CASE NO.: Appeal (civil) 5652-5653 of 1998 PETITIONER: MADHEGOWDA (D) BY LRS Vs. RESPONDENT: ANKEGOWDA (D) BY LRS & ORS. DATE OF JUDGMENT: 20/11/2001 BENCH: D.P. Mohapatra & Doraiswamy Raju JUDGMENT:
D.P.MOHAPATRA,J.
One Ninge Gowda was the original owner of
the property in dispute. He died leaving two daughters
namely Smt.Sakamma, respondent no.10 herein, and
Smt.Madamma, respondent no.11 herein. When
Smt.Sakamma was a minor, her sister Smt.Madamma
purportedly acting as her guardian, sold her share of the
property left by Ninge Gowda to Madhegowda, appellant
herein by a registered Sale Deed dated 24.4.1961. It is
the case of the appellant that the share of the minor
Smt.Sakamma was sold to collect funds for her marriage.
The appellant was put in possession of the property and
he continues in possession of the same till date.
Smt.Sakamma attained majority sometime in
1961-62. She sold her share of the property to
Ankegowda, predecessor of respondent nos.1 to 9 herein,
by the registered Sale Deed dated 1.7.1967. Since there
was a dispute regarding possession of the property,
Ankegowda initiated a proceeding under Section 145 of
the Criminal Procedure Code before the Sub-Divisional
Magistrate, Srirangapatna which was registered as
Criminal Misc.7/67-68. In the said proceeding, the
learned Magistrate held that the appellant was in
possession of the property on the date of the preliminary
order and he would continue to remain in possession of
the same till dispossessed by the competent Court.
Thereafter Ankegowda (plaintiff) filed Original
Suit No.69/69, in the Court of the Munsif, Srirangapatna
seeking a declaration of title, for partition of the share of
his vendor Smt.Sakamma and for delivery of possession
of the same to him citing Smt.Sakamma (defendant no.1),
Smt.Madamma (defendant no.2) and S.Madhegowda
(defendant no.3) as parties. The learned Munsif
dismissed the suit. The appeal filed by Ankegowda,
Regular Appeal No.44/78, in the Court of the Civil Judge,
Srirangapatna proved unsuccessful. The learned Civil
Judge concurred with the findings of the learned Munsif
and dismissed the appeal by his judgment dated
24.7.1979.
The trial Court and the First Appellate Court
dismissed the suit on recording the concurrent finding that
Smt.Sakamma (Defendant No.1) had no valid title in the
property on 1.7.1967, the date on which she executed the
registered sale deed in favour of the plaintiff, since her
interest in the suit property had already been sold in
favour of S.Madhegowda (Defendant No.3) by the
registered sale deed dated 24.4.1961 executed by her
sister Smt.Madamma (Defendant No.2). The Courts
further held that Smt.Sakamma could not have validly
sold the suit property to the plaintiff without getting the
sale deed dated 24.4.1961 annulled by filing a suit within
three years of attaining majority. The decisions were
based on the notion that the sale deed executed by
Smt.Madamma in favour of Madhegowda was not void
but voidable only.
Respondent nos.1 to 9, successors-in-interest
of Ankegowda, filed Regular Second Appeal No.1134/79
in the High Court of Karnataka challenging the
judgment/decree of the trial Court as confirmed by the
First Appellate Court. The High Court by its judgment
rendered on 11th January, 1993 allowed the second
appeal, set aside the judgment/decree of the Courts
below and held that the respondents 1 to 9 are entitled to
half-share in the suit property, ordered for partition and
delivery of possession of their share out of the same.
The application filed for review of the judgment CP (FR)
No.937/97 was dismissed by the order dated 8.9.1997.
Hence, these appeals by the defendant.
The question that falls for determination in the
case relates to competence of Smt.Madamma to sell the
interest of her minor sister Smt.Sakamma in the property
as her guardian. If the question is answered in the
affirmative and it is held that Smt.Madamma was
competent to alienate the share of her minor sister as her
guardian, then the trial Court and the first Appellate Court
were right in holding that the transaction of sale was
voidable one and Smt.Sakamma having failed to
repudiate the sale within the prescribed period of three
years after attaining majority, the sale in favour of the
appellant stood confirmed. If, on the other hand, it is held
that Smt.Madamma had no competence to alienate the
share of her minor sister in the property, then the
transaction was a void one which was not required to be
repudiated by Smt.Sakamma by filing a suit within the
prescribed period. Then the judgment of the High Court
holding the sale to be void is to be confirmed.
The answer to the question formulated above
depends on the interpretation of Section 11 of the Hindu
Minority and Guardianship Act, 1956 (hereinafter referred
to as the Act) and its interaction with other relevant
provisions of the Act.
In Section 4 clause (b) the expression
guardian is defined to mean 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
minors 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;
In clause (c) the term natural guardian is
defined to mean any of the guardians mentioned in
Section 6.
In Section 6 of the Act provisions are made
regarding natural guardians of a Hindu minor in respect
of the minors person as well as in respect of the minors
property. The Section reads as follows :
The natural guardians of a Hindu minor,
in respect of the minors person as well
as in respect of the minors 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;
Provided that no person shall be entitled
to act as the natural guardian of a minor
under the provisions 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.
In this connection it is relevant to consider the
power of a natural guardian to alienate the property of the
minor, provision regarding which is made in Section 8 of
the Act. In Sub-section (1) of Section 8 it is declared that
the natural guardian of a Hindu minor has power, subject
to the provisions of the 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
minors estate; but the guardian in no case can bind the
minor by a personal covenant.
In Sub-section (2) of Section 8 it is laid down
that 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.
In Sub-section (3) in which the consequences
of contravention of sub-section (1) or sub-section (2) are
provided it is laid down that 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.
In Sub-section (4) of Section 8, a provision is
made that 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.
In Sub-section (5) of Section 8, it is provided
that the Guardians and Wards Act, 1890 (8 of 1890),
shall apply to and in respect of an application for
obtaining the permission of the Court under sub-section
(2) in all respects as if it were an application for obtaining
the permission of the Court under Section 29 of that Act.
Section 11 of the Act reads as follows :
De facto guardian not to deal with
minors property After the
commencement of this Act, no person
shall be entitled to dispose of, or deal
with, the property of a Hindu minor
merely on the ground of his or her being
the de facto guardian of the minor.
This Section brings about a material change in the law
relating to de facto guardians or de facto managers of a
Hindu minors estate by enacting in express terms that
after the commencement of the Act, no person has the
right or authority to do any act as a de facto guardian of
such minor. Although the expression de facto guardian
is often used in judgments, there is in law nothing like a
de facto guardian. The statute recognises a natural
guardian or a testamentary guardian or a guardian
appointed by the Court. In law a person who is not a
guardian as aforementioned who takes interest upon
himself, the general management of the estate of a minor
can be more appropriately described as de fecto
manager. Before enforcement of the Act some confusion
prevailed over the powers of de facto guardian or
manager for alienating the property of his/her ward. It
was held by the Privy Council in Hunooman Persuad
Pandeys case, 6 MIA 393, that a de facto guardian had
the same power of alienating the property of his ward as a
natural guardian. Section 11 has done away with the
authority of any person to deal with or dispose of any
property of a Hindu minor on the ground of his being the
de facto guardian of such minor. Any alienation by a de
facto guardian will be governed by the provisions in
Section 11 of the Act. The alienation, being against the
statutory prohibition, would be void ab initio and the
alienee would not acquire any title to the property.
Section 12 of the Act reads as follows :
Guardian not to be appointed for minors
undivided interest in joint family property-
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 deemed to affect the jurisdiction of a
High Court to appoint a guardian in respect of
such interest.
From the statutory provisions noted above, it
is clear that with the avowed object of saving the minors
estate being mis-appropriated or squandered by any
person, by a relation or a family friend claiming to be a
well-wisher of the minor, Section 11 was enacted to
prohibit any such person from alienating the property of
the minor. Even a natural guardian is required to seek
permission of the Court before alienating any part of the
estate of the minor and the Court is not to grant such
permission to the natural guardian except in case of
necessity or for an evident advantage to the minor. So far
as de facto guardian or de facto manager is concerned,
the statute has in no uncertain terms prohibited any
transfer of any part of minors estate by such a person. In
view of the clear statutory mandate, there is little scope
for doubt that any transfer in violation of the prohibition
incorporated in Section 11 of the Act is ab initio void.
The Federal Court in the case of Kondamudi
Sriramulu vs. Myneni Pundarikakshayya etc., AIR (36)
1949 FC 218, explaining the phrase de facto guardian
used in Hanooman Persaud Pandeys case (supra), made
the following observations :
Before concluding my observations about the
scope of the decision in Hanuoomnapersaud
Pandays case, 6 M.I.A. 393: (18 W.R.81
P.C.), I would like to make a few observations
about the phrase de facto guardian. In my
opinion, it is a loose phraseology for the
expression de facto manager employed in
Hanoomanpersaud Pandays case, 6 M.I.A.
393: (18 W.R.81 P.C.); their Lordships in
different parts of the judgment used the
words, guardian, curator and de facto
manager. This phrase is certainly not known
to any text of Hindu law, but it aptly describes
the relations and friends who are interested in
the minor and who for love and affection to
him assume superintendence over his estate.
A father may not necessarily be the guardian
of an illegitimate child, but his de facto
guardianship cannot be repudiated. Such is
the case of the natural father of an adopted
son, cf. Ganga Prasad v. Hara Kanta
Chowdhury, 7 KI.C. 234:(15 C.W.N.558). A
person who is not attached to the minor by
ties of affection or other reasons of affinity and
remains in charge of his estate is in truth a
mere intermeddler with his estate. In order to
come within the scope of the rule in
Hanoomanpersaud Pandays case, 6 M.I.A.
393: (18 W.R.81 P.C.), it is necessary that
there is course of conduct in the capacity of a
manager.
The Federal Court took the view that in law
there is nothing like a de facto guardian. There can only
be a de facto manager, although the expression de facto
guardian has been used in text books and some
judgments of Courts. That is the correct description of a
person generally managing the estate of a minor without
having any legal title to do so.
This Court in the case of Sri Narayan Bal &
Ors. vs. Sridhar Sutar & Ors., (1996) 8 SCC 54,
construing the provisions of applicability of Section 8 to a
case of transfer of the undivided interest of a Hindu minor
in a joint family property held that the joint Hindu family by
itself is a legal entity capable of acting through its Karta
and other adult members of the family in management of
the joint Hindu family property and that Section 8 in view
of the express terms of Sections 6 and 12, would not be
applicable where a joint Hindu family property is
sold/disposed of by the Karta involving an undivided
interest of the minor in the said joint Hindu family
property. In that connection, this Court made the
following observations :
……Each provision, and in particular Section
8, cannot be viewed in isolation. If read
together the intent of the legislature in this
beneficial legislation becomes manifest.
Ordinarily the law does not envisage a natural
guardian of the undivided interest of a Hindu
minor, other than the undivided interest in joint
family property, is alone contemplated under
Section 8, whereunder his powers and duties
are defined. Section 12 carves out an
exception to the rule that should there be no
adult member of the joint family in
management of the joint family property, in
which the minor has an undivided interest, a
guardian may be appointed; but ordinarily no
guardian shall be appointed for such
undivided interest of the minor. The adult
member of the family in the management of
the joint Hindu family property may be a male
or a female, not necessarily the Karta. The
power of the High Court otherwise to appoint
a guardian, in situations justifying, has been
preserved. This is the legislative scheme on
the subject. Under Section 8 a natural
guardian of the property of the Hindu minor,
before he disposes of any immovable property
of the minor, must seek permission of the
Court. But since there need be no natural
guardian for the minors undivided interest in
the joint family property, as provided under
Sections 6 and 12 of the Act, the previous
permission of the court under Section 8 for
disposing of the undivided interest of the
minor in the joint family property is not
required…….”
This Court, in the case of Ganayya & Anr. Vs.
Radhabai & Ors., (1997) 11 SCC 332, considering the
question of applicability of the provisions of Section 11 of
the Act, held :A bare reading of Section 11 goes to show
that it explicitly provides that after the commencement of
the said Act no person shall be entitled to dispose of or
deal with the property of a Hindu minor merely on the
ground of his or her being the de facto guardian of the
minor. In that case the case of the appellants was that
their father, who was blind from birth, died on 16.2.1957
leaving behind him the appellants who were minors. The
appellants uncle Nagayya was cultivating the land in
question as Manager even during the life time of their
father as he was blind and the appellants were minors.
One Balayya, husband of appellants mothers sister,
leased out the lands in dispute to the said Nagayya, the
real uncle of the appellants. On the basis of that lease
made by the de facto guardian of the appellants
Nagayya, the uncle of the appellants, made the
application for conferral of ownership rights of the land in
dispute and for determination of purchase price of the
said land under Section 48 read with Sections 46 and 49-
A of the Bombay Tenancy and Agricultural Lands
(Vidarbha Region) Act, 1958. The Addl. Tahsildar
allowed the application which was upheld by the Sub-
Divisional Officer in appeal and the Revenue Tribunal in
revision. The High Court also dismissed the appellants
application filed under Article 227 of the Constitution. The
High Court held that the provisions of Section 11 of the
Act were not attracted to the facts of the case and,
therefore, dismissed the petition. This Court, allowing
the appeal, held that the High Court fell into a patent error
in taking the view that Section 11 was not attracted to the
facts of the case.
A Division Bench of the Patna High Court in
the case of Nathuni Mishra & Ors. vs. Mahesh Misra &
Ors., AIR 1963 Patna 146 (V 50 C 42), took the view that
Section 11 does not deal with the disposal of the
undivided interest of a minor in a joint Hindu family
governed by the Mitakshara School of Law. The Court
further held that the said Section cannot be pleaded as a
bar for disposal of joint family property by the Manager or
the Karta of the family for legal necessity.
A Division Bench of the Madras High Court in
the case of Dhanasekaran vs. Manoranjithammal & Ors.,
AIR 1992 Madras 214, construing Section 11 of the Act,
held, inter alia, that the property of a Hindu minor referred
to in Section 11 will include all his properties, including his
undivided interest in the joint family property and
consequently that the sale by the de facto guardian of the
minors interest in the joint family property was void ab
initio. The Division Bench approved the decision of the
single Judge in this regard. However, the Division Bench
did not agree with the view taken by the single Judge that
the sale by a de facto guardian of the minors interest in
the joint family is void and held Section 11 renders the
sale voidable only.
We have carefully considered the principles
laid down in the aforementioned decisions so far as
relevant for the purpose of adjudication of the issue
arising in the present case. It is to be kept in mind that
this is not a case of alienation of minors interest in a joint
family property. As noted earlier, Ninge Gowda died
leaving his two daughters, namely Smt.Sakamma and
Smt.Madamma. It is not the case of any of the parties
that the suit property was a joint family property in the
hands of Ninge Gowda or that the alienation by
Smt.Madamma, who is the sister of the minor, was a
transfer of the minors interest in the joint family property.
Therefore, the question whether the provision in Section
11 is applicable in the case of transfer of minors interest
in a joint family does not arise for consideration here.
Section 11 includes all types of properties of a minor. No
exception is provided in the Section. Undoubtedly
Smt.Madamma, sister of the minor, is not a guardian as
defined in Section 4(b) of the Act. Therefore, she can
only be taken to be a de facto guardian or more
appropriately de facto manager. To a transfer in such a
case Section 11 of the Act squarely applies. Therefore,
there is little scope for doubt that the transfer of the
minors interest by a de facto guardian/manager having
been made in violation of the express bar provided under
the Section is per se invalid. The existence or otherwise
of legal necessity is not relevant in the case of such
invalid transfer. A transferee of such an alienation does
not acquire any interest in the property. Such an invalid
transaction is not required to be set aside by filing a suit
or judicial proceeding. The minor, on attaining majority,
can repudiate the transfer in any manner as and when
occasion for it arises. After attaining majority if he/she
transfers his/her interest in the property in a lawful
manner asserting his/her title to the same that is sufficient
to show that the minor has repudiated the transfer made
by the de facto guardian/manager.
In the case in hand there is no finding
recorded by the trial Court or the First Appellate Court
that Smt.Sakamma, the minor, after attaining majority,
had ratified the invalid transfer, even assuming that the
flaw in the transfer could be cured by ratification. On the
facts of the case the High Court was justified in setting
aside the judgment of the trial Court which was confirmed
by the First Appellate Court and was right in decreeing
the suit for partition and separate possession.
Thus, these appeals, being devoid of merit,
are dismissed. However, in the circumstances of the
case, there will be no order as to costs.
…………J.
(D.P.Mohapatra)
……..J.
(Doraiswamy Raju)
November 20, 2001