Second Appeal No.629 of 1990

12th December, 2005

Petitioner Counsel: Mr. C. S. KAPTAN
Respondent Counsel: Mr. J. T. GILDA

Cases Cited:
Madhe Gowda Vs. Anke Gowda, (2002)1 SCC 178 [Para 8,12,15]
Panni Lal Vs. Rajinder Singh, (1993)4 SCC 38 [Para 9,13,16]
V. Rajeshwari Vs. T. C. Saravanabava, (2004)1 SCC 551 [Para 17]

JUDGMENT

JUDGMENT :- Invoking the jurisdiction of this Court under Section 100 of the Code of Civil Procedure, the appellant has preferred this appeal taking an exception to the judgment and decree dated 31-7-1990 passed by the learned District Judge, in Regular Civil Appeal No.14 of 1985 whereby the appeal came to be allowed and the appellant/plaintiff's suit for recovery of possession and damages past and future mesne profits has been dismissed by setting aside the judgment and decree dated 16-10-1984 passed by the learned 9th Joint Civil Judge, Jr. Dn. Amravati, in Regular Civil Suit No.175 of 1983.

2. Heard Mr. Kaptan, learned counsel for the appellant and Mr. Gilda, learned counsel for the respondent. The short question of law that arises for consideration in this case is whether the alienation made by the mother of a minor without obtaining permission of the District Judge is valid in law ?; and whether the appellate Court, by ignoring the recitals of the compromise decree as well the provisions of law, has committed an error of law in holding that the plaintiff has failed to establish his title to the suit property?

3. It is not in dispute that plaintiff's father by name Pundlikappa was the owner of the suit property and some property and one Narayan Patil had instituted Civil Suit No.56 of 1953 against Pundlikappa which came to be decreed on 27-7-1953. In execution of that decree, the suit property came to be auctioned by the Civil Court and it was purchased by one Amrut Doma Gawai. In pursuance of this auction sale, the purchaser of auction was put in possession of the property on 9-8-1956 vide Ex.17-A, the Taba Paoti. It is also not in dispute that the said property was repurchased in the name of the present plaintiff Subhashappa, who was then minor and was shown to be under guardianship of his natural mother. In this regard, Amrut Gawai executed a registered sale-deed in favour of the minor plaintiff for a consideration of Rs.1,300/- on 19-12-1965 (Ex.18). It is also admitted that on behalf of the minor, his mother Parvati had executed a sale-deed dated 6-4-1964 for a consideration of Rs.500/- in favour of one Wamanrao and it pertains to a part of the suit property.

4. Wamanrao had instituted Regular Civil Suit No.9 of 1976 in the Court of Civil Judge, Jr. Dn., Amravati, for possession of the house purchased by him. The suit was initially filed against the present defendant Maroti and later the present plaintiff was joined in the suit as defendant no.2. During the pendency of the suit, Wamanrao died and his legal representatives were brought on record. Ultimately the suit came to be compromised between the present plaintiff and the legal heirs of Wamanrao and the decree (Exh.20) came to be drawn and the plaintiff had paid in all Rs.2,000/- to the legal heirs towards the price of the suit house.

5. The plaintiff contended that Wamanrao was dealing in the business of money lending and the plaintiff's father used to borrow loan from him and at the instance of Wamanrao the Plaintiff's mother had executed the sale-deed dated 6-4-1964 in favour of Wamanrao, but the said sale-deed was nominal and the real transaction was that of a money lending and even after the sale-deed the plaintiff continued to be in possession of this house.

6. It is further contended that the defendant was working as an agricultural labourer with Wamanrao and Wamanrao had requested the parents of the plaintiff to allow the defendant to reside in the suit house for some period, free of charge as a licensee and this request was accepted. The possession of defendant was that of licensee and the defendant has no right, title or interest in the suit premises. He had agreed to vacate the suit house and deliver the possession. It is contended that the legal representatives of Wamanrao had admitted the title of the plaintiff to the suit house and in such circumstances the defendant was called upon to deliver the possession. He was served with a notice, but he did not give any reply to the said notice and, therefore, the plaintiff was constrained to file the suit for possession on the strength of title.

7. The defendant strongly resisted the claim by filing written statement. According to him at the instance of Wamanrao, the defendant had shifted to Maholi from his original village Shendurjanaghat for the purpose of agricultural work in the year 1962 and the defendant had occupied the vacant plot after coming to Maholi and constructed a structure thereon with his own expenses and since then he is occupying the same. Thus, according to him, the suit property does not belong to the plaintiff and the defendant has acquired the title by adverse possession. As Wamanrao had become the exclusive owner of the suit property the plaintiff ceased to be the owner of the same and the compromise decree by itself will not clothe the plaintiff with the title of the suit house.

8. Mr. Kaptan, learned counsel, for the appellant contended that the plaintiff has proved his better title to the suit premises and the alienation of the suit house by the plaintiff's mother, who was the legal guardian, is per se invalid and void ab initio because admittedly the plaintiff was minor at the time of execution of the sale deed dated 6-4-1964. He contended that the transferee acquires no interest and such alienation does not require to be set aside by means of a suit and the minor can repudiate the alienation on attaining majority as and when occasion arises. In support of these contentions he relied on the decision of Supreme Court in Madhe Gowda Vs. Anke Gowda - (2002)1 SCC 178.

9. Mr. Kaptan, learned counsel, for the plaintiff further contended that as per Section 8 of the Hindu Minority and Guardianship Act, 1956 the property of a minor is fully protected even from the depredations of his parents. Section 8 empowers only the legal guardian to alienate a minor's immovable property provided it is for the necessity or benefit of the minor or his estate and it further requires that such alienation shall be effected after the permission of the court has been obtained. In support of this contention he placed reliance on a decision of Supreme Court in Panni Lal Vs. Rajinder Sigh, (1993)4 SCC 38.

10. Mr. Kaptan, learned counsel, further contended that the alienation of the plaintiff's property by Parvatabai by virtue of the sale-deed dated 6-4-1964 is per se invalid and void ab initio as no permission of the District Judge was obtained for entering into the transaction of sale of the minor son's property with Wamanrao. He contended that the compromise decree (Exh.20) has been totally ignored by the appellant court and a finding has been recorded that the plaintiff has failed to establish his title to the suit property. He contended that the impugned judgment and decree passed by the appellate court cannot be sustained-in-law and the judgment and decree passed by the trial court deserves to be restored.

11. Learned counsel for the appellant fully supports to the impugned judgment and decree passed by the appellate Court and contended that the sale deed (Exh.19) was out and out sale and Wamanrao had purchased it from the mother of the plaintiff on 6-4-1964 and thereafter instituted Regular Civil Suit bearing No.9 of 1976 for recovery of possession. The plaintiff was joined in the suit as defendant no.2 who had entered into compromise with the legal heirs of Wamanrao and accordingly decree came to be passed wherein the present plaintiff has agreed to pay Rs.2,000/- to the heirs of Wamanrao and they have admitted the present plaintiff being owner of the house, but the compromise decree has no effect because admittedly, defendant No.1 was not party to this compromise decree, and therefore, the said decree could not have any binding effect on defendant No.1. Defendant No.1 was in the employment of Wamanrao since the years 1962 to 1964 for the purpose of doing agricultural work as a labour. Defendant No.1 had constructed a house and perfected his title by adverse possession and in such a situation, no substantial question of law is involved in this appeal and the same may kindly be dismissed.

12. The Court has given thoughtful consideration to the contentions canvassed by the learned counsel for the respective parties. It is not in dispute that the suit property was repurchased in the name of the present plaintiff Subhashappa who was then minor and was show, to be in the guardianship of his natural guardian mother and one Amrut Doma had executed a registered sale deed of the suit premises in favour of the minor plaintiff for consideration of Rs.300/- on 9-12-1965. It is also not in dispute that on behalf of minor, his mother Parvatabai had alienated the suit property on 6-9-1964 for a consideration of Rs.500/- in favour of Wamanrao. There is no evidence on record to show that the property of the minor was sold by his mother for the benefit of the minor or for the legal necessity of the family, and therefore, the alienation by Parvatabai can be challenged by the minor on being major. In the present case, the plaintiff has proved his better title to the suit premises and the alienation of the suit house by the plaintiff's mother who was the guardian, is per se invalid and void ab initio because at the time of execution of the sale deed dated 6-4-1964 the transferee acquires no interest and such alienation does not require to be set aside by means of a suit. The minor can repudiate the alienation on attaining majority, and when occasion arises, and therefore, the observations of the Supreme Court in the case of Madhe gowda Vs. Ankegowda (cited supra) was fully applicable to the facts and circumstances of the present case.

13. Similarly, as per the provisions of Section 8 of the Hindu Minority and Guardianship Act, 1956, the property of minor is fully protected even from the depredations of his parents and section 8 empowers only the legal guardian to alienate a minor's immovable property provided it is for the necessity or benefit of the minor or his estate and it further requires that such alienation shall be effected after the permission of the Court has been obtained. Admittedly, no permission of the Court was obtained for such alienation, and therefore, the said alienation by Parvatabai would be void ab initio and the observations of the Supreme Court in the case Panni Lal Vs. Rajinder Singh (cited supra) would be squarely applicable to the facts and circumstances of the present case.

14. The compromise decree (Exh.20) has been totally ignored by the appellate Court who rendered the erroneous finding that the plaintiff has failed to establish his title to the suit property. When the legal heirs of Wamanrao clearly admitted the title of the plaintiff and when the better title has been proved by virtue of the sale deed dated 9-5-1965 (Exh.18), it is apparent that the plaintiff has established his better title to the suit premises. As against this, the defendant did not adduce any evidence to show that he has perfected his title to the suit property by virtue of adverse possession nor any evidence has been led to show that he has constructed a structure after occupying the suit plot as an employee of Wamanrao in the latter's life time. Therefore, it is apparent that the appellate Court has committed an error of law by ignoring the provisions of the Hindu Minority and Guardianship Act, 1956. Section 11 of the said Act contemplates as under :

"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."

15. The Hon'ble Supreme Court has considered the scope of this section 11 in the case of Madhe Gowda Vs. Anke Gowda (cited supra) and observed in para 16 as under:

"This section brings about a material change in the law relating to de facto guardians or de facto managers of a Hindu minor's estate by enacting in express terms that after the commencement of the Act, no person has the right or authority to do any act as a de facto guardian of such minor. Although the expression "de facto guardian" is often used judgments, there is in law nothing like a de facto guardian. The Statute recognises a natural guardian or a testamentary guardian or a guardian appointed by the Court. In law a person who is not a guardian as aforementioned who takes interest upon himself, the general management of the estate of a minor can be more appropriately described as "de facto manager". Before enforcement of the Act some confusion prevailed over the powers of a de facto guardian or manager for alienating the property of his/her ward. It was held by the Privy Council in Hunnmanpresaud Panday case that a de facto guardian had the same power of alienating the property of his ward as a natural guardian. Section 11 has done away with the authority of any person to deal with or dispose of any property of a Hindu minor on the ground of his being the de facto guardian of such minor. Any alienation by a de facto guardian will be governed by the provisions in Section 11 of the Act. The alienation, being against the statutory prohibition, would be void ab intio and the alienee would not acquire any title to the property."

16. In the case of Panni Lal Vs. Rajinder Singh (cited supra), the Hon'ble Supreme Court observed in paras 7 and 8 as under :

"The provisions of Section 8 are devised to fully protect the property of a minor, even from the depredations of his parents. Section 8 empowers only the legal guardian to alienate a minor's immovable property provided it is for the necessity or benefit of the minor or his estate and it further requires that such alienation shall be effected after the permission of the court has been obtained. In the present case, there is no evidence to show that the father of the respondents was not taking any interest in their affairs or that they were in keeping and care of the mother to the exclusion of the father. In fact, his attestation of the sale deed shows that he was very much existent and in the picture. If he was, then the sale by the mother, notwithstanding the fact that the father attested it, cannot be held to be a sale by the father and natural guardian satisfying the requirements of Section 8. It is difficult, therefore, to hold that the sale was voidable, not void, by reason of the fact that the mother of the minor respondents signed the sale deed and the father attested it."

17. In V. Rajeshwari Vs. T. C. Saravanabava - (2004)1 Supreme Court Cases 551 the hon'ble Supreme Court observed at under :

"So is the case with the plea as to adverse possession over the suit property taken by the defendant in his written statement. The plea has been held not substantiated and rightly so. The plea is too vague. Earlier the defendant, claiming himself to be an adopted son of one of the predecessors-in-title of the plaintiff, had filed a suit for partition claiming half a share therein. Thus, he was canvassing his claim as a co-owner in possession. How and at what point of time he started prescribing hostile title, was for him to plead and prove, which he has utterly failed in doing. The plea of adverse possession raised by the defendant is devoid of any merit and cannot be countenanced."

18. The observations of the Supreme Court in the afore mentioned cases are binding on this Court, and therefore, it is obvious that the appellate Court has committed an error by ignoring the provisions of law and held that the plaintiff has failed to establish the title to the suit premises, and therefore, it is obvious that the alienation by the mother of the property of the minor plaintiff, without obtaining the permission of the District Judge, was invalid and void ab initio and in such circumstances, the impugned judgment and decree of the appellate Court cannot be sustained-in-law.

19. In the present case the plea of adverse possession raised by the defendant cannot be countenanced because there is no evidence on record to show as to what was the nature of possession of the defendant, when he came in to possession of the property, in what capacity and for what period he was in possession. His possession, howsoever long, cannot be termed as adverse. Any secret animus on the part of the defendant to hold the property adversely would not be relevant for coming to the conclusion that his possession has become adverse and he has perfected title to the suit premises by adverse possession. Therefore, obviously the appellate Court has fallen in error in reversing the judgment and decree passed by the trial Court on erroneous appreciation of law, and therefore, the impugned judgment and decree passed by the appellate Court cannot be sustained. Consequently the appeal is allowed. The judgment and decree passed by the appellate Court is set aside and that of the trial Court is restored.

Appeal allowed.