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PETITIONER: PANNI LAL

       Vs.

RESPONDENT: RAJINDER SINGH AND ANR.

DATE OF JUDGMENT05/05/1993

BENCH: BHARUCHA S.P. (J) BENCH: BHARUCHA S.P. (J) PUNCHHI, M.M.

CITATION:  1993 SCR  (3) 589        1993 SCC  (4)  38  JT 1993 (3)   340        1993 SCALE  (2)806

ACT: The  Hindu  Minority  and Guardianship  Act,  1956:  Section 8--Intent of--Whether protects the property of a minor  from the depredations of the parents even. Words  and Phrases--Voidable and Void--Sale of the  property of  the minor by his mother without permission of the  court and attested by the father Whether voidable or void. Sale of the property of the minor by his mother and attested by his father--Interpretation of--Whether amounts to a  sale by  the natural guardian of the minor for  legal  necessity. and benefit of the minor.

HEADNOTE: The  mother  of  the  respondent  minors,  acting  as  their guardian, sold their land, while they were still minors,  to the  appellant  under  a registered  sale  deed  dated  July 30,1964.  The respondents, upon attaining majority, sued the appellant for possession of the said land on the ground that the sale thereof, having been made without the permission of the court, was void. The  appellant in his written statement and at the  time  of hearing  of the suit contended that the sale deed  had  been attested  by  the father of the  respondents  and  the.-.ale should,  therefore,  he deemed to have been a  sale  by  the legal guardian of the respondents.  It was also pleaded that the sale had been for legal necessity and the benefit of the respondents.   It was also alleged that the suit was  barred by limitation because the sale was voidable and not void and the suit had not been brought within three years of each  of the respondents attaining majority. The  trial court framed appropriate issues and came  to  the conclusion that it had not been proved that the sale was for legal necessity or for the benefit of the respondents,  that the  sale by the respondent’s mother without the  permission of  the  court  was  void, and the sale  was  void  and  not voidable  and  the  suit was, therefore,  in  time  and  was decreed. 590 The  appeal  filed by the appellant  before  the  Additional Distt.  Judge and the High Court failed. The  appellant, therefore, preferred this appeal by  special leave.

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Dismissing the appeal, this court, HELD : 1. The provisions of section 8 of the Hindu  Minority and Guardianship Act, 1956 are devised to fully protect  the property  (.if  a minor, even from the depredations  of  his parents.   Section  8 empowers only the  legal  guardian  to alienate a minor’s immovable property provided it is for the necessity  or  benefit  of the minor or his  estate  and  it further  requires  that such alienation  shall  be  effected after the permission of the Court has been obtained." 2.  It was difficult, therefore, to hold that the  sale,  by reason of the fact that the mother of the minor  respondents signed  the  sale  deed  and the  father  attested  it,  was voidable, not void. (592-G) 3.  The  attestation of the sale deed by the  father  showed that  he was very much existent and in the picture.   If  he was,  then the sale by the mother, notwithstanding the  fact that  the father attested it, cannot he held to be  sale  by the father and natural guardian satisfying the  requirements of section 8. (592-E) Jijabai  Vithalrao Gajre v. Pathankhan & Ors.  AIR  1971  SC 315, distinguished. (662-A)

JUDGMENT: CIVIL APPELLATE JURISDICTION: Civil Appeal No. 2198 of 1986. From  the Judgment and order dated 17.12.1985 of the  Punjab and Haryana High Court in R.S.A No. 1155 of 1977. S.M. Ashri for the Appellant. Ms. Kawaljit Kochar for J.D. Jain for the Respondents. The Judgment of the Court was delivered by BHARUCHA,J.   This  appeal by special leave  challenges  the judgment and 591 order  of  the Punjab & Harvana High  Court  dismissing  the appeal filed before it by the appellant. The  suit relates to 9 Kanals 13 Marlas of land  at  village Qayampur.   The  said land was owned by Rajinder  Singh  and Baldev Singh, the respondents, and was sold while they  were still  minors  by their mother Gurkirpal,  acting  as  their guardian,  to  the appellant under a  registered  sale  deed dated   30th  July,  1964.   Upon  attaining  majority   the respondents  sued the appellant for possession of  the  said land  on the ground that the sale thereof having  been  made without the permission of the court was void.  The appellant in  his written statement and at the time of hearing of  the suit  relied  heavily upon the fact that the sale  deed  had been attested by the father of the respondents and that  the sale should. therefore, be deemed to have been a sale by the legal  guardian of the respondents.  It was  also  contended that  the sale had been for legal necessity and the  benefit of  the  respondents.  The suit, it was  also  alleged,  was barred  by limitation because, the sale being  voidable  and not void, it had not been brought within three years of each of  the  respondents attaining majority.   The  trial  court framed appropriate issues and came to the conclusion that it had not been proved that the sale was for legal necessity or for  the  benefit of the respondents; that the sale  by  the respondent’s mother without the permission of the court  was void;  and that the sale was void and not voidable  and  the suit  was,  therefore, in time.  The appeals  filed  by  the appellant before the Additional District Judge.  Ambala  and the High Court failed. Learned counsel for the appellant placed great reliance upon the fact that the sale deed had been attested by the  father

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of the respondents and submitted that the sale deed  should, therefore, be taken to have been entered into by the natural guardian  of the respondents for legal necessity  and  their benefit. Section  8 of the Hindu Minority and Guardianship  Act  sets out  the  powers of the natural guardian of a  Hindu  minor. The natural guardian of a Hindu Minor has power, subject  to the  provisions  of  section 8, to do  all  acts  which  are necessary  or reasonable and proper for the benefit  of  the minor or his estate.  The natural guardian, however, may not without  the previous permission of the court sell any  part of  the  immovable property of the minor.  Any  disposal  of immovable property which is not necessary or reasonable  and proper  for  the  benefit of the minor  or  is  without  the previous permission of the court is voidable at the instance of the minor. In the instant case, there, is, as found by the trial  court and affirmed in appeal, no evidence beyond the bare word  of the  appellant  that  the sale deed had been  made  for  the benefit  of the minor respondents and his evidence had  been eroded in cross- 592 examination  so  that  there was no  "reliable  evidence  on record to show that the alienation in dispute had been  made for   the  legal  necessity  or  for  the  benefit  of   the plaintiffs.    That  the  sale  was  effected  without   the permission  of  the  court is not  dispute.   The  sale  is, therefore, in any event, voidable. The  question is whether, in the circumstances of the  case, it may be said that the sale was effected by the father  and natural guardian of the respondents because he had  attested the sale deed executed by the mother of the respondents.  In this  behalf  our  attention was  invited  to  this  Court’s judgment  in  Jijabai Vithalrao Gajre  vs.   Pathankhan  and ors.,  AIR 1971 S.C. 315.  This was a case in which  it  was held that the position in Hindu law was that when the father was alive he was the natural guardian and it was only  after him that the mother became the natural guardian.  Where  the father  was alive but had fallen out with the mother of  the minor  child  and was living separately  for  several  years without taking any interest in the affairs of the minor, who was in the keeping and care of the mother, it was held that, in the peculiar circumstances, the father should be  treated as  if  nonexistent  and, therefore,  the  mother  could  be considered as the natural guardian of the minor’s person  as well as property, having power to bind the minor by  dealing with her immovable property. In  the present case, there is no evidence to show that  the father  of  the respondents was not taking any  interest  in their  affairs or that they were in keeping and care of  the mother  to  the  exclusion  of the  father.   In  fact,  his attestation  of  the sale deed shows that he was  very  much existent  and in the picture.  If he was, then the  sale  by the  mother,  notwith  standing the  fact  that  the  father attested  it, cannot be held to be a sale by the father  and natural guardian satisfying the requirements of section 8. The Provisions of section 8 are devised to fully protect the property  of  a  minor, even from the  depredations  of  his parents.   Section  8 empowers only the  legal  guardian  to alienate a minor s immovable property provided it is for the necessity  or  benefit  of the minor or his  estate  and  it further  requires  that such alienation  shall  be  effected after the permission of the court has been obtained.  It  is difficult,  therefore, to hold that the sale  was  voidable, not void, by reason of the fact that the mother of the minor

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respondents signed the sale deed and the father attested it. In  the result, the appeal is dismissed with no order as  to costs. G.S. Appeal dismissed. 593