Minor's Property - Mortgage with and without court's permission

Minor’s Property-   

1. Inherited Property is transferred ( sold) by the natural guardian ( having minors rights also) and the purchaser wants to avail loan- Mortgage is possible without court's permission.
2. Property inherited and karta wants to mortgage the property against security of loan- Mortgage is valid without permission.
3. Property is in the name of minor and natural guardian wants to mortgage the property- Cannot be mortgaged without court permission.
4. Property is in the name of minor and natural guardian has sold out and purchaser wants loan against mortgage of property- Cannot be mortgaged without court permission.

 Legal aspects-

THE HINDU MINORITY & GUARDIANSHIP ACT 1956

1. Natural guardians of a Hindu Minor. The natural guardians of a Hindu minor, in respect of the minor' s person as well as in respect of the minor' s property (excluding his or her undivided interest in joint family property), are-
2. 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.

(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.

1. 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 a affect the jurisdiction of a High Court to appoint a guardian in respect of such interest.

THE GUARDIAN AND WARDS ACT 1890-

1. Limitation of powers of guardian of property appointed or declared by the Court.- Where a person other than a Collector, or than a guardian appointed by will or other instrument, has been appointed or declared by the Court to be guardian of the property of a ward, he 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 his ward, or

(b) Lease any part of that property for a term exceeding five years or for any term extending more than one year beyond the date on which the ward will cease to be a minor.

BOMBAY HIGH COURT- KISAN S/O RAMJI KHANDARE VS KAUSALYABAI W/O GANGARAM AND ORS. ON 12 MARCH, 2007

Cites 23 docs -The Registration Act, 1908, Section 8 in The Registration Act, 1908

Section 8(2) in The Registration Act, 1908, The Guardians And Wards Act, 1890

The Code Of Civil Procedure (Amendment) Act, 1956

Cited by 1 docs- Hanusingh S/O Harsingh Chavan And ... vs Amnaji S/O Bhaurao Wadje And Vijay ... on 19 July, 2007

Equivalent citations: 2007 (4) MhLj 43

JUDGMENT- V.R. Kingaonkar, J.

1. The appellant herein is original defendant No. 2. The appellant is aggrieved by judgment rendered by the first appellate Court, confirming the trial Court's decree, with little modification, holding that Respondent Nos. l to 3 i.e. original plaintiffs are entitled to relief of declaration that the sale deeds executed by plaintiff No. l Kausalya bai are inoperative and were obtained by playing fraud and hence, the plaintiffs are entitled to recover possession of the suit properties along with mesne profits.
2. For sake of convenience, I shall refer to the parties by their nomenclature in the trial Court. The Respondent No. l Kausalya was plaintiff No. l. Respondent No. 2 Sarangdhar is her son and was plaintiff No. 2, whereas Respondent No. 3 Asrabai is her daughter and was plaintiff No. 3 in the trial Court. They filed suit (R.C.S. No. 40/90) for declaration to the effect that the sale deeds executed by the plaintiff No. l are not binding on them. They sought recovery of possession of the suit properties consisting of agricultural lands and share to the extent of two annas in mango trees as described in Schedule appended with the plaint.
3. Originally one Gangaram Korde held the suit properties. He was husband of plaintiff No. l Kausalya and father of plaintiff Nos. 2 and 3 - Sarangdhar and Asrabai. He died somewhere in 1979-80.
4. Briefly stated, the plaintiffs' case si that the defendant No. 2 - Kisan played fraud on the plaintiff No. 1. He took her to Parbhani, the District place, under pretext that she would be assisted in borrowing loan from a Cooperative Society. There was no legal necessity for alienation of the suit properties. The defendant No. l obtained a sale deed in respect of S. No. 45 to the extent of 2 hectares land in his favour without payment of consideration. Thereafter, the defendant Nos. 3 and 5 assured plaintiff No. l - Kausalya that they would secure restoration of her land and would incur necessary expenditure required for the purpose of litigation. They obtained a sale deed without consideration from her in respect of land S. No. 37 as well a sale deed in respect of 2 annas share in 17 mango trees. They got inducted themselves in possession of the said lands without any legal right. The sale deeds are out come of fraud played on the plaintiff No. l. The plaintiff No. l could not have transferred the suit properties which are owned by the minor plaintiff Nos. 2 and 3. Consequently, they sought recovery of possession of the suit properties and declaration to the effect that the sale deeds in question were not binding on them.
5. By filing common written statement (Exh.22) the defendant Nos. 1 and 2 resisted the suit. So also the defendant Nos. 3 and 5 resisted the suit by filing a written statement (Exh.66). They denied truth into all material averments made by the plaintiff. Assertion of the defendants was that the plea of alleged fraud is vague and untenable. They submitted that the plaintiff No. l - Kausalya was in a habit of alienating the properties of the family in order to meet domestic needs. According to them, the plaintiffs were in need of finance due to variety of reasons, including the fact that deceased Gangaram Korde had died and there was no elder member in the family to manage the cultivation of the suit lands. They averred that the plaintiff No. l was in need of money to perform 13th day post death rites of her husband, in accordance with the tradition in the rural area, and also lateron needed money to perform marriage of plaintiff No. 3 - Asrabai.

They submitted that the alienations were effected on account of legal necessity and that the plaintiff No. l was acting as Manager of the family at the relevant time. They denied that the suit properties were owned by the minors. They further contended that the suit was barred by limitation. They denied truth into the allegation that the sale deeds are without consideration. They urged, therefore, to dismiss the suit.

1. The parties went to trial over issues framed below Exh.25 by the trial Court. The trial Court accepted all the material contentions of the plaintiffs and decreed the suit in toto. The first appellate Court partly confirmed the findings of the trial Court. However, the first appellate Court held that the defendants Nos. 2,3 and 5 would be entitled to receive the amount of price paid by them and that the sale deeds were not hallow.
2. Mr. Gaikwad, learned Counsel appearing for the original defendant No. 2 (appellant) pointed out that the plaintiffs sought declaration to the effect that the sale deeds are not binding on them, yet, the trial Court granted relief of cancellation of the sale deeds. He would submit that the particulars of fraud are not pleaded as required Under Order VI Rule 4 of the C.P.C. He would further submit that vague plea of fraud is accepted by the trial Court and the first appellate Court without any substratum. He further contended that the sale deeds executed by the plaintiff No. l for and on behalf of the minors are for valuable consideration and there was legal necessity for the sale.

He argued that the trial Court as well as the first appellate Court committed patent error while invalidating the sale deeds for the reason that necessary permission Under Section 8 of the Hindu Minority and Guardianship Act was not obtained. He argued that such permission was not required and the sale deeds could not be cancelled due to such a reason. He contended that the plaintiffs could not be permitted to file suit as indigent persons because other properties were available to them. He relied upon various authorities in support of his contentions. On the other hand, Mr. Kendre, learned Counsel appearing for the original plaintiffs, supported the impugned judgment.

1. The substantial questions of law involved in this appeal are as follows:

(i) Whether the first appellate Court is right in decreeing the suit for recovery of possession when simple declaration regarding immunity from the sale deeds was claimed without relief for cancellation of the sale deeds in question.?

(ii) Whether in the facts and circumstances of the present case, the suit is maintainable when the plaintiff No. l is executant of the sale deeds and herself challenged legality thereof on the ground that the transactions were invalid due to lack of sale permission Under Section 8 of the Hindu Minority and Guardianship Act, 1956.?

(iii) Whether in the facts and circumstances of the present case, the first appellate Court was right in holding that the sale deeds executed in favour of defendant Nos. 2 and 3 were out come of alleged fraud, in absence of particulars of the said plea, and without specific evidence in this behalf.?

1. There is no dispute about the fact that the suit properties were inherited by the plaintiffs after death of Gangaram Korde. He died somewhere in 1979-80. The pleadings of the plaintiffs are to the effect that the defendant No. 2 misrepresented the plaintiff No. l that she will be granted loan by a Cooperative Society and hence, took her to Parbhani. According to the plaintiffs, the defendant No. 2 got executed a sale deed in respect of two (2) acres land out of S. No. 45 from her without payment of consideration. Thereafter, the defendant Nos. 3 and 5 again made representation to her that they would assist her in recovering the above referred land.

They also obtained a sale deed from her in respect of land S. No. 37 as well the two annas share in mango trees situated in lands S. Nos. 17,37 and 45 without payment of any consideration. They averred that the defendants Nos. 2,3 and 5 took disadvantage of the illiteracy of the plaintiff No. l and got registered the sale deeds by deception. The pleadings contained in the plaint are too vague. The plaintiffs did not specifically plead the date of alleged misrepresentation. They did not plead as to how the plaintiff No. l was misled due to the misrepresentation of the contesting defendants. The pleadings do not show as to which cooperative society was to be approached for raising of the loan. The pleadings also do not show as to when the defendant Nos. 3 and 5 lateron assured the plaintiff No. l that they would get the land S. No. 45 restored to her from the defendant No. 2. The pleadings of the plaintiffs do not show the details of alleged fraud as required Under Order VI Rule 4 of the C.P.C.

1. The question of special pleadings as required Under Order VI Rule 4 of the C.P.C. is of vital importance. In Union Bank of India v. Avinash P. Bhonsle 1991 (2) Maharashtra Law Reporter 858, this Court held that it is necessary Under Order VI Rule 4 of the C.P.C. that in all cases in which the party pleading relies on any misrepresentation, fraud, breach of trust, wilful default, or undue influence, and in all other cases in which particulars may be necessary beyond such as are exemplified in the forms aforesaid, particulars with dates and items if necessary shall be stated in the pleading. The particulars of fraud are required to be stated in order to verify whether the evidence led by the concerned party is in keeping with such particulars.
2. In Bishnudeo Narain and Anr. v. Seogeni Rai and Ors. , the Apex Court has held that in case of alleged

fraud, party must set out full particulars. It is observed:

1. It is also to be observed that no proper particulars have been furnished. Now if there is one rule which is better established than any other, it is that in cases of fraud, undue influence & coercion, the parties pleading it must set forth full particulars and the case can only be decided on the particulars as laid. There can be no departure from them in evidence. General allegations are insufficient even to amount to an averment of fraud of which any Ct. ought to take notice, however strong the language in which they are couched may be, & the same applies to undue influence & coercion. See Order 6, Rule 4, C.P.C.

The plaintiffs pleaded that there was misrepresentation held out by the defendant No. 2 that the plaintiff No. l would be given loan by the Cooperative Society. What kind of loan she was in need of and which cooperative society was to grant the loan is not stated at all. Moreover, the period of such misrepresentation with details of date etc. are also not given in the pleadings. In Padma Bewa v. Krupasindhu Biswal and Ors. , it is held that where particulars of fraud and misrepresentations are not set out in the plaint and no evidence is furnished to substantiate such allegations, the suit can not be decreed.

1. In the present case, the plaintiffs have made only general allegations. They alleged that the plaintiff No. l was taken to Parbhani under misrepresentation that loan would be obtained from the society and then the sale deed was got executed without payment of consideration. Another vague allegation is that the defendants took disadvantage of the illiteracy of the plaintiff No. l. Mere allegation that the plaintiff No. l is illiterate and such a situation was used to her disadvantage will be of no avail to substantiate the plea of fraud. Even after liberal construction of the pleadings, I am of the opinion that the plea of alleged misrepresentation made by the defendants Nos. 2,3 and 5 and the so-called "fraud" played by them are vaguely pleaded facts without particulars as contemplated Under Order VI Rule 4 of the C.P.C. If such a vague plea is allowed to be considered then it would be difficult to expect appropriate reply to such pleadings. It will also give freedom to the concerned party to adduce any kind of vague evidence without particulars about alleged fraud. The purport of Civil Procedure is to streamline and discipline the course of trial. A party cannot be taken by surprise during the trial. In this view of the matter, the plaintiffs could not be allowed to lead evidence on the basis of such vague plea of fraud.
2. Be that may as it is, I shall now proceed to see whether the plaintiffs' evidence is sufficient to establish the plea of fraud. The plaintiff No. l Kausalya @ Kausabai entered the witness box as P.W.1 and also got examined P.W.2 Anandrao as a witness. It is pertinent to note that P.W. Anandrao is maternal cousin of the plaintiff No. l (P.W.Kausabai). Her cross-examination reveals that P.W. Anandrao used to attend the Court with her during the trial. He is attesting witness of the sale deed (Exh.50) executed by P.W. Kausalya in favour of defendant No. 2 - Kisan in respect of the land S. No. 45/2. Thus, P.W. Kausalya was accompanied by her close relative, namely, P.W. Anandarao when she executed the sale deed in question. In his presence it was difficult for defendant No. 2 Kisan to impressively make any misrepresentation so as to obtain fraudulent sale deed (Exh.50) from her.
3. The version of P.W. Kausalyabai purports to show that her husband died somewhere in 1979 and, thereafter, she had no support of anyone. She states that she was to get loan of Rs. 380/- from a society but then defendants Pundlik, Kisan and Motiram told her that if she would go to Parbhani then more loan amount to the extent of Rs. 1,500/- could be obtained by her. She further deposed that such misrepresentation was made by them after about 3 years of the death of her husband. They took her to Parbhani at house of one person and got executed a document from her. That is her story. At this juncture, it may be noticed that this part of her version is at variance with the pleadings. In the pleadings, it is stated that only the defendant No. 2 Kisan misrepresented her regarding availability of loan from a society at Parbhani and obtained the sale deed. Nowhere she pleaded that the defendant Nos. 3 and 4 had joined the defendant No. 2 in making such representation at that time. The tenor of the pleadings would show that subsequently defendant No. 3 Rama and defendant No. 5 Maroti gave assurance to her that they would incur necessary expenditure for the purpose of facilitating the recovery of the alienated land.

It is on the pretext of such assurance that they also got executed sale deeds from the plaintiff No. 1 in respect of the land S. No. 37 and the share in the mango trees situated in the three lands. The oral evidence of P.W. Kausabai is to the effect that she was not paid any consideration and was told that after returning to the village loan will be given to her by the society within 15 days. She deposed that the document was not read over to her. Nowhere she explained anything about the circumstances in which she executed the other two sale deeds in favour of defendant Nos. 3 and 5. She further deposed that defendant No. 3 Rama, under pretext of taking possession back from defendant No. 2 Kisan, got executed the sale deed from her in respect of 1 acre 30 gunthas portion of survey No. 37.

1. The evidence of P.W. Kausabai @ Kausalyabai would make it manifest that the sale deeds in question were executed by her and the purported purchasers took possession of the properties in question. The details of so called false promises, attending circumstances, which made the plaintiff No. 1-P.W. Kausabai to believe the misrepresentation and her immediate conducts are significant facts, which are not properly pleaded and proved. Her mere assertion that she was deceived is insufficient to prove the alleged fraud. The trial court appears to have given much weightage to the version of P.W.2 Anandrao. He is attesting witness of the sale deed (Exh.51). He is closely related to P.W. Kausabai. His version too is vague insofar as element of deception is concerned. The trial court and the appellate court gave much importance to the fact that P.W. Kausabai was taken to Parbhani for the purpose of execution of sale deeds. That cannot be a reason to disbelieve due execution of the sale deeds in question. The version of P.W. Kausabai would show that plaintiff No. 2 Sarangdhar was aged about five years and plaintiff No. 3 Asrabai was aged about two years when her husband died. She admits that except agricultural income, there was no other source of income available to the family. She denied execution of Isar Chitthi dated 9.8.1980. She admits, unequivocally, that she knows the Registrar's office at Hingoli. She further admits that she was made to sit at the door of Sub Registrar's Office. She did not lodge any complaint regarding alleged misrepresentation and fraud. She admitted that about 2/3 years prior i.e. somewhere in 1989-90 the marriage of plaintiff No. 3 Asrabai was performed.

Her evidence purports to show that her thumb impressions were obtained outside the office of Registrar. However, P.W. Anandrao expressed ignorance about execution of the documents of sale (Exh.51) in Sub Registrar's Office. He deposed that they were taken to the place like a house and were made to sit outside. It is difficult to believe that both of them are so naive to just misunderstand the office of Sub Registrar as a private house and did not make any enquiry as to whether it was office of the Co-operative Society or not. The interested versions of both these witnesses ought not to have accepted by the trial court and the first appellate court. Their vague and elastic versions are totally inadequate to make out any case of fraud.

1. Mere sweeping allegations regarding the fraud are of no avail to the plaintiffs. The fraud is an intentional perversion of truth for the purpose of inducing another person to rely upon it in order to part with some valuable thing. It is false representation of matter of fact, whether by words or by conduct, which would mislead the person, who is subjected to parting with some valuable property. In S.P. Chengalvaraya Naidu (dead) by L.Rs. v. Jagannath (dead) by L.Rs. , the Apex Court has held that fraud is an act of deliberate deception with the design of securing something by taking unfair advantage of another. It is a deception in order to gain by another's loss or in other words cheating intended to get advantage. The proof regarding alleged fraud must be of such degree that a prudent man could believe it. In Shri Krishan v. The Kurukshetra University, Kuruksheta , the Apex Court observed:

It is well settled that where the person on whom fraud is committed is in a position to discover the truth by due diligence, fraud is not proved.

1. In A.L.N. Narayanana Chettyar and Anr. v. Official Assignee, High Court, Rangoon and Anr. A.I.R. 1941 Pivy Council 93 It is held that fraud must be established beyond reasonable doubt. It is held by the Privy council that fraud cannot be inferred and cannot be based on suspicion and conjecture.
2. The plaintiffs' evidence, in relation to so called misrepresentation and deception, is of generalized allegations and statements. The mere fact that P.W. Kausabai is a widow and illiterate person, cannot give rise to inference of her being gullible to deception. She admits that previously she was wife of the Police Patil of village Kesapur. She further admits that she remarried Gangaram after death of her previous husband. She also admits that after death of Gangaram, the suit lands had remained fallow. It does not stand to reason that when she was accompanied by P.W. Anandrao, her close relative and attesting witness of the sale deed (Exh.51), both of them, together, were subjected to misrepresentation and fraud. They vaguely stated that no consideration amount was paid at the time of execution of the sale deed (Exh.51).
3. The payment of consideration is to be presumed when the document is registered and reveals endorsement regarding payment of consideration. The registration of the document gives rise to presumption under Section 58(1)(c) of the Registration Act regarding payment of consideration. No doubt, such presumption is rebuttable. Still, however, there must be convincing evidence to rebut such presumption. In Shivdas Loknathsing v. Gayabai Shankar Surwase 1993 Mh.L.J. 1623, Division Bench of this Court held that there is presumption of the entry made under Section 58(1)(c) of the Registration Act because of the provisions of Section 16(2) of the Indian Registration Act. It is further observed that bare denial of receipt of any consideration by the plaintiffs contrary to the statutory presumption would be of no avail nor can be regarded as sufficient to rebut statutory presumption.
4. D.W.5 Moreshwar, who was Sub Registrar and got registered the document in question, corroborated the contention of the defendants that on 16.8.1988 the plaintiff No. 1-P.W. Kausabai executed the sale deed after obtaining amount of Rs. 2000/- from the defendant No. 2. He is an independent witness. Nothing of significance could be gathered from his cross examination. He states that the sale deed was executed in the name of defendant No. 2 but the payment was made by defendant No. 1 Kundlik. He admitted that permission was required for sale in respect of the property of minors. The trial court as well as the first appellate court held that sale deeds (Exh.51, 52 and 92) were vitiated as they were not executed after due permission of the District Court under Section 8(2) of the Hindu Guardian and Wards Act. The trial court held that the three sale deeds were illegal and would not bind rights of the plaintiffs. The trial court declared that the sale deeds are null and void.
5. Now, it is significant to note that sale transactions were not challenged by the minors after attaining majority. It appears that age of plaintiff No. 2 Sarangdhar was wrongly shown as 20 years while filing of the suit. As stated earlier, version of P.W. Kausabai reveals that plaintiff No. 2 Sarangdhar was aged about 5 years when her husband died. He died somewhere in 1979-80. The suit was filed in 1990. Age of plaintiff No. 2 Sarangdhar could be approximately 15/16 years at that time. The plaintiff No. 3 Asrabai was admittedly minor at the relevant time when the suit was filed. The trial court as well the first appellate court committed patent error while assuming that the suit properties were properties of the minor plaintiff Nos. 2 and 3. That is not the fact situation. The properties in question were jointly owned by the plaintiffs as members of Hindu undivided family inasmuch as they inherited the same from deceased Gangaram Korde.

The sale permission under Section 8(2) of the Hindu Guardianship and Wards Act is required only when next friend or guardian of minor seeks to alienate the separate property of such a minor. The plaintiff No. 1 Kausabai @ Kausalyabai is mother of the plaintiff Nos. 2 and 3 and alienated the suit properties under the above referred three sale deeds. She cannot impeach the alienation for and on behalf of the minors, independent of the plea of fraud. In Indernath Modi Inder v. Nandrao and Ors. , a Division Bench held that the mortgaged transaction entered into by the Karta of joint Hindu family, can be challenged on the ground that it was either not meant for legal necessity or in lieu of antecedent deeds only by other than the alienating coparcener and that executant of the mortgage deed could not challenge the alienation on such ground. This view is based on the principle that the grantor cannot derogate from his grant. Needless to say, the plaintiff No. 1 Kausabai is incompetent to challenge the sale deeds executed by her, for and on behalf of plaintiff Nos. 2 and 3, on any other plea except that of alleged fraud, misrepresentation and deception. Once it is found that the plea of fraud is imaginary and without substance then it follows that the plaintiffs will be non suited.

1. The defendants adduced evidence of D.W.1 Kundlik. He deposed that the plaintiff No. 1 incurred heavy expenditure to perform 13th day of post death rites after demise of her husband. He deposed that the plaintiff No. 1 agreed to sale the land survey No. 45/5, admeasuring 6 acres 10 gunthas in his favour. His version purports to show that lateron she sold only 2 hectares of land in favour of the defendant Nos. 2 Kisan. He relied upon an Isar Chitthi, but the trial court did not admit it in the evidence because the same is not eligible. The version of D.W. Kundlik purports to show that he and plaintiff No. 1 Kausalyabai had gone to Parbhani in order to consult advocate Shri. Manwatkar regarding requirement of sale permission.

However, advocate Manwatkar opined that there was no impediment in the execution of sale deeds. It is the version of D.W. Kundlik that he paid consideration of Rs. 2000/-, which was balance amount to be paid to the plaintiff No. 1 Kausabai @ Kausalyabai, and got registered the sale deed. As stated before, D.W. Moreshwar has supported the fact that such payment was made in his presence while he was working as Sub Registrar at Parbhani. The evidence on record would show that the sale deeds were executed after the payment of consideration to plaintiff No. 1 Kausabai @ Kausalyabai.

1. There is evidence of D.W.2 Kisan, D.W.3 Motiram and that of D.W.4 Laxman in support of the transactions entered into by the plaintiff No. 1 with the defendants. The testimony of D.W. Rama (defendant No. 3) would show that he purchased the land survey No. 37/2 from plaintiff No. 1 Kausabai @ Kausalyabai under the registered sale deed for consideration of Rs. 7000/-. His version purports to show that he had paid an amount of Rs. 6000/- to the plaintiff No. 1 prior to the execution of sale deed and had paid amount of Rs. 1000/-at the time of registration of the sale deed. Similarly D.W. Maroti corroborated the sale deed (Exh.92) regarding sale of two anas share in the mango trees situated in the agricultural lands. All these sale deeds are duly proved by the defendants.
2. Indeed, the first appellate court seems to have misdirected itself. There appears confusion in the mind of the learned Additional District Judge while dealing with the points raised by him. The first three points raised by the first appellate court are thus:
3. Whether plaintiff proved in lower court defendant Nos. 1 and 2 got executed sale deed from her on 16th June, 1980 by misrepresentation, fraud and without consideration?
4. Whether sale deed dated 16th June, 1980 executed by plaintiffs in favour of defendant Nos. 2 is legal, valid?
5. Whether plaintiff proved in lower court defendant No. 5 got executed sale deed dated 11.5.1982 from the plaintiffs by misrepresentation fraud?
6. The first appellate court gave affirmative findings on the point No. 1 and negative finding on the point Nos. 2 and 3. The reasoning of the first appellate court while recording findings on the point No. 3 is thus:

The evidence on record goes to show that at the relevant time the plaintiff No. 1 was in penniless condition. She was in need of money to maintain her and her kids. She received Rs. 500/ towards sale deed (Exh.92) executed in favour of defendant No. 5 Maroti. Circumstances on the record show that plaintiffs were benefitted by some consideration by these transactions. The plaintiffs got benefit and they are required to restore that benefit to defendant No. 5. So in my view, the defendant No. 5 is entitled to get recovery of Rs. 500/- from plaintiffs.

1. The first appellate court partly accepted the case of plaintiffs in respect of the sale deeds, which were executed in favour of defendant Nos. 2 and 3. Whereas the plaintiffs' case is rejected as regards the sale deed executed in favour of defendant No. 5 vide Exh.92. In spite of findings that the sale deed executed in favour of defendant No. 2 Kisan is outcome of fraud, yet the first appellate court directed the plaintiffs to repay the amount of Rs. 2000/-to the defendant No. 1. There is inconsistency in the evidence of defendants regarding the initial transaction entered into between the plaintiff No. 1 and the defendant No. 1. As a matter of fact, before adverting to the evidence of defendants the first appellate Court ought to have seen whether there is any tangible reason to confirm the finding of alleged misrepresentation and fraud in respect of the sale deeds executed in favour of the defendant Nos. 2 and 3. The first appellate court did not consider these aspects and thereby rendered perverse findings on the relevant issues. Needless to say, the findings of the first appellate Court are unsustainable.
2. It appears that the trial court as well as the first appellate court invalidated the sale deeds on the ground that permission under Section 8 of the Hindu Minority and Guardian Act, 1956 was not obtained prior to the sale transactions. It need not be reiterated that the plaintiffs were unable to cultivate the entire land. The first appellate court came to the conclusion that the plaintiffs had no money to meet out domestic expenditure. The evidence of P.W. Kausabai reveals that the lands were lying fallow. There was pressure on the properties of the plaintiffs. The plaintiff No. 1 - Kausabai required money for maintenance and education of minors. In Narayan Laxman Gilankar v. Udaykumar Kashinath Kaushik , this Court held that the interest of minor in the joint family property is kept outside the reach of the provision of Sections 6 and 12 of Hindu Minority and Guardianship Act, leaving it to the natural guardian to deal with it in accordance with customary Hindu Law. The undisputed fact situation in the given case was that the property was the joint family property owned by widow mother and her two children. The mother was the natural guardian. The property was not divided by metes and bounds and minors had only undivided and unspecified shares in the same. This Court observed:

Section 8 with which this matter is concerned will have to be viewed and interpreted keeping these basic features of the Act in view. Section 8 speaks of power of natural guardian in relation to "immovable property of minor" which would mean minor's definite property and not his fluctuating indefinite interest in the joint family property. Language employed in Section 8 seems to be in pari materia with Section 29 of the Guardians and Wards Act and hence both will have to be viewed and construed similarly. Thus, it appears that intention of Section 8 is not to fetter the customary power of natural guardian in the matter of dealing with joint family property including minor's undivided share.

1. In Sunamani Dei v. Babaji Das and Ors. , it is held that natural guardian can alienate even the minors' share under the personal law. The mother as a guardian can alienate undivided share of minor and permission under Section 8 of the Hindu Minority and Guardianship Act is not the requirement of law. In Sri. Narayan Bal and Ors. v. Sri Sridhar Sutar and Ors. 1996 (1) Supreme 638, the Apex Court held that the natural guardian of minor has power to alienate undivided interest of the minor in the joint Hindu family property and the provisions of Section 8 of the Hindu Minority and Guardianship Act, 1956 are not applicable to such transaction in view of the express terms of Sections 6 and 12 of the said Act. So also, in "Re Krishnakant Maganlal" (), it is held that Section 8 of Hindu Minority and Guardianship Act, does not affect the power of manager or karta to alienate the undivided share of the minor. It is held that application under Section 8 for permission to alienate undivided share of the minor by the manager of guardian of the minor is not maintainable. The Karnataka High Court in Gangoji Rao and Anr. v. H.K. Channappa and Ors. , held that the mother is not a de facto guardian in the sense used in Section 11 of the Hindu Minority and Guardianship Act and can alienate the property for family necessity or in the interest of the family. It is held that in absence of the father, the mother can act as manager of the joint family property, including the interest of the minors in such property, and is therefore, empowered to alienate the property for family necessity.
2. As against this, learned advocate Mr. Kendre seeks to rely on Smt. Kamala Kumari Bohara v. Harekrishna Ghadei and Ors. . The Single Bench of Orissa High Court took the view that the widow mother has no powers available like that of karta. It is held that the sale deed in respect of share of minor would be voidable in absence of permission from court as envisaged in Section 8(2). I find it difficult to persuade myself by the view taken by the learned Single Bench of Orissa High Court. For, there is contrary judgment of this Court and there is also declaration of law by the Apex Court in this behalf, which runs contrary to the above view. Mr. Kendre further sought to rely on Amar Krishna Mukherjee v. Sm. Asha Rani Ghosh and Ors. . In the given case there was finding of fact that the sale deed relating to house property was executed by the owner under the belief that he was executing the mortgage deed. It was for such reason that the document was held as bad and liable to be cancelled. The facts obtained in the present case are quite different and hence, the case law cited by Mr. Kendre is of no avail to the case of plaintiffs. He also relied on Amirtham Kadumbah v. Sarnam Kudumban AIR 1991 SC 1256. The Apex Court held that when the property of the minor was sold by his father, as his natural guardian, to a person without the permission of the Court as required by Section 8 of Hindu Minority and Guardianship Act, and that the sale was not for legal necessity, the minor can file the suit to set aside the sale within three years after attaining the majority. With due respect, this authority also is of no assistance to the plaintiffs' herein.

The permission under Section 8 is necessary only when the property is separate property of the minor. In such a case the minor can challenge the sale transaction within three years of attaining majority. In the present case, as on the date of the suit, the plaintiff Nos. 2 and 3 were minors and the property was not separate/individual property of either of them. As stated earlier, the plaintiff No. 1 herself being alienator, could not have impeached the transaction on any other ground except that of fraud, coercion or undue influence, if any, and that too after giving all particulars in the plaint and furnishing necessary degree of proof in support of such plea.

1. Mr. Kendre, learned Counsel appearing for plaintiffs further contended that finding facts recorded by two courts below should not be interfered with by this Court. He seeks to rely on Kondiba Dagadu Kadam v. Savitribai Sopan Gujar and Ors. . The Apex Court

held, in the given case, that the second appeal cannot be decided merely on equitable ground. It is further held that concurrent findings of facts, howsoever, erroneous cannot be disturbed by the High Court in exercise of powers under Section 100 of Civil Procedure Code. However, further rider to the observation is that the substantial question of law has to be distinguished from substantial question of fact. Similarly, Mr. Kendre seeks to rely on Ramaswamy Kalingaryar v. Mathayan Padanachi . The Apex Court held that the

findings in favour of certain party as to his being in sole possession of land is a finding of fact and cannot be questioned in second appeal. I am of the opinion that the reliance placed by Mr. Kendre on these authorities is quite misplaced. For, in the present fact situation, the first appellate court as well as the trial court committed patent error while holding that the alienations are illegal and invalid in view of non compliance of Section 8(2) of the Hindu Minority and Guardianship Act, 1956. Moreover, inspite of vague plea of fraud and poor quality of evidence in this behalf, it was held that fraud was played on the plaintiff No. 1 at the time of execution of sale deeds in favour of the defendant Nos. 2 and 3. The perverse findings of facts cannot be stamped by this Court as correct one only because they are concurrent findings. The jurisdiction of the High Court is not ousted under Section 100 of Civil Procedure Code only because there are concurrent findings of facts, though, they are found to be patently erroneous and perverse. In this view of the matter, the argument of learned advocate Mr. Kendre is unacceptable and hence rejected.

1. The plaintiffs have not claimed relief of cancellation of the sale deeds. They only claimed declaration that the sale deeds are not binding on them. The claim for immunity is distinct from claim for cancellation of the sale deeds or for setting aside of the sale deeds. The suit for possession without a specific claim for setting aside the sale deeds is not maintainable. In Nagappan v. Ammasai Gounder and Ors. (2004) 13 Supreme Court Cases 480, the Apex Court held that sale effected without taking permission of the Court Under Section 8(2) of the Hindu Minority and Guardianship Act, 1956 is voidable at the instance of the minor plaintiffs and the plaintiffs are required to get the alienation set aside if they want to avoid the transfer and recover property from purchasers. It is held that if a prayer for setting aside the alienation is not made, then the suit seeking possession would not be maintainable. In this view of the matter, the suit filed on behalf of the minor plaintiff Nos. 2 and 3 was not maintainable and should have been dismissed by the first appellate Court. The impugned judgment and decree is therefore, not maintainable.
2. It appears that during pendency of the appeal the plaintiff No. 3 Asrabai is married. On account of subsequent development, she is not entitled to claim any share in the joint family properties. She is not coparcener or co-sharer, The plaintiff No. 2 has not independently challenged the alienation for want of legal necessity. The first appellate court rendered findings of fact that there was legal necessity in existence at the material time, when the alienations were made. Consequently, the alienations could not be invalidated by the trial court as well as the first appellant court for reasons recorded by them. Under these circumstances, the suit must fail. However, having regard to the facts and circumstances of the present case, I deem it proper to leave the parties to bear their own costs throughout.
3. In the result, the appeal is allowed. The impugned judgments are set aside. The Suit (R.C.S. No. 40 of 1990) stands dismissed. The parties shall bear their own costs throughout.

 BOMBAY HIGH COURT-NARAYAN LAXMAN GILANKAR VS UDAYKUMAR KASHINATH KAUSHIK AND ... ON 30 SEPTEMBER, 1993

 Cites 6 docs -

The Guardians And Wards Act, 1890, Section 8 in The Guardians And Wards Act, 1890

Bishan Singh & Others vs Khazan Singh & Another on 20 May, 1958, Section 6 in The Guardians And Wards Act, 1890. Section 5 in The Guardians And Wards Act, 1890

Citedby 1 docs- Kisan S/O Ramji Khandare vs Kausalyabai W/O Gangaram And Ors. on 12 March, 2007

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Equivalent citations: AIR 1994 Bom 152, 1994 (2) BomCR 161, (1994) 96 BOMLR 470

Bench: V Mohta

JUDGMENT

1. (i) Does Section 8 of the Hindu Minority and Guardianship Act, 1956 (the Act) apply to the disposal of minor's undivided interest in the joint family property by a natural guardian? (ii) Has a minor, during his minority, right to challenge the transaction as being in violation of S. 8? These two questions of law -- and no other points -- are pressed for consideration in this second appeal.
2. First the short undisputed relevant factual background -- House No. 22 situated at Malegaon, District Nasik, belonged to deceased Kashinath Kaushik. He died on 4th April, 1951 leaving behind widow Rukminibai (original defendant No. 2) and minor sons Uday kumar (original plaintiff No. 1) and Babulal (original plaintiff No. 2). Half northern portion was sold in a Court auction dated 11th November, 1952 in execution of a decree passed against deceased Kashinath. Remaining half southern portion was sold on 4th October, 1962 by Rukminibai on her bahalf as well as on behalf of minor sons as natural guardian to Narayan Laxman Gilankar, (original defendant No. 1). In the year 1968, Udaykumar who had by then become major filed a suit for himself and as next friend of minor brother Babulal, against the purchaser Narayan and mother Rukminibai for a declaration that the transaction of sale dated 4th October, 1962 was void and for partition and separate possession of 2/3rd share. Initially challenge was on several grounds including want of legal necessity but as the litigation progressed, several points were steadily given up and ultimately the challenge is confined to point No. (i) in the opening part of the judgment.

The trial Court granted a decree for declaration partition and possession of 2/3rd share in the property sold on 4th October, 1962 with a direction to the plaintiffs to pay the proportionate amount of consideration to defendant No. 1 with interest. The judgment and decree passed by the trial Court was challenged by the plaintiffs as well as defendant No. 1. Defendant No. 2 had remained ex parte. The plaintiffs' contention was that there was no justification for ordering the plaintiffs to repay the amount. Defendant No. 1 contended that no decree could be passed since the suit itself was not maintainable. The Appellate Court allowed the appeal filed by the plaintiffs and dismissed the cross- filed by defendant No. 1.

1. Now, the following positions are undisputed : (i) property was a joint family property owned by the widow mother and her two minor sons, (ii) mother was (he natural guardian, and (iii) property was not divided by metes and bounds and the minors had only undivided unspecified share in the same.
2. As the preamble suggests, the Act is passed to amend and codify only certain parts of law relating to minority and guardianship among Hindus. It does not purport to cover the whole range of subject of guardianship. Section 2 makes it abundantly clear that the provisions of the Act are in addition to and not in derogation of the Guardians and Wards Act, 1890. Section 5 gives overriding effect to the provisions on the matters dealt with in it and repeals all existing law --customary or statutory on those topics. Section 6 deals with natural guardians of a Hindu minor in respect of his person as well as minor's property. His or her undivided interest in joint family property is, however, specifically excluded from that section. Section 12 clearly lays down that guardian is not to be appointed for minor's undivided interest in joint family property, where the property is under the management of an adult member of the family.

The interest of the minor in the joint family property is thus kept outside the reach of these provisions, leaving it to the natural guardian to deal with it in accordance with customary Hindu Law. Section 8 with which this matter is concerned will have to be viewed and interpreted keeping these basic features of the Act in view. Section 8 speaks of power of natural guardian in relation to immovable property of minor" which would mean minor's definite property and not his fluctuating indefinite interest in the joint family property. Language employed in S. 8 seems to be in pari materia with S. 29 of the Guardians and Wards Act and hence both will have to be viewed and construed similarly. Thus, it appears that intention of S. 8 is not to fetter the customary power of natural guardian in the matter of dealing with joint family property including minor's undivided share.

1. It is true that S. 8, unlike S. 6, does not expressly exclude the undivided interest in the joint family property, but that feature by itself does not affect the issue, in case the statute as a whole is kept in view. Essence of coparcener property under Mitakshar is the unity of ownership in the whole body of coparcenary and notion is well known that no individual family member can predicate any definite share in the said property. Interest is ever fluctuating depending upon exit and entry in the family by natural process or otherwise. It is only upon a partition that a definite share can be culled out. Restriction imposed by S. 8 by their very nature and scheme cannot apply in practical life to a fluctuating interest of a minor. There is thus intrinsic evidence in the provision itself to show that such undivided interest is untouched.
2. Our attention is invited to two decisions -- (i) Girdhar Singh v. Anand Singh, and (ii) Sunamani Dei v. Babaji Das, , wherein it is held that S. 8 does not govern undivided interest of the minor in the joint family property. I respectfully agree with those decisions.
3. For consideration of question No. 2, sub-sees. (2) and (3) of S. 8 are relevant. Sale transaction without permission of the Court is not void ab initio, but is voidable at the option of the minor or any person claiming under him. Scheme contemplates challenge only after the minor attains majority and not during his minority. After all natural guardian has dealt with the property and under S. 11 of the Act de facto guardian's right to dispose of or deal with the property of a Hindu minor is taken away and the transaction by him is treated to be void ab initio. Any action or result there from during minority can on certain grounds be again challenged by a minor on attaining majority and persons bona fide entering into transaction cannot be subjected to endless litigation. Many times transactions are challenged with the blessings and inspiration of the natural guardian with a view to derive advantage arising out of several situations including fluctuations in the market price. Hence, I hold that transaction would not have been challenged on behalf of minor Babulal.
4. Both the Courts below have only concentrated on the issue that Rukminibai as a female could not act as manager of the Hindu family and have not considered the two questions pressed before me. Both these questions are pure questions of law and can be entertained in second appeal.
5. In the result, the second appeal is allowed. The judgment and decree passed by both the Courts below are quashed and set aside and in its place decree for dismissal of the suit with costs is passed.

No order as to costs.

1. Appeal allowed.

 ALLAHABAD HIGH COURT- IN CASE OF JAI NAND (D.) THROUGH L.RS. AND ... VS SURYA DEV ON 6 DECEMBER, 2005

Equivalent citations: 2006 (2) AWC 1207

Cites 22 docs -

The Limitation Act, 1963

The Specific Relief Act, 1963

Shripad Gajanan Suthankar vs Dattaram Kashinath Suthankar And ... on 1 March, 1974

Article 44 in The Constitution Of India 1949

Section 6 in The Specific Relief Act, 1963

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Bench: S Ambwani

JUDGMENT- Sunil Ambwani, J.

1. This second appeal arises out of judgment and decree dated 16.2.1978 by which the 1st Additional Civil Judge, Meerut, dismissed Civil Appeal No. 265 of 1974 against the judgment and decree dated 30.9.1974 passed by Munsif Havali, Meerut in Original Suit No. 548 of 1962 decreeing the Suit for possession, future damages at the rate of Rs. 50 per month and Rs. 20 per month as damages from 1.11.1962 to 12.11.1962 with costs and to recover the damages after payment of court fees and execution. The issue of limitation was decided as issue No. 6 vide order dated 7.12.1970.
2. This Court did not frame any substantial question of law at the time of admission of this Second Appeal on 27.2.1978. Learned Counsel for the appellant has filed an amendment application dated 14.1.2005, for adding 11 grounds as substantial question of law to be decided in this second appeal. Sri R. S. Misra, learned Counsel for the respondents has objected to the amendment at this stage. The application was allowed. However, only following grounds are found to be substantial questions of law arising from the pleadings and evidence of the case to be considered and decided in this second appeal;
3. Whether the fiction in law for adoption for tenant's father, who had died before adoption would come to the benefit of the adopted son for challenging the sale deed which was executed by his mother before he was adopted.
4. Whether in absence of claiming relief for cancellation of sale deed and the consequential refund of sale amount under Sections 31 and 33 of the Specific Reliefs Act. The registered sale deed could be declared to be void on the ground that there was no legal necessity to execute the sale deed of the property which belonged to minor through adoption deed executed subsequently to the sale deed.
5. Whether sale deed dated 22.11.1943 was executed by Smt. Hardevi, widow of Ch. Raghubir Singh for legal necessity to discharge the antecedent debt by registered mortgage deed of 1928 executed by Ch. Raghubir Singh, her husband for payment of Rs. 500 as land revenue.
6. Heard Sri Sankatha Rai, learned Counsel for the appellants and Sri R. S. Misra learned Counsel for respondent.
7. Sri Surya Dev, the plaintiff respondent filed Original Suit No. 548 of 1962 for possession over the 'haveli' shown at the foot of the plaint, and for recovery of damages with the allegations that late Ch. Raghubir Singh and his wife Smt. Hardevi had no issue. Ch. Raghubir Singh wanted to adopt the first son of his sister's son Ch. Krishna Swarup, who lived with Ch. Raghubir Singh and got education there. Ch. Raghubir Singh fell ill before any child was born to Ch. Krishna Swarup. His condition suddenly became serious. He was not in a position to leave a Will or a written order. He called his wife Smt. Hardevi, in the presence of family members and asked her to adopt the first son of Ch. Krishna Swarup after his death. He died in 1937 leaving all his movable and immovable properties to his wife. Her name was mutated in the revenue records against the lands of Ch. Raghubir Singh. She was an old and pardanashin lady. Smt. Brahma Devi wife of Shyam Singh, devrani of Smt. Hardevi with the help of his brother Mool Chand used to look after the properties. They wanted to grab her properties and thus got their names mutated with the name of Smt. Hardevi on 46 blghas, 16 biswas land left by Ch. Raghubir Singh, and thereafter Smt. Brahma Devi as Manager and Karkun executed a patta of 15 bighas land in favour of defendants. Smt. Brahma Devi thereafter got sale deed executed on 22.11.1943 for Rs. 2,100 from Smt. Hardevi in the name of Chander Bhan. Smt. Khubia, Jeeraj and Tareef Singh purportedly showing that they needed money for taking care of mortgage of Rs. 500 as land revenue whereas she had no such need as her husband had left 100 bighas of land, cattle and other movable properties and iron boxes and ornaments with annual income of not less of Rs. 8,000. The cost of disputed house was not less than Rs. 4,500 and that it was sold without any legal necessity.
8. A son was born to Ch. Krishna Swarup on 1.12.1941. Smt. Hardevi, honoured desire of her late husband, and adopted the child Surya Dev, the plaintiff on 11.6.1944 in accordance with to Hindu rites.
9. After the death of Smt. Hardevi, the plaintiff respondent got possession of all her properties and filed the suit on 13.11.1962 at the age of 20 years and 11 months for possession of the land sold by sale deed dated 22.11.1943, allegedly without any legal necessity.
10. The defendant-appellants contested the suit on the ground that the plaintiff is neither the adopted son nor is entitled to file the suit. The relationship between Ch. Raghubir Singh and wife Hardevi were strained. At the time of his death she was at her father's house in village Mubarikpur, district Muzaffarnagar and was not present at the time of death. The financial position of Ch. Raghubir Singh was not so rich and thus she always remained indebted. Several warrants were issued to recover the debts from her properties which was auctioned time to time. The disputed house was mortgaged for Rs. 1,600 to Shri Sampat Ram through registered mortgage deed dated 15.11.1928, which he could not pay and was also in need of money of Rs. 500 for paying land revenue and thus she executed the sale deed for legal necessity. The plaintiff was born on 24.6.1940. The sale deed was executed on 22.11.1943 and thus the suit filed on 13.11.1962 was barred by time, as it could be filed within 12 years of the sale deed, i.e., dated 22.11.1955. In case the sale deed was forged, Smt. Hardevi could have challenged it in her life time. The property was correctly valued and that the defendants have invested Rs. 10,000 with bona fide intention for improvement of haveli and are entitled to the amount under Section 51 of the Transfer of Property Act.
11. The trial court framed the question of limitations as preliminary issue and decided this issue No. 6 in favour of the plaintiff. The High Court allowed Revision No. 356 of 1977 and remanded the case for hearing on the issue. The trial court discussed the oral evidence and the extract of birth register (Exh. A-13) showing the birth of Krishna Tagga on 24.6.1940 and found that it does not relate to the plaintiff. The evidence of D.W. 1 Jai Nand is full of lies as he could not give the date of birth of any of his family members, and did not give the name of the members with the name of Krishna in the village. He could not even give the date when he was sent to jail in criminal case in which he was convicted. The trial court believed upon the evidence of plaintiffs natural father Ch. Krishna Swarup and the High School certificate of the plaintiff. The trial court found that the date of birth of the plaintiff is 1.1.1941 and that the suit was filed within three years of attaining majority and was thus within the period of limitation, as prescribed by the Limitation Act.
12. The trial court in its judgment dated 30.9.1974, held that the plaintiff born on 1.12.1941 was validly adopted by Smt. Hardevi and her husband Ch. Raghubir Singh on 11.6.1944 after performing all the religious ceremonies to which all the biradari people were invited. The invitation cards and photographs of the ceremony were proved. The adoption deed written and executed by Smt. Hardevi on 23.6.1944, was also registered and thus the adoption was established. Relying upon Sriniwas v. Narayan AIR 1954 SC 380 and F. Hanumantha v. Nagappa , it was found that adoption relates back to the date of death of the adoptive father to the asset of the adoptive father. It further held relying upon Sripad v. Dutta Ram , that the dispositions made by the widow exceeding her limited powers of alienations could be challenged. On issue No. 7 the trial court held that the house was in tenancy of District Board School and was mortgaged to Lala Sampat Rai for Rs. 1,600 with right to the mortgagee to realise rent from the property for a period of five years. Smt. Hardevi was not required to pay any interest on the mortgaged amount and that she could redeem the usufractuary mortgage within the limitation of 65 years.

There was no pressure on the assets from the mortgagee nor there was any damage to be averted. If the property was sold to make the payment of the Government land revenue it could be said to be legal necessity. But in this case Smt. Hardevi who had 85 bighas, 1 biswa land in Mahal Rai Singh out of which she had let out 38 bighas 6 biswas and 14 biswansi to the kastkar and was recovering Rs. 580 and 6 anns as land revenue, out of which she could have easily paid the amount of Rs. 753 towards land revenue. Similarly she was recovering land revenue from Mahal Khusal Singh and had enough money to be paid to the Government. There was no pressing need for alienating the disputed properties and thus the alienation for only Rs. 500 was not justified. Further there was no material to indicate that the land revenue was due on the date of execution of the sale deed. The trial court held that the land was sold without any legal necessity.

1. Issue No. 8 with regard to the sale deed and fraud practised on Smt. Hardevi for getting the sale executed was returned against the plaintiff as there was no evidence for fraud and her lawyer Pritam Singh was present with her at the time of the execution of the document. On issue No. 2 it was held that disputed sale deed executed without legal necessity was void and the plaintiff who is adopted son has right to the possession of the house. The improvement made in the house by the defendants could not be established. On issue No. 9 the trial court held that the sale deed need not be set aside as the transaction was without legal necessity. Relying upon Radha Ram v. Hanuman Prasad , it was held that the void document could be treated to be nullity and thus the reverter was not bound to institute a declaratory suit. There was no need of intervention of the Court in treating the document as nullity. The suit was thus decreed for possession with damages.
2. The appellate court in a well discussed judgment supporting each conclusion by relevant citations confirmed the findings and dismissed the appeal. The appellate court framed three points as follows:

(1) Whether the plaintiff was legally adopted by Smt. Hardevi for her husband late Ch. Raghubir Singh?

(2) Whether the date of birth of the plaintiff is 1.12.1941, as alleged by the plaintiff or it is 24.6.1940, as alleged by the defendants-appellants and the suit is not within time?

(3) Whether the sale deed of the haveli in dispute was for legal necessity?

1. On Point No. 1 the appellate court held relying upon the findings of the trial court and the judgment Exh. 31 (paper No. 124C), in Special Appeal No. 307 of 1959 of the High Court, Allahabad, against the judgment of Deputy Director of Consolidation and Settlement Officer, Consolidation in a litigation between Surya Dev v. Jai Nand and Anr. (defendants in the suit) that grounds regarding effect of adoption were taken in special appeal and the appeal was dismissed.
2. On Point No. 2 the appellate court relying upon the statement of Krishna Swarup natural father of the plaintiff held that the plaintiff Surya Dev was born on 24.6.1940 in Village Malpur. His contention was supported by High School certificate and the evidence of other witnesses namely Baroo Singh (P.W. 2) and Sukhbans Singh (P.W. 3). In view of this evidence the copy of Death and Birth Register could not be relied upon. He also held that the ceremonies namely feast in 'jasootan' by which plaintiffs birth was announced in a plate with sliver paper pasted on sweats face was also established. The findings relevant for the purposes of considering the substantial question of law, in this second appeal are quoted as below:

In the present case, Smt. Hardevi transferred the property on 21.11.1943 and after that she adopted the plaintiff on 11.6.1944. In case of adoption the doctrine of relation back applies and the plaintiff will be deemed in existence from the moment of the death of Ch. Raghubir Singh who died in 1937. It was held in Shripad Gajanan Suthankar v. Dattaram Kashinath Suthankar and Ors. AIR 1974 SC 878:

Under the Hindu law an adopted son continues the line of the adoptive father for secular and spiritual purposes and when a widow adopts a son to her husband the doctrine of relation back makes son-ship retroactive from the moment of the death of the late husband. The adopted son is deemed to have been born on the date of the death of the adoptive father.

Thus, the plaintiff would be deemed to have born in 1937 when Ch. Raghubir Singh had died. The property was transferred after 1937 and the plaintiff is entitled to get benefit of Section 6 of the Limitation Act.

Article 126 provides 12 years limitation for a suit by a Hindu to set aside his father's alienation from the date the alienee takes possession over the property. The property was transferred on 21.11.1943 and the limitation of 12 years expired on 21.11.1955. But the plaintiff was minor in 1955. As discussed above, the plaintiff born on 1.12.1941 and he became major in 1.12.1959. Section 6(1) of the Limitation Act says:

Where a person entitled to institute a suit or to make an application for the execution of a decree, is, at the time from which the period of limitation is to be reckoned, a minor, or insane or an idiot, he may institute the suit or make the application within the same period after the disability has ceased, as would otherwise have been allowed from the time prescribed therefor in the third column of the first Schedule.

Mere reading in the section makes it clear that a minor can institute a suit after becoming major within the period prescribed in First Schedule Column 3. Article 44 of the Limitation Act provides three years limitation for a suit by a Ward who has attained majority to set aside a transfer of property by his guardian. Thus, the plaintiff is entitled to get benefit of Section 6 and he could file suit within three years from the date of becoming major. He became major on 1.12.1959 and he filed the present suit within three years on 13.11.1962.

1. On Point No. 3 the appellate court confirmed the finding of the trial court and found that Smt. Hardevi was possessed of sufficient properties and regular income. Her annual income was not less than Rs. 8,000 and she had no legal necessity to transfer the haveli. The appellate court discussed the evidence adduced by the defendant namely copies of decree, against Ch. Raghubir Singh, and held that all the decrees were for making payments from the year 1941 to 19.5.1942 only. Exh. A-10 shows that the decree was passed on 18.8.1943 and was satisfied on 24.8.1943 whereas the sale deed of the haveli was executed on 21.11.1943. There was no document to show that she was in need of money on 21.11.1943 and relied upon Hardevi Lal v. Govind Saran AIR 1924 All 902, that recital in deed executed by Hindu widow is admissible in evidence of legal necessity as well as judgment of Smt. Rani and Ors. v. Smt. Santa Bala Dev Nath and Ors. , that the recitals are admissible evidence, their value varying according to circumstances as well as Buniyad Hussain v. Nata Din Singh 1916 IC 57, for the proposition that where the consideration is proved to be paid in legal necessity and only small amount remains unaccounted, the alienation should not be set aside.

The appellate court found that some persons were alienating haveli as tenant of Ch. Raghubir Singh. The mortgagee was entitled to the rent. The property was mortgaged for five years. Ch. Raghubir Singh could not get it released. There was no evidence to show that Lala Sampat Rai had ever pressed Smt. Hardevi to pay her debt. She could have filed suit for foreclosure or sale of mortgage property within 60 years and thus there was no legal necessity to sell the property.

Question No. 3

1. The third question whether the sale deed dated 22.11.1943 was executed by Smt. Har Devi for legal necessity to discharge the antecedent debt by registered mortgage deed of 1928 executed by Ch. Raghubir Singh for payment of Rs. 500 as land revenue, which requires to be decided first, I find from the recital of the mortgage deed registered on 15.11.1988 that Ch. Raghubir Singh mortgaged the properties by way of usufractuary mortgage for five years for Rs. 1,600, within which he promised to pay the amount, after which the properties would be released from mortgage. He could not pay the mortgage money. The disputed sale deed dated 22.11.1943 registered on 23.11.1943 clearly recites that the 'haveli' was mortgaged by husband of the executor Smt. Har Devi to Lala Sampat Rai on 15.11.1928. The crop in kharif in the Jasli 1451, yielded lesser crops and that she has to pay the land revenue. She could not pay any amount to discharge the mortgage nor she is in a position to pay the amount and as such she agreed to sell the 'haveli' for Rs. 2,100 to Chander Bhan. Smt. Khubia, Jeeraj and Tareef Singh and has sold it to them by absolute sale and has delivered possession.
2. The recitals in deeds of sale may not be evidence by themselves of the fact, but they are admissible in evidence. In Bed Nath and Anr. v. Rani Rajeswari Devi AIR 1937 Oudh 406, it was held that in Hindu law antecedent debt of mortgage money is valid consideration. In Jaisri Sahu v. Rajdewan Dubey and Ors. , Supreme Court held that where there is necessity for a transfer, the restriction imposed by Hindu law on widow's power to alienate, ceases to operate. The widow is entitled to the full beneficial enjoyment of the estate and is not accountable to any one. She may not alienate the properties unless it is for necessity or for benefit to the asset, but this restriction on a her is not one imposed for the benefit of a reversioner but is an incident of the asset as known to Hindu law. Where, there is necessity for a transfer, the restriction imposed by Hindu law on her power to alienate ceases to operate, and the widow as owner gets fullest discretion to decide what forms of alienation should assume. Her powers in this regard are as held in Hanooman Persaud v. Mt. Babooee Mundraj Koonweree 8 Moo Ind App 393 (PC), those of the managers of an infant's asset or the manager of a joint Hindu family.
3. In Viraraju v. Venkataratnam AIR 1939 Mad 98, it was held "how exactly this obligation is to be carried out, whether by a mortgage, sale or other means, is not to be determined by strict rules or legal formulae, but must be left to the reasonable discretion of the party bound. In the absence of mala fides o r extravagance, and so long as it is neither unfair in character nor unreasonable in extent, the Court will not scan too nicely the manner or the quantum of the alienation". The question whether widow could sell and discharge of debt which she was unable to pay and for a future liability on account of land revenue was to be determined on the facts prevailing at the relevant time. In the present case she had not adopted the plaintiff, even to the benefit of her husband on the day when she sold the property. The clear recitals in the sale deed, could not be denied. The evidence was not led to show that the Haweli' was not mortgaged or that Ch. Raghubir Singh had paid the mortgage money. There was a charge on the property. Even if Smt. Hardevi was having other properties and possessed sufficient land with sufficient income, the sale of a property for satisfaction of antecedent debt of Rs. 1,600 and further Rs. 500 In 1943, could not be treated as a sale without any legal necessity.
4. The appellate court has given the details of the decrees passed against Ch. Raghubir Singh and Smt. Hardevi between 1930 to 1946. The appellate court also found that Lala Chhatar Sen was zamindar and Ch. Raghubir Singh was ex-proprietory-tenant. Lala Chhatar Sen offered the loan to Ch. Raghubir Singh and whenever Ch. Raghubir Singh made any delay In making the payment of land revenue to him, he got decrees against him. Ch. Raghubir Singh and Smt. Hardevi made payments of these decrees from time to time and never remain indebted. It was found that on 21.11.1943 when the sale deed was executed only one decree namely decree dated 18.8.1943 (Exh-10) was due to be satisfied. In these circumstances, the finding that there was no legal necessity to sell the property in 1943 and it was not sold for the benefit of the estate, have been recorded in complete ignorance of the Hindu law relating to legal necessity, cited as above.

Question No. 1

1. Ch. Raghubir Singh died in 1937 leaving of his movable and immovable properties to his wife Smt. Hardevi and making a desire to adopt the first son of his sister's son Ch. Krishna Swaroop, who was born on 24.4.1943. Before Smt. Hardevi could adopt him by performing ceremonies on 11.6.1944, she had sold disputed property namely haveli o n 21.11.1943 by registered deed for a sale consideration of Rs. 2,100. The sale deed is sought to be declared not binding upon the plaintiff, on the ground that his adoption relates back to the date of death of his father and that the sale was not for legal necessity. The doctrine of "relation back' in Hindu law, to the line of the adoptive father, is available for secular and spiritual purpose. The sonship as held in Sripad Gqjanan Suthankar v. Dattaram, Kashinath Suthankar and Ors. , is retroactive from the moment of the death of late husband. The adopted son is deemed to have been born on the date of death of the adoptive father. In para 18 of the judgment, however, Supreme Court after discussing the law and considering the case law held that a widow's adoption cannot be stultified by an anterior partition of the joint family and the adopted son can claim a share as if he was begotten and alive when the adoptive father breathed his last. Nevertheless the Jactum of partition is not wiped out by the later adoption.

It was further held that any deposition, testamentary or inter vivos, lawfully made antecedent to the adoption is immune to challenge by the adopted son. The lawful alienation, in this context, means not necessarily for a family necessity but alienation made competently in accordance with the law. Where a widow exercises powers of alienation subject to conditions set out by the Hindu law the alienation binds the subsequently adopted son. The same principles apply to alienation by karta of undivided Hindu family or transfer by a co-parcener governed by Benaras School. In this case the Supreme Court excluded gift made by Mahadeo, a co-parcener who gifted away the property coming to his share vide partition dated 24.4.1944, much before adoption on 16.2.1956.

1. In Sripad v. Dutta Ram (supra) Supreme Court relied upon Anant Bhikappa v. Shanker Ram Chandra AIR 1943 PC 196, in which it was held that the right of the adopted son to claim properties as on the date of the death of the adoptive father, by reason of the theory of relation back is subject to the limitation that alienations made prior to the date of adoption are binding on him, if they were for purposes binding on the estate. Thus, transferees from limited owners whether they be widows or coparceners in a joint family are amply protected. But no such safeguard exists in respect of property inherited from a collateral, because if the adopted son is entitled on the theory of relation back to divest the property, the position of the mesne holder would be that by an owner possessing a title defeasible on adoption, and the result of such adoption must be to extinguish that title and that of all persons claiming under him. Where, the adoption takes place long after the succession to the collateral had opened and in the mean time the property has changed hands several times, the title of the purchasers could not be disturbed after such long time.
2. A Hindu widow may adopt a son for the benefit of the adoptive father. The fixation, however, that the adoption relates back to the date of the death of the adoptive father applies only when the claim of the adoptive son relates to the asset of the adoptive father. Where the limited owners namely a Hindu widow, or coparceners alienate the property for legal necessity, there is no justification to disturb such rights of the purchases and to create a chaos by inventing new fixation that such adopted son can disturb the sale. A legal fiction cannot be stretched to the extent of disturbing the validly created rights in the properties through valid alienations. The courts have accepted the doctrine of relating back an adoptive son, only to the extent of claiming partition, without disturbing the legal rights and valid alienations, before his arrival in the family, as an adoptive son.

Question No. 2

1. Plaintiff wanted to avoid the sale made by his adoptive mother before he was actually adopted, on the ground that there was no legal necessity for such sale. He, however, did not choose to seek relief for cancellation of the sale deed of the haveli in dispute executed on 21.11.1943 which was registered document. A registered document is binding on the parties and is valid unless it is avoided or cancelled from competent court within the prescribed period of limitation. Where the sale deed is executed for consideration which discharges pre-existing debts, so recited in the deed and is a registered document, apart from presumption under Section 92 of the Evidence Act which may be rebutted by adducing evidence to contradict the terms of the recitals therein., it cannot be avoided as void document under Section 23 of the Contract Act. In order to avoid such a document it is necessary to seek a declaration to be given by the Court in that behalf. In Smt. Ramti Devi v. Union of India 1995 (1) ACJ 99 (SC), it was held that until the document is avoided or cancelled by proper declaration the duly registered document remains valid and binding on the parties.
2. For the aforesaid reasons I find that the plaintiff adopted in the family on 11.6.1944 for which a deed was executed by his adoptive mother Smt. Hardevi on 23.6.1944, for the benefit of her husband, who died in 1937, did not have right to unsettle the legal and valid transactions made by her mother as an absolute owner before his adoption, and for legal necessity. In any case, such sale was not void and that relief of declaration of such sale to be void and cancellation of the sale deed was necessary. The court below erred in law in holding otherwise.
3. Second appeal is consequently allowed. The Original Suit No. 548 of 1962 is dismissed.

 SUPREME COURT OF INDIA- IN CASE OF SRI NARAYAN BAL AND OTHERS VS SRI SRIDHAR SUTAR AND OTHERS ON 29 JANUARY, 1996.

Section 8 in The Hindu Minority And Guardianshipact, 1956,Section 6 in The Hindu Minority And Guardianshipact, 1956,Section 12 in The Hindu Minority And Guardianshipact, 1956

The Hindu Minority And Guardianshipact, 1956

Citedby 21 docs - Velayudhan Rajappan vs Ponnappan Kumaran on 10 June, 2010,Madhegowda (D) By Lrs vs Ankegowda (D) By Lrs & Ors on 20 November, 2001,Ammaniammal vs M.Palanisamy on 30 July, 2008,M.Jayakumar vs Minor Geetha on 15 December, 2009,U.Palanisamy vs K.Thangavelu on 31 January, 2011

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Equivalent citations: JT 1996 (1), 711 1996 SCALE (1)570

Bench: Punchhi

PETITIONER: SRI NARAYAN BAL AND OTHERS

Vs.

RESPONDENT: SRI SRIDHAR SUTAR AND OTHERS

DATE OF JUDGMENT: 29/01/1996

BENCH: PUNCHHI, M.M.

PARIPOORNAN, K.S.(J)

CITATION: JT 1996 (1) 711 1996 SCALE (1)570

J U D G M E N T- PUNCHHI, J.

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. 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 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, misrepresentation 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 minor 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 liming, for the High Court was of the view that no substantial question of law arose, requiring determination. Hence this appeal.

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. Section 6 of the Act inter alia provides that the natural guardians of a Hindu minor, in respect of the minor's person as well as in respect of the minor's property (excluding his or her undivided interest in joint family property), are - in the case of a boy or an unmarried girl - the father, and after him, the mother; provided that the custody of a minor who has not completed the age of five years shalol ordinarily be with the mother. Section 8 thereof inter alia provides that 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. Furthermore 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 he 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. 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 on behalf of the minor. Section 12 provides that where a minor has an undivided interest in the joint family property and the property is under the management of an adult member of the family, no guardian shall be appointed for the minor in respect of such undivided interest : 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. 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 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, where under 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 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.

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.

For the reasons above-stated, this appeal fails and is hereby dismissed. In the circumstances of the case, there shall be no order as to costs.