1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR :JUDGMENT
: S.B.CIVIL FIRs.APEAL NO.57/1986 Rameshwar Lal and ORS.versus Jai Prakash and ORS.Date of Judgment :: 04.02.2014 PRESENT HON'BLE Mr.JUSTICE ARUN BHANSALI Mr.Manish Shishodia, for the appellants.
Mr.Ramit Mehta, for the respondents.
----- BY THE COURT: This appeal is directed against the judgment and decree dated 18.3.1986 passed by the Additional District Judge, Chittorgarh, whereby the suit filed by the respondent-defendant No.1 was decreed; sale deed dated 15.6.1974 to the extent of plaintiff No.1's share was cancelled on payment of Rs.13,500/- by the plaintiff No.1 to defendants No.1 to 3 within a period of two months; plaintiffs were held not entitled to possession of the suit house from the defendants-appellants; suit filed by the plaintiff No.2 for cancellation of sale deed was held pre-mature and the plaintiff No.1 was held entitled to costs from the defendant No.4.
The facts in brief may be noticed thus : the respondents No.1 and 2 – plaintiffs filed a suit for cancellation of sale deed 2 and for possession of the suit property against the appellants and respondent No.4 Bhagwan Lal (their father) with the averments that the plaintiffs had purchased the suit property by a registered sale deed dated 1.2.1974 from Suresh Chandra for a sum of Rs.26,000/-.
The defendants No.1 to 3 were tenants in the said house and a sum of Rs.1,000/- were deposited with Suresh Chandra as earnest money.
The rent deed has been executed by the eldest brother in favour of Suresh Chandra, which has been handed over to the plaintiffs by Suresh Chandra on the date of sale.
By notice dated 6.2.1974, Suresh Chandra had informed defendant No.1 by a registered notice that he has sold the house to the plaintiffs and therefore, the rent be paid to them and the deposit of Rs.1,000/- had also been transferred to them.
Notice dated 1.3.1994 was issued by the plaintiffs seeking vacant possession of the said house, which was replied by the defendants on 22.3.1974 admitting them to be owners of the house, but refusing to vacant the same and one month's rent was sent by money-order and therefore, based on attornment, the defendants No.1 to 3 have become plaintiffs' tenants.
On 23.6.1974, the plaintiff No.1 became major and plaintiff No.2 was still a minor.
The suit property was required by the plaintiffs reasonably and bonafidely, however, the respondent No.4, their father sold the suit house to the defendants No.1 to 3 for a sum of Rs.28,000/- on 15.6.1974 and has executed a sale deed and therefore, the defendants do not treat them as landlord which is incorrect.
The defendant No.4 had not obtained permission under Section 8 of the Hindu Minority and Guardianship Act, 1956 ('the 3 Act') from the competent court and therefore, the sale deed was illegal and void and the plaintiffs are entitled for getting the same cancelled.
The plaintiff was becoming a major 08 days after the date of sale and therefore, the defendant No.4 had no reason to sale the same to the defendants No.1 to 3; the defendant No.4 had no requirement as guardian of the money; as the defendants are plaintiffs-tenants, they are entitled for possession and therefore, the suit be decreed and the sale deed dated 15.6.1974 be cancelled and possession of the suit house alongwith the due rent be decreed.
A written statement was filed by the defendants No.1 to 3 and it was averred that the suit house was purchased by the defendant No.4 Bhagwan Lal from Suresh Chandra and not by the plaintiffs.
The defendant No.4 was not entitled to purchase the said house as there was premption of Mool Chand.
The rent note was not given by Suresh Chandra to the plaintiffs and the same is still with the defendant No.4; the notice given was incorrect, which was replied to; plaintiffs were not treated as landlord and the rent was not tendered to them, they have no requirement of the house as they are students only.
The defendant No.4 himself has purchased the house and sold the same and the suit has been filed malafidely.
The property was purchased in the name of the plaintiffs 'Benami' and therefore, Section 8 of the Act was not applicable.
In the alternative, it was submitted that even if it is held that the property belongs to the plaintiffs still defendant No.4 as natural guardian was entitled to sale the same for the benefit of the plaintiffs and therefore, the sale was valid.
4 The suit on behalf of the plaintiff No.2 could not be filed by the next friend in the presence of natural guardian; the suit was bad for mis-joinder of cause of action and for non-impleadment of Mool Chand, a necessary party.
The suit was bad on account of active fraud, therefore, the same was liable to be dismissed.
The trial court framed 12 issues.
The most relevant being Issue No.1 as to whether the real purchaser of the house-in- question was not plaintiffs, but defendant No.4 and the plaintiffs were only Benamidar; Issue No.2 was as to whether the sale deed executed by the defendant No.4 in favour of the defendants No.1 to 3 was illegal and void; whether the sale by the defendant No.4 was for the benefit of the minor plaintiffs and what was its effect on the suit.
Several other issues were also framed.
On behalf of the plaintiffs evidence of PW-1 Jaiprakash, PW-2 Gordhan Lal, PW-3 Rameshwar Lal, PW-4 Suresh Chandra and PW-5 Bhagwan Lal was recorded and on behalf of the defendants No.1 to 3 evidence of DW-1 Ramniwas and DW-2 Rameshwar Lal was recorded.
After hearing the parties, the trial court came to the conclusion that the plaintiffs failed to prove that the real purchaser of the suit property was defendant No.4 and the plaintiffs were mere Benamidar; the sale deed executed by the defendant No.4 in favour of the defendants No.1 to 3 was void; the sale was not for the benefit of the plaintiffs and therefore, the same was void; composite suit was maintainable for cancellation and eviction; the plaintiffs failed to prove personal and bonafide necessity and comparative hardship; Mool Chand 5 was not a necessary party.
The defendants were entitled for the sale consideration of Rs.28,000/-; the plaintiff No.1 was entitled to retain the property without right of premption.
The fraud, if at all committed, the same was committed by the defendant No.4; the plaintiffs were not estopped on account of any admissions made by the father; the suit was not bad for mis-joinder of causes; the suit can be filed by next friend even in the presence of natural guardian; the plaintiffs were not entitled for possession and for mesne profit for the period the defendant remains in possession till cancellation.
Ultimately, the trial court passed a decree as noticed here-in-before.
It is submitted by learned counsel for the appellants that from the oral and documentary evidence available on record, it is proved that the property was purchased by the defendant No.4 and the plaintiffs were merely Benamidar and therefore, the defendant No.4 was well within his right to execute the impugned sale deed and the trial court committed grave error in deciding Issue No.1 against the plaintiffs.
It was further submitted that even if it is held that the suit property was owned by the plaintiffs, still the respondent No.4 being father and natural guardian of the plaintiffs was well within his right to execute the sale deed as the same was for the benefit of the plaintiffs minors as otherwise on account of the premption sought to be exercised by Mool Chand, the plaintiffs would have lost the said property for a sum of Rs.26,000/- only whereas the defendants have paid a sum of Rs.28,000/- for the property which was purchased by them few months back for Rs.26,000/-.
It was further submitted that the fraud committed by the 6 defendant No.4, father of the plaintiffs writ large and therefore, the suit was liable to be dismissed.
Reliance was placed on the judgments in Manik Chand & Anr.
versus Ramchandra : AIR1981SC519 Sr.Narayan Bal & ORS.versus Sridhar Suthar & ORS.: (1996) 8 SCC54 Ram Chandra Singh versus Savitri Devi & ORS.: (2003) 8 SCC319and Devendra Kumar versus State of Uttaranchal & ORS.: (2013) 9 SCC363 Per contra, learned counsel for the respondents-plaintiffs submitted that the judgment and decree passed by the trial court to the extent the suit has been decreed does not call for any interference.
It was submitted that from the evidence both oral and documentary led by the parties, it is apparent that the property was in fact purchased from the funds of the plaintiffs and the same was sold by him in violation of provisions of Section 8 of the Act and therefore, the transfer was void.
With reference to various documents, it was submitted that the Income-Tax Returns were filed well before the property was purchased / the present dispute arose, which clearly indicates that the suit property was purchased by the plaintiffs and it was always treated by not only the defendant No.4 but the appellants-defendants No.1 to 3 also as belonging to / owned by the plaintiffs.
No evidence has been placed on record by the plaintiffs to show that the property was purchased Benami in the name of the plaintiffs and the real owner was defendant No.4.
No allegation was neither made in the written statement that the property belongs to HUF nor any evidence was led in this regard and therefore, the law cited had no application.
7 Reliance was placed on the judgments in Smt.
Surasaibalini Debi versus Phanindra Mohan Majumdar : AIR1965SC1364 Bhim Singh (dead) versus Kan Singh : AIR1980SC727and Saroj versus Sunder Singh & ORS.: Civil Appeal No.10582 of 2013 decided by the Hon'ble Supreme Court on 25.11.2013.
I have considered the rival submissions.
The issues which arises for determination in the present appeal are : (a).Whether the suit property was purchased Benami in the name of the plaintiffs by their father defendant No.4 ?.
(b).Whether sale is not in contravention of Section 8 (2) of the Act ?.
(c).Whether on account of alleged active fraud the suit filed by the plaintiffs was liable to be rejected ?.
The suit property, a house was purchased in the names of the plaintiffs vide sale deed dated 1.2.1974 executed by Yati Suresh Chandra (Exhibit-1).The purchasers were described as Jai Prakash J.– Suresh Chandra J.S/o Shri Bhagwan Lal Ji, minor through guardian father Shri Bhagwan Lal J.S/o Phool Chandra Ji.
On purchase of the said property vide Exhibit-1 dated 1.2.1974, a notice dated 6.2.1974 (Exhibit-3) was issued by the seller Yati Suresh Chandra to the appellant No.1 informing about the said sale to the plaintiffs.
Thereafter, on 1.3.1974, a notice was issued by the plaintiffs in their own name describing them as minor through guardian Shri Bhagwan Lal (Exhibit-4) informing the defendant No.1 regarding the purchase by them of the suit property and seeking possession on account of their 8 bonafide requirement.
By Exhibit-6 for the period 9.2.1974 to 8.3.1974, the rent by money-order was sent by the appellants to the plaintiffs and by a reply dated 22.3.1974 (Exhibit-7) addressed to the plaintiffs Jai Prakash and Suresh Chandra, the defendant No.1 indicated that he had sent the rent by money- order and disputing the fact that the suit premises were required by them bonafide and the notice was issued under the influence of their father.
Exhibit-8 is the envelop, which was addressed to the plaintiffs.
However, by sale deed dated 15.6.1974 (Exhibit- A/1) the property was sold in the name of plaintiffs Jai Prakash and Suresh Chandra by their father Bhagwan Lal indicating that on account of receipt of notice of premption from Mool Chand, the house was being sold to the appellants for sum of Rs.28,000/- and the house was of their ownership.
On behalf of the plaintiffs entries from the account books of the firm were exhibited as Exhibit-16 to Exhibit-33 & Exhibit- 36 to Exhibit-54 to indicate the source of fund, by which the property was purchased by them and on transfer, the amount of sale consideration was also deposited in their accounts with the firm.
Exhibit-34 is the Income Tax Return which was filed on 22.10.1973 alongwith extract of the books which also supports the entries in the books of account produced as Exhibit-16 to Exhibit-33.
Exhibit-35 is also copy of Income Tax Return filed on 18.7.1974 alongwith extract of the books of account.
In support of the claim, the plaintiffs examined PW-1 plaintiff himself, PW-2 Gordhan Lal - who is uncle of the plaintiffs, PW-3 Rameshwar Lal – another uncle, PW-4 Suresh Chandra – the seller and PW-5 Bhagwan Lal – their father.
9 From the statement of witnesses, the plaintiffs have proved the source of fund at the time of purchase of the suit property, which is fortified from the Income Tax Return (Exhibit-
34) filed on 28.10.1973.
It would be seen that at the time of purchase of the suit property by the minors through their father on 1.2.1974, the plaintiffs had sufficient fund available with them for purchasing the same and therefore, apparently, it cannot be said that the suit property was purchased by the defendant No.4 Bhagwan Lal – Benami in the name of the plaintiffs.
The creation of capital in the name of minor children by way of gifts by relatives and purchasers of the immovable property by them through their natural guardian are not unknown and are normal practice prevalent in the business communities.
The donor in the present case Goverdhan Lal and Rameshwar Lal, uncles of the plaintiffs, were examined as PW-2 and PW-3, who have categorically supported the plaintiffs version and were not able to be displaced during cross-examination.
The another donor was grand-mother of the plaintiffs.
The source of consideration is almost the deciding feature as to whether the transaction is Benami or not.
The Hon'ble Supreme Court in Bhim Singh (supra) has observed and held on the said aspect as under:- “18.
The principle governing the determination of the question whether a transfer is a benami transaction or not may be summed up thus : (1) The burden of showing that a transfer is a benami transaction lies on the person who asserts that it is such a transaction; (2) if it is proved that the purchase money came from a person other than the person in whose favour the property is transferred, the purchase is prima facie assumed to 10 be for the benefit of the person who supplied the purchase money, unless there is evidence to the contrary; (3) the true character of the transaction is governed by the intention of the person who has contributed the purchase money and (4) the question as to what his intention was has to be decided on the basis of the surrounding circumstances, the relationship of the parties, the motives governing their action in bringing about the transaction and their subsequent conduct, etc.”
(emphasis supplied) As discussed above, in the present case it is established that the source of fund for the purchase money was the plaintiffs themselves and the same was not purchased by any one else and in no case by the defendant No.4 Bhagwan Lal.
As such, it cannot be said that the property was purchased Benami in the name of the plaintiffs by defendant No.4 Bhagwan Lal.
Therefore, the finding recorded by the learned trial court on Issue No.1 does not call for any interference.
Admittedly, the suit property after purchase by the plaintiffs, who were minors at the time through sale deed dated 1.2.1974 (Exhibit-1).was sold on 15.6.1974 by registered sale deed Exhibit-A/1 by father of the plaintiffs.
The document Exhibit-A/1 sale deed clearly indicates that the plaintiffs were minors at the time when the sale deed was executed and that the same as being executed by defendant No.4 Bhagwan Lal as plaintiffs' guardian being father.
The property having been transferred in the name of the minors by registered sale deed dated 1.2.1974 (Exhibit-1).the same was belonging to the minors as the minor is not disqualified to be a transferee under sub-clause (3) of Section 6(h) of the Transfer of Property Act, 1882.
11 Once the property is owned by a minor, the provisions of Section 8 of the Act are attracted.
Section 8 of the Act in so far as relevant reads thus : “8.
Powers of natural guardian.- (1) The natural guardian of a Hindu minor has power, subject to the provisions of this section, to do all acts which are necessary or reasonable and proper for the benefit of the minor or for the realisation, protection or benefit of the minor's estate; but the guardian can in no case bind the minor by a personal covenant.
(2) The natural guardian shall not, without the previous permission of the court, - (a) mortgage or charge, or transfer by sale, gift, exchange or otherwise, any part of the 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.”
While sub-section (1) confers power on a natural guardian of a Hindu minor 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.
The guardian can in no case bind the minor by a personal covenant, however, the said power is subject to the other provisions of Section 8.
Sub-section (2) provides for such conditions / restrictions, which inter-alia mandates that a natural guardian shall not, without the previous permission of the Court mortgage, charge, transfer by sale, gift, exchange or otherwise any part of the immovable property of the minor and sub-section (3) provides 12 that any disposal of immovable property by a natural guardian in contravention of sub-sections (1) and (2) is voidable at the instance of minor or any person claiming under him.
Even the grant of permission by the Court is circumscribed by sub-section (4).wherein except in case of necessity or for an evident advantage to the minor such permission cannot be granted.
The submission of learned counsel for the appellants that as the sale was executed by the father for the apparent benefit of the minors for a higher consideration and in view of the fact that the property was affected by right of premption by Mool Chand, under sub-section (1) the same was saved and the same cannot be said to be void, is apparently without any substance.
Though, sub-section (1) permits a natural guardian to do all acts necessary for the benefit of minor and for benefit of minor's estate, but the same is subject to other provisions of Section and sub-section (2) clearly provides that without previous permission of the Court transfer by sale of immovable property shall not be made by the guardian and any sale in contravention of sub- section (2) is voidable at the instance of the minor.
The said sub-section (2) does not admit of any exception, whereby for any condition the minor's estate could be transferred by the natural guardian without previous permission of the Court.
It is for the minor, on attaining majority, not to question the transfer which is in contravention of sub-section (2) of Section 8, but if he decides to question the same, the same is voidable at his instance.
In the present case, the plaintiff No.1 has on attaining majority chosen to question the transfer made by the defendant No.4 Bhagwan Lal, his father in favour of the 13 defendants No.1 to 3 without seeking previous permission from the Court and therefore, the same was rightly declared void by the trial court.
The Hon'ble Supreme Court in its recent pronouncement in the case of Saroj (supra) has set-aside the judgments of the trial court as well as the High Court which had upheld the transfer made by mother of two minor girls even though for fulfilling the requirements of the daughteRs.as the same was in contravention of Section 8(2) of the Act.
The Hon'ble Supreme Court observed as under:- “12.
In the present case, though it is stated that the property has been sold for the proper benefit of the minORS.their protection, education and marriage, there is nothing on record to suggest that previous permission of the Court was obtained by the natural guardian before transfer by sale in question.
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 fiRs.respondent shall become voidable at the instance of the minor i.e.the appellant and the Proforma-respondent nos.4&5.”
The judgments relied on by the learned counsel for the appellants are of no apparent help to the appellants as in the case of Manik Chand (supra).it was a case of purchase of immovable property and not of transfer and the judgment in the case of Smt.
Surasaibalini Debi (supra) dealt with a case of alienation by karta or adult member of a joint Hindu Family, 14 which involved undivided share of minor of the family.
In the present case there is no whisper by the defendants in their written statement and / or attempt to allege that the property was joint family property.
The only plea raised is that as the sons are part of a Hindu undivided family, the present is a case of active fraud.
In view of the above, it is apparent that the suit property has been transferred by the defendant No.4 Bhagwan Lal, father / natural guardian of the plaintiffs without prior permission from the Court and the same being in violation of provisions of Section 8(2) of the Act, at the instance of the plaintiff No.1, the same is voidable and the suit having been filed for getting the same declared void, the Court was justified in declaring the said sale as void.
So far as the plea regarding the active fraud is concerned, the learned trial court has come to the conclusion that the plaintiffs cannot be alleged of being guilty of active fraud as admittedly the property-in-question was sold by the father when the plaintiffs were minor and even if any fraud has been committed, the same has been committed by the father defendant No.4 Bhagwan Lal.
A bare reading of the entire cross-examination of the plaintiffs would reveal that the defendants-appellants have failed to put any question to the plaintiffs on their case of alleged fraud in filing the suit.
The defendants have apparently failed to make out a case of fraud as the fact of minority of the plaintiffs was clearly indicated in the sale deed and the father -defendant No.4 never claimed that the plaintiffs / sellers were major and 15 therefore, it was upto the purchasers to take care of the requirement as to whether prior permission from the competent court has been obtained by the father or not.
Having failed to seek compliance of the provisions of the Act, it is now not open for the appellants to claim active fraud.
Things would have been different if the defendant No.4 had stated that the property was purchased by the defendant No.4 Benami in the name of his minor children and that he was competent to sale the same as its ostensible owner and / or that he has obtained permission from the competent court for transfer of the property as it stands in the name of minor.
On the other hand, by the notice (Exhibit-3) by Suresh Chandra to the appellants, Notice (Exhibit-4) by the plaintiffs to the appellants for vacating the house, money-order (Exhibit-6) sent by the appellants to the plaintiffs and reply (Exhibit-7) by the appellants to the plaintiffs clearly shows that all along after the sale deed was executed in favour of the plaintiffs, the appellants were well aware of the status of the ownership and had in-fact atorned to the plaintiffs minors as their tenants and as such, the entire plea of fraud sought to be raised is not warranted.
The judgments in the case of Ram Chandra Singh (supra) and Devendra Kumar (supra) relied on by learned counsel for the appellants on the issue of fraud, therefore, have no applicability to the facts of the present case.
No argument, other than what has been noticed herein- before, was advanced by any of the learned counsel.
16 Accordingly, there is no substance in the appeal and the same is, therefore, dismissed.