never has been, a nullity. At most the first respondent -- acting within his jurisdiction -- 16 (2001) 6 SCC 534 17 (1965) 2 All ER 836exercised that jurisdiction erroneously. That makes the list Page 23 of 87 Downloaded on : Thu Jun 16 21:17:56 IST 2022 C/AO/6/2021 JUDGMENT DATED: 15/06/2022 voidable and not void. It remains good until it is set aside."
20. de Smith, Woolf and Jowell in their treatise Judicial Review of Administrative Action, 5th Edn., para 5044, have summarised the concept of void and voidable as follows:
"Behind the simple dichotomy of void and voidable acts (invalid and valid until declared to be invalid) lurk terminological and conceptual problems of excruciating complexity. The problems arose from the premise that if an act, order or decision is ultra vires in the sense of outside jurisdiction, it was said to be invalid, or null and void. If it is intra vires it was, of course, valid. If it is flawed by an error perpetrated within the area of authority or jurisdiction, it was usually said to be voidable; that is, valid till set aside on appeal or in the past quashed by certiorari for error of law on the face of the record."
21. Clive Lewis in his work Judicial Remedies in Public Law at p. 131 has explained the expressions "void and voidable" as follows:
"A challenge to the validity of an act may be by direct action or by way of collateral or indirect challenge. A direct action is one where the principal purpose of the action is to establish the invalidity. This will usually be by way of an application for judicial review or by use of any statutory mechanism for appeal or review. Collateral challenges arise when the invalidity is raised in the course of some other proceedings, the purpose of Page 24 of 87 Downloaded on : Thu Jun 16 21:17:56 IST 2022 C/AO/6/2021 JUDGMENT DATED: 15/06/2022 which is not to establish invalidity but where questions of validity become relevant."
22. Thus the expressions "void and voidable" have been the subject-matter of consideration on innumerable occasions by courts. The expression "void" has several facets. One type of void acts, transactions, decrees are those which are wholly without jurisdiction, ab initio void and for avoiding the same no declaration is necessary, law does not take any notice of the same and it can be disregarded in collateral proceeding or otherwise. The other type of void act, e.g., may be transaction against a minor without being represented by a next friend. Such a transaction is a good transaction against the whole world. So far as the minor is concerned, if he decides to avoid the same and succeeds in avoiding it by taking recourse to appropriate proceeding the transaction becomes void from the very beginning. Another type of void act may be which is not a nullity but for avoiding the same a declaration has to be made. Voidable act is that which is a good act unless avoided, e.g., if a suit is filed for a declaration that a document is fraudulent and/or forged and fabricated, it is voidable as the apparent state of affairs is the real state of affairs and a party who alleges otherwise is obliged to prove it. If it is proved that the document is forged and fabricated and a declaration to that effect is given, a transaction becomes void from the very beginning. There may be a voidable transaction which is required to be set aside and the same is avoided from the day it is so set aside and not any day prior to it. In cases Page 25 of 87 Downloaded on : Thu Jun 16 21:17:56 IST 2022 C/AO/6/2021 JUDGMENT DATED: 15/06/2022 where legal effect of a document cannot be taken away without setting aside the same, it cannot be treated to be void but would be obviously voidable."
20. It is well established that a contract is void if prohibited by a statute under a penalty, even without express declaration that the contract is void, because such a penalty implies a prohibition. Further, it is settled that prohibition and negative words can rarely be directory. In the present dispensation provided under Section 31of the 1973 Act read with Sections 47, 50 and 63 of the same Act, although it may be a case of seeking previous permission it is in the nature of prohibition as observed by a three Judge Bench of this Court in Mannalal Khetan & Ors. v. Kedar Nath Khetan & Ors.18. In every case where a statute imposes a penalty for doing an act, though, the act not prohibited, 18 (1977) 2 SCC 424 yet the thing is unlawful because it is not intended that a statute would impose a penalty for a lawful act. When penalty is imposed by statute for the purpose of preventing something from being done on some ground of public policy, the thing prohibited, if done, will be treated as void, even though the penalty if imposed is not enforceable. We may usefully reproduce paragraphs 18 to 22 of the said reported decision, which read thus:
"18. The High Court said that the provisions contained in Section 08 of the Act are directory because non compliance with Section 108of the Act is not declared an offence. The reason given by the High Court is that when the law does not prescribe the consequences or does not lay down penalty for non-compliance with the provision contained in Section 108of the Act the provision is Page 26 of 87 Downloaded on : Thu Jun 16 21:17:56 IST 2022 C/AO/6/2021 JUDGMENT DATED: 15/06/2022 to be considered as directory. The High Court failed to consider the provision contained in Section 629(a)of the Act. Section 629(a)of the Act prescribes the penalty where no specific penalty is provided elsewhere in the Act. It is a question of construction in each case whether the legislature intended to prohibit the doing of the act altogether, or merely to make the person who did it liable to pay the penalty.
19. Where a contract, express or implied, is expressly or by implication forbidden by statute, no court will lend its assistance to give it effect. (See Mellis v. Shirley L.B. [(1885) 16 QBD 446 : 55 LJQB 143 : 2 TLR 360] ) A contract is void if prohibited by a statute under a penalty, even without express declaration that the contract is void, because such a penalty implies a prohibition.
The penalty may be imposed with intent merely todeter persons from entering into the contract or for the purposes of revenue or that the contract shall not be entered into so as to be valid at law. A distinction is sometimes made between contracts entered into with the object of committing an illegal act and contracts expressly or impliedly prohibited by statute. The distinction is that in the former class one has only to look and see what acts the statute prohibits; it does not matter whether or not it prohibits a contract: if a contract is made to do a prohibited act, that contract will be unenforceable. In the latter class, one has to consider not what act the statute prohibits, but what contracts it prohibits. One is not concerned at Page 27 of 87 Downloaded on : Thu Jun 16 21:17:56 IST 2022 C/AO/6/2021 JUDGMENT DATED: 15/06/2022 all with the intent of the parties, if the parties enter into a prohibited contract, that contract is unenforceable. (See St. John Shipping Corporation v. Joseph Rank [(1957) 1 QB 267].) (See also Halsbury's Laws of England, 3rd Edn., Vol. 8, p.141.)
20. It is well established that a contract which involves in its fulfilment the doing of an act prohibited by statute is void. The legal maxim A pactis privatorum publico juri non derogatur means that private agreements cannot alter the general law. Where a contract, express or implied, is expressly or by implication forbidden by statute, no court can lend its assistance to give it effect. (See Mellis v. Shirley L.B.) What is done in contravention of the provisions of an Act of the legislature cannot be made the subject of an action.
21. If anything is against law though it is not prohibited in the statute but only a penalty is annexed the agreement is void. In every case where a statute inflicts a penalty for doing an act, though the act be not prohibited, yet the thing is unlawful, because it is not intended that a statute would inflict a penalty for a lawful act.
22. Penalties are imposed by statute for two distinct purposes:
(1) for the protection of the public against fraud, or for some other object of public policy; (2) for the purpose of securing certain sources of revenue either to the State or to certain public bodies. If it is clear that apenalty is imposed by statute for the purpose of preventing something from being done on some ground of public policy, the thing prohibited, if done, will be treated as Page 28 of 87 Downloaded on : Thu Jun 16 21:17:56 IST 2022 C/AO/6/2021 JUDGMENT DATED: 15/06/2022 void, even though the penalty if imposed is not enforceable." (emphasis supplied) The principle underlying in this decision must apply on all fours while analysing the purport of Section 31 of the 1973 Act.
11. Selvam and other v. Mangaiyarkarasi, reported in 2013 (2) CTC 626, wherein Para-13 reads as under:
"13. When the property is the separate property of the minor and when the guardian effects sale of property without permission from the Court, the sale is voidable and that the plaintiffs' claim to treat the sale as voidable, is legally justifiable and therefore, that contention ought to have been accepted by the trial court is the contention of the learned counsel for the appellants and in support of the same, the following decisions are relied upon:-
(i) Annamalai Pillai.G. v. The District Revenue Officer, Cuddalore, 1985 (98( LW 410 ( (Madras High Court). In this decision, it has been held as follows:-
"8. We have already seen that clause (3) of section 8 of the Hindu Minority and Guardianship Act, 1956, specifically makes the transaction voidable. The lease executed by the guardian in this case is prohibited and in that sense it was without any authority. On the legal efficacy and the distinction between valid, void and voidable agreements, we find the following passage in Salmon on Jurisprudence, Twelfth Edition at page 341:
"A valid agreement is one which is fully operative in accordance with the intent of the parties. A void agreement is one which entirely fails to receive legal recognition or sanction, the declared will of Page 29 of 87 Downloaded on : Thu Jun 16 21:17:56 IST 2022 C/AO/6/2021 JUDGMENT DATED: 15/06/2022 the parties being wholly destitute of legal efficacy. A voidable agreement stands midway between these two cases. It is not a nullity, but its operation is conditional and not absolute. By reason of some defect in its origin it. is liable to be destroyed or cancelled at the option of one of the parties to it. On the exercise of this power the agreement not only ceases to have any efficacy, but is deemed to have been void ab initio. The avoidance of it relates back to the making of it......"µ
(ii) Affirming the judgment of the Madras High Court, cited supra, the Hon'ble Supreme Court also held that the transaction which is voidable in terms ofSection 8(3) of the Hindu Minority andGuardianship Act, when validly avoided, relates back to the date of transaction and it is unenforceable from the very inception. The relevant observation quoted in 1993-2-L.W.15 (G.Annamalai Pillai v. The District Revenue Officer & others) (SC) reads as under:-
"We have, therefore, no doubt that when the fifth respondent avoided the lease executed by his father, the fourth respondent, the lease became void from its inception and no statutory rights, could, therefore, accrue in favour of the appellant herein."
We agree with the reasoning and the conclusions reached by the Division Bench of the High Court and as such this appeal has to be dismissed.µ
(iii) Explaining the object behind the introduction Of Section 8 of the Hindu Minority and Guardianship Act, the Hon'ble Supreme Court, in the case reported in 1994-1- Page 30 of 87 Downloaded on : Thu Jun 16 21:17:56 IST 2022 C/AO/6/2021 JUDGMENT DATED: 15/06/2022 L.W.40 (Panni Lal v. Rajinder Singh & another) (SC), held as follows:-
"8. The provisions of S.8 are devised to fully protect the property of the minor, even from the depredations of his parents. S.8 empowers only the legal guardian to alienate a minor's immovable property provided it is for the necessity or benefit of the minor or his estate and it further requires that such alienation shall be effected after the permission of the Court has been obtained. It is difficult, therefore, to hold that the sale was voidable, not void, by reason of the fact that the mother of the minor respondents signed the sale deed and father attested it.µ"
(iv) Contending that the contract entered into is not a valid contract but a contingent contract, the validity of which would depend upon the permission obtained from the Court, the decision reported in 1999-L.W.110 (DB) (Thilakam, M. v. M.R.Radhika, 1986 (99) LW 110 (DB) is relied upon.
(v) When the inhibition of the transaction is by a statute and when the statute in plain and unambiguous language prohibit alienation of property, without the permission from the Court, the transaction cannot be upheld, even if the sale is for legal necessity. So contending, the decision reported in (1985) 2 MLJ 366 (Dhanasekaran v. Manorajnithammal, 1985 (2) MLJ 366, is relied upon. In this decision, it has been held as follows:-
3.Section 8(2) lays down in specific and explicit terms that the natural guardian shall not, without the previous permission of the Court, indulge in and effect any of the alienations set out in sub-clauses Page 31 of 87 Downloaded on : Thu Jun 16 21:17:56 IST 2022 C/AO/6/2021 JUDGMENT DATED: 15/06/2022
(a) and (b).Section 8(3) is categoric leaving no room for any argument that any disposal of immovable property by a natural guardian in contravention of Section 8(2) is voidable at the instance of the minor. The field and sphere of argument that such an alienation is for binding necessities and should be upheld are no longer available. When the inhibition is of the statute and it is plain and unambiguous, it is not open to sustain an alienation done in contravention of it by still investigating and finding out justifying factors therefor."
(vi) Vishwambhar v. Laxminarayan 2001 (3) CTC 316 (SC) :
2001 (6) SCC 163, is relied upon for the proposition that the challenge to alienation by natural guardian of property of minor without court sanction and without legal necessity is voidable and not void ab initio; proper relief must be sought and within limitation period.
(vii) Contending that the alienation of minor's property by a defacto guardian, being against the statutory prohibition (under Section 11of the Hindu Minority and Guardianship Act) is void ab initio and that the alienee would not acquire any title to the property and therefore, the transaction need not even be set-aside, the decision reported in (2002) 1 M.L.J. 169 (SC) (Madhegowda v.
Ankegowda) is relied upon. The relevant and important observation runs as follows:-
Transfer in violation of Section 11of the Hindu Minority and Guardianship Actis ab initio void; it need not be set aside by filing a suit or judicial proceeding; minor, on attaining majority transferring his interest in the property; it is sufficient to show that minor repudiated the Page 32 of 87 Downloaded on : Thu Jun 16 21:17:56 IST 2022 C/AO/6/2021 JUDGMENT DATED: 15/06/2022 transfer; there is little scope for doubt that the transfer of minor's interest by a defacto guardian / manager having been made in violation of the express bar provided under Sec.11 of The Hindu Minority and Guardianship Actis per se invalid. The existence or otherwise of legal necessity is not relevant in the case of such invalid transfer. A transferee of such an alienation does not acquire any interest in the property. Such an invalid transaction is not required to be set aside by filing a suit or judicial proceeding. The minor, on attaining majority, can repudiate the transfer in any manner as and when occasion for it arises. After attaining majority if he/she transfers his/her interest in the property in a lawful manner asserting his/her title to the same that is sufficient to show that the minor has repudiated the transfer made by the defacto guardian / manager.µ To the same proposition, the decision reported in (2010) 3 MLJ 961 Natarajan v. Paramasivam is also relied upon.
(viii) Thiruvenkada Gounder (died) v. Ammaiappan alias Kothandaraman, (2006) 1 M.L.J. 533. In this decision, it has been held as follows:-
10. The Honourable Supreme Court in the decision reported in 2002 (4) Law Weekly 330 (Madhegowda (D) by Lrs. v. Ankegowda (D) by Lrs & Others) in paragraphs 10, 11 and 12 held as under, "10. ... In Sub-section (1) of Section 8 it is declared that the natural guardian of a Hindu minor has power, subject to the provisions of the section, to do all acts which are necessary or reasonable and proper for the benefit of the minor or for the Page 33 of 87 Downloaded on : Thu Jun 16 21:17:56 IST 2022 C/AO/6/2021 JUDGMENT DATED: 15/06/2022 realization, protection or benefit of the minor's estate; but the guardian in no case can bind the minor by a personal covenant.
11. In Sub-section (2) of Section 8 it is laid down that 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 immovable 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.
12. In sub-section (3) in which the consequences of contravention of sub-section (1) or sub-section (2) are provided it is laid down that "any disposal of immovable property by a natural guardian, in contravention of sub-section (1) or sub-section (2), is voidable at the instance of the minor or any person claiming under him".
(ix) Brammagiri v. Minor Sivasubramaniam, 2007 (3) CTC
718. In this decision, it has been held that a release deed executed without obtaining prior permission of Court, would not be binding on the plaintiff minor son and a claim for partition would be possible without reference to release.
(x) Koothayyan v. Minor Ayyappan, 2008 (6) MLJ 1004. In this decision, it has been held that when the minor's property has been sold by the mother of the minor, without obtaining the permission of the District Court and it was not established that the sale was for the benefit of Page 34 of 87 Downloaded on : Thu Jun 16 21:17:56 IST 2022 C/AO/6/2021 JUDGMENT DATED: 15/06/2022 the minor, then the said sale is liable to be cancelled at the instance of the minor.
13.1. Learned counsel for the appellants has also placed reliance upon the decision reported in Geetha Hariharan v. Reserve Bank of India, AIR 1999 SC 1149 , pointing out the facts which are distinguishable. In the said decision, where the father was not taking any interest in his minor's daughter's affairs and it was the mother, who was actually managing the affairs of her minor daughter, the Hon'ble Supreme Court held that when the father was not taking any interest in the affairs of the minor, then it was as good, as if he was non-existent, so far as the minor was concerned.
13.2. The factual aspect available in this case does not show that the father was not taking any interest in the affairs of the minor.
12. Saroj v. Sunder Singh and Others, reported in (2013) 15 SCC 727, Para-12 reads as under;
"12. Section 8 of the Hindu Minority and Guardianship Act, 1956 deals with the powers of natural guardian of a Hindu minor and the said section mandates that the natural guardian has power 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, etc. The provision reads as follows:
"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 realization, protection or benefit of the minor's estate;Page 35 of 87 Downloaded on : Thu Jun 16 21:17:56 IST 2022
C/AO/6/2021 JUDGMENT DATED: 15/06/2022 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 immovable 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 immovable property by a natural guardian, in contravention of sub-section (1) or sub-
section (2), is voidable at the instance of the minor or 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 case of necessity or for an evident advantage to the minor.
As per clause (a) of sub-section (2) of Section 8 no immovable property of the minor can be mortgaged or charged, or transferred by sale, gift, exchange or otherwise without the previous permission of the Court. Under sub-section (3) of Section 8 disposal of such an immovable property by a natural guardian, in contravention of sub-section (1) or sub-section (2) of Section 8, is voidable at the instance of the minor or any person claiming under him.
13. Amirtham Kudumbah v. Sarnam Kudumbah, reported in (1991) 3 SCC 20;
Page 36 of 87 Downloaded on : Thu Jun 16 21:17:56 IST 2022C/AO/6/2021 JUDGMENT DATED: 15/06/2022 "8. As concurrently found by the courts below, the sale effected by the guardian during the minority of his daughter was not in compliance with the provisions of section 18(i) of the Guardianship Act. The property was transferred by him without obtaining the previous permission of the Court and the transfer was not for the benefit of the minor. Such a sale by the minor's father who is his natural guardian is, unlike in the case of transfer by a de facto guardian (Section 11), not a void sale, but only a voidable sale. Such a sale until set aside is sufficiently effective to pass title, but being a voidable sale, what the buyer has obtained is a defeasible title which is liable to be set aside at the instance of the person entitled to impeach it. Section 8(3) of the Guardianship Act says: "Any disposal of immovable property by a natural guardian, in contravention of sub-section (1) or sub-section (2), is voidable at the instance of the minor or any person claiming under him."(emphasis supplied)
9. The effect of this sub-section is that any disposal of immovable property by a natural guardian otherwise than for the benefit of the minor or without obtaining the previous permission of the Court is voidable. A person entitled to avoid such a sale is either the minor or any person claiming under him. This means that either the minor, or his legal representative in the event of his death, or his successor- in-interest claiming under him by reason of transfer inter vivos, must bring action within the period prescribed for such a suit, i.e., three years from the date on which the minor died or attained majority, as the case may be. In the present case, the suit was brought, as found by the courts below, within three years after the minor attained majority.
Page 37 of 87 Downloaded on : Thu Jun 16 21:17:56 IST 2022C/AO/6/2021 JUDGMENT DATED: 15/06/2022
14. In the instant case, on the facts found, the transfer of the property made by the guardian was a voidable transaction and it was, therefore, open to the minor to challenge it and seek recovery of possession. Such a right of the minor is a right or interest in property which he himself or "any person claiming under him" may enforce by instituting a suit [Section 8(3) of the Guardianship Act].
"Any person claiming under him" must necessarily include a purchaser.
15. Section 8(3) confers a right of suit in the special circumstances postulated in that provision. The object of the Act being the protection of the minor, the legislature has thought it fit to confer a right of suit in certain circumstances not only on the minor, but also on a person to whom the minor has transferred his rights. The right transferred is an interest in property which is capable of enforcement at the instance of the transferee as it was at the instance of the ex-minor prior to the transfer. Such a provision, indeed specially for the protection of the interests of the minor, must be read in harmony and consistently with the general provisions contained in section 6 of the T.P. Act. [See The J.K. Cotton Spinning & Weaving Mills Co. Ltd. v. The State of Uttar Pradesh & Ors., [1961] 3 S.C.R. 185, 194 and Ashoka Marketing Ltd. & Anr. v. Punjab National Bank & Ors., [1990] 3 JT SC 417, 439].
16. The transfer made by the father during his son's minority was voidable at the instance of his son who was the real owner, and any person purchasing such property from the natural guardian obtained only a defeasible title. The minor retained a right in the property to defeat existing adverse claims, and such right is an assignable right. We are in complete agreement with what has been Page 38 of 87 Downloaded on : Thu Jun 16 21:17:56 IST 2022 C/AO/6/2021 JUDGMENT DATED: 15/06/2022 stated on the point in Palaniappa Goundan v. Nallappa Goundan & Ors., AIR 1951 Madras 817 and in P. Kamaraju v. C. Gunnayya & Ors., AIR 1924 Madras 322. We do not agree with the contrary view expressed on the point in Jhaverbhai Hathibhai Patel v. Kabhai Bechar Patel & Ors., AIR 1933 Bom. 42; Mon Mohan Battacharjee & Ors. v. Bidhu Bhushan Dutta & Ors., AIR 1939 Cal. 460 and Palani Goundan & Anr. v. Vanjiakkal.
14. Murugan & Ors. v. Kesava Gounder, reported in (2019) 20 SCC 633;
"13. In the present case, there is no dispute that sale deeds executed by Balaraman on behalf of himself and his minor son Palanivel were executed without obtaining permission of the Court. Section 8 of the Hindu Minority & Guardianship Act, 1956, which is relevant is as follows:-
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 immovable 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.
Page 39 of 87 Downloaded on : Thu Jun 16 21:17:56 IST 2022C/AO/6/2021 JUDGMENT DATED: 15/06/2022 (3) Any disposal of immovable property by a natural guardian, in contravention of subsection (1) or sub-section (2), is voidable at the instance of the minor or 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 case of necessity or for an evident advantage to the minor.
(5) The Guardians and Wards Act, 1890 (8 of 1890), shall apply to and in respect of an application for obtaining permission of the court under sub-section (2) in all respects as if it were an application for obtaining the permission of the court under section 29 of that Act, and in particular-
(a) proceedings in connection with the application shall be deemed to be proceedings under that Act within the meaning of section 4A thereof.
(b) the court shall observe the procedure and have the powers specified in sub-sections (2), (3) and (4) of section 31 of that Act; and
(c) an appeal shall lie from an order of the court refusing permission to the natural guardian to do any of the acts mentioned in sub-section (2) of this section to the court to which appeals ordinarily lie from the decisions of that court.
(6) In this section, "Court" means the city civil court or a district court or a court empowered under section 4A of the Guardians and Wards Act, 1890 (8 of 1890), within the local limits of whose jurisdiction the immovable property in respect of which the application is made is situate, and where the immovable property is situate within the jurisdiction of more than one such court, means the Page 40 of 87 Downloaded on : Thu Jun 16 21:17:56 IST 2022 C/AO/6/2021 JUDGMENT DATED: 15/06/2022 court within the local limits of whose jurisdiction any portion of the property is situate."
16. This Court in Dhurandhar Prasad Singh Vs. Jai Prakash University and Others, (2001) 6 SCC 534 had noted the distinction between Void and Voidable. In Paragraph No. 22, following has been laid down:-
"22. Thus the expressions "void and voidable" have been the subject-matter of 20 consideration on innumerable occasions by courts. The expression "void" has several facets. One type of void acts, transactions, decrees are those which are wholly without jurisdiction, ab initio void and for avoiding the same no declaration is necessary, law does not take any notice of the same and it can be disregarded in collateral proceeding or otherwise. The other type of void act, e.g., may be transaction against a minor without being represented by a next friend. Such a transaction is a good transaction against the whole world. So far as the minor is concerned, if he decides to avoid the same and succeeds in avoiding it by taking recourse to appropriate proceeding the transaction becomes void from the very beginning. Another type of void act may be which is not a nullity but for avoiding the same a declaration has to be made. Voidable act is that which is a good act unless avoided, e.g., if a suit is filed for a declaration that a document is fraudulent and/or forged and fabricated, it is voidable as the apparent state of affairs is the real state of affairs and a party who alleges otherwise is obliged to prove it. If it is proved that the document is forged and fabricated and a Page 41 of 87 Downloaded on : Thu Jun 16 21:17:56 IST 2022 C/AO/6/2021 JUDGMENT DATED: 15/06/2022 declaration to that effect is given, a transaction becomes void from the very beginning. There may be a voidable transaction which is required to be set aside and the same is avoided from the day it is so set aside and not any day prior to it. In cases where legal effect of a document cannot be taken away without setting aside the same, it cannot be treated to be void but would be obviously voidable."
17. In Vishwambhar and Others Vs. Laxminarayan (Dead) Through LRs. and Another, (2001) 6 SCC 163, which was 21 a case of challenge to alienation without Court's sanction and without legal necessity, this Court held that the alienation by natural guardian was voidable. In the above case, the mother, natural guardian of two minors has executed the sale deed before they attained majority. Minors after attaining majority had filed suit pleading that sale deeds are not binding and operative on the legal rights of plaintiff, and prayed that the said sale deeds be set aside to the extent of their share and the suit for possession of the land be decreed. In the above case, after considering Section 8 this Court held that sale deeds were voidable at the instance of the plaintiff. This Court further held that if the plaintiffs were required to have the sale deeds set aside before making any claim in respect of suit properties sold then a suit without such a prayer was of no avail to the plaintiffs. Following was held in Paragraph No.9:-
"9. ...he question is, in such circumstances, are the alienations void or voidable? In Page 42 of 87 Downloaded on : Thu Jun 16 21:17:56 IST 2022 C/AO/6/2021 JUDGMENT DATED: 15/06/2022 Section 8(2) of the Hindu Minority and Guardianship Act, 1956, it is laid down, inter alia, that the natural guardian shall not, without previous permission of the court, transfer by sale 22 any part of the immoveable property of the minor. In sub- section (3) of the said section, it is specifically provided that any disposal of immoveable property by a natural guardian, in contravention of subsection (2) is voidable at the instance of the minor or any person claiming under him. There is, therefore, little scope for doubt that the alienations made by Laxmibai which are under challenge in the suit were voidable at the instance of the plaintiffs and the plaintiffs were required to get the alienations set aside if they wanted to avoid the transfers and regain the properties from the purchasers. As noted earlier in the plaint as it stood before the amendment the prayer for setting aside the sale deeds was not there, such a prayer appears to have been introduced by amendment during hearing of the suit and the trial court considered the amended prayer and decided the suit on that basis. If in law the plaintiffs were required to have the sale deeds set aside before making any claim in respect of the properties sold, then a suit without such a prayer was of no avail to the plaintiffs. In all probability, realising this difficulty the plaintiffs filed the application for amendment of the plaint seeking to introduce the prayer for setting Page 43 of 87 Downloaded on : Thu Jun 16 21:17:56 IST 2022 C/AO/6/2021 JUDGMENT DATED: 15/06/2022 aside the sale deeds. Unfortunately, the realisation came too late. Concededly, Plaintiff 2 Digamber attained majority on 5-
8-1975 and Vishwambhar, Plaintiff 1 attained majority on 20-7-1978. Though the suit was filed on 30-11-1980 the prayer seeking setting aside of the sale deeds was made in December 1985. Article 60 of the Limitation Act prescribes a period of three years for setting aside a transfer of property made by the guardian of a ward, by the ward who has attained majority and the period is to be computed from the date when the ward attains majority. Since the limitation 23 started running from the dates when the plaintiffs attained majority the prescribed period had elapsed by the date of presentation of the plaint so far as Digamber is concerned. Therefore, the trial court rightly dismissed the suit filed by Digamber. The judgment of the trial court dismissing the suit was not challenged by him. Even assuming that as the suit filed by one of the plaintiffs was within time the entire suit could not be dismissed on the ground of limitation, in the absence of challenge against the dismissal of the suit filed by Digamber the first appellate court could not have interfered with that part of the decision of the trial court. Regarding the suit filed by Vishwambhar, it was filed within the prescribed period of limitation but without the prayer for setting aside the sale deeds. Since the claim for recovery of Page 44 of 87 Downloaded on : Thu Jun 16 21:17:56 IST 2022 C/AO/6/2021 JUDGMENT DATED: 15/06/2022 possession of the properties alienated could not have been made without setting aside the sale deeds the suit as initially filed was not maintainable. By the date the defect was rectified (December 1985) by introducing such a prayer by amendment of the plaint the prescribed period of limitation for seeking such a relief had elapsed. In the circumstances, the amendment of the plaint could not come to the rescue of the plaintiff."
18. To the same effect is the judgment of this Court in Madhegowda (dead) by LRs. Vs. Ankegowda (dead) by LRs. and Others, (2002) 1 SCC 178, where in Paragraph No. 25, following has been held:-
"25.........................The minor, on attaining majority, can repudiate the transfer in any manner as and when occasion for it arises. 24 After attaining majority if he/she transfers his/her interest in the property in a lawful manner asserting his/her title to the same that is sufficient to show that the minor has repudiated the transfer made by the "de facto guardian/manager".
19. This Court further held in Nangali Amma Bhavani Amma Vs. Gopalkrishnan Nair and Others, that the alienation made in violation of Section 8(2) is voidable, holding it to be void would not only be contrary to the plain words of the statute but would also deprive the minor of the right to affirm or ratify the transaction upon attaining majority. Following was held in Paragraph No.8:-
"8. In view of the express language used, it is clear that Page 45 of 87 Downloaded on : Thu Jun 16 21:17:56 IST 2022 C/AO/6/2021 JUDGMENT DATED: 15/06/2022 the transaction entered into by the natural guardian in contravention of sub-section (2) was not void but merely voidable at the instance of the minor. To hold that the transaction in violation of Section 8(2) is void would not only be contrary to the plain words of the statute but would also deprive the minor of the right to affirm or ratify the transaction upon attaining majority.................................."
28. This Court time and again held that setting aside of a sale which is voidable under Section 8(3) is 30 necessary for avoiding a registered sale deed. We may, however, not to be understood that we are holding that in all cases where minor has to avoid disposal of immovable property, it is necessary to bring a suit. There may be creation of charge or lease of immovable property which may not be by registered document. It may depend on facts of each case as to whether it is necessary to bring a suit for avoiding disposal of the immovable property or it can be done in any other manner. We in the present case are concerned with disposal of immovable property by natural guardian of minor by a registered sale deed, hence, we are confining our consideration and discussion only with respect to transfer of immovable property by a registered deed by a natural guardian of minor.
32. We may notice one more judgment of this Court relied on by the learned counsel for the appellants that is G. Annamalai Pillai vs. District Revenue 33 Officer and others, (1993) 2 SCC 402. The question which arose for consideration in the said case has been noticed in paragraph 1 of the judgment in following words:
"1. The short question for consideration in this appeal is Page 46 of 87 Downloaded on : Thu Jun 16 21:17:56 IST 2022 C/AO/6/2021 JUDGMENT DATED: 15/06/2022 whether lease deed in dispute, which was voidable in terms of Section 8(3) of the Hindu Minority and Guardianship Act, 1956 (the Act) when validly avoided, was effective from the date of the lease deed so as to make the transaction void and unenforceable from the very inception."
33. The land in dispute was owned by one Janarthanan. His father, Purushothaman executed a registered lease deed in favour of appellant on 12.12.1971 on which date the owner was minor. The appellant filed application before Tehsildar to be registered as a tenant which was contested by Janarthanan. Janarthanan contended that his father has no right or title to deal with land and lease by his father is in contravention of Section 8 of Hindu Minority and Guardianship Act, 1956. Tehsildar held that there was no valid lease which order was confirmed by the High Court against which judgment appeal was filed. In paragraphs 5 and 6 following has been laid down:
"5. We have heard learned counsel for the parties. We have been taken through the orders of the Revenue authorities, judgment of the learned Single Judge and of the Division Bench of the High Court in writ appeal. The Division Bench of the High Court, in a lucid judgment, answered the question -- posed by us in the beginning -- in the affirmative and against the appellant-Annamalai Pillai on the following reasoning:
"We have already seen that clause (3) of Section 8 of the Hindu Minority and Guardianship Act, 1956, specifically makes the transaction voidable. The lease executed by the guardian in this case is prohibited and in that sense it was without any Page 47 of 87 Downloaded on : Thu Jun 16 21:17:56 IST 2022 C/AO/6/2021 JUDGMENT DATED: 15/06/2022 authority. On the legal efficacy and the distinction between valid, void and voidable agreements, we find the following passage in Salmond on Jurisprudence, Twelfth Edition at page 341:
''... A valid agreement is one which is fully operative in accordance with the intent of the parties. A void agreement is one which entirely fails to receive legal recognition or sanction, the declared will of the parties being wholly destitute of legal efficacy. A voidable agreement stands midway between these two cases. It is not a nullity, but its operation is conditional and not absolute. By reason of some defect in its origin it is liable to be destroyed or cancelled at the option of one of the parties to it. On the exercise of this power the agreement not only ceases to have any efficacy, but is deemed to have been void ab initio. The avoidance of it relates back to the making of it. The hypothetical or contingent efficacy 35 which has hitherto been attributed to it wholly disappears, as if it had never existed. In other words, a voidable agreement is one which is void or valid at the election of one of the parties to it.' This distinction has also been judicially noticed in the Privy Council judgment reported in Satgur Prasad v. Harnarain Das and in the Division Bench judgment in S.N.R. Sundara Rao and Sons, Madurai v. CIT. The Division Bench held, following the said Privy Council judgment as follows:
'When a person, who is entitled to dissent from the alienation, does so, his dissent is in relation to the transaction as such and not Page 48 of 87 Downloaded on : Thu Jun 16 21:17:56 IST 2022 C/AO/6/2021 JUDGMENT DATED: 15/06/2022 merely to the possession of the alienee on the date of such dissent.
The effect of the evidence is, therefore, to get rid of the transaction with the result that in law it is as if the transaction had never taken place.' We have, therefore, no doubt that when the fifth respondent avoided the lease executed by his father, the fourth respondent, the lease became void from its inception and no statutory rights, could, therefore, accrue in favour of the appellant herein."
6. We agree with the reasoning and the conclusions reached by the Division Bench of the High Court and as such this appeal has to be dismissed."
15. Nangali Amma Bhavani Amma V. Gopalkrishnan Nair and Ors, reported in (2004) 8 SCC 785, wherein 8 reads as under:
"8. In view of the express language used, it is clear that the transaction entered into by the natural guardian in contravention of sub- section (2) was not void but merely voidable at the instance of the minor. To hold that the transaction in violation of Section 8(2) is void would not only be contrary to the plain words of the statute but would also deprive the minor of the right to affirm or ratify the transaction upon attaining majority. This Court in Vishwambhar vs. Laxminarayan has also held that such transactions are not void but merely voidable. It was also held that a suit must be filed by a minor in order to avoid the transaction within the period prescribed under Article Page 49 of 87 Downloaded on : Thu Jun 16 21:17:56 IST 2022 C/AO/6/2021 JUDGMENT DATED: 15/06/2022 60 of the Limitation Act. The High Court did not consider the issue of limitation at all in view of its finding on the effect of a violation of Section 8(2) of the Act. As the conclusion of the High Court on this aspect of matter is unsustainable, the impugned decision must be set aside."
16. Vishwambhai & Ors. v. Laxminarayan (dead) through Lrs. And Anr., reported in (2001) 6 SCC 163, paras-9 and 10 read as under:
"10. On a fair reading of the plaint, it is clear that the main fulcrum on which the case of the plaintiffs was balanced was that the alienations made by their mother- guardian Laxmibai were void and therefore, liable to be ignored since they were not supported by legal necessity and without permission of the competent court. On that basis the claim was made that the alienations did not affect the interest of the plaintiffs in the suit property. The prayers in the plaint were inter alia to set aside the sale deeds dated 14.11.1967 and 24.10.1974, recover possession of the properties sold from the respective purchasers, partition of the properties carving out separate possession of the share from the suit properties of the plaintiffs and deliver the same to them. As noted earlier, the trial court as well as the first appellate court accepted the case of the plaintiffs that the alienations in dispute were not supported by legal necessity. They also held that no prior permission of the court was taken for the said alienations. The question is in such circumstances are the alienations void or voidable? In Section 8(2) of the Hindu Minority and Guradianship Act, 1956, it is laid down, inter alia, that the natural guardian shall not, without previous permission of the Court, transfer by sale any part of the immovable property of the minor. In sub-Page 50 of 87 Downloaded on : Thu Jun 16 21:17:56 IST 2022
C/AO/6/2021 JUDGMENT DATED: 15/06/2022 section (3) of the said section it is specifically provided that any disposal of immovable property by a natural guardian, in contravention of sub-section (2) is voidable at the instance of the minor or any person claiming under him. There is, therefore, little scope for doubt that the alienations made by Laxmibai which are under challenge in the suit were voidable at the instance of the plaintiffs and the plaintiffs were required to get the alienations set aside if they wanted to avoid the transfers and regain the properties from the purchasers. As noted earlier in the plaint as it stood before the amendment the prayer for setting aside the sale deeds was not there, such a prayer appears to have been introduced by amendment during hearing of the suit and the trial court considered the amended prayer and decided the suit on that basis. If in law the plaintiffs were required to have the sale deeds set aside before making any claim in respect of the properties sold then a suit without such a prayer was of no avail to the plaintiffs. In all probability realising this difficulty the plaintiffs filed the application for amendment of the plaint seeking to introduce the prayer for setting aside the sale deeds. Unfortunately, the realisation came too late. Concededly, plaintiff no.2 Digamber attained majority on 5th August, 1975 and Vishwambhar, plaintiff no.1 attained majority on 20th July, 1978. Though the suit was filed on 30th November, 1980 the prayer seeking setting aside of the sale deeds was made in December, 1985. Article 60 of the Limitation Act, prescribes a period of three years for setting aside a transfer of property made by the guardian of a ward, by the ward who has attained majority and the period is to be computed from the date when the ward attains majority. Since the limitation started running from the dates when the plaintiffs attained majority the prescribed period had elapsed by Page 51 of 87 Downloaded on : Thu Jun 16 21:17:56 IST 2022 C/AO/6/2021 JUDGMENT DATED: 15/06/2022 the date of presentation of the plaint so far as Digamber is concerned. Therefore, the trial Court rightly dismissed the suit filed by Digamber. The judgment of the trial court dismissing the suit was not challenged by him. Even assuming that as the suit filed by one of the plaintiffs was within time the entire suit could not be dismissed on the ground of limitation, in the absence of challenge against the dismissal of the suit filed by Digambar the first appellate court could not have interfered with that part of the decision of the trial court. Regarding the suit filed by Vishwambhar it was filed within the prescribed period of limitation but without the prayer for setting aside the sale deeds. Since the claim for recovery of possession of the properties alienated could not have been made without setting aside the sale deeds the suit as initially filed was not maintainable. By the date the defect was rectified (December, 1985) by introducing such a prayer by amendment of the plaint the prescribed period of limitation for seeking such a relief had elapsed. In the circumstances the amendment of the plaint could not come to the rescue of the plaintiff.
10. From the averments of the plaint it cannot be said that all the necessary averments for setting aside the sale deeds executed by Laxmibai were contained in the plaint and adding specific prayer for setting aside the sale deeds was a mere formality. As noted earlier, the basis of the suit as it stood before the amendment of the plaint was that the sale transactions made by Laxmibai as guardian of the minors were ab initio void and, therefore, liable to be ignored. By introducing the prayer for setting aside the sale deeds the basis of the suit was changed to one seeking setting aside the alienations of the property by the guardian. In such circumstance the suit for setting Page 52 of 87 Downloaded on : Thu Jun 16 21:17:56 IST 2022 C/AO/6/2021 JUDGMENT DATED: 15/06/2022 aside the transfers could be taken to have been filed on the date the amendment of the plaint was allowed and not earlier than that.
6. Per Contra, Mr. Kamal Trivedi, learned Senior Counsel assisted by Mr. Tattvam Patel, learned advocate has vehemently submitted that prior permission of the Court is required only in a case where the property belongs to minor. He has also submitted that if there is no division of share of joint family property in respect of the share of the minor, then there is no need of any prior permission of the Court while dealing with share of the minor in the property. He has submitted that considering the documentary evidence on record, in this case, actually no partition has taken place and there is no partition by metes and bounds of the suit property.
6.1 According to Mr. Kamal Trivedi, learned Senior Counsel, if there is a separate personal property of the minor, then before disposing of such property by guardian, appropriate permission of the Court is definitely needed under the provisions of Section 8(2) of the Guardianship Act. He has also submitted that however, in the present case, the property is sold as undivided share in the HUF property. He has submitted that merely as per the request of the seller, different cheques have been issued in the names of individual sellers by the purchaser, does not mean that actual partition of the suit property by metes and bounds has occurred. He has also submitted that in the present Page 53 of 87 Downloaded on : Thu Jun 16 21:17:56 IST 2022 C/AO/6/2021 JUDGMENT DATED: 15/06/2022 case, the sale is also made by the guardian of the minor for the benefit of the minor as per the averment in the sale- deed, which is produced at Page-96 and onwards in this matter.
6.2 Mr. Trivedi, learned Senior Counsel has also submitted that defendant No.1 is a purchaser of the entire property. He has submitted that present guardian has no locus-standi as minor's real mother is residing at the same address, which has been mentioned in the cause title of the plaint. He has submitted that mother is a natural guardian whereas the present alleged guardian has no such right to represent the minor without prior permission of the Court. He has submitted that the third party has filed the Suit, posing himself as guardian and next friend of the minor, but when natural guardian mother is alive and is residing on the same address, the intention of the third party can be presumed to extract money from the defendant. He has submitted that in the present case, the trial Court has properly appreciated the facts of the case and rightly passed the order rejecting the interim injunction application filed by the so-called guardian of the minor.
6.3 Mr. Trivedi, learned Senior Counsel has also submitted that in the present case as per the recital in the sale deed, there is a specific mention about the fact that sale has been entered into for the benefit of the minor and, therefore, as per the exception carved out in sub-section (4) of Section 8 of Guardianship Act, there is no need of prior permission of Page 54 of 87 Downloaded on : Thu Jun 16 21:17:56 IST 2022 C/AO/6/2021 JUDGMENT DATED: 15/06/2022 the Court for such sale of the share in undivided joint family property. He has submitted that the trial Court has not committed any error of law in rejecting the application and the order of trial Court is a discretionary and this Court having limited jurisdiction to interfere with such discretionary order, this Court may not interfere with the impugned order as the view taken by the trial Court is plausible one on the facts of the case. While relying upon the following decisions, Mr. Trivedi, learned Senior Counsel has submitted to dismiss the Appeal from Order.
(1) Sri Narayan Bal & Ors v. Sridhar Sutar & Ors, reported in (1996) 8 SCC 54, wherein Paras-1,2, 3, 5 and 6 read as under:
"1. Leave was granted in this appeal to consider the question posed: whether the provisions of Section 8 of the Hindu Minority And Guardianship Act, 1956 (hereinafter referred to as the Act) were applicable to the Joint Hindu Family property sold or disposed of by the Karta.
2.The facts :
Dhanu Bal and Param Bal were two brothers constituting a Joint Hindu Family. Dhanu Bal had a wife, Nidhi, an adult son, Jag Bandhu and a few minor sons. Param Bal had a son, Raghu bal. Raghu Bal had a wife Satyabhama and a few minor sons. Dhanu Bal, Param Bal and Raghu Bal died. Jag Bandhu as Karta of the Joint Hindu Family, joining with him the widows Nidhi for herself and as guardian of her minor sons and Satyabhama for herself and as guardian of her minor sons, executed a sale deed pertaining to certain joint family lands in favour of the first defendant-respondents on 23-3- 1971, who made a Page 55 of 87 Downloaded on : Thu Jun 16 21:17:56 IST 2022 C/AO/6/2021 JUDGMENT DATED: 15/06/2022 further sale in favour of the second defendant- respondent. The plaintiffs-appellants who were all members of the Joint Hindu family filed a suit to have declared the aforesaid sale as illegal and void on the plea that the transaction was `vitiated by fraud, mis- representation and taking undue advantage of the illiteracy of Nidhi and Satyabhama, widows. The suit was resisted by the defendants-respondents on the plea that Jagabandhu was literate even though the widows were not, and had executed the sale deed as Karta of the family to which the other widow executants had supportively joined him in the execution of the sale deed for themselves and as guardians of the mino members of the Joint Hindu Family. The trial court on assessment of the evidence, decreed the suit, but the lower appellate court rejected the case of the plaintiff-appellants with regard to fraud, undue influence, mis-representation etc. holding that the sale in question was executed by the executants validly and for legal necessity. The second appeal by the plaintiffs-appellants was dismissed in limine, for the High Court was of the view that no substantial question of law arose, requiring determination. Hence this appeal.
3. For the first time in the special leave petition the competence of the Karta of the Hindu Joint family, effecting sale of the undivided interests of the minors in the Joint Hindu Family property has been questioned in this Court on the anvil of section 8 of the Act. Therefore the question as framed at the outset has cropped up for consideration.
5. With regard o the undivided interest of the Hindu minor in joint family property, the provisions afore-culled are beads of the same string and need be viewed in a single glimpse, simultaneously in conjunction with each Page 56 of 87 Downloaded on : Thu Jun 16 21:17:56 IST 2022 C/AO/6/2021 JUDGMENT DATED: 15/06/2022 other. Each provisions, and in particular Section 8, cannot be viewed in isolation. If read together the intent of the legislative 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 to 12 of the Act, the previous permission of the Court under Section 8 of 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 Page 57 of 87 Downloaded on : Thu Jun 16 21:17:56 IST 2022 C/AO/6/2021 JUDGMENT DATED: 15/06/2022 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.
6. In the instant case the finding recorded by the courts below is that Jagabandhu, the eldest male member in the family acted as a Karta in executing the sale and had joined with him the two widows for themselves and as guardians of the minor members of joint Hindu family, as supporting executants. That act by itself is not indicative of the minors having a divided interest in the joint Hindu family property commencing before or at the time of the sale. In this view of the matter, section 8 of the Act can be of no avail to the appellant's claim to nullify the sale.
(2) In re Krishnakant Maganlal, reported in AIR 1961 Gujarat 68, paras-5 and 8 read as under:
"5. The argument of Mr. B. J. Shelat in the main has been that Section 8 deals with the powers of a natural guardian and along with the powers, the Parliament has also presented certain restrictions in the said section and every natural guardian who wants to deal with the property of a minor can do so only in accordance with and sub-feet to the restrictions contained in the said section. It has been urged by Mr. B. J. Shelat that the reference to the 'minor's estate' and the 'immovable property of the minor' in the said section is not limited to the separate property of the minor but also extends to the undivided share of the minor in joint family property. According to Mr. B. J. Shelat there is nothing in the said section which requires that the words 'the minor's estate' and 'the immovable Page 58 of 87 Downloaded on : Thu Jun 16 21:17:56 IST 2022 C/AO/6/2021 JUDGMENT DATED: 15/06/2022 property of the minor' should bo read in any narrow sense as excluding the un-divided share of the minor in joint family property. The undivided share of the minor in joint family property is as much a part of his estate or immovable property as his separate property and there is no justification, argues Mr. B. J. Shelat, for excluding the undivided share of the minor In joint family property from the scope find meaning of the words 'the minor's estate' and 'the immovable property of the minor' occurring in the said section. It has been urged by Mr. B. J. Shelat that if these words are given their plain and natural meanings as they ought to be given, the restrictions contained in the said section would apply equally in respect of the undivided share of a minor in joint family property as they apply in respect of the separate property of the minor and the natural guardian, even though he be the manager and Karta, cannot sell or mortgage the undivided share of the minor in joint family property without the previous permission of the Court. This permission has to be obtained from the Court and the said section lays down the principles governing the exercise of the Court's discretion in granting or refusing such permission. According to Mr. B. J. Shelat, the learned District Judge had, therefore, jurisdiction to make the said order dated 30th April 1960 under Section 8 of the Act.
8. Section 8 deals with the powers of a natural guardian in relation to the minor's estate. IE empowers the natural guardian 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 lays down that the natural guardian cannot, in any case, bind the minor by a personal covenant. It also prescribes certain restrictions on the powers of the natural guardian Page 59 of 87 Downloaded on : Thu Jun 16 21:17:56 IST 2022 C/AO/6/2021 JUDGMENT DATED: 15/06/2022 and provides that the natural guardian shall not, without the previous permission of the Court, mortgage or charge, or transfer by sale, gift, exchange or otherwise, any part of the immovable property of the minor, or 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, Now the term 'natural guardian' has been penned in Section 4(c) to mean any of the guardians mentioned in Section 6. In order, therefore, to determine the scope and coverage of Section 8, one must turn to the previsions of Section 8 and see who are the natural guardians mentioned in that section, for the powers set out in Section 8 are those of the natural guardians mentioned in Section 6 and so also are the restrictions set out in that section. The term 'natural guardian' having been defined in Section 4(c) and the natural guardians contemplated and dealt with by the Act having been mentioned in Section 6, the ambit and operation of Section 8 must be limited to the natural guardians mentioned in Section 6 and Section 8 must not be construed so as to embrace within its scope the concept of a natural guardian in respect of the undivided interest of a minor in joint family property".
(3) Vijay A. Mittal v. Kulwant Rai(Dead) through Legal Representatives, reported in (2019) 3 SCC 520, Paras- 3 to 34 read as under;
"30. This Court in a case Sunil Kumar & Anr. vs. Ram Parkash & Ors., (1988) 2 SCC 77 examined the status and the powers of a Karta while dealing with the Joint Hindu Family property in the following words.Page 60 of 87 Downloaded on : Thu Jun 16 21:17:56 IST 2022
C/AO/6/2021 JUDGMENT DATED: 15/06/2022 "6. In this appeal we are called upon to decide the only question whether a suit for permanent injunction restraining the Karta of the joint Hindu family from alienating the house property belonging to the joint Hindu family in pursuance of the agreement to sell executed already in favour of the predecessor of the appellants, Jai Bhagwan, since deceased, is maintainable. It is well settled that in a Joint Hindu Mitakshara Family, a son acquires by birth an interest equal to that of the father in ancestral property. The father by reason of his paternal relation and his position as the head of the family is its Manager and he is entitled to alienate joint family property so as to bind the interests of both adult and minor coparceners in the property, provided that the alienation is made for legal necessity or for the benefit of the estate or for meeting an antecedent debt. The power of the Manager of a joint Hindu family to alienate a joint Hindu family property is analogous to that of a Manager for an infant heir as observed by the Judicial Committee in Hunoomanpersaud Panday v. Mussumat Babooee Munraj Koonweree (1856) 6 Moo Ind App 393)"
31. Keeping in view the aforementioned principle of law and applying the same to the facts of the case at hand, we are of the considered opinion that the Courts below were justified in holding that the agreement dated 12.6.1979 was binding on the legal heirs of Amar Nath for the following reasons: First, no issue was framed on the question of "legal necessity". In our opinion, it should have been framed; Second, yet the First Appellate Court while allowing the plaintiffs' appeal recorded a categorical Page 61 of 87 Downloaded on : Thu Jun 16 21:17:56 IST 2022 C/AO/6/2021 JUDGMENT DATED: 15/06/2022 finding that one son of Amar Nath had signed the agreement in question and, therefore, it was a case where legal representatives of Late Amar Nath were aware of the existence of the agreement and also had given their consent; and Third, this finding was upheld by the High Court while dismissing the defendants' appeal.
32. One cannot dispute the power of a Karta to sell the Joint Hindu Family property. It is, indeed, inherent in him. However, it is subject to certain restrictions, namely, the sale should be for the legal necessity and for the benefit of the family.
33. It is clear that Amar Nath had obtained the consent of the legal heirs before entering into an agreement for sale of the suit property to the plaintiffs. The very fact that one son of Amar Nath was a signatory to the agreement was sufficient to draw a presumption that the agreement to sell was made by Amar Nath with the consent of other coparceners. It is also for the reason because none of the coparceners had raised any objection till the filing of written statement in the suit. The very fact that Amar Nath sold the suit property to defendant Nos. 2 and 3 and which was not objected to by his legal heirs showed that the plea regarding legal necessity had no factual basis to sustain.
34. It is for all these reasons, we are of the view that the appellants (defendants) have failed to make out any case so as to call for any interference in the impugned judgment".
(4) The Commissioner of Gift Tax, Madras v. N.S. Getty Chettiar, reported in (1971) 2 SCC 741, paras-8 and 19 read as under:
Page 62 of 87 Downloaded on : Thu Jun 16 21:17:56 IST 2022C/AO/6/2021 JUDGMENT DATED: 15/06/2022 "8. Before proceeding to examine the relevant provisions of the Act, it is necessary to mention that according to the true notion of an undivided Hindu family, no individual member of that family, whilst it remains undivided, can predicate of the joint and undivided property, that he, that particular member, has a certain definite share namely a third or a fourth. All the coparceners in a Hindu joint family are the joint owners of the properties of the family. So long as the family remains joint, no coparcener can predicate what his share in the joint family is. His share gets determined only when there is a division of status or a division by metes and bounds.
Therefore it is not correct to assume that a coparcener in Hindu joint family has any definite share in the family property, before its division. Having stated that much, let us now proceed to consider the relevant provisions of the Act.
19. This leaves us with cl. (d) of S. 2 (xxiv) which speaks of a transaction entered into by any person with intent thereby to diminish directly or indirectly the value of his own property and to increase the value of the property of another person. A member of H.U.F. who, as mentioned earlier, has no definite share in the family property before division, cannot be said to diminish directly or indirectly the value of his property or to increase the value of the property of any other coparcener by agreeing to take a share lesser than what he would have got if he had gone to court to enforce his claim. Till partition, his share in the family property is indeterminate. He becomes entitled to a share in the family property only after the partition. Therefore there is no question of his either diminishing directly or indirectly the value of his own property or of increasing the value of the property of anyone else. The Page 63 of 87 Downloaded on : Thu Jun 16 21:17:56 IST 2022 C/AO/6/2021 JUDGMENT DATED: 15/06/2022 "transaction" referred to in cl. (d) of s. 2 (xxiv) takes its colour from the main clause viz., it must be a transfer of property in some way. This conclusion of ours gets support from sub-clause (a) to (c) of clause (xxiv) of s. 2, each of which deals with one or the other mode of transfer. If the parliament intended to bring within the scope of that provision partitions of the type with which we are concerned, nothing was easier than to say 2. In interpreting tax laws, courts merely look at the works of the section. If a case clearly comes within the section, the subject is taxed and not otherwise. For these reasons, we agree with the view taken by the High Court of Madras,, the' Tribunal and the Assistant Appellate Commissioner that the assessee made no "gift" under the partition deed in question.
(5) Man Singh (Dead) by Lrs. V. Ram Kala (Dead) by Lrs., reported in (2010) 14 SCC 350, "14. Till disruption of joint family status takes place, neither coparcener nor the other heirs entitled to share in the joint family property can claim with certainty the exact share in that property. In the case of Appovier Alias Seetaramier v. Rama Subba Aiyan & Ors.1, Lord Westbury speaking for the Judicial Committee (Privy Council) observed, `According to the true notion of an undivided family in Hindoo law, no individual member of that family, whilst it remains undivided, can predicate of the joint and undivided property, that he, that particular member, has a certain definite share."
(6) Saroj v. Sunder Singh & Ors, reported in (2013) 15 SCC Page 64 of 87 Downloaded on : Thu Jun 16 21:17:56 IST 2022 C/AO/6/2021 JUDGMENT DATED: 15/06/2022 727, para- 14 reads as under:
"14. Where the father dies leaving behind only minor daughters and their mother as natural guardian, the share of the daughters became definite; the question of family partition retaining the character of joint Hindu Family property does not exist. In the present case, after the death of the father, the property has been shared amongst each member of the family and recorded in the mutation register having 1/4th share each. In such circumstances, the provision of sub-section (3) of Section 8 shall attract as the mother sold the property without previous permission of the Court. Hence, both the sale deeds executed by the second respondent in favour of the first respondent shall become voidable at the instance of the minor i.e. the appellant and the Proforma-respondent nos.4 & 5".
(7) Vasantrao Gulabrao Thakre v. Sudhakar Wamanrao Hingankar & Ors, repoted in 2018 (5) Mh. L.J. 121, para-13 reads as under:
"13. In the instant case, it is an admitted position that the original 13 sa582.06 plaintiffs had only an undivided interest in the joint family property, which was subject matter of aforesaid sale-deed dated 30.03.1974 executed by their mother in favour of the appellant. Therefore, applying the position of law as laid down by the Hon'ble Supreme Court in the above quoted judgment of Sri Narayan Bal and others .v. Sridhar Sutar and others (supra) and followed by this Court in the case of Sandhya Rajan Antapurkar and others .v. State of Maharashtra (supra), it is evident that the mother of the original plaintiffs was not required to take permission of the Court Page 65 of 87 Downloaded on : Thu Jun 16 21:17:56 IST 2022 C/AO/6/2021 JUDGMENT DATED: 15/06/2022 under Section 8(2) of the aforesaid Act before executing the sale- deed in favour of the appellant. The appellate Court in the impugned judgment and order, thus, committed an error in holding that it was imperative for the mother of the original plaintiffs to have obtained permission of the Court before executing the aforesaid sale-deed. The judgment of the Hon'ble Supreme Court in the case of Saroj .v. Sunder Singh and others (supra) relied upon by the learned Counsel for respondent Nos.1 to 4 is distinguishable, because in that case the Court recorded that the share of daughters after the death of their father had become definite and it had been so recorded in the mutation register. In the present case, the Court is concerned admittedly with undivided share of the minors (original plaintiffs) and, therefore, Section 8 is clearly not applicable as laid down by the Hon'ble Supreme Court in the case of Sri Narayan Bal and others .v. Sridhar Sutar and others (supra). Accordingly, the first question of law, on which this appeal was admitted, is answered in 14 sa582.06 favour of the appellant and against respondent Nos.1 to 4".
(8) M.R. Vinoda v. M.S. Susheelamma (D) by Lrs. & Ors, passed in Civil Appeal No. 2567 of 2017 "12. The position in Hindu Law is well settled. In Sri Narayan Bal and Others v. Sridhar Sutar and Others,3 this Court interpreting Sections 6 and 8 of the Hindu Minority and Guardianship Act, 1956 ("HMG Act", for short), has held that these two Sections are not to be viewed in isolation, albeit in harmony and conjunction, and when read together the intent is manifest that HMG Act does not envisage a natural guardian of an undivided interest Page 66 of 87 Downloaded on : Thu Jun 16 21:17:56 IST 2022 C/AO/6/2021 JUDGMENT DATED: 15/06/2022 of a Hindu minor in a joint Hindu family property. A natural guardian of a Hindu minor in respect of the individual property alone is contemplated under Section 8, whereunder the powers and duties of a natural guardian are defined. The provisions of the HMG Act with the object of saving the minor's separate individual interest from being misappropriated require a natural guardian to seek permission from the Court before alienating any part of the minor's estate, do not affect the right of the Karta or the head of the branch to manage and from dealing with the joint Hindu family property. In terms of Section 12 6, ordinarily no guardian shall be appointed for minor's interest in joint Hindu family. Only when there is no adult member in the management of the joint family property in which the minor has an undivided interest - and then alone - a guardian may be appointed. Further, the adult family member in the management of the joint family property may be a male or female, not necessarily the Karta. Therefore, Section 8 of the HMG Act that requires a guardian of a Hindu minor to seek the permission of the Court before he disposes of any immovable property of the minor will have no application when a Karta or adult head of the family alienates joint Hindu property even if one or more coparceners are minor. The reason is that Section 8, in view of the express terms of Sections 6 and 12, would not apply where a joint Hindu family property is sold/disposed of by the Karta or head of the family even when a minor has an undivided interest in the said joint Hindu family property. Sri Narayan Bal (supra) observes:
"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 glimpse, simultaneously in Page 67 of 87 Downloaded on : Thu Jun 16 21:17:56 IST 2022 C/AO/6/2021 JUDGMENT DATED: 15/06/2022 conjunction with each other. Each provision, and in particular Section 8, cannot be viewed in isolation.....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..."
(9) Somiben @Chimiben D/o. Naranbhai Kalabhai & Anr.
v. Ukabhai Naranbhai Patel & Ors., reported in 2009 SCC Online Guj 10931, Paras 26 & 28 read as under:
"26. Mr.Sanjanwala further submitted that in the impugned order the learned trial Judge has arrived at the following findings of fact :-
(i) That the plaintiffs have voluntarily relinquished their right by executing documents and by their conduct. He submitted that if Release-deed is in the nature of family arrangement, it does not require registration. It is not open for the appellants to challenge it on the ground that it has not been registered. In support of this submission he relied on the following decisions :-
(a) In (Lala) Kanhai Lal V/s. (Lala) Brij Lal and others, AIR 1918 Privy Council 70, it is held that K was a party to the compromise.
He was one of those whose claims to the family property, or to shares in it, induced G against her own interests and those of her Page 68 of 87 Downloaded on : Thu Jun 16 21:17:56 IST 2022 C/AO/6/2021 JUDGMENT DATED: 15/06/2022 daughter, and greatly to her own detriment to alter her position by agreeing to the compromise and under that compromise, K obtained a substantial benefit which he had all along enjoyed and he was, therefore, bound by it and cannot claim as a revisioner.
(b) In Smt. P. N. Wankudre V/s. C.C. Wankudre and others, AIR 2002 BOMBAY 129, informal family arrangement was arrived at whereby various members of family were put in possession and enjoyment of different property. All members of family were signatories to the said arrangement. Partition so arrived at was acted upon by parties and also derived benefits there from. No objection raised in it for number of years.
Inspite of such circumstances, even assuming that documents were required to be registered, conduct of members would operate as an estoppel preventing them from resiling from said arrangements. One member cannot seek injunction or restrained order in respect of property partitioned and mutated in favour of another member.
(c) In Kale and others V/s. Deputy Director of Consolidation and others, 1976 (3) SCC 119, it is held that by virtue of a family settlement or arrangement members of a family descending from a common ancestor or a near relation seek to sink their differences and disputes settled and resolved their conflicting claims or disputed titles once for all in order to buy peace of Page 69 of 87 Downloaded on : Thu Jun 16 21:17:56 IST 2022 C/AO/6/2021 JUDGMENT DATED: 15/06/2022 mind and bring about complete harmony and goodwill in the family. Family arrangements are covered by a special equity peculiar to themselves and will be enforced if honestly made. Although they have not been meant as a compromise, but have proceeded from an error of all parties originating in mistake or ignorance of fact as to what their rights actually are, or of the points on which their rights actually depend. The object of arrangement is to protect the family from long drawn litigation or perpetual strifes which mar the unity and solidarity of the family and create hatred and bad blood between the various members of the family. It promotes social justice through wider distribution of wealth. Family therefore has to be construed widely. It is not confined only to people having legal title to the property.
(d) In Ranganayakamma & Anr. Vs. K.S.Prakash (D) by L.Rs. & Ors., 2008 AIR SCW 6476 the Apex Court held that, family settlement is necessary for achieving peace and harmony for family. Partition by metes and bound is not always possible and hence preservation of family property can form ground or consideration for foregoing substantial part of its share by a party to make settlement binding on it. It is not permissible for the Court to reopen a compromise decree passed on the basis of settlement except when fraud on party or Court is pleaded and established. The Court Page 70 of 87 Downloaded on : Thu Jun 16 21:17:56 IST 2022 C/AO/6/2021 JUDGMENT DATED: 15/06/2022 cannot go into the question as to whether contents of settlement are correct or not or as to whether properties were joint or self- acquired.
The Court further held that the document relating to release of shares by sisters in favour of their brothers is not per se void for want of consideration. Renunciation may be for consideration or may not be for consideration. Release by an heir other than coparcener does not need any consideration Release is valid without consideration. Love and affection is also a consideration within meaning of Sections 122, 123 of Transfer of Property Act.
(ii) That they have not challenged the document dated 23.12.1990 for 18 years. Even if the Suit filed by the appellants is treated as filed within limitation they are not entitled to any interim relief. In support of this submission, he relied on the decision of this Court in the case of Veetrag Holding Company Limited V/s. Gujarat State Textile Corporation Limited, 37 (3) GLR 536, wherein this Court has held that in as much as this Contract was terminated on 6.12.1993, it was expected of the appellant to move for specific performance at the earliest, if they were serious about the same. The appellant certainly cannot be nonsuited on the ground of limitation in as much as their suit is within time. However, when it comes to grant of equitable relief, when the suit is filed after such a lapse of time, it cannot be said that the remedy of interim injunction was the necessary remedy and there was no other remedy available to the party concerned in this behalf.
(iii) That the Will is not under challenge in the Page 71 of 87 Downloaded on : Thu Jun 16 21:17:56 IST 2022 C/AO/6/2021 JUDGMENT DATED: 15/06/2022 present suit. The respondent No.4 is bonafide purchaser and he has spent huge amount by putting up the construction and he has also sold flats constructed on the said land and the third party rights have already been created and the majority of the construction work is already over as per the sanctioned plan and the photographs are also produced to show the construction. Therefore, irreparable loss will be caused to the present respondent No.4 if the injunction is granted.
(iv) That third party rights are already created and innocent people will suffer if the interim relief is granted.
(v) That the plaintiffs have filed suit to squeeze more money from respondent No.4. There is no reason to disbelieve the above finding of facts which requires any interference by this Court.
28. Mr.Sanjanwala further submitted that the Special Civil Suit No.181 of 2008 is filed by the appellants only with a view to extract more money from the respondent No.4. The appellants have not stated the correct facts even in the notice of motion filed before the trial Court and the trial Court has observed that many important facts have been suppressed. The said facts are also suppressed in the present Appeal From Order and the Civil Application, inspite of the fact that in the earlier Appeal From Order No.206 of 2008 filed by the respondent No.4, correct facts were stated and all the documents were produced. Even thereafter, while filing the present Appeal From Order and the Civil Application the appellants have suppressed those facts from this Court and hence this Appeal as well as Civil Application suffer from suppretio vary and suggestio falsy and since the appellants have not come Page 72 of 87 Downloaded on : Thu Jun 16 21:17:56 IST 2022 C/AO/6/2021 JUDGMENT DATED: 15/06/2022 with clean hands before this Court they are not entitled to claim any equitable interim relief".
(10) Kishorsinh Ratansinh Jadeja v. Maruti Corporation & Ors, reported in (2009) 11 SCC 229, paras 39 to 41 read as under:
"39. As far as the lands which the appellant and the other joint owners have been restrained from alienating by the second order dated 22nd April, 2008, are concerned, we are of the view that in the event the order of 22nd April, 2008, is set aside, the Respondent No.1 can be compensated in terms of money and no irreparable loss and injury will be caused to it on account thereof.
40. On the other hand, if the owners of the property remain restrained from developing the same, it is they, who will suffer severe prejudice, as they will be deprived of the benefit of the user of their land during the said period. The balance of convenience and inconvenience is against grant of such injunction. The success of the suit for specific performance filed by the Respondent No.1 depends to a large extent on tenuous proof of genuineness of the agreement sought to be enforced after 19 years, despite the finding of the Trial Court that the suit was not barred by limitation.
41. The question of conduct of the Respondent No.1 also becomes relevant, inasmuch as, having slept over its rights for more than 19 years, it will be inequitable on its prayer to restrain the owners of the property from dealing with the same, having particular regard to the fact that a large portion of the land has already been conveyed to as many as 280 purchasers who are in the process of erecting constructions thereupon.Page 73 of 87 Downloaded on : Thu Jun 16 21:17:56 IST 2022
C/AO/6/2021 JUDGMENT DATED: 15/06/2022 (11) Ambalal Ratansinh Enterprise Limited v. KS Infraspace LLP Limited & Anr., reported in (2020) 5 SCC 410, "7. Despite the full awareness and knowledge as far back as 30.03.2018 and refund through RTGS of Rs.2.16 crores on 31.03.2018 itself, the plaintiff published a public notice only on 03.04.2018 advising all concerned not to deal with the property which was duly replied and refuted by another public notice dated 04.04.2018 published by the defendants. The cause of action in the suit is based on the email dated 30.03.2018 coupled with the public notice dated 03.04.2018. Acknowledging the refund also on 31.03.2018, it admits the signing of a registered agreement for sale with defendant no.2 on 31.03.2018 but does not make even a whisper of a suggestion why the suit was filed more than 7 months later. In commercial dealings with high stake matters delay is vital. This specific objection on behalf of the defendant taken before the High Court relying on K.S. Vidyanadam & ors. vs. Vairavan, 1997 (3) SCC 1, has been noticed at paragraph 37 of the judgment but does not find any consideration".
"18. The pleadings in the suit acknowledge the awareness of the plaintiff of the ongoing negotiations with defendant no.2. The advance of Rs.2.16 crores was refunded to the plaintiff in the evening on 31.03.2018 by RTGS. No effort was made by the plaintiff to again remit the sum by RTGS immediately or the next day. Only a public notice was published on 03.04.2018 refuted by the defendant on 04.03.2018. The suit was then filed seven months later on 01.10.2018. The explanation that the plaintiff waited hopefully for a solution outside litigation as a prudent businessman before finally instituting the Page 74 of 87 Downloaded on : Thu Jun 16 21:17:56 IST 2022 C/AO/6/2021 JUDGMENT DATED: 15/06/2022 suit is too lame an excuse to merit any consideration.
19. In a matter concerning grant of injunction, apart from the existence of a prima facie case, balance of convenience, irreparable injury, the conduct of the party seeking the equitable relief of injunction is also very essential to be considered as observed in Motilal Jain (supra) holding as follows :
"6. The first ground which the High Court took note of is the delay in filing the suit. It may be apt to bear in mind the following aspects of delay which are relevant in a case of specific performance of contract for sale of immovable property:
(i) delay running beyond the period prescribed under the Limitation Act;
(ii) delay in cases where though the suit is within the period of limitation, yet:
(a) due to delay the third parties have acquired rights in the subjectmatter of the suit;
(b) in the facts and circumstances of the case, delay may give rise to plea of waiver or otherwise it will be inequitable to grant a discretionary relief."
20. The defendant no.2, in addition to the dues of the Income Tax department as aforesaid, made further payments to the defendant of Rs.25,44,57,769/ by 16.01.2019 aggregating to a total payment of Rs.45,84,71,869/. The defendants had also proceeded to utilize a sum of Rs.36.20 crores also and had therefore Page 75 of 87 Downloaded on : Thu Jun 16 21:17:56 IST 2022 C/AO/6/2021 JUDGMENT DATED: 15/06/2022 materially altered their position evidently by the inaction of the plaintiff to institute the suit in time and having allowed third party rights to accrue by making substantial investments. In Madamsetty (supra) it was observed :
"11.....It is not possible or desirable to lay down the circumstances under which a court can exercise its discretion against the plaintiff. But they must be such that the representation by conduct or neglect of the plaintiff is directly responsible in inducing the defendant to change his position to his prejudice or such as to bring about a situation when it would be inequitable to give him such a relief." Similar view has been expressed in Mandali Ranganna (supra).
21. We are therefore of the considered opinion that in the facts and circumstances of the present case, and the nature of the materials placed before us at this stage, whether there existed a concluded contract between the parties or not, is itself a matter for trial to be decided on basis of the evidence that may be led. If the plaintiff contended a concluded contract and/or an oral contract by inference, leaving an executed document as a mere formality, the onus lay on the plaintiff to demonstrate that the parties were ad idem having discharged their obligations as observed in Brij Mohan (supra). The plaintiff failed to do show the same on admitted facts. The draft MoU dated 30.03.2018 in Clause C contemplated payment of the income tax dues of Rs.18.64 crores as part of the consideration amount only whereafter the agreement was to be signed relating back to the date 29.03.2008. Had this amount been already paid or remitted by the plaintiff, entirely different considerations would have arisen with regard to the requirement for execution of a Page 76 of 87 Downloaded on : Thu Jun 16 21:17:56 IST 2022 C/AO/6/2021 JUDGMENT DATED: 15/06/2022 written agreement remaining a mere formality. Needless to state the balance of convenience is in favour of the defendants on account of the intervening developments, without furthermore, interalia by reason of the plaintiff having waited for seven months to institute the suit. The question of irreparable harm to a party complaining of a breach of contract does not arise if other remedies are available to the party complaining of the breach. The High Court has itself observed that from the negotiations between the parties that "some rough weather was being reflected between the plaintiff and the defendant ..........". The Special Civil Judge failed to address the issue of delay. The High Court noticed the arguments of the defendants with regard to delay in the institution of the suit but failed to deal with it".
23. Wander Ltd. (supra) prescribes a rule of prudence only. Much will depend on the facts of a case. It fell for consideration again in Gujarat Bottling Co. Ltd. vs. Coca Cola Co., (1995) 5 SCC 545, observing as follows :
"47....Under Order 39 of the Code of Civil Procedure, jurisdiction of the Court to interfere with an order of interlocutory or temporary injunction is purely equitable and, therefore, the Court, on being approached, will, apart from other considerations, also look to the conduct of the party invoking the jurisdiction of the Court, and may refuse to interfere unless his conduct was free from blame. Since the relief is wholly equitable in nature, the party invoking the jurisdiction of the Court has to show that he himself was not at fault and that he himself was not responsible for bringing about the state of things complained of and that he was not unfair or inequitable in his Page 77 of 87 Downloaded on : Thu Jun 16 21:17:56 IST 2022 C/AO/6/2021 JUDGMENT DATED: 15/06/2022 dealings with the party against whom he was seeking relief. His conduct should be fair and honest...."
24. The aforesaid discussion leaves us satisfied to conclude that in the facts and circumstances of the present case, the grant of injunction to the plaintiff is unsustainable. Resultantly the orders of injunction are set aside. Nothing in the present order shall be deemed or construed as any expression of opinion or observation by us at the final hearing of the suit which naturally will have to be decided on its own merits. The High Court has already given directions to expedite the hearing of the suit and we reiterate the same.
(12) Newsclick In Publisher of Article through Prabir Purkayasthr v. Adani Power Rajasthan Ltd., judgment dated 1.4.2022 passed in AO No. 172 of 2021, paras- 16 and 18 read as under:
"16. At this juncture, it is worthwhile to refer to the observation of the Hon'ble Apex Court in case of Wander Ltd. and Another v. Antox India P. Ltd (Supra), in Para-14, which is as under:
"14. The appeals before the Division Bench were against the exercise of discretion by the Single Judge. In such appeals, the Appellate Court will not interfere with the exercise of discretion of the court of first instance and substitute its own discretion except where the discretion has been shown to have been exercised arbitrarily, or capriciously or perversely or where the court had ignored the settled principles of law regulating grant or refusal of interlocutory injunctions. An Page 78 of 87 Downloaded on : Thu Jun 16 21:17:56 IST 2022 C/AO/6/2021 JUDGMENT DATED: 15/06/2022 appeal against exercise of discretion is said to be an appeal on principle. Appellate Court will not reassess the material and seek to reach a conclusion different from the one reached by the court below if the one reached by the court was reasonably possible on the material. The appellate court would normally not be justified in interfering with the exercise of discretion under appeal solely on the ground that if it had considered the matter at the trial stage it would have come to a contrary conclusion. If the discretion has been exercised by the Trial Court reasonably and in a judicial manner the fact that the appellate court would have taken a different view may not justify interference with the trial court's exercise of discretion. After referring to these principles Gajendragadkar, J. in Printers (Mysore) Private Ltd. v. Pothan Joseph : (AIR 1960 SC 1156) "... These principles are well established, but as has been observed by Viscount Simon in Charles Osention & Co. v. Johnston the law as to the reversal by a court of appeal of an order made by a judge below in the exercise of his discretion is well established, and any difficulty that arises is due only to the application of well settled principles in an individual case".
18. In the facts and circumstances of the case, the view taken by the trial Court is reasonable one. This Court, being an Appellate Court exercising the limited jurisdiction, cannot interfere with it only on the basis that second view of the matter is possible. The observation of the trial Court cannot be said to be perverse one or Page 79 of 87 Downloaded on : Thu Jun 16 21:17:56 IST 2022 C/AO/6/2021 JUDGMENT DATED: 15/06/2022 arbitrary one
7. The learned advocates for the respective parties have also relied upon the following decisions, however, since they are on the same line, which have already been referred to hereinabove, the same are not discussed:
1. Mallappa v. Anant Balkrishna Narayanpeit and Another, reported in AIR 1936 Bombay 386;
2. Ragho Walad Totaram v. Zaga Ekoba and Another, reported in AIR 1929 Bombay 251;
3. Jayanti Paul W/o. Late Sunil Chandra Paul and Ors. v.
Ranadhir Chandra Dey, reported in 2011 (0) AIJ-AS 611750;
4. Venubai Wd/o. Natthu @ Devidas Mankar & Anr. v.
Vimlabai wd/o. Kesharao Thakare & Ors, reported in 2013 (3) Mh. L.J. 895;
5. Shriram Niwrutti Mahalle v. Pannalal Totala & Ors, reported in AIR 2008 Bom 194;
6. Sudhakar Wamanrao Hingankar & Ors. v. Vasantrao Thakre & Ors, Order dated 4.2.2019 passed in CA No. 76 of 2019 in Misc. Civil Application (Review) No. 17754 of 2018
7. Sudhakar Wamanrao Hingankar & Ors. v. Vasantrao Gulabrao Thakre, passed in Special Leave to Appeal (Civil) No. 3273 of 2020
8. Pramukhkrupa Enterprise & Anr. v. Kunverben Chaturdad Patel & Ors, reported in 2014 SCC Onlie Guj 2594, Page 80 of 87 Downloaded on : Thu Jun 16 21:17:56 IST 2022 C/AO/6/2021 JUDGMENT DATED: 15/06/2022
8. In rejoinder, Mr. Unwala, learned Senior Counsel with Mr. Jigar Gadhvi, learned advocate has vehemently submitted that in the present case, as different cheques of different amount has been issued in favour of individual person, including the minor, it show that actually the property has been divided and partition took place amongst the members of the Hindu family. He has submitted that there is no need of any actual partition of property by Metes and bounds as money has been paid in the proportion of the share of each member of the Hindu Joint Family. Mr. Unwala has also submitted that there was recital in agreement to sell in obtaining prior permission of the Civil Court and without obtaining such prior permission, registered sale deed has been executed, the same would be hit by provisions of Section 8(2) of the Guardianship Act. He has submitted that it is a principle that equity follows the law and not law follows the equity. He has submitted that there is no equity in favour of the defendant No.1 as during the pendency of suit-appeal, he has erected Multi- storeyed building on the land and thereby changed the nature of the land. According to him, wrong is done by the defendant No.1, though he was well aware that the suit is pending, may not be tolerated and atleast he may be restrained from transferring or creating any third party interest in the building erected till the final disposal of the suit. He has prayed to allow the present appeal from order and to grant relief as prayed for by the plaintiff.
9. Having considering the submission made on behalf of both Page 81 of 87 Downloaded on : Thu Jun 16 21:17:56 IST 2022 C/AO/6/2021 JUDGMENT DATED: 15/06/2022 the sides coupled with the material placed on record and the various decisions cited at bar, as referred to hereinabove, it reveals that land in question was of ancestral joint family property. It reveals from the record that minor's father has already died and the natural guardian is mother who is also alive and residing at the same address where the minor is residing. It also reveals that the mother being a natural guardian has not come forward to file a suit and instead of that some third party posing himself as a maternal uncle of minor's mother has filed the suit, that too without obtaining permission from the Court to act as guardian of the minor. Be that as it may be. Now, the entire controversy is rested upon the power of natural guardian as provided under Section 8 of the Guardianship Act. Section 8 of the said Act reads as under:
"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 realization, 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 immovable 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.Page 82 of 87 Downloaded on : Thu Jun 16 21:17:56 IST 2022
C/AO/6/2021 JUDGMENT DATED: 15/06/2022 (3) Any disposal of immovable property by a natural guardian, in contravention of sub-section (1) or sub-section (2), is voidable at the instance of the minor or 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 case of necessity or for an evident advantage to the minor.
(5) The Guardians and Wards Act, 1890 (8 of 1890), shall apply to and in respect of an application for obtaining the permission of the court under sub-section (2) in all respects as if it were an application for obtaining the permission of the court under section 29 of that Act, and in particular--
(a) proceedings in connection with the application shall be deemed to be proceedings under that Act within the meaning of section 4A thereof;
(b) the court shall observe the procedure and have the powers specified in sub-sections (2), (3) and (4) of section 31 of that Act; and
(c)an appeal shall lie from an order of the court refusing permission to the natural guardian to do any of the Acts mentioned in sub-section (2) of this section to the court to which appeals ordinarily lie from the decisions of that court.
(6) In this section, "Court" means the city civil court or a district court or a court empowered under section 4A of the Guardians and Wards Act, 1890 (8 of 1890), within the local limits of whose jurisdiction the immovable property in respect of which the application is made is situate, and where the immovable property is situate within the jurisdiction of more than one such court, means the court within the local limits of whose jurisdiction any portion of the property is situate".
Page 83 of 87 Downloaded on : Thu Jun 16 21:17:56 IST 2022C/AO/6/2021 JUDGMENT DATED: 15/06/2022
10. Thus, the natural guardian has power to do all acts which are necessary or reasonable and proper for the bonafide of the minor or for realisation, protection for benefit of minor estate. However, as per subsection (2) of Section 8, the natural guardian cannot mortgage or charge or transfer by sale, gift, exchange or otherwise, any part of the immovable property of the minor or lease any part of such property for a term exceeding5 years or a term extending more than 1 year beyond the date on which the minor will attain majority without the previous permission of the Court. Thus, by virtue of sub-section (2) of Section 8, restriction over the exercise of powers by the natural guardian in respect to the property of the minor is made. At the same time, as per sub-section (3) thereof, if any such action is done by the natural guardian, regarding the immovable property, such transaction is voidable at the instance of the minor or any person claiming under him. Thus, any such transaction entered into by the natural guardian in respect of the share of the property of the minor, without prior permission of the Court does not ipso- facto void. Such transaction is only voidable at the instance of the minor or any person claiming under him. At the same time, as per sub-section (4) of Section 8 in two case i.e. one of necessity or for evident advantage to the minor, no Court shall grant permission to the natural guardian to do any of the acts mentioned in sub-section (2).
11. Now, considering the material placed on record, it clearly reveals that in the agreement to sell, there is a recital of Page 84 of 87 Downloaded on : Thu Jun 16 21:17:56 IST 2022 C/AO/6/2021 JUDGMENT DATED: 15/06/2022 obtaining of necessary permission from the concerned Court by the natural guardian. It reveals from the sale deed that while selling the share of the minor in the joint family property, there is a clear cut recital that it has been sold for the benefit of the minor and the entire amount for which separate cheque has been issued, be deposited in Fixed Deposit by the guardian and she will not be entitled to encash it and on the minor attaining majority, would be entitled to do so. It is pertinent to note that in the present case, entire share transaction has been received by the entire family members. Of course, separate cheques have been issued by the purchaser to the seller as per the demand of the seller wherein specified amount is shown as per the proportionate share in the property. It is also admitted fact that natural guardian of the plaintiff minor is his mother. The right of claim of filing any suit would be with the natural guardian. Now, admittedly in the present case, the person who has posed himself as guardian and next friend of minor, is a distant relative of the minor on the maternal side of the minor's mother. Not only that, there is no order of the Court permitting the said person to file a suit for the benefit of the minor. It appears that some third party has challenged the said transaction posing himself as guardian of the minor. When, the natural guardian of the minor is residing with the minor, any suit filed by the third party may reflect the intention of such third party in filing such Suit. Considering the material placed on record, it clearly transpires that in the present case, prima-facie the land has been sold for the purpose of Page 85 of 87 Downloaded on : Thu Jun 16 21:17:56 IST 2022 C/AO/6/2021 JUDGMENT DATED: 15/06/2022 necessity and for benefit of the minor. Further, considering the meagre portion of the share available to the minor and the fact that his natural guardian mother has sold the property for his benefit, he can be compensated in terms of money in future.
12. Now, it is also well settled law that the Appellate Court may not interfere with the exercise of discretion of the Court of first instance and substitute its own discretion except where the discretion has been shown to have been exercised arbitrarily, or capriciously or perversely or where the Court had ignored the settled principles of law regulating grant or refusal of interlocutory injunctions. An appeal against exercise of discretion is said to be an appeal on principle. The Appellate Court will not reassess the material and seek to reach a conclusion different from the one reached by the Court below if the one reached by the court was reasonably possible on the material. The appellate Court would normally not be justified in interfering with the exercise of discretion under appeal solely on the ground that if it had considered the matter at the trial stage it would have come to a contrary conclusion.
13. In view of this settled proposition of law, on perusal of the impugned order of the trial Court, it appears that view taken by the trial Court, under the peculiar facts and circumstance of this case is plausible one. Therefore, having limited power to interfere with discretionary power of the trial Court and under facts and circumstances of this case, Page 86 of 87 Downloaded on : Thu Jun 16 21:17:56 IST 2022 C/AO/6/2021 JUDGMENT DATED: 15/06/2022 this Court does not find it proper to interfere with such order.
14. In view of the above, the present Appeal from Order deserves to be dismissed. Accordingly, it is dismissed. Considering the limited issued involved in the matter, the trial Court is hereby directed to expedite the hearing of Special Civil Suit No. 120 of 2020 and try to dispose it of as early as possible, preferably within a period of 6 months from the date of this order.
No order as to costs.
In view of the above, Civil Application also stands disposed of accordingly.
(DR. A. P. THAKER, J) SAJ GEORGE Page 87 of 87 Downloaded on : Thu Jun 16 21:17:56 IST 2022