Second Appeal No. 221 of 1990

24th March, 2010

Petitioner Counsel: Shri. VINESH C. SOLSHE
Respondent Counsel: Shir. UMAKANT K. PATIL

Cases Cited:
Vishwambhar Vs. Laxminarayana, 2001(4) ALL MR 287 (S.C.)=AIR 2001 SC 2607 [Para 11,12]
Nagappa Vs. Ammasai Gounder, (2004)13 SCC 480 [Para 12]

JUDGMENT

JUDGMENT :- This second appeal is directed against the judgment and decree passed by III Additional District Judge, Latur in Regular Civil Appeal No.293 of 1984 decided on 3.10.1989, whereby the dismissal of R.C.S. No.191 of 1980 by Civil Judge, Junior Division, Udgir by order dated 11.7.1984 was set aside and the suit was decreed, thereby declaring the appellants and Respondent No.2 in said appeal (present Respondent Nos.1 to 9) as tenants in common of the suit property and restraining present appellant Nivrutti (orig. defendant No.1) from obstructing peaceful possession of Respondent Nos.1 to 8 over remaining unsold portion to the extent of 2 acres 14 gunthas out of the land bearing Survey No.43-A situated at village Manki, Taluka Udgir.

2. Briefly stated, Respondent Nos.1 to 8 are the daughters of Respondent No.9 Muktabai. The agricultural lands bearing survey Nos.43-A and 42 of village Manki, Taluka Udgir were owned by Shivram, the father of Respondent Nos.1 to 8 and husband of Respondent No.9. Shivram expired about ten years prior to filing of the said suit in the year 1980. After death of Shivram, his wife Respondent no.9 Muktabai executed a registered sale deed in favour of the appellant in respect of portion of 4 acres out of total 6 acres 14 gunthas area of survey No.43-A for a consideration of Rs.17,000/-. The sale deed was executed on 22.3.1979. At the time of execution of sale deed, Respondent Nos.6 to 8 were married and living with their respective husbands, whereas Respondent Nos.1 to 5 were minor daughters living with Respondent No.9. Suit was filed on 25.8.1980 against present appellant Nivrutti and Respondent No.9 Muktabai. The maternal grand father of Respondent No.1 to 5 was shown to be their guardian. In the suit, it is stated that alienation by Respondent No.9 in favour of present appellant was without any legal necessity; it was not for benefit of the estate or for discharge of any antecedent debt and, therefore, the sale deed was not binding on plaintiffs-Respondent Nos.1 to 8 herein. It was, therefore, claimed that the plaintiffs were entitled to declaration that the alienation in favour of the appellant is not binding on them to the extent of 8/9th share. It is also averred that even though only 4 acres of land out of survey No.43-A was sold and remaining 2 acres and 14 gunthas land was owned and possessed by the plaintiffs, Defendant No.1 was obstructing their possession over the same and so the suit was filed for declaration that Plaintiffs and Defendant No.2 (present Respondents) were joint owners of suit land survey No.43-A admeasuring 6 acres 14 gunthas and survey No.42 admeasuring 2 acres 2 gunthas; for putting Plaintiffs-Respondents in actual possession of 4 acres land out of survey No.43-A. In the alternative, it was prayed that the plaintiffs be put in possession of their 8/9th share by partition. There is prayer for perpetual injunction restraining present appellant from obstruction plaintiffs' possession over remaining unsold portion of 2 acres 14 gunthas land out of survey No.43-A.

3. Defendant No.1 present appellant filed his written statement at Exhibit 20 and denied the claim of the plaintiffs as being false and based on ill motive. It is his defence that defendant No.2 (Respondent No.9) Muktabai sold him portion of four acres out of land survey No.43-A and out of the sale proceeds received therefrom, defendant No.4 purchased house at village Tondar and that the suit is filed only to harass defendant No.1.

4. Defendant No.2 Muktabai (present Respondent no.9) filed her written statement at Exhibit 46. It is her defence that she was in need of money and defendant No.1 assured that he would advance her necessary amount and for that a nominal sale deed would be required to be executed in the name of Defendant No.1. According to Defendant No.2, she had received only Rs.5000/- from defendant No.1 and she had returned back the same to defendant No.1. Defendant No.2, therefore, prayed for decreeing the suit of the plaintiffs.

5. The trial court dismissed the suit holding that the sale deed was binding on the plaintiffs. The appellant was bonafide purchaser for value. The plaintiffs were not entitled to any of the reliefs claimed. The trial court also came to the conclusion that the sale was for legal necessity. As against that, the First Appellate Court while deciding Regular Civil Appeal did not enter into the question whether the sale was for legal necessity, but held that after death of Shivram, all his heirs were tenants in common and as such, Respondent no.9 Muktabai had no right to sell the property.In the circumstances, the learned District Judge declared that appellants before him (plaintiffs) were tenants in common in respect of the suit property. He also granted injunction against Respondent No.1, present appellant restraining him from disturbing plaintiffs' possession over 2 acres 14 gunthas land out of survey No.43-A which was remaining unsold portion after sale of some part of the said survey number to present appellant. It is this order which is under challenge in this second appeal.

6. It is no more disputed that after the death of Shivram there was no male co-parcener in the family as Respondent Nos.1 to 9 who inherited the property of Shivram, were all female heirs. It is not disputed that Respondent Nos.6 to 8 who are daughters of Shivram were married at the time of sale deed executed on 22.3.1979. So, they were not under guardianship of mother Respondent No.9 Muktabai. Since there was no male member in the family, the property could not be said to have retained the nature of co-parcenery. It was simply a joint property of Respondents. No doubt, Respondent Nos.1 to 5 were minor daughters under guardianship of mother-Respondent No.9 Muktabai and, therefore, whatever rights Respondent No.9 had in respect of their shares in suit property, were under the provisions of the Hindu Minority and Guardianship Act, 1956 (hereinafter, for brevity's sake "the said Act.").

7. This appeal is admitted by order dated 3.9.1990 on the ground that non-framing of issue in respect of permission of court to alienate property under Section 8 of the Hindu Minority and Guardianship Act, 1956 is a substantial question of law. The parties, at the time of arguments, also requested this court to frame and consider following substantial questions of law.

(1) What is the effect of Section 8 of the Hindu Minority and Guardianship Act, 1956 on the sale deed executed by Respondent No.9 Muktabai in favour of appellant Nivrutti.?

(2) Whether Respondent Nos.1 to 8 plaintiffs were entitled to relief of partition which they have asked for in the alternative ?

8. Heard Shri. V. C. Solshe, learned Counsel for the appellant and Shri. Umakant K. Patil, learned Counsel for Respondents. Since it is not disputed that Respondent Nos.6 to 8 were major daughters of Respondent No.9 and were already married prior to execution of sale deed, Respondent No.1 had no authority to sell the property on their behalf. It is not case of any one that Respondent no.9 Muktabai was having authority to sell property on behalf of Respondent Nos.6 to 8 either under general power of attorney or special power of attorney. Even assuming that Respondent No.8 might be minor at the time of sale as she was shown to be aged 18 in the plaint, still she was married and as such under guardianship of her husband and not under guardianship of Respondent No.9. In the circumstances, sale was not binding on Respondent Nos.6 to 8.

9. The main question that is canvassed at length before me is that the sale is binding on Respondent Nos.1 to 5 inasmuch as they were minor daughters under guardianship of mother Respondent No.9. The sale deed was not challenged by Respondent Nos.1 to 5 within three years after they attained majority. There was no prayer for setting aside alienation and no court fee was paid by Respondent Nos.1 to 5 for setting aside or avoiding the sale deed.

10. Shri. Solshe, learned Counsel for the appellant, drew my attention to sub-sections (1) to (3) of Section 8 of the said Act which are as follows;

"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 person covenant.

(2) The natural guardian shall not, without the previous permission of the Court, -

(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."

As per sub-section (3), 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. In the present case, suit was filed by maternal grand father of Respondent Nos.1 to 5 and when the suit was filed, Respondent Nos.1 to 5 were still minors. Sub-Section (3) of Section 8 of the said Act, makes it clear that the sale can be avoided by minor or any person claiming through him, if such disposal is in contravention of sub-section (1) or sub-section (2). In the present matter there is no prayer for setting aside sale deed. On the other hand, in paragraph 8 of the plaint it is stated that the sale was null and void.

11. In the case of Vishwambhar Vs. Laxminarayana, AIR 2001 SC 2607 : [2001(4) ALL MR 287 (S.C.)], it is laid down that where sale by guardian is without permission of the court, the same is voidable under Section 8 of the Hindu Minority and Guardianship Act. In that case, as is evident from paragraphs 9 and 10 of the judgment, in a suit for recovery of possession from purchaser filed by minor on his attaining majority, no prayer was made for setting aside sale deeds. Such prayer was subsequently added by amendment. But, the amendment was carried out three years after minor attaining majority. In the circumstances, the suit was held to be liable to be dismissed as the amendment was carried out after the period of limitation prescribed under Article 60 of the Limitation Act. In present case no amendment is carried out in the plaint and there is also no prayer on behalf of minor plaintiffs for setting aside the sale, nor any court fee is paid therefor.

12. Ratio in Vishwambhar's case (supra) was followed in Nagappan Vs. Ammasai Gounder, (2004)13 SCC 480 : [2001(4) ALL MR 287 (S.C.)]. In paragraphs 9 and 10 of the judgment, it has been laid down that reading Section 8 of the Act itself shows that sale made by natural guardian in violation is voidable at the instance of minor. If the requirement of law is to have the alienation set aside before making any claim in respect of the property sold, then a suit without such a prayer would be of no avail.

13. In view of above legal position, in my opinion, insofar as Respondent Nos.1 to 5 in present case are concerned, they are not entitled to get any relief in respect of the sale deed or land sold thereunder by their mother Respondent No.9 Muktabai and, therefore, to that extent this appeal will have to be allowed and the decree of the first appellate court will have to be set aside.

14. Having sold the land, Respondent No.9 Muktabai herself cannot claim that the sale deed is not binding on her and the trial court erred in holding that Defendant No.2 Muktabai (Respondent No.9) was also tenant in common in respect of the suit land. There is no reason why Respondent Nos.6 to 8 were denied the decree of partition which was prayed in the alternative. The sale deed is certainly not binding on Respondent Nos.6 to 8 and the decree of partition and possession ought to have been passed in their favour. Each of Respondent Nos.6 to 8 has 1/9th share in the property sold to the appellant. So, the appeal will have to be allowed to that extent. At the same time, so far as injunction is concerned, the first appellate court has rightly granted relief in respect of unsold portion of 2 acres 14 gunthas of survey No.43-A. Sale deed Exh.71 makes it clear that out of total 6 acres 14 gunthas land of survey No.43-A, only 4 acres portion was sold by Respondent No.9 Muktabai to appellant Nivrutti. In this respect, the trial court has referred to mutation entry No.88 made by Tahsildar on 6.2.1980 It is argued by Advocate Shri. Solshe before me that only 3 acres 8 gunthas of land out of purchased land remained with the appellant and 32 gunthas land sold is under road. He also submitted that no compensation regarding said 32 gunthas portion was paid to the appellant. If acquired portion of 32 gunthas is out of the land sold to the appellant, then he is entitled to claim compensation from the concerned authorities. Certainly, the appellant is entitled to protect his possession over the land sold to him until partition is effected.

15. In the result, this second appeal is allowed partly as follows and disposed of.

(i) It is declared that the sale deed executed by Respondent No.9 in favour of the appellant is not binding on Respondent No.6 to 8 to the extent of their shares. They are entitled to have partition and separate possession of their 1/9th share each. Remaining 2/3rd portion of the land sold would be belonging to the appellant as the sale deed is binding on Respondent Nos.1 to 5 and 9. Respondent Nos.1 to 5 have not avoided the sale deed as stated earlier and hence the same is binding on them.

(ii) Injunction in respect of remaining portion of 2 acres 14 gunthas land which was not the subject matter of sale deed by Respondent No.9 Muktabai in favour of appellant Nivrutti is hereby confirmed.

(iii) Partition of the land sold to appellant Nivrutti shall be effected by the Collector, Latur as per Section 54 of the Code of Civil Procedure 1908. While effecting partition, if any portion of the land sold to the appellant was found to have been acquired or taken possession of for road purposes as submitted by Advocate Shri. Solshe for the appellant, then such fact may be considered by the Collector or subordinates while effecting partition and the parties would be entitled to appropriate equitable relief in respect of compensation as per shares declared.

Ordered accordingly.