Law Web: Whether Karta of a joint Hindu family must obtain the permission of the court for disposal of immovable property involving an undivided interest of the minor?

A conjoint reading of the provisions contained in sections 6, 8

and12 of the Act, indicates that natural guardian of the property of Hindu minor is enjoined to seek permission of the Court to dispose of any immovable property of the minor. However, where the minor has undivided interest in the joint family property, the previous permission of the Court under section 8 of the Act for disposing of the undivided interest of the minor in the joint family property is not required. In other words, in view of the provisions contained in section 6 and 12, the permission envisaged under section 8 of the Act would not be required where a joint family property is alienated by Karta involving an undivided interest of minor in the said joint Hindu family property. A useful reference in this context can be

made to the judgment of the Supreme Court in the case of Sri

Narayan Bal & Others vs. Sridhar Sutar & Ors (1996) 8 Supreme Court Cases 54.. The observations in paragraph 5 are material and hence, extracted below. {Para 20}

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 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 legislative 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, where under 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 to 12 of the Act, the previous

permission of Court u/s. 8 of disposing of 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.

(emphasis supplied)

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

ORDINARY ORIGINAL CIVIL JURISDICTION

INTERIM APPLICATION NO.1499 OF 2021

SUIT NO.108 OF 2021

Hriday Niraj Mehta Vs. Umesh Jayantilal Mehta and Others

CORAM : N. J. JAMADAR, J.

PRONOUNCED ON : 15th FEBRUARY, 2022

1. The applicant/plaintiff has preferred this application for

interim relief in the nature of restraining the defendants from

dealing with, disposing off, alienating, encumbering and/or creating

third party rights in any manner whatsoever in or over the

residential premises being Flat Nos. 201 and 202, 2nd Floor, Silver

Solitaire CHS Ltd, situated at Plot No. 99, T.P.S. III, Tilak Road,

Ghatkopar (E), Mumbai 77. (the suit flats), for appointment of

Court Receiver and also restraining the defendants from preventing

the plaintiff from residing in the suit flats.

2. The applicant has instituted the suit for declaration that the

Gift Deeds dated 20th November, 2014 in respect of suit flats are

void ab-initio, illegal and non-binding on the plaintiff, and that Niraj

Jayantilal Mehta HUF and its members/coparceners including the

plaintiff, are entitled to 50% undivided share in the suit flats and for

an equitable partition and vacant, peaceful possession of the suit

flats and mesne profit etc.

3. The plaintiff is the son of defendant Nos. 5 and 6. Defendant

No. 1 is the real brother of defendant No. 5. Defendant No. 2 is the

wife of defendant No. 1 and defendant Nos. 3 and 4 are the daughter

and son of defendant Nos. 1 and 2. The plaintiff is a coparcener in a

Hindu Undivided Family namely Niraj Jayantilal Mehta- HUF

consisting of himself and his parents being defendant Nos. 5 and 6.

Defendant Nos. 1 and 4 are the members of Umesh Jayantilal Mehta

– HUF. The two HUFs jointly owned the suit flats.

4. The plaintiff’s grand-father Jayantilal Mehta had established

business ‘inter alia, of trading glass bottles. On account of the

unscrupulous practices of defendant No. 1, the business suffered

huge losses. Defendant Nos. 1, 2, 5 and 6 became heavily indebted.

Proceedings were instituted by the banks and financial institutions.

While the plaintiff was still a minor, a suit being, Suit No. 2283 of

2011, was filed by the plaintiff, through next friend, and defendant

No. 3 for herself and as guardian of defendant No. 4, against

defendant Nos. 1, 2, 5 and 6. In the said suit Notice of Motion No.

2759 of 2011 taken out by the plaintiffs for interim relief.

Defendant Nos. 1 and 5 made a categorical statement that neither

the said HUF nor the Defendant Nos. 1 and 5 had any intention

whatsoever to create only third party rights/ interest in the suit

flats. The said stand was reiterated in the written statement filed by

defendant Nos. 1,2,5 and 6 on 12th October, 2012.

5. The plaintiff claimed to have learnt that defendant No. 1,

using his extreme undue influence and dominant position got

defendant No. 5, the plaintiff’s father, to execute instruments

purported to be Gift Deeds, as Karta of Niraj Jayantilal Mehta-HUF

in respect of suit flats in favour of defendant No. 3 alone. Defendant

No. 1 has played fraud on the members of the HUF and got the

purported Gift Deeds executed in favour of defendant No. 3. Thus, a

notice was addressed to defendants No. 1 to 6 on 19th November,

2020. A bald reply was sent on 25th November, 2020 denying the

contentions of the plaintiff, on the premise that a detailed reply

would follow. In the exchange of notices that followed, it transpired

that two Gift Deeds in respect of flat Nos. 201 and 202 were

executed and registered with the Registrar of Assurances on 21st

November, 2014.

6. The plaintiff was thus constrained to institute the suit as the

Gift Deeds in favour of defendant No. 3 purportedly executed by

defendant Nos. 1 and 5 in the capacity of Karta of respective HUF

were void and illlegal. Defendant Nos. 1 and 5 had no authority in

law to execute the Gift Deeds particularly in respect of the interest

of the plaintiff, who was then a minor, without obtaining previous

permission of the Court. Neither there was any legal necessity. Nor

the alienation was for the benefit of the estate of the minor.

7. After the institution of suit, when the application for interim

relief was taken up for ad-interim reliefs defendant Nos. 1 to 4

informed the Court that the suit flats were sold in the month of

December, 2020. The plaintiff avers the said action of defendant No.

3 in alienating the suit flats, after being served with the legal

notices, was malafide and with the sole object of defeating the

legitimate claim of the plaintiff. Thus, the plaintiff impleaded

defendant No. 7, the transferee, and defendant No. 8, the society, as

party defendants to the suit. The plaintiff sought further

declaration that agreement for sale dated 10th December, 2020

executed by defendant No. 3 in favour of defendant No. 7 is void abinitio

and not binding upon the plaintiff and Niraj Jayantilal Mehta-

HUF. In the alternative, a direction was sought against defendant

Nos. 1 to 4 to deposit 50% of the sale proceeds along with interest at

the rate of 18% p.a. in the Court. Injunctive reliefs were sought

against defendant Nos. 7 and 8 as well.

8. The defendant Nos. 1 to 4 have resisted the application by

filing affidavit in reply. It was contended that the plaintiff is not

entitled to any interim relief as the plaintiff was guilty of suppressio

veri and/or suggestio falsi . At the outset, it was contended that

defendant No. 3 became the absolute owner of the suit flat and in

that capacity executed conveyance in favour of defendant NO. 7 on

7th December, 2020. Pursuant thereto, possession of the suit flats

was handed over to defendant No. 7. Despite being fully cognizant of

the said developments, the plaintiff has instituted this suit which is

a creature of afterthought. The defendant No. 5, the father of the

plaintiff had executed the Gift Deed voluntarily, in the year 2014.

Thus the challenge to the Gift Deeds was stated to be barred by law

of limitation. Defendant No. 5, according to defendant Nos. 1 to 4, is

the driving force behind the institution of this suit, with an oblique

motive.

9. Defendant No. 8 – society has also filed an affidavit in reply. It

is contended that the defendant NO. 8 has transferred the suit flats

in the name of defendant No. 3 on the strength of the Gift Deeds

executed in the year 2014 and, subsequently, the suit flats were

transferred in the name of defendant No. 7 pursuant to the

application submitted by defendant No. 7 on the strength of the

conveyance executed by defendant No. 3 in favour of defendant No.

7. Defendant NO. 8- society further asserted that defendant NO. 7

has been in position of the suit flats.

10. An affidavit in re-joinder is filed by the plaintiff controverting

the contentions of the defendant Nos. 1 to 4 in the affidavit in reply.

11. I have heard Mr. Nitin Thakker, learned senior counsel, for

the Plaintiff, Mr. Cyrus Ardheshir learned counsel for Defendant

Nos. 1 to 4, Mr. Sharan Jagtiani, learned senior counsel for

Defendant No. 7 and Ms. Kirtida Chandarana, learned counsel for

Defendant No. 8. The learned counsels have taken me through the

averments in the plaint, the interim application and the affidavits in

reply and rejoinder. I have also perused the documents placed on

record.

12. Mr. Thakker, learned senior counsel, would urge that in the

backdrop of the indisputable position that the joint status of Niraj

Jayantilal Mehta and Umesh Jayantilal Mehta, HUFs was severed

by expression of an unequivocal intention with the institution of the

Suit No. 2283 of 2011 by the plaintiff and defendant Nos. 3 and 4,

the Gift Deeds allegedly executed in favour of defendant No. 3 by

defendant Nos. 1 and 5 are clearly invalid. On the strength of such

Gift Deeds, defendant No. 3 did not acquire absolute right, title and

interest in the suit flats. As the interest of the plaintiff in the suit

flats was sought to be alienated after the plaintiff had made known

his unequivocal intention to seek partition of the joint family

properties, defendant Nos.1 to 4 can not take benefit of provisions

contained in section 6 of the Hindu Minority and Guardianship Act,

1956 (the Act) on the premise that Defendant No. 5, the father of

the plaintiff, disposed of the undivided interest of the plaintiff.

13. As a second limb of the submission, Mr. Thakker would urge

that the execution of conveyance by defendant No. 3 in favour of

defendant No. 7, after the exchange of notices, betrays the intent to

defeat the legitimate claim of the plaintiff. Since defendant No. 7

professed to purchase the suit flats despite the lis pendence having

been registered, in the context of Suit No. 2283 of 2011, and

without even publishing public notice inviting objections to the then

proposed transaction, defendant No. 7 cannot be said to be a

bonafide purchaser for value without notice. In the circumstances,

according to Mr. Thakker, the plaintiff is entitled to interim relief,

lest the plaintiff would suffer irreparable loss.

14. In opposition to this, Mr. Ardheshir, the learned counsel for

the defendant Nos. 1 to 4 would urge that the very premise of the

suit is flawed. On the one hand, the plaintiff asserts that the joint

status was disrupted with the institution of Suit No. 2283 of 2011

and, on the other hand, the plaintiff has claimed 50% undivided

interest in the suit flats. This claim of the plaintiff is contrary to the

case of severance of joint status set up by the plaintiff. Mr.

Ardheshir further submitted that the fact that the plaint is

conspicuously silent about the role of defendant No. 5, despite

defendant No. 5 having executed the Gift Deeds in favour of

defendant No. 3, in the capacity of Karta of Niraj Jayantilal Mehta –

HUF, indicates that the suit has been instituted at the behest of

defendant No. 5. The stoic silence for almost six years after the

execution of Gift Deeds in favour of defendant No. 3 and the suit

flats having been transferred pursuant thereto in the name of

defendant No. 3, renders the claim for equitable relief unworthy of

acceptance. In the circumstances, the plaintiff is not entitled to any

of the interim reliefs, urged Mr. Ardheshir.

15. Mr. Jagtiani, leaned senior counsel for defendant No. 7

submitted that the action in the instant suit is plainly malafide.

Contesting the submission of Mr. Thakker that there was severance

of the joint status with the institution of Suit No. 2283 of 2011, Mr.

Jagtiani stoutly submitted that, the said suit appeared to be

collusive and instituted with the object of insulating the residential

premises of the HUFs from being proceeded against by the creditors

of defendant Nos. 1 and 5. Moreover, since the said suit came to be

dismissed for want of prosecution, in the year 2017, it can not be

said that there was a severance of joint status. Mr. Ardheshir and

Mr. Jagtiani were in unison in submitting that taking undue

advantage of attainment of majority by the plaintiff, defendant No.

5 and his family members have raked up the dispute.

16. To begin with, it may be apposite to note uncontroverted facts.

There is no dispute about the relations inter-se between defendant

Nos. 1 and 5 and over the fact that Niraj Jayantilal Mehta and

Umesh Jayantilal Mehta HUFs which were formed by defendant

Nos. 1 and 5. It is indisputable that Niraj Jayantilal Mehta and

Umesh Jayantilal Mehta, HUFs had jointly acquired the suit flats.

The institution of the suit No. 2283 of 2011 by the plaintiff through

his next friend and defendant No. 3 for herself and in the capacity of

guardian of defendant No. 4 for declaration and partition is also not

in contest. It is incontrovertible that the defendant Nos. 1 and 5

executed the Deeds on 20th November, 2014 whereunder the suit

flats came to be gifted to defendant No. 3. The material on record

further indicates that the defendant No. 3, in turn, executed a

conveyance in favour of defendant No. 7, on 10th December, 2020.

There is not much controversy over the fact that the plaintiff

attained majority in the month of March, 2020.

17. In the backdrop of the aforesaid uncontroverted facts, the

question of legality and validity of the Gift Deeds in favour of

defendant No. 3 is at the heart of the matter. Mr. Ardheshir,

submitted that it is well recognized that the Karta is not enjoined to

obtain prior permission of the Court under section 8(2) of the Act

and is entitled to dispose of undivided interest of the minor in a

joint family property. Once this position is appreciated, according to

Mr. Ardheshir, the very edifice of the plaintiff’s case that the Gift

Deeds in favour of defendant No. 3 by defendant Nos. 1 and 5 are

invalid, falls through.

18. Mr. Thakker joined the issue by canvassing a submission that

the aforesaid proposition would not govern the facts of the case in

hand as there was severance in the joint status and, thus, it cannot

be said that on the date of execution of the Gift Deeds, the plaintiff

had undivided interest in the joint family property. In order to lend

support to this submission, Mr. Thakker placed a strong reliance on

the judgment of the Supreme Court in the case of Jalaja Shedthi and

Others vs. Lakshmi Shedthi and Others1. In the said case, the

Supreme Court held that on the demand for partition there is a

division in status, and though partition by metes and bounds may

not have taken place, the family can thereafter never be considered

to be an undivided family nor can the interest of a coparcener be

considered to be an undivided interest. Emphasis was laid on the

following observations of the Supreme Court, in paragraph 12, of

the said judgment.

1 (1973) 2 Supreme Court Cases 773.

“The first thing to be noticed is that on the demand

for partition there is a division in status, and though

partition by metes and bounds may not have taken

place, that family can thereafter never be considered

as an undivided family, nor can the interest of a

coparcener be considered to be an undivided interest.

It is a well-established principle in, the Hindu Law that

a member of a joint Hindu family has a right to,

intimate his definite and unambiguous intention to the

other members of the joint family that he will separate

himself from family and enjoy his share in severalty.

Such an unequivocal intention communicated to the,

others will amount to a division-in status and on ,such

division he will have a right to get a de facto division of

his specific share of the joint family property, in which

till then all of them had an undivided coparcenary

interest, and in which none of them could claim that

he had any right to any specific part thereof. Once the

decision to divide has been unequivocally expressed

and clearly intimated to his co- sharers, whether or

not the other co-sharers agree, an immediate

severance of the joint status is effected arid his right

to obtain and possess the share to which be is

admittedly entitled be-Comes specified.”

19. Reliance was also placed on the another judgment of the

Supreme Court in the case of Phoolchand and Another vs. Gopal

Lal2. In this case also the Supreme Court emphasized that

immediately on the filing of the suit there was severance of status

among the members of the joint Hindu family. Mr. Thakker invited

the attention of the Court to the averments in the plaint in the Suit

No. 2283 of 2011 to bolster up the submission that the plaintiff and

defendant Nos. 3 and 4 herein had claimed partition and separate

possession of their respective shares in Niraj Jayantilal Mehta and

2 AIR 1967 SC 1470.

Umesh Jayantilal- HUFs. This constituted a clear and unequivocal

intention to seek partition of the joint family properties.

Resultantly, there was division of the joint status.

20. A conjoint reading of the provisions contained in sections 6, 8

and12 of the Act, indicates that natural guardian of the property of

Hindu minor is enjoined to seek permission of the Court to dispose

of any immovable property of the minor. However, where the minor

has undivided interest in the joint family property, the previous

permission of the Court under section 8 of the Act for disposing of

the undivided interest of the minor in the joint family property is

not required. In other words, in view of the provisions contained in

section 6 and 12, the permission envisaged under section 8 of the

Act would not be required where a joint family property is alienated

by Karta involving an undivided interest of minor in the said joint

Hindu family property. A useful reference in this context can be

made to the judgment of the Supreme Court in the case of Sri

Narayan Bal & Others vs. Sridhar Sutar & Ors (1996) 8 Supreme Court Cases 54.. The observations in paragraph 5 are material and hence, extracted below.