Skip to content


D.S. Swamikannu Pillai and anr. Vs. Safoorma Bibi - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtChennai High Court
Decided On
Case NumberCivil Revn. Petn. Nos. 850 and 2142 of 1968
Judge
Reported inAIR1973Mad148
ActsGuardians and Wards Act - Sections 23, 31 and 43; Code of Civil Procedure (CPC) , 1908 - Sections 151
AppellantD.S. Swamikannu Pillai and anr.
RespondentSafoorma Bibi
Cases ReferredHarikrishna v. Sri C. P. Jain Temple
Excerpt:
.....act and section 151 of code of civil procedure, 1908 - revision petition against order directing sale of property as per draft agreement between intending purchaser and earlier guardian - court while exercising jurisdiction under provisions of guardians and wards act has to act only to safeguard interest of minors and it cannot pass an order against interests of minor at instance of third party - court has no jurisdiction to direct guardian to continue petition against his will - court empowered to make general directions to guardian suo motu in course of his administration in interest of minors and their estates - held, order directing guardian to execute sale deed as per original sanction at instance of intending purchaser without any fresh permission being sought by guardian invalid..........cal lj 322, a division bench expressed the view that the court has no power to deal with the minor's property in its own motion in any way, and the only power is to consider judicially any application that may be made by the guardian. in that case an order had been passed by the lower court removing a guardian owing to her mismanagement and appointing a fresh guardian and directing the sale of all the minor's properties and convert them into cash to enable the guardian to pay off debts and to invest the balance of the sale proceeds in government securities. the high court characterized that order as being extraordinary and wholly without jurisdiction. while holding such an order to be ultra vires the court said:--'the section which empowers him to deal with the minor's property is.....
Judgment:
ORDER

1. All the above matters are connected and arise out of the same proceedings, and therefore they are dealt with together.

In O. P. No. 3 of 1965 on the file of the District Court, Coimbatore, one D. S. Swamikannu Pillai was appointed as personal as well as property guardian of his minor sons, Paranjothi and five others under provisions of the Guardians and Wards Act. The minors get certain properties by way of gift from a relation, one D. Rejendran Pillai. Even at the time of the gift by the said Rajendran Pillai there was a subsisting mortgage debt on the property gifted. The mortgagee filed a suit O. S. No. 309 of 1964 and obtained a decree. On the ground that the mortgagee was taking out execution proceedings to realize the sum of Rs. 4,000/- due under the mortgage and that if the property is sold in court auction it would fetch a low price, the said guardian filed an application before the lower court in I. A. 526 of 1965 seeking permission to sell the property of the minors by private sale and undertaking to invest the balance of the sale proceeds after discharging the mortgage debt in Government securities and to withdraw the interest thereon from time to time for the maintenance and education of the minors. The mother of the minors also filed an affidavit stating that the sale by private negotiation would be advantageous to the minors, in support of the application made by the father-guardian. The court passed on order on 6-12-1965 in that application as follows:--

'I am satisfied that this is a bona fide prayer and that it is for the benefit of the minors. I therefore allow the application. Before the sale is concluded, an agreement of sale and other matters relating to the sale could be reported to the court then and there. After approval by the Court the sale should be concluded.'

On 18-3-1967, the guardian filed a memo along with a draft agreement of sale stating that he was reached an agreement with one Safoorma Bibi to sell the minors' properties for a sum of Rs. 42,000/- subject to the mortgage decree in O. S. 309 of 1964 on the file of the District Munsif's court, Coimbatore, that he had received a sum of Rs. 4,000/- as advance from her with a view to discharge the mortgage debt, that the above price is the best and highest he could fetch, and that the sale of the property at that price will be advantageous to the minors. Later, the guardian filed a regular application I. A. 184 of 1967, seeking the court's approval for the draft agreement and for permission to proceed with the sale. In support of the statements made in his memo the guardian also filed an affidavit from the minors' mother to the effect that the price fixed under the agreement is the highest one possible. The court ordered the guardian and the husband of the proposed purchaser to appear in court, and on 6-4-1967 both of them appeared in court. The husband of the proposed purchaser expressed his willingness to buy the property and pay in one installment the entire sale consideration if vacant possession was given. In order to enable the parties to ensure vacant possession of the property being given to the purchaser at the time of the completion of the sale, the matter was adjourned to 11-4-1967. But from 11-4-1967 it was adjourned from time to time at the request of the guardian till 23-5-1967. As the guardian could not evict the tenants in the property and was not in a position to deliver vacant possession of the property which was insisted on by the proposed purchaser, the advocate for the guardian made an endorsement that the petition in I. A. 184 of 1967 was not pressed for the present. On the basis of that endorsement the petition came to be dismissed as not pressed on that date. It is seen that on 27-3-1967 the guardian actually got permission from court to institute a suit against tenant in the property for recovery of possession so as to enable him to give vacant possession of the property to the intending purchaser. It is said that a suit has been filed and is still pending.

2. It is under the above circumstances the intending purchaser filed three applications before the lower court. I. A. 107 of 1968 was filed on 23-1-1968 to implead her as the third respondent in I. A. 184 of 1967 which stood dismissed already. On the same day she filed another application, I. A. 109 of 1968 to revive the petition in I. A. 184 of 1967. On 12-2-1968 she filed another application I. A. 108 of 1968 under Section 31 of the Guardians and Wards Act and Section 151, Civil Procedure Code seeking a direction from the court to the guardian to conclude the sale of the property as per the draft agreement earlier referred to. The Court by common order dated 5-8-1968, already all the three applications and directed the guardian to execute a sale deed for a consideration of Rs. 42,000/- in favor of the proposed purchaser and also to render accounts for the sum of Rs. 14,500/- said to have been received by the guardian of the minors in pursuance of the draft agreement of sale. C. R. Ps. 1245 to 1247 of 1969 are directed against the said common order passed by the lower court.

3. Subsequently the guardian, Swamikannu Pillai, filed an application I. A. 3020 of 1968 for a review of the order dated 5-8-1968 on the ground that all the relevant and full facts have not been placed before the court at the time when the original order was passed. The court saw no reason to review the order so far as it directed the sale of the property but was inclined to modify the same so far as it directed to account for the sum of Rs. 14,500/- issued against the guardian is concerned. In that view the court approved the draft sale deed as desired by the intending purchaser.

4. C. R. P. 2142 of 1968 has been filed by the guardian against the order of the lower court dated 17-10-1968 refusing to review its order directing the sale of the property. C. R. P. 850 of 1969 has been filed by the intending purchaser against the same order of the lower court so far as it relieved the guardian from the obligation of accounting for the sum of Rs. 14,500/- received by him.

5. After the above revision have been filed before this court, one of the six minors has become a major, and he has been declared major and appointed as the guardian of the other minors in the place of their father, Swamikannu Pillai by an order of the lower court. The present guardian challenges the order dated 5-8-1968 passed in I. A. 107 to 109 of 1968 on the following grounds--(1) that the lower court was in error in restoring the petition in I. A. 184 of 1967 which stood dismissed on 23-6-1967 as not pressed, at the instance of intending purchaser; (2) that the lower court was also in error in impleading the intending purchaser as the third respondent in that petition and directing the sale of the property at her instance and (3) that the lower court has only considered the interest of the intending purchaser in making that order, overlooking its primary duty of safeguarding the interest of the minors.

6. I consider that there is considerable force in the above contentions put forward by the present guardian. The court, exercising its jurisdiction under the provisions of the Guardians and Wards Act, has to act only to safeguard the interest of the minors and it cannot pass an order against the interests of a minor at the instance of third parties. If the court comes to conclusion that the sale is definitely for the benefit of the minor on an application filed by the guardian for sanction, it can direct the guardian to sell a property. But the prime consideration in giving such a direction for sale is the advantage the minors will get by the sale of the property. In this case the father-guardian sought the permission of the court to sell the property on the plea that the sale price of Rs. 42,000/- agreed was a fair price. But later at the state when the intending purchaser filed the above application I. A. 107 to 109 of 1968 the same guardian resisted them on the ground that the property is worth more than a lakh of rupees. The Court below has proceeded to find fault with the guardian in giving different versions at different stages and has held that it is not open to the guardian to go back on his earlier statement that Rs. 42,000/- is a fair value. It is true that the father-guardian has not acted fairly to the court and his conduct is far from satisfactory. But that will not relieve the court of its duty of finding out the true value of the property and ascertaining whether the transaction of sale is beneficial and advantageous to the minors. As a matter of fact, in the peculiar circumstances of the case where the guardian has put forward different versions as to the value of the property at two different stages, the court should have been cautious and should have considered the actual value of the property before directing the sale as desired by the intending purchaser.

7. Even otherwise, I am of the view that the lower court had no jurisdiction to restore I. A. 184 of 1967 which had been dismissed as not pressed on 23-6-1967. That application was filed by the guardian seeking certain directions from the court and the guardian has allowed it to be dismissed as not pressed. The court has no jurisdiction to direct the guardian to continue the petitions against his will, though the court is empowered to make general directions to the guardian suo motu in the course of his administration in the interest of the minors and their estates. If the intending purchaser filed an independent application for certain directions against the guardian under any of the provisions of the Guardians and Wards Act, it is open to the court to consider that application on merits. But it cannot direct a petition filed by the guardian which stood dismissed long ago, for the benefit of an intending purchaser against the will of the guardian. Similarly, the lower court has acted without jurisdiction in impleading the intending purchaser as a third respondent in the application filed by the guardian, against his will. If the intending purchaser wanted certain directions from the court in the course of the administration of the minor's estate by the guardian, such directions should be sought by an independent application filed by her, and she is not entitled to revive an application which stood dismissed long ago as a result of the guardian not pressing the same. The order of the lower court restoring the petition in I. A. 184 of 1967, impleading the intending purchaser as third respondent, and ordering the sale of the property against the will of the guardian virtually amounts to a suo motu direction to sell the minors'' properties for the exclusive advantage of the intending purchaser.

8. In Jagatbai v. Gajadhar Upadhyaya, (1910)12 Cal LJ 322, a Division Bench expressed the view that the court has no power to deal with the minor's property in its own motion in any way, and the only power is to consider judicially any application that may be made by the guardian. In that case an order had been passed by the lower court removing a guardian owing to her mismanagement and appointing a fresh guardian and directing the sale of all the minor's properties and convert them into cash to enable the guardian to pay off debts and to invest the balance of the sale proceeds in Government securities. The High Court characterized that order as being extraordinary and wholly without jurisdiction. While holding such an order to be ultra vires the court said:--

'The section which empowers him to deal with the minor's property is Section 29. It only enables the judge to give permission to the guardian to sell such portions of the properties as may be necessary on an application properly framed by the guardian for that purpose. It confers no power whatever on the judge to deal with the minor's property on his own motion in any way'.

9. In Chittarmal v. Jagannath Prasad, ILR(1907) All 213, when the intending purchaser brought a suit for specific performance of an agreement to sell entered into by the guardian of a minor, the court said:--

'We think that the principle on which we would act in this case is the principle that a court will never enforce specific performance against a minor when such enforcement is to his detriment........... We think that courts in this country, as in England, will not allow a bargain made by an improvident guardian to be enforced against the interests of the minor, if it be shown to be a bargain made to the detriment of the minor.'

Imami v. Mst. Kallo, ILR 38 All 433 : AIR1916All179 , was a case where the District Judge sanctioned the sale by the certificated guardian of a minor of a house belonging to the minor for a price of Rs. 1,300/-. However, some dispute arose about the drafting of the sale deed and the result was that the sale was not carried through. Meanwhile other offers were made for the property, and ultimately the District Court directed that the house should be sold to the person who offered Rs. 2,000/-. A suit was filed by the person in whose favor the sale had originally been sanctioned, for specific performance of the agreement of sale in his favor. The High Court felt that it is justified in refusing to grant a decree for specific performance. The facts in that case are somewhat similar to the facts of the present case. Here there was permission to sell the property at Rs. 42,000/- in favor of the respondent in C. R. Ps. 1245 to 1247 of 1969, but she insisted that vacant possession should be given at the time of the completion of the sale, and as vacant possession could not be given in view of the difficulty in evicting the tenants in the property, the sale originally sanctioned by the court could not be put through. Therefore, the guardian withdrew the application for approval of the sale deed. Now if the court were to direct the guardian to execute a sale deed at the instance of the intending purchaser, it will practically amount to a decree for specific performance of the agreement of sale in favor of the intending purchaser. The above decision shows that in circumstances as these the Court will be justified in refusing to pass a decree for specific performance, even if the intending purchaser files a suit for such a relief. In Kundanlal v. Bhagavati Saran : AIR1934All1043 , a guardian appointed under the Guardians and Wards Act made a transfer of the minor's property without obtaining the permission of the District Judge. The court therefore passed an order canceling the sale deed. The question arose as to whether the court was empowered to pass such an order. The High Court expressed that any question as regards the validity of the transfer made by a guardian is to be determined by a competent court in a regular suit, that it is open to the District Judge to form the opinion that the transfer is invalid and grant permission to the guardian to execute another transfer on more advantageous terms, that it is not his proper function to order the guardian to execute any transfer and that there is no provision in the Guardians and Wards Act which empowers the District Judge to exercise disposing power over the minor's property which is under the management of the guardian. The following observations in that case are pertinent:

'It is the function of the guardian to deal with the property of the minor and to administer it. The guardian may obtain the advice of the District Judge under Sec. 33 of the Guardians and Wards Act. The District Judge may also make an order under Section 43 regulating the conduct or proceeding of any guardian appointed or declared by the court.'

The above decision proceeds on the basis that the District Judge, acting under the provisions of the Guardians and Wards Act, cannot himself deal with the minor's property and do everything which the guardian might do. In Suryaprakasam v. Gangaraju AIR 1956 Andh Pra 33, Subbarao, C. J., (as he then was) speaking for the Full Bench observed--

'In all transactions affecting a minor, a paramount duty rests upon the court not to put its seal on transactions affecting his interests. Therefore, though the contract might be valid and otherwise enforceable, if at the time the court was asked to enforce it, it transpires that the circumstances have so changed that it would obviously be unjust and detrimental to the interests of the minor to enforce it the court may well in the exercise of its discretion refuse to give a decree for specific performance.'

Ramachandra Iyer, C. J., speaking for the Full Bench in Harikrishna v. Sri C. P. Jain Temple : AIR1962Mad267 expressed that the jurisdiction of the court under the provisions of the Guardians and Wards Act being essentially a parental and administrative one, no finality can attach to the order sanctioning a proposed transfer by the guardian, that there is nothing in Section 31 itself to suggest that the order thereunder is either conclusive or binding against the minor; that the order can hardly amount to an adjudication of the rights of the minor vis-a-vis the transfer, the minor's interest not being independently represented before the court, albeit the court is itself in the position of parens partriae, and that, therefore, although the court while passing an order under Section 31(2) of the Act, has to be satisfied that the proposed alienation is for the necessity or for an evident advantage of the minor, such order cannot be treated as res judicata, so as to bind the minor or be conclusive against him.

10. In the light of the above decisions, the order of the court below restoring I. A. 184 of 1967 and the impleading of the respondent in C. R. Ps. 1245 to 1247 of 1969 as the third respondent therein and directing the guardian to execute the sale deed as per the original sanction at the instance of the intending purchaser without any fresh permission being sought by the guardian is invalid and without jurisdiction. Therefore the common order dated 5-8-1968 is set aside and the subsequent order passed on the review petition filed by the then guardian is also set aside.

11. In the result C. R. Ps. 1245 to 1247 of 1969 are allowed and C. R. Ps. 2142 of 1968 and 850 of 1969 are dismissed as unnecessary. There will, however, be no order as to costs.

12. It is however made clear that it is open to the respondent in C. R. Ps. 1245 to 1247 of 1969 to take such steps as she may be advised either before the lower court under the provisions of the Guardians and Wards Act or otherwise regarding the payment of Rs. 14,500 said to have been made to the then guardian.

13. Petition allowed.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //