Second Appeal No.324 of 1999

28th July, 2010

Petitioner Counsel: Mr. A. S. KILOR
Respondent Counsel: Mr. A. V. BHIDE

Cases Cited:
Nagappan Vs. Ammasai Gounder, (2004)13 SCC 480 [Para 7]
Vishwambhar Vs. Laxminarayan, 2001(4) ALL MR 287 (S.C.)=AIR 2001 SC 2607 [Para 7]
Dhanasekaran Vs. Manoranjithammal, AIR 1992 Madras 214 [Para 7]
Kamal Kishor Vs. Ramswarup, 2001(2) Civil L.J. 97 (M.P.) [Para 8]
K. Jagannathan Vs. A. M. Vasudevan Chettiar, AIR 2001 Madras 184 [Para 8]

JUDGMENT

JUDGMENT :- This appeal at the instance of original plaintiffs is against judgment and order dated 20.4.1999 passed by learned Additional District Judge, Khamgaon in Regular Civil Appeal No.78 of 1996.

2. Facts briefly are :

The plaintiffs had instituted Regular Civil Suit No.163 of 1981 in the Court of Civil Judge, Junior Division at Malkapur, District Buldana on 10.7.1978 for declaration that the sale transaction dated 7.5.1971 between father of the plaintiffs and 1st defendant in respect of suit field bearing Survey No.14-15/2 admeasuring 15 acres, 36 gunthas is not binding on the plaintiffs and consequent relief of possession. It is the case of plaintiffs that their father Rambhausa was addicted to bad vices like drinking and gambling and he had sold suit property to satisfy his vices and there was no legal necessity to execute the sale-deed. The sale of the suit land was also without permission of the District Judge and the revenue authorities as, according to the plaintiffs, 1st defendant was not an agriculturist.

3. The suit was resisted by the 1st defendant Shamrao on the ground that it is time-barred and not maintainable, denied all contentions and prayed for dismissal of the suit while defendant no.2 (mother of the plaintiff) supported plaintiff's claim by filing Written Statement.

4. The trial Court found, upon evidence led, that the plaintiffs were owner of the suit property by virtue of partition dated 10.2.1967 while they were minor. But negatived rest of the contentions of the plaintiffs and proceeded to dismiss the suit. The plaintiffs appealed before the Additional District Judge, Khamgaon.

5. The 1st appellate court found that the suit transaction dated 5.7.1971 is binding upon the plaintiffs and dismissed the appeal.

6. The second appeal was admitted on 20.10.1992 on the substantial questions of law, stated as under :

(a) merely because the property was said to be encumbered would it mean that there was legal necessity to sell the property, when there is no evidence to indicate that there was any pressing demand by the creditors so as to leave no other option for the defendant no.2 to dispose of the property ?

(b) was the defendant no.2 competent to dispose of the unidentified share of the minors without following due procedure of law, even if legal necessity would have been there ?

(c) was the learned Judge of the lower appellate court right in upholding the findings of learned Judge of the trial Court, inspite of the fact that the learned Judge of the lower appellate court has not reached to a definite conclusion as regards the legal necessity ?

7. Learned Advocate Mr. A. S. Kilor for the appellants (original plaintiffs) in support of the appeal, contended that the sale transaction during minority of the plaintiffs and without permission of the District Judge to alienate the minors' property according to law, ought to have been declared not binding upon the plaintiffs. Mr. Kilor made reference to the ruling in Nagappan Vs. Ammasai Gounder & ors. reported in (2004)13 SCC 480 to submit that the sale effected without taking permission of the court under Section 8(2) of the Hindu Minority and Guardianship Act, 1956 is voidable at the instance of plaintiffs who were minors at the time of sale transaction. Mr. Kilor also cited rulings in Vishwambhar & ors. Vs. Laxminarayan and anr. reported in AIR 2001 SC 2607 : [2001(4) ALL MR 287 (S.C.)] and Dhanasekaran Vs. Manoranjithammal & ors. reported in AIR 1992 Madras 214 to submit that sale during minority of the plaintiffs without prior permission of the court was liable to be set aside in view of Section 8 of the Hindu Minority and Guardianship Act, 1956.

8. Learned Advocate Mr. A. V. Bhide opposed submissions and submitted that mother of the plaintiffs was also party to the transaction and she along with father of the plaintiffs had sold the suit land for sum of Rs.5,000/- in the year 1971 for legal necessity as family was indebted to the tune of Rs.4,000/-. Loan was to be discharged and the necessity was expressed in the transaction. Bank loan of Rs.4,000/- was discharged (exhibit 49). Need was also commensurate with liability of loan. Mr. Bhide submitted that no permission of the District Judge was necessary as the alienation was by karta involving undivided interest of minors. Mr. Bhide made reference to Kamal Kishor & anr. Vs. Ramswarup & ors. reported in 2001(2) Civil LJ 97 (M.P.); K. Jagannathan Vs. A. M. Vasudevan Chettiar & ors. reported in AIR 2001 Madras 184 and Sri Narayan Bal & ors. Vs. Sridhar Sutar & ors. reported in (1996) (sic) SCC 54 to submit that karta or adult members of the Joint Hindu Family can sell or dispose of Joint Hindu Family property involving undivided interest of minor of the family and Section 8 of the Hindu Minority and Guardianship Act, 1956 is not attracted to such sale/disposal.

9. The legal position has been clarified by the Apex Court in paragraph 5 in Sri Narayan Bal's case (supra) as reproduced below :

"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 to 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 legislature 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 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 and 12 of the Act, the previous permission of the court under Section 8 for 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."

10. In the present case, it appears that the suit land was sold by parents of the plaintiffs to defendant no.1 on 7.5.1971 for a sum of Rs.5,000/- and possession was also delivered. The fact that the suit property had encumbrances to the extent of Rs.4,000/- and the 1st defendant had made payments (exhibits 48 and 49) to clear off encumbrances indicated the need for sale of the suit property. The trial Court appears to have examined the entire evidence and fact that mother of the plaintiffs had also joined in the suit transaction and found that no permission of the Court or revenue authorities was required to sell the joint Hindu family property involving undivided interest of the minors. The dismissal of the suit, therefore, by concurrent finding of facts by the Courts below was consistent with the legal position explained in Sri Narayan Bal's case (supra). The Joint Hindu Family by itself is capable as legal entity to act through its karta and other adult members of the family in the management of Joint Hindu family property. Therefore, it was not necessary to obtain permission under Section 8 of the Act, more so, when parents of the plaintiffs were party to the sale transaction effecting the sale for the purpose of repaying the bank loan of Rs.4,000/-. If need is commensurate with liability for to discharge loan, it is legal necessity to sell the property. Pressing demands from creditors may not be in evidence, but there was a lawful need in the interest of Joint Hindu Family. Under the circumstances, Karta and senior member in the family - parents in this case - were competent to dispose of undivided and unidentified share of the minors even without permission of the District Court. In the facts and circumstances of the case, no infirmity can be found in the conclusions drawn by the Courts below. Substantial questions of law are answered accordingly. The need was commensurate with the liability and, therefore, legal necessity. No interference is required in the concurrent findings of facts recorded by the Courts below in view of the restrictions contained in Section 100 of the Code of Civil Procedure.

11. The appeal is, therefore, dismissed. No order as to costs.

Appeal dismissed.