Section 8 of the Hindu Minority and Guardianship Act, 1956 = selling of minor‘s property
with definite share is void even by natural guardian with out permission of the court – a minor or any person having interest in minor can question the same – father died – 3 daughters and their mother as legal heirs – 1/4 th share each got – mutation to that effect – sale is void against the minor in the absence of court permission =
The trial court while deciding the 7th issue noticed evidence of
other witnesses.
It further noticed that
the property was devolved on the
wife, Smt. Rishal and Saroj, Manoj and Sanoj in equal share of 1/4th each.
According to the entries in the revenue record they were in possession of 1/4th share of the land.
Section 8 of the Hindu Minority and Guardianship Act, 1956
deals with
the powers of natural guardian of a Hindu minor and the said section
mandates that the natural guardian has power 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, etc. The
provision reads as follows:
“8 . Powers of natural guardian.-
(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 realization, 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.
xxx xxx xxx xxx
xxx xxx xxx xxx”
As per clause (a) of sub-section (2) of Section 8 no immovable property
of the minor can be mortgaged or charged, or transferred by sale, gift,
exchange or otherwise without the previous permission of the Court.
Under
sub-section (3) of Section 8 disposal of such an immovable property by a
natural guardian, in contravention of sub-section (1) or sub-section (2) of
Section 8, is voidable at the instance of the minor or any person claiming
under him.
12. In the present case, though it is stated that the property has been sold for the proper benefit of the minors, their protection, education and marriage,there is nothing on record to suggest that previous permission of the Court was obtained by the natural guardian before transfer by sale in question.
13. Where the father dies leaving behind only minor daughters and their
mother as natural guardian,
the share of the daughters became definite;
the question of family partition retaining the character of joint Hindu Family property does not exist.
In the present case,
after the death of the father,
the property has been shared amongst
each member of the family and recorded in the mutation register
having 1/4th share each.
In such circumstances, the provision of
sub-section (3) of Section 8 shall attract as the mother sold the
property without previous permission of the Court.
Hence, both the
sale deeds executed by the second respondent in favour of the first
respondent shall become voidable at the instance of the minor i.e.
the appellant and the Proforma-respondent nos.4&5.
14. In view of the finding recorded above, we set aside the judgments and
orders passed by the trial court, First Appellate Court and Second
Appellate Court. Accordingly, the suit stands decreed in favour of
the appellant and proforma respondent Nos.4 and 5. The appeal is
allowed with no costs.
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 10582 OF 2013
(arising out of SLP(C)No.27949 of 2012)
SAROJ … APPELLANTS
VERSUS
SUNDER SINGH & ORS. … RESPONDENTS
J U D G M E N T
SUDHANSU JYOTI MUKHOPADHAYA, J.
Leave granted. This appeal has been preferred by the appellant
against the judgment and order dated 14th December, 2011 passed by the High
Court of Judicature for Rajasthan, Jaipur Bench, Jaipur in S.B. Civil First
Appeal No. 313 of 2009. The Appellate Court by the impugned judgment held
that there is no illegality or perversity in the findings recorded by the
trial court and affirmed the order of the trial court which dismissed the
suit preferred by the appellant-original plaintiff seeking cancellation of
sale deeds executed by the second respondent in favour of the first
respondent.
2. The brief facts giving rise to the present appeal are as follows:
The appellant along with her two sisters (original plaintiffs)
happened to be the daughters of respondent No.2(original defendant No.2).
According to the appellant, she and her two sisters were minors when their
father Khilluram expired. Thereafter, their mother i.e. second respondent,
of course the guardian, sold out the suit property which belonged to their
father by executing a sale deed on 9th December, 1988. According to the
appellant, since the suit property belonged to their father the daughters
had shares in the property, the mother could not have sold the suit
property to the first respondent. The appellant, therefore, with two other
sisters (proforma respondent Nos.4 and 5 herein) preferred Civil Suit No.6
of 2007 for declaration of the sale deed dated 9th December, 1988 as null
and void in respect of the suit land. The appellant pleaded that the second
respondent as the mother of the appellant and two other sisters has no
right or authority to sell the suit land, as their shares are part of it.
The sale of minors’ property cannot be done without obtaining the prior
permission of the Court.
3. The second respondent in her written statement stated that the
appellant and two others were her minor daughters. She is the wife of
Khilluram and the equal shares of the disputed land are registered in the
name of the appellant and two daughters. She had sold the entire disputed
land including the shares of the daughters vide sale deed dated 1st
December, 1988 which was registered on 9th December, 1988. The
consideration amount received out of the said sale was spent to fulfill the
requirements of the daughters- i.e. appellant and proforma respondent
Nos.4 and 5 herein.
4. In a separate written statement the first respondent accepted
that the disputed land situated in village Ujjaili, Tehsil-Kot Kasim is the
ancestral property of Khilluram. After the death of Khilluram the said suit
land was devolved on appellant, two other sisters and the second respondent
jointly in equal shares. The appellant and the two other daughters were
minor and their mother i.e. second respondent herein was the natural
guardian. The agricultural work was done jointly by the appellant, two
other daughters and the second respondent. It is stated that the suit land
was sold for proper maintenance of the minor daughters.
5. On behalf of the plaintiffs-appellant herein and two other
sisters, Saroj (PW-1), Chandra Kanat (PW-2) and Pop Singh (PW-3) were
examined. They placed on record the documents duly exhibited as Exh.1 to
19. The respondents examined Sunder Singh (DW-1), Ramphal (DW-2) and
Ramotar (DW-3) and placed on record documents duly exhibited as A-1 to A-
10.
6. Learned Additional District Judge framed 8 issues. The issue Nos.1
to 3, 5 and 6 were decided in favour of the plaintiff-appellant herein:
Issue No.7 reads as follows:
“7. Whether the registered sale-deeds of the land Survey No.5 and 6
made by the Defendant No.2 to different parties has been done
with the motive to cause harm and usurp this land of plaintiffs
No.1 to 3, ownership and rights which is wrong and contrary to
the established provisions of law, and the plaintiffs No.1 to 3
are entitled to challenge these two sale-deeds against their
interests and rights.”
The said issue was decided against the plaintiffs and in favour of
the defendants. The 8th issue relating to plaintiffs’ entitlement to get
relief against the defendant Nos.1 and 2 was thereby decided against the
plaintiffs.
7. By the impugned judgment dated 14th December, 2011 the First
Appellate Court also dismissed the appeal filed against the above order
passed by the trial court on the ground that there is no illegality or
perversity in the findings recorded by the trial court.
8. Learned counsel for the appellant submitted that in view of the
sub-section (2) of Section 8 of the Hindu Minority and Guardianship Act,
1956 it was not open for the second respondent to mortgage or charge, or
transfer by sale, gift of the minor’s property without previous permission
of the court.
9. Per contra, according to the respondents, for taking care of the
minor daughters and for their livelihood the respondent was competent to
sell the property. It was submitted that the appellant’s marriage was
performed by the second respondent; the mother bought a house at Daruhera
in the year 1995. There was no partition amongst the appellant other minor
daughters and mother with respect to the subject agricultural land which
was looked after by the mother jointly. Therefore, it was for all purposes
the joint property and not the property of minors. Significantly, Ramphal
who is the real brother of Khilluram in his evidence stated that ever since
the death of Khilluram the minors were being taken care of by the second
respondent-mother for the maintenance, education, etc. and the second
respondent performed their marriage. It is further contended that the
second respondent sold the subject land for their necessity, maintenance,
etc. Likewise, the second respondent in her counter claim admitted that the
money received from the sale of the subject land was spent on the minors’
genuine requirements and she prayed for dismissal of the suit.
10. The trial court while deciding the 7th issue noticed evidence of
other witnesses. It further noticed that the property was devolved on the
wife, Smt. Rishal and Saroj, Manoj and Sanoj in equal share of 1/4th
each. According to the entries in the revenue record they were in
possession of 1/4th share of the land. The total amount of both the sale
deeds executed comes to Rs.66,000/-. In the sale deeds it is mentioned that
she is the birth mother of Saroj, Manoj and Sanoj, and is their natural
guardian. For their maintenance, sustenance, education, etc., the suit
land being unproductive and being in parts, was sold by two registered
sale-deeds marked as Exh. A-1 and A-2. It was stated that the plaintiffs’
share was in joint account. The mother i.e. second respondent is the head
of the family and she sold this land to the defendant for the sustenance,
maintenance, education and marriage of her daughters. In view of such
evidence, the trial court decided the issue against the plaintiffs and in
favour of the defendants which was affirmed by the First Appellate Court.
11. Section 8 of the Hindu Minority and Guardianship Act, 1956 deals with
the powers of natural guardian of a Hindu minor and the said section
mandates that the natural guardian has power 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, etc. The
provision reads as follows:
“8 . Powers of natural guardian.- (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 realization, 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.
xxx xxx xxx xxx
xxx xxx xxx xxx”
As per clause (a) of sub-section (2) of Section 8 no immovable property
of the minor can be mortgaged or charged, or transferred by sale, gift,
exchange or otherwise without the previous permission of the Court. Under
sub-section (3) of Section 8 disposal of such an immovable property by a
natural guardian, in contravention of sub-section (1) or sub-section (2) of
Section 8, is voidable at the instance of the minor or any person claiming
under him.
12. In the present case, though it is stated that the property has been
sold for the proper benefit of the minors, their protection, education
and marriage,there is nothing on record to suggest that previous
permission of the Court was obtained by the natural guardian before
transfer by sale in question.
13. Where the father dies leaving behind only minor daughters and their
mother as natural guardian, the share of the daughters became
definite; the question of family partition retaining the character of
joint Hindu Family property does not exist. In the present case,
after the death of the father, the property has been shared amongst
each member of the family and recorded in the mutation register
having 1/4th share each. In such circumstances, the provision of
sub-section (3) of Section 8 shall attract as the mother sold the
property without previous permission of the Court. Hence, both the
sale deeds executed by the second respondent in favour of the first
respondent shall become voidable at the instance of the minor i.e.
the appellant and the Proforma-respondent nos.4&5.
14. In view of the finding recorded above, we set aside the judgments and
orders passed by the trial court, First Appellate Court and Second
Appellate Court. Accordingly, the suit stands decreed in favour of
the appellant and proforma respondent Nos.4 and 5. The appeal is
allowed with no costs.
…………………………………………………………………….J.
(SUDHANSU JYOTI MUKHOPADHAYA)
…………………………………………………………………….J.
(V. GOPALA GOWDA)
NEW DELHI,
NOVEMBER 25,2013.
advocatemmmohan 
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