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Darbara Singh Vs. Karminder Singh and ors. - Court Judgment

LegalCrystal Citation
SubjectFamily;Property
CourtPunjab and Haryana High Court
Decided On
Case NumberSecond Appeal No. 1823 of 1973
Judge
Reported inAIR1979P& H215
ActsHindu Minority and Guardian-ship Act, 1956 - Sections 8(1); Transfer of Property Act, 1882 - Sections 53-A
AppellantDarbara Singh
RespondentKarminder Singh and ors.
Cases ReferredParas Ram v. Bhal Singh
Excerpt:
.....powers of superintendence under article 227 of the constitution. - 53a of the transfer of property act, 1882, would be clearly attracted. it means only this that, when looked from the stand point that the aforesaid interdiction is added at the fag-end of section 8(1) by way of proviso to the clause that preceded it, a guardian though well within his right to enter into a contract for the benefit of the minor, but the said contract would not be enforceable against the minor even when it was entered for his benefit and would be voidable at his instance. that was a case in which the decree was sought against the guardian and not against the minor and the decree was not the decree for specific performance but for the return of earnest money received by the guardian and damages..........to as the act.2. the relevant provisions of s. 8 of the act are in the following terms:''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 minor or for the realization, protection or benefit of the minor's estate; but the guardian ran in no case bind the minor by a personal covenant. (2) the natural guardian shall not, without 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.....
Judgment:

1. The short question that arises for consideration in this regular second appeal of the defendant is as to whether the agreement to sell the plaintiff-minors' property entered into by their father Sadhu Singh with the defendant-appellant on 24-10-1967, and in pursuance of which the actual possession of the land was delivered to the defendant-appellant, was or was not in the nature of a personal covenant and thus not binding upon the plaintiff-minors in view of the provisions of sub-section (1) of Section 8 of the Hindu Minority and Guardian-ship Act, 1956, hereinafter referred to as the Act.

2. The relevant provisions of S. 8 of the Act are in the following terms:

''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 minor or for the realization, protection or benefit of the minor's estate; but the guardian ran in no case bind the minor by a personal covenant.

(2) The natural guardian shall not, without 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 void able at the instance of the minor or any person claiming under him.

xxxx xxx xxx xxxx'

3. Learned counsel for the appellant contended that the provision of sub-section (1) of Section 8 of the Act did not preclude the natural guardian of the minors from entering into a contract on behalf of the minors for their benefits and, therefore, the crux of the problem would be that in case the contract so entered into on behalf of the minors by the natural guardian was for their benefit, then such a contract would be enforceable against the minors if there had been part-performance of the contract for to such a contract the provisions of S. 53A of the Transfer of Property Act, 1882, would be clearly attracted. Learned counsel for the appellant sought to underpin his aforesaid submission with the ratio of the decision of the Privy Council reported in Subramanyam v. Subba Rao, AIR 1948 PC 95, followed in Linga Reddy v. Ramachandrappa, AIR 1971 Mys 194 and Piru Charanpal v. Sunilmoy Nerno, AIR 1973 Cal 1 (FB).

4. I am afraid there is no merit in the contention advanced on behalf of the appellant. Any law laid down prior to the enforcement of the Act to the extent it happened to be contrary to what is specifically provided for in the Act would be totally unavailing by virtue of Section 5 thereof which is in the following terms.

'5. Save as otherwise expressly provided in this Act--

(a) any text, rule or, interpretation of Hindu Law or any custom or usage as part of that law in force immediately before the commencement of this Act shall cease to have effect with respect to any matter for which provision is made in this Act;

(b) any other law in force immediately before the commencement of this Act shall cease to have effect in so far as it is inconsistent with any of the provisions contained in this Act.'

Hence, neither the ratio of Subramanyam's case (Privy Council case) not that of the Mysore and Calcutta High Courts' cases in Linga Reddy and Piru Charan Pal respectively would be attracted to the facts of the present case.

5. The provision of sub-section (1) of Section 8 of the Act makes it expressly clear in unqualified terms that no personal covenant of the guardian shall be binding on the minor. It means only this that, when looked from the stand point that the aforesaid interdiction is added at the fag-end of Section 8(1) by way of proviso to the clause that preceded it, a guardian though well within his right to enter into a contract for the benefit of the minor, but the said contract would not be enforceable against the minor even when it was entered for his benefit and would be voidable at his instance.

6. Learned counsel for the appellant also placed reliance on a Single Bench decision of this Court reported in Paras Ram v. Bhal Singh, 1973 Rev LR 37.

7. The decision in Paras Ram's case does not go any farther than this that the provision of sub-section (1) of Section 8 of the Act does not prevent a guardian to enter into a contract regarding the property of a minor for his benefit without the prior permission of the Court but that is not the same thing as saying that such a contract would be binding upon the respondent. That was a case in which the decree was sought against the guardian and not against the minor and the decree was not the decree for specific performance but for the return of earnest money received by the guardian and damages envisaged in the contract, in the failure of the contracting party to fulfil its own part of the contract.

8. For the reasons stated, there is no merit in this appeal and the same is dismissed, but with no order as to costs.

9. Appeal dismissed.


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