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Arun Kumar and ors. Vs. Smt. Chandrawati Agrawal and ors. - Court Judgment

LegalCrystal Citation
SubjectFamily;Property
CourtAllahabad High Court
Decided On
Case NumberSecond Appeal No. 206 of 1968
Judge
Reported inAIR1978All221
ActsHindu Minority and Guardianship Act, 1956 - Sections 8(2)
AppellantArun Kumar and ors.
RespondentSmt. Chandrawati Agrawal and ors.
Appellant AdvocateMohan Ji Verma and ;R.C. Shukla, Advs.
Respondent AdvocateS.O.P. Agarwal, Adv.
DispositionAppeal dismissed
Excerpt:
family - guardianship - sections 8 and 11 of hindu minority and guardianship act, 1956 - minor's interest in joint family property could not be sold by father under hindu law - section 11 prohibits a de facto guardian from disposing of or dealing with the property of hindu minor - a father or natural guardian can alienate a minor's interest in joint family property only on well established conditions under hindu law. - - 32 of 1956. the plaintiffs claimed that the sale-deed be declared to be invalid and they be given possession of the house and compensation as well. 3. the trial court dismissed the suit holding that the safe-deed was executed for legal necessity and for payment of antecedent debts and that the sale-deed was not invalid in view of the provisions of section 8 of the hindu.....b.n. sapru, j.1. the facts necessary for the decision of this second appeal can he narrated in brief. a suit was filed in forma pauperis by the plaintiffs who claimed themselves to be sons and daughters of gaya prasad, defendant no. 3. it is stated that gaya prasad executed a conditional sale of the disputed house no. 8, khushal parbat, allahabad in favour of defendant no. 4, chaudhary naunihal singh. subsequently, in the year 19.59, the defendant no. 3 and defendant no. 4, namely. gaya prasad and chaudhary naunihal singh respectively, sold the house to smt. chandrawati agarwal and smt. shakuntala devi who were defendants nos. 1 and 2 in the suit. the plaintiffs' allegations were that at the relevant time when the sale-deed was executed, they were minors and the sale-deeds were not for.....
Judgment:

B.N. Sapru, J.

1. The facts necessary for the decision of this second appeal can he narrated in brief. A suit was filed in forma pauperis by the plaintiffs who claimed themselves to be sons and daughters of Gaya Prasad, defendant No. 3. It is stated that Gaya Prasad executed a conditional sale of the disputed house No. 8, Khushal Parbat, Allahabad in favour of defendant No. 4, Chaudhary Naunihal Singh. Subsequently, in the year 19.59, the defendant No. 3 and defendant No. 4, namely. Gaya Prasad and Chaudhary Naunihal Singh respectively, sold the house to Smt. Chandrawati Agarwal and Smt. Shakuntala Devi who were defendants Nos. 1 and 2 in the suit. The plaintiffs' allegations were that at the relevant time when the sale-deed was executed, they were minors and the sale-deeds were not for their benefits. It is further stated that the sale had been executed by Gaya Prasad without obtaining the permission of the District Judge and, as such, it was in violation of the provisions of Section 8 of the Hindu Minority and Guardianship Act No. 32 of 1956. The plaintiffs claimed that the sale-deed be declared to be invalid and they be given possession of the house and compensation as well.

2. The suit was contested by defendants Nos. 1 and 2. Their contention was that the Sale-deed was for legal necessity and for payment of antecedent debts so they were binding on the plaintiffs. It was further pleaded that the plaintiff Nos. 2 to 6 are not entitled to sue because plaintiffs No. 2 to 5 have no interest in the property being daughters of Gaya Prasad and the plaintiff No. 6 is not the son of Gaya Prasad.

3. The trial court dismissed the suit holding that the safe-deed was executed for legal necessity and for payment of antecedent debts and that the sale-deed was not invalid in view of the provisions of Section 8 of the Hindu Minority and Guardianship Act.

4. The plaintiffs preferred an appeal and the appeal has also been dismissed. Aggrieved by the order of the lower appellate court, the plaintiffs-appellants have preferred the second appeal. Only one question has been argued before me. It has been submitted on behalf of the appellants that in view of the provisions of Section 8 of the Hindu Minority and Guardianship Act, the sale was invalid as the plaintiffs-appellants' father did not obtain the permission of the District Judge to sell their interest in the coparcenary property. The relevant sections of the Hindu Minority and Guardianship Act, 1956 are reproduced below:

'6. 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--

(a) 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 shall ordinarily be with the mother;

(b) in the case of an illegitimate boy or an illegitimate unmarried girl--the mother and after her, the father:

(c) in the case of a married girl--the husband;

Provided that no person shall be entitled to act as the natural guardian of a minor under the provisions of this section--

(a) if he has ceased to be a Hindu, or

(b) if he has completely and finally renounced the world by becoming a hermit (vanaprasath) or an ascetic (yati or sanyasi). Explanation-- In this section, the expression 'father' and 'mother' do not include a stepfather and a step-mother.

8. (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.

(5) The Guardians and Wards Act, 1890 shall apply to and in respect of an application for obtaining the permission of the court under Sub-section (2) in all respects as if it were an application for obtaining the permission of the court under Section 29 of that Act, and in particular..........

(a) proceedings in connection with the application shall be deemed to be proceedings under that Act within the meaning of Section 4-A thereof:

(b) the court shall observe the procedure and have the powers specified in Sub-sections (2), (3) and (4) of Section 31 of that Act; and

(c) an appeal shall lie from an order of the court refusing permission to the natural guardian to do any of the acts mentioned in Sub-section (2) of this section to the court to which appeals ordinarily lie from the decisions of that court.

(6) In this section 'court' means the city civil court or a district court or a court empowered under Section 4-A of the Guardians and Wards Act, 1890 within the local limits of whose jurisdiction the immovable property in respect of which the application is made is situate, and where the immovable property Is situate within the jurisdiction of more than one such court, means the court within the local limits of whose jurisdiction any portion of the property is situate.

12. Where a minor has an undivided interest in joint family property and the property is under the management of an adult member of the family, no guardian shall be appointed for the minor in respect of such undivided interest;

Provided that nothing in this section shall be deemed to affect the jurisdiction of a High Court to appoint a guardian in respect of such interest.'

5. The question which has been raised by the learned counsel for the appellants has been considered by the various High Courts and they have held that the provisions of Section 8 of the Hindu Minority and Guardianship Act do not prevent a 'Karta' of a Joint Hindu Family to which the minor belongs from disposing of the immovable property provided it is otherwise permissible under Hindu law. In the case of Sakharam Sheku v. Shiva Deorao (ILR (1974) Bom 1113), the Bombay High Court, while dealing with this problem, has observed as follows:

'Mr. Abhyankar, the learned Advocate for the appellant, argued that the lower appellate Court was in error in holding that Section 8 of the Hindu Minority and Guardianship Act governed this case. It was submitted by him that so far as undivided interest of a minor in the Joint Hindu Family is concerned, the Act is not applicable. This contention is well founded and must be accepted.

Section 8(2) no doubt provides that the natural guardian of a Hindu minor shall not, without the permission of the Court, in any way transfer any part of the immovable property of the minor. Had this provision stood alone, perhaps the view taken by the learned Judge was right. But we have also to take into account the other provisions in the Act. It is a well-settled principle that every statute must be construed ex visceribus actus i. e. within the four corners of the Act. When construing the terms of any provision found in a statute, the Court is bound to consider other parts of the statute which throw light on the intention of the Legislature and serve to show that the particular provision ought not to be construed as it would be if it stood alone and apart from the rest of the statute. Every clause of a statute must be construed with reference to the context of other clauses in the statute so as to make, as far as possible, a consistent enactment of the whole statute. No part of a statute can be construed in isolation, because the intention of makers of law is to be found not in one part of the statute or another but in the entire enactment and that intention can best be gathered by viewing a particular part of the statute not in detachment from its con-text in the statute but in conjunction with its other provisions.

Now, corning to the provisions of the Hindu Minority and Guardianship Act, Section 4. (b) defines 'guardian' while Clause (c) thereof defines 'natural guardian' as meaning any of persons mentioned in Section 6. Now Section 6 deals with natural guardians of a Hindu minor. It mentions in the order of priority the persons who are entitled to be natural guardians of a Hindu minor. The opening words of the section, however, say 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 those mentioned below in the section, The words 'excluding his or her undivided interest in joint family property' which have been put in brackets make it clear that the undivided interest of a Hindu minor is excluded from the operation of the provisions of the Act and the subject-matter with which the Act deals is limited to guardians in respect of minor's person or in respect of minor's property other than his undivided interest in joint family property, whether they be natural guardians or testamentary guardians or guardians appointed or declared by Court. The concept of a guardian in respect of undivided interest in the joint family property is thus specifically excluded from the purview of the Act. The powers which a Hindu father therefore has, as a natural guardian of his minor sons under Hindu Law, are kept intact and are not in any way affected by the provisions of the Hindu Minority and Guardianship Act so far as the undivided interest of a Hindu minor in the joint family property is concerned.

The restrictions contained in Section 8, therefore, do not apply in respect of the undivided interest of a minor in joint family property and consequently Section 8 does not debar the Manager or karta of a joint Hindu family from alienating joint family property including the interest of minor without obtaining the previous permission of the Court, even if the Manager or Karta happens to be the natural guardian in respect of the separate property of any one or more of the minor coparceners. Of course the alienation would have to be justified under Hindu Law but Section 8 does not require that any previous permission of the Court should be obtained before effecting such alienation. Under Hindu Law a Manager and Karta of a joint Hindu family can alienate joint family property so as to bind the interest of minor coparceners in such property provided the alienation is either for legal necessity or for the benefit of the estate. If the Manager and Karta happens to be the father he has certain additional powers of alienation under Hindu Law and in exercise of those powers he can alienate joint family property so as to bind the interest of his minor coparceners in such property. These powers are not at all curtailed or affected in any way by the provisions of the Hindu Minority and Guardianship Act.'

In the case of re Krishnakant Maganlal (AIR 1961 Guj 68), the Gujarat High Court while considering the provisions of Section 8 of the Hindu Minority and Guardianship Act observed as follows (At p. 71):

'(5) The argument of Mr. B. J. Shelat in the main has been that Section 8 deals with the powers of a natural guardian and alongwith the powers the Parliament has also prescribed certain restrictions in the said section and every natural guardian who wants to deal with the property of a minor can do so only in accordance with and subject to the restrictions contained in the said section. It has been urged by Mr. B. J. Shelat that the reference to the 'minor's estate' and the 'immovable property of the minor' in the said section is not limited to the separate property of the minor but also extends to the undivided share of the minor in joint family property. According to Mr. B. J. Shelat there is nothing in the said section which requires that the words 'the minor's estate' and 'the immovable property of the minor' should be read in any narrow sense as excluding the undivided share of the minor in joint family property. The undivided share of the minor in joint family property is as much a part of his estate or immovable property as his separate property and there is no justification, argues Mr. B. J. Shelat for excluding the undivided share of the minor in joint family property from the scope and meaning of the words 'the minor's estate' and 'the immovable property of the minor' occurring in the said section. It has been urged by Mr. B. J. Shelat that if these words are given their plain and natural meaning as they ought to be given, the restrictions contained in the said section would apply equally in respect of the undivided share of a minor in joint family property as they apply in respect of the separate property of the minor and the natural guardian, even though he be the manager and karta, cannot sell or mortgage the undivided share of the minor in joint family property without the previous permission of the Court. This permission has to be obtained from the Court and the said section lays down the principles governing the exercise of the Court's discretion in granting or refusing such permission. According to Mr. B. J. Shelat the learned District Judge had, therefore, jurisdiction to make the said order dated 30th April, 1960 under Section 8 of the Act.

6. It is a well-settled principle of construction that every statute must be construed ex visceribus actus i. e., within the four corners of the Act. 'The office of a good expositor of an Act of Parliament' said Coke in the Lincoln College Case 'is to make construction on all parts together and not of one part only by itself.' When construing the terms of any provision found in a statute, the Court is bound to consider other parts of the statute which throw light on the intention of the Legislature and serve to show that the particular provision ought not to be construed as it would be alone and apart from the rest of the statute. Every clause of a statute should be construed with reference to the context and other clauses in the statute so as, as far as possible, to make a consistent enactment of the whole statute. No part of a statute should be construed in isolation for the intention of the law-maker is to be found not in one part of the statute or another but in the entire enactment and that intention can best be gathered by viewing a particular part of the statute not detached from its context in the statute but in connection with its whole context. It is in the light of these prefatory observations that I will now proceed to examine the arguments advanced by Mr. B. J. Shelat.

7. As the preamble suggests, the Act is passed to amend and codify certain parts of the law relating to minority and guardianship among Hindus. The Act is thus a codifying enactment in respect of the subject-matter with which it deals. The question, however, is what is the extent and coverage of this subject-matter. The Act deals with three types of guardians viz., natural guardians, testamentary guardians and guardians appointed or declared by Court. The definition of 'guardian' in Section 4(b) includes a natural guardian, a guardian appointed by the will of the minor's father, or mother i. e. a testamentary guardian and a guardian appointed or declared by Court. Sections 4(c), 6, 7 and 8 deal with natural guardians; Section 9 deals with testamentary guardians while Sections 12 and 13 deal with guardians appointed or declared by Court. One central idea which runs through all these sections is that under the Act there cannot be a natural guardian or a testamentary guardian or guardian appointed or declared by Court in respect of the undivided interest of a minor in joint family property. In respect of each of these three types of guardians, specific provision is made in language clear and explicit that the guardian in respect of a minor's property shall be only in respect of his property other than undivided interest in joint family property. Section 6 mentions the natural guardians of a Hindu minor, in respect of his person as well as in respect of his property, but the undivided interest of the minor in joint family property is specifically excluded from the scope and purview of the said section and the natural guardians in respect of the minor's property mentioned in the said section are only in respect of his property other than undivided interest in joint family property. Section 9 deals with the power of a Hindu father, mother and widow to appoint a testamentary guardian, in respect of the minor's person or in respect of his property, but by the very language of the said section that power is, in so far as it relates to the appointment of a testamentary guardian in respect of the minor's property, limited to property other than his undivided interest in joint family property. Section 12 which deals with guardians appointed or declared by Court specifically provides that no guardian shall be appointed for a minor in respect of his undivided interest in joint family property. It will thus be seen that all the three types of guardians dealt with by the Act, viz., natural guardians, testamentary guardians and guardians appointed or declared by Court are either guardians in respect of the minor's person or guardians in respect of the minor's property other than his undivided interest in joint family property and that the Act does not contemplate and deal with any guardian in respect of the undivided interest of a minor in joint family property. The subject-matter with which the Act deals is limited to guardians in respect of the minor's person or in respect of the minor's property other than his undivided interest in joint family property, whether they be natural guardians or testamentary guardians or guardians appointed or declared by Court and the concept of a guardian in respect of the undivided interest of a minor in joint family property is not only foreign to the Act but is specifically excluded from the scope and purview of the Act by express enactment, It is against this background that I must now proceed to examine the language of Section 8 which is the section with which I am concerned in the present application.

8. Section 8 deals with the powers of a natural guardian in relation to the minors estate. It empowers the natural guardian to do all acts which are necessary or reasonable and proper for the benefit of the minor or for the realisation, protection or benefit of the minor's estate, but lays down that the natural guardian cannot, in any case, bind the minor by a personal covenant. It also prescribes certain restrictions on the powers of the natural guardian and provides that the natural guardian shall not, without the previous permission of the Court, mortgage or charge, or transfer by sale, gift, exchange or otherwise, any part of the immovable property of the minor, or lease any part of such property for a term exceeding five years or for a term extending more than one year beyond the date on which the minor will attain majority. Now the term 'natural guardian' has been defined in Section 4(c) to mean any of the guardians mentioned in Section 6. In order, therefore, to determine the scope and coverage of Section 8, one must turn to the provisions of Section 8 and see who are the natural guardians mentioned in that section, for the powers set out in Section 8 are those of the natural guardians mentioned in Section 6 and so also are the restrictions set out in that section. The term 'natural guardian' having been defined in Section 4(c) and the natural guardians contemplated and dealt with by the Act having been mentioned in Section 6, the ambit and operation of Section 8 must be limited to the natural guardians mentioned in Section 6 and Section 8 must not be construed so as to embrace within its scope the concept of a natural guardian in respect of the undivided interest of a minor in joint family property. The natural guardians whose powers are prescribed by Section 8 are thus natural guardians in respect of the minor's property other than his undivided interest in joint family and the restrictions laid down in that section also relate to the same natural guardians. The entire scheme of the Act which I have analysed in the preceding paragraph shows that the concept of a guardian in respect of the undivided interest of a minor in joint family property is excluded from the scope and purview of the Act and the Act does not contemplate and deal with any guardian in respect of the undivided interest of a minor in joint family property. Since Section 8 deals only with the powers and restrictions on powers of natural guardians in respect of the minor's property other than undivided interest in joint family property, the words 'the minor's estate' and 'the immovable property of the minor' must be construed so as to mean minor's estate or immovable property other than his undivided interest in joint family property. It is a general rule of construction that the Court must not only look at the words but must also look at the context, the collocation and the object of such words relating to such matter and interpret the meaning according to what would appear to be the meaning intended to to be conveyed by the use of words under the circumstances. The words 'the minor's estate' and 'the immovable property of the minor' having been used in Section 8 in relation to natural guardians in respect of the minor's property other than his undivided interest in joint family property they must be limited to mean minor's estate or immovable property other than his undivided interest in joint family property and cannot be construed so as to include the undivided interest of the minor in joint family property. The restrictions contained in Section 8 do not, therefore, apply in respect of the undivided interest of a minor in joint family property and a father who is the Manager and Karta of the joint and undivided Hindu family consisting of himself and his sons can alienate joint family property in its entirety including the undivided share of his minor sons in such property without obtaining the previous permission of the Court provided the alienation is one otherwise justified under Hindu law. Merely because he as the father happens to be the natural guardian in respect of the person and separate property of his minor sons within the meaning of Section 6, it does not mean that he cannot in his capacity as the Manager and Karta of his joint family alienate the entire joint family property, including the undivided share of his minor sons in such property, without the previous permission of the Court even in cases where such alienation is permitted under Hindu Law. It is a well-settled pro-position of Hindu Law that a Manager and Karta of a joint family can alienate joint family property so as to bind the interest of minor coparceners in such property provided that the alienation is either for legal necessity or for the benefit of the estate. If the Manager and Karta is a father, he has certain additional powers of alienation under Hindu Law and in exercise of those powers, he can alienate joint family property so as to bind the interest of his minor sons in such property. These powers are not sought to be affected in any way by the Act. The consequence of accepting Mr. B. J. Shelat's arguments would be that even in cases where a father who is the Manager and Karta of his joint family was entitled under Hindu Law to alienate joint family property so as to bind the interest of his minor sons in such property, he would not now be entitled to do so without obtaining the previous permission of the Court under Section 8 of the Act, Mr. B. J. Shelat's argument would come to this namely that after the coming into force of the Act, a father who is the Manager and Karta of his joint family, cannot alienate joint family property so as to bind the interest of his minor sons in such property even in those cases where Hindu Law otherwise permits him to do so, and that he can effect such a alienation only after obtaining the previous permission of the court which permission can be granted by the Court only in case of necessity or for an evident advance of the minor. The result would be that a father who is the Manager and Karta of his joint family would no longer have the power to make a gift within reasonable limits of ancestral immovable property for pious purposes or to sell or mortgage ancestral immovable property for payment of his own debts provided the debts were antecedent debts and were not incurred for immoral and illegal purposes, and these powers which he enjoys under Hindu Law would be gone. I have no doubt that the Act was not intended to make such a serious inroad into Hindu Law. The language of the Act does not justify the construction contended for by Mr. B. J. Shelat and unless the language is clear and explicit, I would not be inclined to put such construction which has the effect of seriously impairing the powers of alienation enjoyed by a father who is the Manager and Karta of his joint family under Hindu Law. Such a construction would have the effect of placing greater restrictions on a father who is the Manager and Karta of his joint family in the matter of alienation of joint family property than on a Manager and Karta who is not the father but a brother or an uncle or a cousin. A Manager and Karta who is a brother or an uncle or a cousin would be entitled to alienate joint family property so as to bind the interest of minor coparceners without obtaining the previous permission of the court whereas a Manager and Karta who is a father and who would therefore be expected to be more particular about the welfare of his minor coparceners who are his sons would not be entitled to alienate joint family property so as to bind the interest of his minor sons without obtaining the previous permission of the Court. This would indeed be an anomalous result. I am, therefore, of the opinion that the restrictions contained in Section 8 do not apply in respect of the undivided interest of a minor in joint family property and that Section 8 does not debar a Manager and Karta of a joint family from alienating joint family property without obtaining the previous permission of the Court even if the Manager and Karta happens to be the natural guardian in respect of the separate property of any one or more of the minor coparceners. Of course, the alienation would have to be justified under Hindu Law, but Section 8 does not require that any previous permission of the Court should be obtained before effecting such alienation. No application can, therefore, be maintained under Section 8 of the Act by a Manager and Karta of a joint family for permission to mortgage or charge, or transfer by sale, gift, exchange or otherwise or lease the undivided interest of a minor coparcener in joint family property even if the Manager and Karta happens to be the natural guardian in respect of the person and separate property of such minor coparcener under Section 6 of the Act. The application made by the petitioner before the District Court was, therefore, misconceived and the learned District Judge had no jurisdiction to make the said order dated 30th April 1960 under Section 8 of the Act.'

6. In the case of Subramaniam v. K. Gounder (AIR 1972 Mad 377), it was observed that the language of Section 8 of the Hindu Minority and Guardianship Act in relation to the limitation of powers of mangement of the immoveable property of the minor is in pari materia with the provisions contained in Section 29 of the Guardians and Wards Act. The expressions 'minor's estate' and 'immovable property of the minor' occurring in Section 8 can apply only to definite properties belonging to the minor and not to a fluctuating interest of the minor in the undivided Hindu family. It was further held that the Manager or Karta of a joint family can alienate joint family property so as to bind the interest of the minor coparceners in such property provided the alienation is either for legal necessity or for the benefit of the estate. If the manager and Karta is the father, he has certain additional powers of alienation under Hindu Law and in exercise of those powers he can alienate joint family property so as to bind the interest of his minor sons in such property. It was held that the sale-deeds executed by a Hindu father on behalf of himself and as a guardian of his minor son are not invalid.

7. The Orissa High Court has also considered the provisions of Section 8 of the Hindu Minority and Guardianship Act. In the case of Sunamani Dei v. Babaji Das (AIR 1974 On 184), the Orissa High Court has held that when the minor and his mother constitute a Hindu joint family each with a moiety undivided interest in the house belonging to the family, in the absence of the father, the mother as natural guardian can alienate even the minor's half share in the house under the personal law. Section 8 of the Hindu Minority and Guardianship Act will not apply to such alienation.

8. The Patna High Court, in the case of Nathuni Mishra v. Mahesh Misra (AIR 1963 Pat 146) has held that where a manager and karta of a Hindu joint family enters into a contract for the sale of immovable property belonging to the family for a legal necessity, the purchaser is entitled in law to obtain a decree for specific performance of contract, though some of the members of the joint family are minors. If legal necessity for the contract of sale has been established, it is enough to bind the minor coparceners also and it is not necessary in such a case to establish, in addition to the legal necessity, actual benefit to the minors. It has further held that Section 11 of the Act does not deal with the disposal of the undivided interest of a minor in a joint Hindu family governed by the Mitakshara school of law. As a matter of fact, Section 12 provides that no guardian shall be appointed for the minor in respect of the undivided interest in a joint Hindu family. If the minor is a member of a joint family governed by the Mitakshara law, the father as karta or manager is entitled to the management of the whole coparcenary property, including the minor's interest. Section 11 cannot be pleaded as a bar to the disposal of joint family property by the manager or the karta of the family for legal necessity.

9. These cases referred to above represent a general consensus amongst the different High Courts about the true scope of Section 8 of the Hindu Minority and Guardianship Act. The learned counsel appearing on behalf of the appellant has, however, strongly relied upon the two unreported judgments of Division Benches of this Court and submits that they support his argument that father as a karta of the joint Hindu family cannot alienate the minor's interest in a joint family property in the absence of the permission of the civil court as provided in Section 8 of the Act, The first case relied upon by the learned counsel is First Appeal No. 208 of 1959 (Kanhaiya Lal v. Ram Deo Jain) decided on 7-2-1962 (All) by a Division Bench of this Court, In that case, a contract for the sale of land was entered into between Lala Anandi Dayal Garg, acting for himself and as guardian of his minor sons Ram Gopal, Kishan Gopal and Hari Gopal and his minor daughters Kumari Usha and Kumari Indu Bala and Girja Nandan, Mahesh Prasad and Girdhar Gopal, sons of L. Anandi Dayal Garg, who were major, on the one hand and Ramdeo Jain and Sohanlal Jain, on the other, whereby the former agreed to sell a specified piece of land to the latter for a sum of Rupees 22,748/12. The proposed purchaser resiled from the contract and Anandi Dayal Garg and his minor and adult sons and daughters who were minor filed a suit for specific performance of the contract. The court decreed the suit in respect of the shares of the majors but dismissed the suit for specific performance in relation to the shares of the minors. The court was of the view that the permission which has been granted by the District Judge was to sell the land not to enter into a contract for the sale of the land. It was held by the Bench that contract of sale of immovable property is a contract of a purely personal nature and no personal liability can be imposed on the minor. Minor cannot be compelled to perform the contract. The purchaser in such a case can only claim compensation against the guardian provided he can establish a case for compensation, but he cannot claim such a compensation against the minor. It was further held that a minor or a lunatic in British India cannot contract at all. Consequently, if he is a party to any agreement, there is in the eye of the law no contract, and, consequently, no right to specific performance at the instance either of the promisor or the promise. In this view of law, the Bench held that the minors could not obtain a decree for specific performance in relation to their part of the contract.

10. The other decision relied upon by the counsel for the appellant is the case of Smt. Ginno Bai v. Ram Babu Singh (First Appeal No. 195 of 1964 decided by another Division Bench of this Court on 6-1-1969 (All)). The relevant facts were found as under:

'The second submission made on behalf of the respondents is that Shri Ram Babu Singh was not entitled to enter into such a contract on behalf of the minor sons of his brother Chaudhary Gangadhar Singh, and that such contract was not enforceable against the minors. In support of this sub-mission, reliance has been placed on Section 8 and Section 11 of the Hindu Minority and Guardianship Act (No. 32 of 1956). It has been point ed out that Shri Ram Babu Singh who was father's brother of minors Raghuraj Singh, Jagdish, Munna and Lachcho, was not competent to enter into a contract with regard to the estate of the minors, and that such a contract was not enforceable against the interest of the minors. Clause (2) of Section 8 of the Hindu Minority and Guardianship Act lays down that the natural guardian shall not without the previous permission of the court mortgage or charge or transfer by sale, gift, exchange or otherwise any part of the immovable property of the minor, Clause (3) of that section further lays down that any disposal of immovable property by a natural guardian in contravention of the second clause is voidable at the instance of the minor or any person claiming under him. Attempt was made by Mr. D. Sanyal to show that Section 8 does not apply to transfers of coparcenary property of a Hindu joint family in which some of the members are minors. In that class of cases, the karta of the joint family has power to alienate the coparcenary property even though some of the members of the coparcenary property are minors provided of course that the alienation is for valid necessity. We may point out that in para. 3 of the plaint, the plaintiff-appellant alleged that Shri Ram Babu Singh defendant No. 1 agreed to sell the suit property to the plaintiff for self and as natural guardian of the minor sons of his brother Gangadhar Singh.

It has nowhere been alleged that Shri Ram Babu Singh was the Karta of joint family, of which the minors were members, nor that Shri Ram Babu Singh entered into the agreement in his status as Karta of such a joint family. He claimed to be the natural guardian of the minors at the time when he entered into the agreement. Now it is not disputed that Shri Ram Babu Singh, who was the uncle of the minors was not their natural guardian. It is not contended that he was a certificated guardian either. In view of the averments of the plaint, it is not possible for us to permit the plaintiff to support the agreement on the ground that Shri Ram Babu Singh acted as Karta of a joint Hindu family when he entered into the aforesaid agreement- It was also urged by Mr. Sanyal that the property in respect of which agreement had been made was coparcenary property and that Section 8 referred to above is, therefore, not applicable. We do not find any force in that submission. Such a question was considered by a Division Bench of this Court in First Appeal No. 208 of 1959 (All) (Kanhaiya Lal v. Ramdeo Jain decided on 7-2-1962). In that case, it was the father of the minors himself, who had entered into the agreement and was, therefore, undoubtedly the natural guardian of the minors. The view taken by that Division Bench was that Section 8 is applicable to the estate of a minor whether that' estate was constituted by the exclusive properties of the minors, or by his interest in the coparcenary property. It was also suggested that Shri Ram Babu Singh was the de facto guardian of the minors. We are unable to accept that contention inasmuch as the plaint allegations go to show that it was claimed that Ram Babu Singh was the natural guardian of the minors. Assuming for a moment that he was a de facto guardian, Section 11 of the Hindu Minority and Guardianship Act clearly prohibits a de facto guardian from disposing of or dealing with the property of a Hindu minor.'

11. The words which have been underlined for emphasis have been stressed by the learned counsel for arguing that the minor's interest in coparcenary property could not be sold by the natural guardian, namely, the father.

12. The facts of the case in First Appeal No. 208 of 1959 (All) did not require the court to hold that the minor's interest in question in a coparcenary property could not be sold by the father under the Hindu Law and, consequently, the Bench did not so hold.

13. 'Guardian' has been defined in Section 4(b) of the Act as under:

'4 (b) 'guardian' means a person having the care of the person of a minor or of his property or of both his person and property and includes--

(i) a natural guardian,

(ii) a guardian appointed by the will of the minor's father or mother,

(iii) a guardian appointed or declared by a court, and

(iv) a person empowered to act as such by or under any enactment relating to any court of wards;

'Natural guardian' has been defined in Section 6 of the Act. Section 12 of the Act provides that where a minor has an undivided interest in joint family property and the property is under the management of an adult member of the family, no guardian shall be appointed for the minor in respect of such undivided interest; provided that nothing in this section shall be deemed to affect the jurisdiction of a High Court to appoint a guardian in respect of such interest. This proviso lays down that this restriction shall not affect the jurisdiction of the High Court to appoint a guardian in respect of a minor.

14. The provisions of Section 6 exclude a Hindu minor having a natural guardian as defined by the Act for his undivided interest in a joint family property. This would, therefore, exclude a natural guardian as understood by the Act applying for the permission of the Court under Section 8(2) of the Act. The result would be that so long as the Hindu Law shall apply, a father or a natural guardian can alienate a minor's interest in corprcenary property subject to the well-known conditions regarding benefit of the estate etc.

15. I find no merit in this second appeal and it is dismissed with costs.


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