SUBRAMANIAM Vs. KRISHNASWAMI GOUNDER

JUDGEMENT

(1.) THE minor plaintiff in O. S. No. 110 of 1963 on the file of the Subordinate Judge, erode, is the appellant. He is the only son of the first defendant. The first defendant, for himself and as guardian of the minor plaintiff, executed two sale deeds, one in favour of the second defendant and the other in favour of the third defendant under Exs. B. 2 and B. 16, both on 8-6-1960 in respect of the suit properties. This suit was laid for cancellation of these sale deeds on the allegations that the first defendant was leading a wayward life and was given to immoral habits, and that the sale deeds were not binding upon the plaintiff. The trial Court held that the plaintiff had failed to establish that the sale deeds were executed for illegal and immoral purposes. But the trial Judge took the view that inasmuch as the first defendant had not obtained the leave of the court as contemplated under section 8 of the Hindu Minority and Guardianship Act, 1956, (hereinafter referred to as the Act), the sale was not binding on the plaintiff. In that view, the trial judge granted a declaration that the sale deeds were not binding on the plaintiff in so far as his half share is concerned and passed a preliminary decree for partition accordingly. In the appeal filed by defendants 2 and 3. the appellate Judge confirmed the finding of the trial Court that the plaintiff had failed to prove that the sales were executed for illegal and immoral purposes of the first defendant, but differed from the trial court with regard to the application of Section 8 of the Act. The appellate judge found that in as much as the properties were joint family properties of the plaintiff and the first defendant, leave of the Court under Section 8 was not required and that, therefore, the sales were not vitiated on that account. In that view, the appellate Judge reversed the decision of the trial court and dismissed the suit. Hence this appeal.

(2.) THE only question that arises for consideration is whether the natural guardian of a Hindu minor should obtain the previous permission of the Court under Section 8 (2) of the Act before transferring by sale, gift or exchange or otherwise, the share of the minor in the joint family property. The Act deals with three kinds of guardians: (1) natural guardian, (2) testamentary guardian and (3) guardians appointed or declared by Court. The object of the Act was to amend and codify certain parts of the Law relating to minority and guardianship. It is only in respect of the points and matters specifically dealt with in it that the law relating to minority and guardianship is codified. Section 2 of the Act explicitly states that the provisions of the Act are only supplemental to and are to be read as addition to and not in derogation of those contained in the Guardians and Wards Act, 1890, which is the principal Act on the subject. In order to understand the point in controversy, it is necessary to extract the relevant portions of certain sections, section 4 deals with definitions. It reads:

(3.) IT would be seen from the language of Section 6 and 8 that, whereas Section 6 expressly excludes the undivided interest of the minor in the joint family property with respect to the natural guardian's power, no such exclusion is found in Section 8. On the other hand, Section 8 speaks of minor's "estate" and "immovable property of the minor". As these expressions are wide enough, Mr. Srinivasagopalan, counsel for the plaintiff, contended that as against the express exclusion of the minor's undivided interest in the joint family found in Section 6 the Legislature should be deemed to have intended that whatever be the property of the minor, whether it be separate property or his interest in the joint family property, it should be brought under the scope of Section 8. In other words, the argument was that even though the guardian may be natural guardian, he cannot deal with the minor's undivided interest in that joint family property by transfer except with the previous permission required under sub-section (2) of S. 8. The question is whether this interpretation is correct.