1993 ALLMR ONLINE 913

V.A. MOHTA, J.

NARAYAN LAXMAN GILANKAR Vs. UDAYKUMAR KASHINATH KAUSHIK

S. A. No. 380 of 1982

30th September, 1993

Petitioner Counsel: Mrs. S. S. Gokhale
Respondent Counsel: S. G. Surana, S. G. Page

Headnote not Available

JUDGMENT

JUDGMENT :- (i) Does section 8 of the Hindu Minority and Guardianship Act, 1956 (the Act) apply to the disposal of minor's undivided interest in the joint family property by a natural guardian? (ii) Has a minor, during his minority, right to challenge the transaction as being in violation of section 8? These two questions of law - and no other points - are pressed for consideration in this Second Appeal.

2. First the short undisputed relevant factual background - House No 22 situated at Malegaon, District Nasik, belonged to deceased Kashinati Kaushik. He died on 4th April 1951 leaving behind widow Rukminibai (original defendant No. 2) and minor sons Udaykumar (original plaintiff No. 1) and Babulal (original plaintiff No. 2). Half northern portion was sold in a Court auction dated 11th November 1952 in execution of a decree passed against deceased Kashinath. Remaining half southern portion was sold on 4th October 1962 by Rukminibai on her behalf as well as on behalf of minor sons as natural guardian to Narayan Laxman Gilankar, (original defendant No. 1). In the year 1968, Udaykumar who had by then become major, filed a suit for himself and as next friend of minor brother Babulal, against the purchaser Narayan and mother Rukminibai for a declaration that the transaction of sale dated 4th October 1962 was void and for partition and separate possession of 2/3rd share. Initially, challenge was on several grounds including want of legal necessity but as the litigation progressed, several points were steadily given up and ultimately the challenge is confined to point No. (i) in the opening part of the judgment. The trial Court granted a decree for declaration, partition and possession of 2/3rd share in the property sold on 4th October 1962 with a direction to the plaintiffs to pay the proportionate amount of consideration to defendant No. 1 with interest. The judgment and decree passed by the trial Court was challenged by the plaintiffs as well as defendant No. 1. Defendant No. 2 had remained ex parte. The plaintiffs' contention was that there was no justification for ordering the plaintiffs to repay the amount. Defendant No. 1 contended that no decree could be passed since the suit itself was not maintainable. The Appellate Court allowed the appeal filed by the plaintiffs and dismissed the cross objections filed by defendant No. 1.

3. Now, the following positions are undisputed :

(i) property was a joint family property owned by the widow mother and her two minor sons, (ii) mother was the natural guardian, and (iii) property was not divided by metes and bounds and the minors had only undivided unspecified share in the same.

4. As the preamble suggests, the Act is passed to amend and codify only certain parts of law relating to minority and guardianship among Hindus. It does not purport to cover the whole range of subject of guardianship. Section 2 makes it abundantly clear that the provisions of the Act are in addition to and not in derogation of the Guardians and Wards Act, 1890. Section 5 gives overriding effect to the provisions on the matters dealt with in it and repeals all existing law - customary or statutory on those topics. Section 6 deals with natural guardians of a Hindu minor in respect of his person as well as minor's property. His or her undivided interest in joint family property is, however, specifically excluded from that section. Section 12 clearly lays down that guardian is not to be appointed for minor's undivided interest in joint family property, where the property is under the management of an adult member of the family. The interest of the minor in the joint family property is thus kept outside the reach of these provisions, leaving it to the natural guardian to deal with it in accordance with customary Hindu Law. Section 8 with which this matter is concerned, will have to be viewed and interpreted keeping these basic features of the Act in view. Section 8 speaks of power of natural guardian in relation to "immovable property of minor" which would mean minor's definite property and not his fluctuating indefinite interest in the joint family property. Language employed in section 8 seems to be in pari materia with section 29 of the Guardians and Wards Act and hence both will have to be viewed and construed similarly. Thus, it appears that intention of section 8 is not to fetter the customary power of natural guardian in the matter of dealing with joint family property including minor's undivided share.

5. It is true that section 8, unlike section 6, does not expressly exclude the undivided interest in the joint family property, but that feature by itself does not affect the issue, in case the statute as a whole is kept in view. Essence of coparcenary property under Mitakshara Law is the unity of ownership in the whole body of coparcenary and notion is well known that no individual family member can predicate any definite share in the said property. Interest is ever fluctuating depending upon exit and entry in the family by natural process or otherwise. It is only upon a partition that a definite share can be culled out. Restriction imposed by section 8 by their very nature and scheme cannot apply in practical life to a fluctuating interest of a minor. There is thus intrinsic evidence in the provision itself to show that such undivided interest in untouched.

6. Our attention is invited to two decisions -

(i) Girdhar Singh and another vs. Anand Singh and others, AIR 1982 Raj. 229 and (ii) Sunamani Dei vs. Babaji Das and others, AIR 1974 Orissa 184, wherein it is held that section 8 does not govern undivided interest of the minor in the joint family property. I respectfully agree with those decisions.

7. For consideration of question No. 2, sub-sections (2) and (3) of section 8 are relevant. Sale transaction without permission of the Court is not void ab initio, but is voidable at the option of the minor or any person claiming under him. Scheme contemplates challenge only after the minor attains majority and not during his minority. After all natural guardian has dealt with the property and under section 11 of the Act de facto guardian's right to dispose of or deal with the property of a Hindu minor is taken away and the transaction by him is treated to be void ab initio. Any action or result therefrom during minority can on certain grounds be again challenged by a minor on attaining majority and persons bona fide entering into transaction cannot be subjected to endless litigation. Many times transactions are challenged with the blessings and inspiration of the natural guardian with a view to derive advantage arising out of several situations including fluctuations in the market price. Hence, I hold that transaction would not have been challenged on behalf of minor Babulal.

8. Both the Courts below have only concentrated on the issue that Rukminibai as a female could not act as manager of the Hindu family and have not considered the two questions pressed before me. Both these questions are pure questions of law and can be entertained in Second Appeal.

9. In the result, the Second Appeal is allowed. The judgment and decree passed by both the Courts below are quashed and set aside and in its place decree for dismissal of the suit with costs is passed.

No order as to costs.

Appeal allowed.