Judgment on Board:
(1) The substantial questions of law formulated and to be answered in the second appeal preferred by defendant No. 2 and 3 are as under:-
1. Whether in the absence of proof of will the property could be held to of the exclusive owner-ship of plaintiffs 1 to 3?
2. Whether in view of the fact that property was joint Hindu Family Property, provisions of Section 8(2) of the Hindu Minority and Guardian-ship Act, 1956 are attracted?
(2) The imperative facts required for determination of above-stated substantial questions of law are as under:-
[For the sake of convenience, the parties would be referred hereinafter as per their status shown in the plaint before the trial Court]
(3) The plaintiffs/respondent No. 1 to 3 filed a suit for the declaration that sale deed dated 20.1.1975 executed by defendant No. 1 in favour of defendant No. 2-Radhe Shyam, and the sale deed dated 22.2.1979 executed by defendant No. 2 in favour of defendant No.3 is null and void as the defendant No. 1 has sold the suit property without legal necessity, and prayed for declaration that sale-deeds are null and void and plaintiffs are entitled for decree for possession of subject suit land.
(4) The defendants No. 2 and 3 filed their written statement controverting the plaint allegations stating inter alia that the subject suit property was exclusively held by late Shri Bharatlal; and after death of Bharat Lal, his wife Chanda Bai and plaintiffs succeeded to the suit property; and Chanda Bai, being the Karta of the family sold the subject suit property for legal necessity and for the welfare of the plaintiffs and as such, the suit filed by the plaintiffs deserves to be dismissed.
(5) The trial Court, by its judgment and decree dated 24.11.1999, decreed the suit holding inter alia that sale made by defendant No. 1-Chanda Bai in favour of defendant No. 2- Radhe Shyam was without legal necessity and, as such, the sale made by defendant No. 2- Radhe Shyam in favour defendant No. 3 is null and void and decreed the suit of the plaintiffs.
(6) Appeal preferred by defendants No. 2 and 3 before the first appellate Court came to be dismissed by the impugned judgment and decree affirming the findings of the trial Court and holding that sale made by defendant No. 1-Chanda Bai was without the legal necessity.
(7) Questioning the legality and validity of impugned judgment and decree, this second appeal under Section 100 has been preferred by appellants/defendants No. 2 and 3. The substantial question of law formulated has been incorporated in the opening paragraph of this judgment.
(8) Shri B.D. Guru, learned counsel for the appellant/defendant No. 2 and 3 would submit that the subject suit property was the joint family property and, as such, the provisions contained in sub Section 2 of Section 8 of the Hindu Minority and Guardianship Act, 1956 (henceforth HMGA, 1956 ) are not attracted. He would further submit that the trial Court relied upon the will allegedly executed by late Bharat Lal Awadhiya in favour of plaintiffs have neither been filed nor it has been proved in accordance with law and, therefore, reliance placed by the trial Court is absolutely illegal and the substantial questions of law framed by this Court also be answered in favour of the appellants/defendants No. 2 and 3 and the plaintiffs suit deserves to be dismissed by setting aside the judgment and decree passed by both the courts below.
(9) Per Contra, Shri B.P. Sharma and Shri Anukur Agarwal, learned counsel appearing for the respondents No. 1 to 3/plaintiffs would submit that the trial Court, based on the material available on record, has clearly and categorically held that sale of the subject suit property was made by the defendant No. 1- Smt. Chanda Bai Awadhiya in favour of defendant No. 2-Radhe Shyam without legal necessity; and that finding has been affirmed by the first appellate Court by its judgment and decree dated 15.02.2000. He would further submit that such concurrent finding recorded by two courts below have not been questioned by the appel-lands/defendants No. 2and3 in this second appeal, which is apparent from the fact that no substantial question of law has been framed by this court regarding legal necessity. He would further submit that the provisions of Section 8(2) of the Hindu Minority and Guardianship Act, 1956 (hence-forth HMGA, 1956) is squarely attracted in the facts of the case as in disposal of immovable property by natural guardian, Section 8(2) of the HMGA, 1956 would be attracted and as such no such substantial questions of law are involved and this appeal deserves to be dismissed.
(10) I have heard learned counsel appearing for the parties and given thoughtful consideration to the submissions made by counsel for the parties and also gone through the original records of both the courts below with utmost circumspection.
(11) Case of the plaintiffs/respondents No. 1 to 3 before the trial Court was that the subject suit property was originally held by Bharat Lal, father of the plaintiffs and wife of Bharat Lal Smt. Chandra Bai Awadhiya- defendant No.1. Shri Bharat Lal died leaving behind the present plaintiffs and his wife defendant No.1- Chanda Bai. Defendant No.1-Chanda Bai, by registered sale deed 20-1-1975 vide Ex.P-1 sold the subject suit property to defendant No.2 Radhe Shyam. ExP-1 copy of sale deed recited that for the education and marriage of children, the sale is being made by Smt. Chanda Bai Awadhiya.
(12) In order to prove the legal necessity, plaintiffs have examined Rajendra Kumar Awadhiya (PW-1) and S.R Pathari (PW-2) and they have stated that Smt. Chanda Bai Awadhiya has remarried with other person, after the death of Bharat Lal and sold the subject suit property without being any rhyme and reason much less the legal necessity whereas defendant No.3 had examined himself as well as his neighbour Nand Kishore to support the plea that sale was made by Chanda Bai in favour of defendant No.2 for the legal necessity.
(13) Smt. Chanda Bai impleaded as party defendant in the suit but she has neither filed any written statement nor adduced any evidence to support the case of defendants No. 2 and 3 that she sold the suit property for the legal necessity. Defendant No. 1-Chanda Bai could be the best witness to throw light on the legal necessity for the sale of subject suit property but, she has not been examined and it nowhere appears that defendants No. 2 and 3 have taken any steps to examine the Chanda Bai as a witness in support of their cases.
(14) The trial Court, after appreciation of evidence available on record has clearly held that sale was not made for the legal necessity. The said finding has been affirmed by the first appellate Court holding it to be based on evidence available on the record; and the said finding even has not been assailed in the second appeal as even no substantial question of law has been formulated in this appeal, as such, that finding has attained finality.
(15) This brings me to the substantial questions of law whether in the absence of proof of will the property could be held to be of the exclusive owner-ship of Plaintiffs No. 1 and 3 and whether previous permissions under Section 8(2) of HMGA, 1956 was necessary to sell the subject suit property.
(16) The trial Court, in its judgment and decree dated 24.11.1999, paragraph 13 has simply recorded a finding that on the basis of will, plaintiffs name were recorded in the Municipal Corporation records and therefore, defendant No.1- Chanda Bai was required to take prior per mission under Section 8(2) of the HMGA, 1956 from the District Court.
(17) Section 8(2) of the HMGA, 1956 states as under:--
8. Powers of natural guardian. (1)...........
(2) The natural guardian shall not, without the previous permission of the Court,-
(a) mortgage or charge, or transfer by sale, gift, ex-change 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.
(18) Thus, by virtue of sub-Section (2) of Section 8 of HMGA, 1956, no immovable property of minor can be transferred by way of sale, gift, ex-change or otherwise without previous permission of the Court and any transfer in contravention of sub-Section (1) or sub-Section (2) of Section 8 is voidable at the instant of minor or any person claiming under him.
(19) In the case in hand, it is not in dispute that subject suit property is originally held by late Bharat Lal and after his death, the suit property was inherited by widow Chanda Bai and plaintiffs No.1 to 3 jointly and defendent No.1 Chanda Bai has sold the suit property to defendants No. 2 by registered sale dated 20.1.1975 vide Ex.P-1 without obtaining prior permission from the District Court under sub-section (2) of Section 8 of HMGA ct, 1956.
(20) In the matter of Saroj Vs. Sunder Singh and others ((2013) 15 SCC 727), their Lord-ships of the Supreme Court has clearly held that for the sale of minor s share of immovable property made by a natural guardian, after death of the father for proper benefit of minor i.e. education and marriage, previous permission of the Court is required under Section 8(2) of the HMGA, 1956 and held as under:
13. 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.
14. Where the father dies leaving behind only minor daughters and their mother as natural guardian, the share of the daughters becomes indefinite; 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 be attracted as the mother sold the property without previous permission of the court. Hence, both the sale deeds executed by the second respondent in favour of the first respondent shall become voidable at the instance of minor i.e. the appellant and the pro forma Respondents 4 and 5.
(21) If the facts of the present case are examined in light of the aforesaid principles of law laid down by their Lordships of the Supreme Court in the aforesaid case (supra), it would apparent that both the courts below have concurrently recorded a finding that the sale has been made by defendant No. 1-Chanda Bai in favour of defendant No. 2 without legal necessity, that too, without previous permission of the District Court as required under Section 8(2) of the HMGA, 1956 and, as such, the trial Court has rightly decreed the plaintiffs suit holding the sale to be without legal necessity and without permission under Section 8(2) of the HMGA 1956, which has rightly been affirmed by the first appellate Court. Thus, both the substantial questions of law framed are answered against the defendants and in favour of the plaintiffs.
(22) Consequently, the second appeal filed by the appellants/defendants deserves to be and is accordingly dismissed. The decree granted by the Trial Court in plaintiffs favour as affirmed by the first appellate Court would stand affirmed. No order as to costs.
(23) A decree be drawn up accordingly.