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Sunamani Dei Vs. Babaji Das and ors. - Court Judgment

LegalCrystal Citation
SubjectFamily
CourtOrissa High Court
Decided On
Case NumberSecond Appeal No. 27 of 1971
Judge
Reported inAIR1974Ori184; 40(1974)CLT418
ActsHindu Law; Hindu Minority and Guardianship Act, 1956 - Sections 8 and 8(3)
AppellantSunamani Dei
RespondentBabaji Das and ors.
Appellant AdvocateB. Patnaik, Adv.
Respondent AdvocateMira Das, Adv.
DispositionAppeal allowed
Cases ReferredSugga Bai v. Hiralal). Besides
Excerpt:
.....residential house for the minor and the defendant no. hiralal). besides, the alienation is at best a voidable one and the minor on attaining majority would be competent either to accept the alienation by taking no steps to avoid the alienation or ask for setting it aside......of two alienations made by rajani bewa (plaintiff's mother), defendant no. 3, for self and as mother guardian of theplaintiff on 19-7-62 (ext. a) in favour of the defendant no. 1 and 23-7-62 (ext. a1) in favour of the defendant no. 2. the plaintiff was represented by her grandmother. ext. a was an alienation for rs. 800/-. we are not concerned with the other alienation as it has been set aside in the courts below and has become final in the absence of any appeal. 2. the plaintiff claimed that his mother was insane; the alienation of family property was without any legal necessity and not knowing the actual effect of her own acts the defendant no. 3 had made the alienation contrary to the minor's interest 3. the defendant no. 1 took the plea that the defendant no. 3 was not insane as.....
Judgment:

R.N. Misra, J.

1. The plaintiff, a minor, had filed a suit on 30-7-63 for cancellation of two alienations made by Rajani Bewa (plaintiff's mother), defendant No. 3, for self and as mother guardian of theplaintiff on 19-7-62 (Ext. A) in favour of the defendant No. 1 and 23-7-62 (Ext. A1) in favour of the defendant No. 2. The plaintiff was represented by her grandmother. Ext. A was an alienation for Rs. 800/-. We are not concerned with the other alienation as it has been set aside in the courts below and has become final in the absence of any appeal.

2. The plaintiff claimed that his mother was insane; the alienation of family property was without any legal necessity and not knowing the actual effect of her own acts the defendant No. 3 had made the alienation contrary to the minor's interest

3. The defendant No. 1 took the plea that the defendant No. 3 was not insane as alleged. She paid a consideration of Rs. 800/- under Ext. A on being satisfied by enquiry that there was need for buying a more conveniently situated residential house for the minor and the defendant No. 3. As a fact on the self same day a different house site was acquired by the plaintiff and the defendant No. 3 on payment of Rs. 600/- and it was claimed that that consideration for the acquisition came out of the sale proceeds under Ext. A.

4. The courts below have accepted the position that the family residential house was located in a flood-affected area and by the annual floods the house was being damaged. It was, therefore, necessary to buy a flood-free house and as a fact out of the consideration money under Ext. A, such a house has been acquired on payment of Rs. 600/-. They did not find the defendant No. 3 to be insane as alleged. They thus found that the plaintiff had been benefited by the sale under Ext. A and the defendant No. 3's act was found to be prudent. The defendant No. 1 alienee still lost in the litigation as in the view of the lower appellate court the defendant No. 3, the widowed mother, could not act as Karta of the joint family.

5. Mr. Patnaik in second appeal against this concurrent decision of the Additional District Judge takes the stand that on the findings recorded in the courts below the plaintiff's suit is bound to be dismissed and the alienation under Ext. A has to be upheld. Admittedly the mother is the guardian. Sambhu, the minor's father, was dead by the time of alienation. In the absence of the father the defendant No. 3 as the natural mother was entitled to represent the minor.

The sharp division in judicial opinion as to whether a female member can act as the karta has been set at rest by theSupreme Court in AIR 19G6 SC 24 (Commissioner of Income-tax v. Seth Govind-ram Sugar Mills). Law has also beensettled that a Hindu joint family can exist with one male member and his mother (See AIR 1966 SC 1523, G. Bud-danna v. Commr. of Income-tax, Mysore). At the time of the impugned alienation (Ext. A), the minor and his mother were members of such a Hindu joint family each of them having a moiety undivided interest in the property (as conceded in paragraph 1 of the plaint). The plaintiff asked for a declaration that Ext. A was not valid alienation, So far as the mother's (defendant No. 3's) share is concerned, on the findings of the lower appellate court the same has got to be upheld. So far as the minor's half share is concerned, as natural guardian the mother could alienate the same under the personal law. Reliance, however, has been placed on Section 8 of the Hindu Minority and Guardianship Act (XXXII of 1956). As far as material that section provides:--

'8 (1) ...............

(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. X X X '

These are mandatory provisions but it is settled law that to alienations of a minor's undivided interest in a Hindu joint family by a person competent to dispose of the same this section has no application. (See AIR 1961 Guj 68, In re Krishnakant, and AIR 1969 Madh Pra 32, Sugga Bai v. Hiralal). Besides, the alienation is at best a voidable one and the minor on attaining majority would be competent either to accept the alienation by taking no steps to avoid the alienation or ask for setting it aside. This suit on behalf of the minor could not have been contemplated. Faced with the difficulty of annual floods ravaging the residential house the defendant No. 3 as a prudent manager looking after the estate in which was included the undivided interest of the minor made the alienation and acquired a more useful property. That she was certainly competent to do. The plaintiffhaving been fully benefited by the alienation as found may not repudiate the alienation.

6. On the concurrent findings of fact and with the reversal of the erroneous conclusion in law the net effect is that the plaintiff's suit has to be dismissed so far as Ext. A is concerned. The alienation in favour of the defendant No. 1 must be upheld.

7. I accordingly allow the appeal and set aside the judgments of the courts below and direct the plaintiff's suit to be dismissed so far as the alienation under Ext. A is concerned.

8. The parties are directed to bear their own costs throughout.


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