Sale of property of minor by their mother when becomes voidable

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  sub­section 
(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  Proforma­respondent nos.4&5.1
The apex court observed that, where the father passes away, leaving behind only minor daughters and their mother as the natural guardian, the share of the daughters becomes definite and the question of family partition retaining the character of joint Hindu Family property does not exist.

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

VERSUS
SUNDER SINGH & ORS.
Decided On: 25.11.2013

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 appellant­original 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,   Tehsil­Kot   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   plaintiffs­appellant   herein 
and two other sisters, Saroj (PW­1), Chandra Kanat 
(PW­2)   and   Pop   Singh   (PW­3)   were   examined.   They 
placed   on   record   the   documents   duly   exhibited   as 
Exh.1 to 19. The respondents examined Sunder Singh 
(DW­1),   Ramphal   (DW­2)   and   Ramotar   (DW­3)   and 
placed on record documents duly exhibited as A­1 to 
A­10.
6.
Learned   Additional   District   Judge   framed   8 
issues.   The   issue   Nos.1   to   3,   5   and   6       were 
decided   in   favour   of   the   plaintiff­appellant 
herein: 
Issue No.7 reads as follows:
“7. Whether   the   registered   sale­deeds   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 sale­deeds 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 sub­section (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 

respondent­mother   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 sale­deeds marked as Exh. A­1 and A­2. 
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  
sub­section   (1)   or   sub­section   (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   sub­section   (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 sub­section (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 sub­section (3) of 
Section 8   disposal of such an immovable property 
by   a   natural   guardian,   in   contravention   of   sub­
section   (1)   or   sub­section   (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  sub­section 
(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  Proforma­respondent 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 
Page 9
-10
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.
Page 10

Print Page