In the case of Sri Narayan Bal and others v. Sridhar
Sutar and others : (1996) 8 SCC 54 considering the relative scope of
Sections 6, 8, and 12 of the Hindu Minority and Guardianship Act,1956,
the Hon’ble Supreme Court held as follows :
“5. With regard to the undivided interest of the Hindu
minor in joint family property, the provisions afore-culled
are beads of the same string and need to be viewed in a
single glimpse, simultaneously in conjunction with each
other. 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 in joint family
property. The natural guardian of the property 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 minor’s
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. 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. Thus 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. The question posed at the outset therefore is so
answered.”
HIGH COURT OF ORISSA : CUTTACK
O.J.C. No.4854 of 1995
Sri Kanhei Charan Das
Versus.
Sri Ramakanta Das & others
PRESENT
THE HON’BLE SHRI JUSTICE B.K.NAYAK
Date of judgment: 05.08.2014
Citation; AIR 2014 Orissa 193
Officer,
Common order dated 19.8.1983 passed by the Consolidation
Simulia,
in
objection
case
nos.1045/82
and
1121/82
(Annexure-1) and the confirming order dated 13.1.1995 (Annexure-2)
passed by the Additional Commissioner, Settlement and Consolidation,
Bhubaneswar in consolidation revision case no.394 of 1993 are the
subject matters of challenge in this writ application.
2.
The undisputed facts are that the case land appertaining to
Sabik Plot nos.792, 796 and 789 measuring total area of Ac.0.40 under
Khata No.66 was the ancestral land of Krutibas Das and stood recorded
in his name. After the death of Krutibas and his wife, the property
2
devolved on his two sons, namely, Banamali and Ramakanta as joint
owners thereof, both having 50% share each. Ramakanta being a minor
was being looked after by his major brother-Banamali, who was managing
the joint family properties including the undivided interest of Ramakanta.
By registered sale deed dated 18.6.1975 Banamali sold the entire
disputed land of 40 decimals on behalf of himself and also as brother
guardian of Ramakanta in favour of one Agani Dash. Agani in his turn
sold the disputed land to one Sanatan and the present petitioner Kanehei
by registered sale deed dated 26.7.1977 and 1.12.1983.
3.
During the consolidation operation, the disputed land was
recorded as plot no.696-Ac.0.40 under consolidation Khata No.103 in the
name of Sanatan Dash and petitioner- Kanhei. Ramakanta, the present
opposite party no.1, filed objection case no.1045/82 claming to record his
half share in the disputed land in his name on the ground that his
brother- Banamali had no right to alienate his share. Another objection
case bearing no.1121of 1982 was filed by petitioner Kanhei to delete
name of Sanatan Dash, on the ground that he has sold his entire share in
the disputed land in his favour.
4.
By the impugned order under Annexure-1, the Consolidation
Officer directed to record the case land jointly in the names of
Kanhei(petitioner), Ganesh Prashad Das and Suresh Kumar Das(opposite
party nos.4 and 5), sons of Sanatan Das and Ramakant Das. Challenging
the order of the Consolidation Officer, the present petitioner and opposite
party nos.4 and 5 filed consolidation revision case no.394 of 1993 before
the
Additional
Commissioner,
Settlement
and
Consolidation,
3
Bhubaneswar. By the impugned order under Annexure-2 the Additional
Commissioner confirmed the order passed by the Consolidation Officer.
For allowing the claim of Ramakanta, both the consolidation authorities,
held that Banamali was merely defacto guardian, but not the legal
guardian of minor, Ramakanta and, therefore, he had no authority to deal
with and transfer the properties of the minor, in view of the bar contained
in section-11 of the Hindu Minority and Guardianship Act, 1956, and,
therefore, the sale to the extent of the minor’s half share in the disputed
property is void, and that the sale is valid only to the extent of 50 % share
of Banamali and as such Kanhei and Sanatan, by virtue of their purchase
from Agani, were entitled to only 50 % share in the property.
5.
Learned counsel for the petitioner submitted that Banamali
and Ramakanta being members of joint Hindu Family, no guardian in
respect of the undivided interest of Ramakanta in the disputed property
which was the joint family property of both, could have been appointed in
view of the provision of section-12 of the Hindu Minority and
Guardianship Act, and that Banamali being the adult male member of the
joint family sold the disputed land in his capacity as Karta or Manager of
the family, for legal necessity, and, therefore, the finding of the
consolidation authorities that
Banamali could not have sold the
undivided interest of minor- Ramakanta is untenable. His further
submission is that the finding of consolidation authorities that sale was
void being in contravention of section-11 of the Hindu Minority and
Guardianship Act is not sustainable for the reason that section-12 of the
Act is by-nature an exception to section-11. His last submission is that
4
Banamali having sold the interest of the minor Ramakant in case it is
proved that there was no legal necessity or benefit of estate,the sale would
be voidable only at the instance of Ramakanta and not void, and that in
case Ramakanta wanted to avoid the sale on such ground, he should
have approached the Civil Court, since, the consolidation authority lacks
power and jurisdiction to decide the voidabililty of the sale transaction.
Learned
counsel
appearing
for
opposite
party
no.1-
Ramakanta contended that the prohibition for sale of minor’s property by
a de-facto guardian under section-11 of the Act applies to the minors
separate property as well as his undivided interest in the joint family
property and any sale of minors property in contravention of section-11 is
void, and, therefore, the impugned orders warrant no interference. For
such contention he relies on the decision of the Apex Court reported in
AIR 2002 S.C.215: Madhegowda v. Ankegowda.
6.
To appreciate the contentions raised by the learned counsel
for the parties, it is appropriate to see some relevant provisions of the
Hindu Minority and Guardianship Act, 1956 (in short ‘the Act’)
Section 6 of the Act declares the natural guardians of
the Hindu Minor in following terms:-
“ 6.Natural guardians of a Hindu Minor.- The natural
guardians of a Hindu minor, in respect of the minor’s
person as well as in respect of the minor’s 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
5
the custody of a minor who has not complete 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;
(c)
in the case of a married girl-the husband:
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 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”.
7.
Section 8 of the Act deals with the powers of natural
guardian. Sub-sections (1) to (4) of the said section which are relevant for
our purpose are quoted hereunder:-
“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 convenant.
(2)
The
natural
guardian
shall
not,
previous permission of the Court,-
without
the
6
(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.”
8.
Section 11 of the Act prohibits the de facto guardian to
dispose of and deal with minor’s property, whereas Section 12 bars
appointment of a guardian for minor’s undivided interest in joint family
property. The said sections are extracted hereunder:-
“11. De facto guardian not to deal with minor’s
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”.
“12. Guardian not to be appointed for minor’s
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
7
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”.
9.
In case it be held that the transfer of the undivided interest of
Ramakanta in the disputed property by his adult brother, Banamali was
void and invalid, then the further question as to how the transaction shall
be avoided by Ramakanta needs no consideration. In case it is held that
the sale of minor’s undivided interest by his brother Banamali was
voidable at the instance of Ramakanta, then the question of modalities for
avoidance would fall for consideration.
10.
Learned counsel for the petitioner contends that Banamali
being the adult member of the joint family of himself and Ramakanta sold
the case land including Ramakanta’s undivided interest therein as Karta
and Manager of the joint family and therefore if such sale is for legal
necessity or for benefit of estate, the sale would be valid, and on the other
hand, if the sale is with out legal necessity or benefit of estate, it would be
voidable at the instance of Ramakanta and not void. It is also submitted
that for avoiding the sale of minor’s undivided interest, the minor on
attaining majority shall have to file a suit in the Civil Court within the
prescribed period of limitation, and that the consolidation authorities
being not empowered to decide the question of voidability of a sale
transaction, the impugned orders are liable to set aside.
8
11.
In the case of Madhegowda (supra) on which the learned
counsel for opposite party no.1 placed reliance was a case where the
original owner of the property died living behind two daughters, one of
whom was major and the other a minor, and that the major daughter sold
the land including the undivided interest of the minor sister acting as her
de facto guardian. In such circumstances the Hon’ble Apex Court held
that the transfer of minor’s property being in contravention of section 11
of the Act was void and invalid.
12.
In the case of Sri Narayan Bal and others v. Sridhar
Sutar and others : (1996) 8 SCC 54 considering the relative scope of
Sections 6, 8, and 12 of the Hindu Minority and Guardianship Act,1956,
the Hon’ble Supreme Court held as follows :
“5. With regard to the undivided interest of the Hindu
minor in joint family property, the provisions afore-culled
are beads of the same string and need to be viewed in a
single glimpse, simultaneously in conjunction with each
other. 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 in joint family
property. The natural guardian of the property 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
9
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 minor’s
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. 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. Thus 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. The question posed at the outset therefore is so
answered.”
The aforesaid observation in Sri Narayan Bal and others
(supra) as also the Division Bench decision of the Patna High Court in the
case of Nathuni Mishra and others v. Mahesh Misra and others : AIR
1963 PATNA 146 (V 50 C 42) where it was held that Section 11 does not
deal with the disposal of the undivided interest of minor in a joint Hindu
10
Family governed by the Mitakshara school of law and therefore, cannot be
pleaded as a bar for disposal of joint family property by the Manager or
the Karta of the family for legal necessity was taken note of in
Madhegowda (supra).
In Madhegowda (supra) therefore, in paragraph-23 of the
judgment the apex Court explained that case of Madhegowda (supra) is
not one of alienation of a minor’s interest in a joint family property since
it was not the case of any of the parties that the suit property was a joint
family property in the hands of the father of the two daughters and that
the transfer by major daughter was a transfer of the minor’s interest in
the joint family property.
13.
It is thus clear that the apex Court while not doubting the
correctness of the proposition and principles laid down in Sri Narayan
Bal and others (supra) and Nathuni Mishra and others (supra),
decided the question of sale of minor’s property by a de facto guardian
excluding the minor’s undivided interest in the joint family property.
Therefore, the proposition in Madhegowda (supra) that sale of minor’s
property in contravention of Section 11 of the Act is void and invalid must
be held to be applicable to all properties of minor except where the sale is
by a Karta or Manager of a joint Hindu Family of the undivided interest of
the minor in the joint family property. The observations made in Sri
Narayan Bal and others (supra) also holds good to the extent
that
Section 12 of the Act is also by nature an exception to the provision of
Section 11 of the Act. In other words, it must be held that where the de
facto-guardian of a minor is also the Karta or Manager or an adult
11
member of the joint family including the minor himself, for sale by him of
the joint family property including the undivided interest of the minor in
such property, no permission of the court is necessary. Such sale shall be
governed by the un-codified Mitakshara school of Hindu law, according to
which sale by the Karta or Manager of the Hindu Joint Family Property
without any legal necessity or benefit of estate shall be voidable at the
option of the minor with regard to his undivided interest.
14.
With regard to the mode of avoiding a voidable transaction it
has been held by Division Bench of this Court in the case of
Pranakrushna Sahu and others v. Raghunath Sahu and others :
1994 (I) OLR 313
that in case of voidable document the competent
forum is the civil court and not the Consolidation Authorities.
15.
It is not clear from the impugned orders as to whether the
challenge to the sale transaction by opposite party no.1-Sri Ramakanta
Das was on the ground of want of legal necessity or not. However, since
the learned counsel for both the parties have argued the case on the
ground of want of legal necessity for sale of the joint family property by
Banamali including undivided interest of Ramakanta Das, who was then
a minor, and that the sale of Ramakanta’s undivided interest is voidable
at his option, it must be held that the Consolidation Authorities have no
jurisdiction to decide such question. The finding of the Consolidation
Authorities
in the impugned orders that the sale of Ramakanta’s
undivided interest in the disputed joint family property by Banamali was
12
void and invalid being in contravention of Section 11 of the Hindu
Minority and Guardianship Act,1956 cannot be sustained.
Accordingly, this writ petition is allowed and the impugned
orders under Annexures-1 and 2 are quashed. No costs.
........................
B.K.Nayak,J.
Orissa High Court, Cuttack
The 5th August, 2014
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