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PETITIONER: SRI NARAYAN BAL AND OTHERS

       Vs.

RESPONDENT: SRI SRIDHAR SUTAR AND OTHERS

DATE OF JUDGMENT:       29/01/1996

BENCH: PUNCHHI, M.M. BENCH: PUNCHHI, M.M. PARIPOORNAN, K.S.(J)

CITATION:  JT 1996 (1)   711        1996 SCALE  (1)570

ACT:

HEADNOTE:

JUDGMENT:                       J U D G M E N T PUNCHHI, J.      Leave was  granted  in  this  appeal  to  consider  the question posed:  whether the  provisions of Section 8 of the Hindu  Minority  And  Guardianship  Act,  1956  (hereinafter referred to  as the  Act) were applicable to the Joint Hindu Family property sold or disposed of by the Karta. The facts :      Dhanu Bal  and Param Bal were two brothers constituting a Joint  Hindu Family. Dhanu Bal had a wife, Nidhi, an adult son, Jag  Bandhu and  a few minor sons. Param Bal had a son, Raghu bal.  Raghu Bal  had a wife Satyabhama and a few minor sons. Dhanu Bal, Param Bal and Raghu Bal died. Jag Bandhu as Karta of the Joint Hindu Family, joining with him the widows Nidhi for  herself and  as guardian  of her  minor sons  and Satyabhama for  herself and  as guardian  of her minor sons, executed a  sale deed  pertaining to  certain  joint  family lands in  favour of the first defendant-respondents on 23-3- 1971, who  made a  further sale  in  favour  of  the  second defendant-respondent. The plaintiffs-appellants who were all members of  the Joint  Hindu family  filed a  suit  to  have declared the  aforesaid sale as illegal and void on the plea that  the   transaction  was   ‘vitiated  by   fraud,   mis- representation and  taking undue advantage of the illiteracy of Nidhi  and Satyabhama,  widows. The suit was resisted  by the defendants-respondents  on the  plea that Jagabandhu was literate even  though the  widows were not, and had executed the sale  deed as  Karta of  the family  to which  the other widow  executants   had  supportively   joined  him  in  the execution of  the sale  deed for themselves and as guardians of the  mino members  of the  Joint Hindu  Family. The trial court on  assessment of  the evidence, decreed the suit, but the  lower   appellate  court   rejected  the  case  of  the plaintiff-appellants with  regard to fraud, undue influence, mis-representation etc.  holding that  the sale  in question was  executed  by  the  executants  validly  and  for  legal

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necessity. The  second appeal  by the  plaintiffs-appellants was dismissed  in limine, for the High Court was of the view that  no   substantial  question  of  law  arose,  requiring determination. Hence this appeal.      For the  first time  in the  special leave petition the competence of the Karta of the Hindu Joint family, effecting sale of  the undivided  interests of the minors in the Joint Hindu Family  property has  been questioned in this Court on the anvil of section 8 of the Act. Therefore the question as framed at the outset has cropped up for consideration.      Section 6  of the  Act inter  alia  provides  that  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 - 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 shalol  ordinarily  be  with  the  mother.  Section  8 thereof inter  alia provides  that 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.  Furthermore   the  natural  guardian  shall  not, without the  previous permission  of the  court, mortgage or charge, or  transfer by  sale, gift,  exchange or otherwise, any part  of the immovable property of he minor or 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. 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 on behalf of the minor. Section 12  provides that  where a  minor has  an  undivided interest in  the 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.      With regard o 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 provisions, 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, 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

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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 the Court under Section 8 of 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.      In the  instant case the finding recorded by the courts below is  that Jagabandhu,  the eldest  male member  in  the family acted as a Karta in executing the sale and had joined with him  the two  widows for themselves and as guardians of the minor  members of  joint  Hindu  family,  as  supporting executants. That  act by  itself is  not indicative  of  the minors having  a divided  interest in the joint Hindu family property commencing  before or  at the  time of the sale. In this view  of the  matter, section 8 of the Act can be of no avail to the appellant’s claim to nullify the sale.      For the  reasons above-stated, this appeal fails and is hereby dismissed.  In the  circumstances of  the case, there shall be no order as to costs.