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In Re: Krishnakant Maganlal - Court Judgment

LegalCrystal Citation
SubjectFamily;Property
CourtGujarat High Court
Decided On
Case NumberCivil Revn. Appln. No. 920 of 1960
Judge
Reported inAIR1961Guj68; (1961)GLR108
ActsHindu Minority and Guardianship Act, 1956 - Sections 4, 6, 8, 9 and 12; Hindu Law
AppellantIn Re: Krishnakant Maganlal
Advocates: B.J. Shelat, Adv.
Excerpt:
.....property for legal necessity or for benefit of estate - if karta is father he can bind interest of minor property by such alienation - no previous permission of court is required for such alienation. - - (c) 'natural guardian' means any of the guardians mentioned in section 6.'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: 6. it is a well settled principle of construction that every statute must be construed ex visceribus actus i. '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..........of the said immovable property for the price of rs. 39,251/-. since the said immovable property is joint family property and the minor sons have an interest in the said immovable property, the petitioner made an application to the district judge, surat, for permission to sell the said immovable property on behalf of the minor sons under section 8 of the act. the said application was made by the petitioner as the natural guardian of the minor sons and it was pointed out in the said application that the proposed sale of the said immovable property was for an evident advantage to the minor sons. the said application was heard by the learned district judge and by an order dated 30th april 1960, the learned district judge granted permission to the petitioner to sell the sairl immovable.....
Judgment:
ORDER

Bhagwati, J.

1. This is a Civil Revision Application directed against an order passed by the District Judge, Surat, granting sanction to the petitioner to sell certain immovable property belonging to the joint and undivided Hindu family consisting of himself, his wife and four children who are all minors. The order has been made by the learned District Judge under Section 8 of the Hindu Minority and Guardianship Act, 1956 (hereinafter referred to as the 'Act'). The order is substantially in favour of the petitioner inasmuch as the petitioner has been granted sanction to sell the said immovable property, but under the order certain condition has been imposed and it is against that condition that the petitioner complains in this Civil Revision Application.

2. The facts giving rise to this Civil Revision Application may he briefly stated as follows: The petitioner is the Manager and Karta of the joint and undivided Hindu family consisting of himself, his wife and four children who are all minors. Out of the four children, two are sons and two are daughters. The said immovable property belongs to the said joint and undivided Hindu family and each of the minor sons has an undivided share in the said immovable property. On or about 15th March, 1960, the petitioner as Manager and Karta of the said joint and undivided Hindu family entered into an agreement for sale of the said immovable property for the price of Rs. 39,251/-. Since the said immovable property is joint family property and the minor sons have an interest in the said immovable property, the petitioner made an application to the District Judge, Surat, for permission to sell the said immovable property on behalf of the minor sons under Section 8 of the Act. The said application was made by the petitioner as the natural guardian of the minor sons and it was pointed out in the said application that the proposed sale of the said immovable property was for an evident advantage to the minor sons. The said application was heard by the learned District Judge and by an order dated 30th April 1960, the learned District Judge granted permission to the petitioner to sell the sairl immovable property on behalf of the minor sons under Section 8 of the Act, but imposed a condition that the petitioner should execute a bond with one surety for Rs. 20,000/- to secure the interest of the minor sons in the said immovable property. The petitioner found that he was not in a position to comply with the said condition as he knew no one in Surat who was ready and willing to be a surety for Rs. 20,000/-. He, therefore, filed this Civil Revision Application against the order of the learned District Judge complaining against the imposition of the said Condition.

3. When this Civil Revision Application came Up before me for hearing and my attention was drawn to the relevant sections of the Act, I felt prima facie that the learned District Judge had no jurisdiction to make any order under Section 8 of the Act in respect of the undivided share ot a minor in joint family property. I, therefore, asked Mr. B. J. Shelat, the learned advocate on behalf of the petitioner, to satisfy me whether the learn-ed District Judge had jurisdiction to make the order dated 30th April 1960 under Section 8 of the Act. If the said order was without jurisdiction, the petitioner was not entitled to maintain this Civil Revision Application because this Civil Revision Application proceeded On the basis that the learned District Judge had jurisdiction to make the said order hut that he had acted illegally or with material irregularity in imposing the condition regard-ing the execution of a bond for Rs. 20,000/- with one surety. What the petitioner wanted in this Civil Revision Application was the removal of the said condition and that could be granted only if the said order was otherwise within the jurisdiction of the learned District Judge to make. In order to dispose of this Civil Revision Application it was, therefore, necessary for me to decide whether the learned District Judge had jurisdiction to make the said order. The matter was fully argued before me by Mr. B. J. Shelat and he drew my attention to various sections of the Act and contended that the learned District Judge had jurisdiction under Section 8 of the Act to make an order in respect of the undivided share of a minor in joint family property.

4. In order to appreciate the arguments advanced by Mr. B. J. Shelat, it is necessary to set out the relevant provisions of the Act which have a bearing on the question arising before me, Sections 4, 6, 8, 9 and 12 of the Act run as under:

'4. In this Act:

(a) 'minor' means a person who has not completed the age of eighteen years;

(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;

(c) 'natural guardian' means any of the guardians mentioned in Section 6.'

'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 ct as the natural guardian of a minor under the rovisions 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 (vanaprastha) or an ascetic (yati or sanyasi).

Explanation: In this section, the expressions 'father' and 'mother' do not include a step-father 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 properly 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.'

*****

'9(1) A Hindu father entitled to act as thenatural guardian of his minor legitimate childrenmay, by will, appoint a guardian for any of themin respect of the minor's property (other than theundivided interest referred to in Section 12) or in respect of both.

*****

(3) A Hindu widow entitled to act as thenatural guardian of her minor legitimate children,and a Hindu mother entitled to act as the naturalguardian of her minor legitimate children by reason of the fact that the father has become disentitled to act as such, may, by will, appoint a guardian for any of them in respect of the minor's person or in respect of (he minor's property (otherthan the undivided interest referred to in Section 12)or in respect of both.'

*****

'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 eemed to affect the jurisdiction of a High Court to appoint a guardian in respect of such interest.'

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 along with the powers, the Parliament has also presented 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 sub-feet 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 bo read in any narrow sense as excluding the un-divided 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 find 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 meanings 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 comers 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 ught 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 o 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 ne 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 tne 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 cannon 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 bis person as well as in respect of his property, but the undivided interest of the minor in joint family properly 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 whicly 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 minor's estate. IE 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 denned 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 previsions 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 property 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 n t 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 accord-ing to what would appear to be the meaning intended 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 properly. 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 respact 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 properly, 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 proposition 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 (he 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 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 advantage 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 ot ancestral immovable property for pious purposes or to sell or mortgage encestral immovable pro-perty for payment of his own debts provided the debts were antecedent debts and were not incurred for immoral or 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. Sheiat and unless the language is clear and explicit, 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 Hidu 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.

In view of this judgment, Mr. B. J. Shelat applied for leave to withdraw the Civil Revision Application without prejudice to the petitioner's right to take appropriate proceedings under the inherent jurisdiction of this Court, Since in my judgment the application of the petitioner before the District Court was misconceived and the learned District Judge had no jurisdiction to make any cider on the said application under Section 8 of the Act, I grant leave to Mr. B. J. Sheiat to withdraw the Civil Revision Application as applied by him.


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