SUNDARI AMMAL Vs. THILAKAVATHI AMMAL

JUDGEMENT

(1.) Learned counsel for the appellant submits that there has been substantial question of law arising in this second appeal and as such it is a fit case for admission. He submits that both the Courts below have held that the alienation by the father of the minor, of the property which he got by settlement from his younger brother cannot be made without obtaining permission from Court as per the provisions of S.8 of the Hindu Minority and Guardianship Act. Section 6 is relied on for this purpose by the learned counsel for the appellant. He also brought to the notice of this Court the provisions of S.12 of the said enactment in support of his contention. Section 6 reads as follows : S.6 The natural guardians of a Hindu minor, in respect of the minor's person as well as in respect of the minor's property (excluding his or her undivided interest in joint family property), are- (a) in the case of a boy or an unmarried girl - the father, and after him, the mother : provided that the custody of a minor who has not completed the age of five years shall ordinarily be with the mother; (b) in the case of an illegitimate boy or an illegitimate unmarried girl - the mother, and after her, the father, (c) in the case of a married girl - the husband; Provided that no person shall be entitled to act as the natural guardian of a minor under the provisions of this Section - (a) if he has ceased to be a Hindu, or (b) if he has completely and finally renounced the world by becoming a hermit (vanaprashtha) or an ascetic (yati or sanyasi). Explanation : In this Section, the expressions 'father' and 'mother' do not include a step -father and a step-mother." Section 8 of Hindu Minority and Guardianship Act reads as follows : "Section 8(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 realisation, protection or benefit of the minor's estate but the guardian can in no case bind the minor by a personal 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. (4) No Court shall grant permission to the natural guardian to do any of the acts mentioned in Sub-Section (2) except in case of necessity or for an evident advantage to the minor. (5) The Guardians and Wards Act, 1890 (8 of 1890), shall apply to and in respect of an application for obtaining the permission of the Court under Sub-Section (2) in all respects as if it were an application for obtaining the permission of the Court under Section 29 of that Act, and in particular- (a) proceedings in connection with the application shall be deemed to be proceedings under the Act within the meaning of Section 4A thereof (b) the court shall observe the procedure and have the powers specified in subsections (2), (3) and (4) of Section 31 of that act; and (c) appeal shall lie from an order of the court refusing permission to the natural guardian to do any of the acts mentioned in Sub-Section (2) of this Section to the Court which appeals ordinarily lie from the decisions of that Court. (6) In this Section "Court" means the City Civil Court or a District Court or a Court empowered under Section 4A of the Guardians and Wards Act, 1890 (8 of 1890) within the local limits of whose jurisdiction the immovable property in respect of which the application is made is situate, and where the immovable property is situate within the jurisdiction of more than one such Court, means the Court within the local limits of whose jurisdiction any portion of the property is situate." Section 12 reads as follows : "12. Where a minor has an undivided interest in joint family property and the property is under the management of an adult member of the family, no guardian shall be appointed for the minor in respect of such undivided interest."

(2.) A combined reading of the above three Sections shows that the alienation of the property of a minor by the natural guardian should necessarily be only with the permission of the Court, under the provisions of S.8 or 9 of the Hindu Minority and Guardianship Act. This particular provision which enables the Court to exercise its discretion judicially and give permission so far as the interest of the minor is concerned in the joint family is sought to be overthrown by certain words available in S.6 which are as follows :- "excluding his or her undivided interest in joint family property." These words have been elucidated by various High Courts and as such the decisions in Nathuni Mishra v. Mahesh Misra, AIR 1963 Patna 146. In re Krishnakant Mangalal, AIR 1961 Guj 68; Subramaniam v. K. Gounder, AIR 1972 Mad 377; Arun Kumar v. Chandrawati, AIR 1978 All 221; Tarni Prasad v. Basudeo, AIR 1981 Patna 331 and Prasad v. V. Govindaswami Mudaliar 95 Mad LW (SOC) 130 are relied on by the learned counsel for the appellant submits that in a case of necessity, the father has got a right to alienate the property including the share of the minor son. This aspect is the subject matter of judicial gamut laid from the beginning of the commencement of the Act, namely Hindu Minority and Guardianship Act. The only Supreme Court decision that is relied on by the learned counsel for the appellant is the one reported in Prasad v. Govindaswami Mudaliar, 95 Mad LW (SOC) 130 . This Court itself feels that there is another decision of the Supreme Court which interprets S.6, S.8 as well a Ss.9 and 12 of that Act and that is the decision in Raghubanchamani Prasad Narain Singh v. Ambica Prasad Singh, AIR 1971 SC 776. This decision is the authority for the proposition that the alienation by Manager of joint Hindu family even without legal necessity is voidable and not void. As a matter of fact even the provisions of Sections quoted above, namely Ss.6, 8, 9 and 12 say that the transaction is only voidable and not void if it has been indulged in without obtaining the permission of the Court. Merely on the ground of existence of the words in S.6 of the Act that excluding his or her undivided interest in joint family property in the preamble portion of that Section, does not mean that under the pretence and guise, a father can alienate the property of the minor without obtaining the permission of the Court and say he is following the old Hindu Law. The old Hindu Law of course was available by way of custom and usage because they were olden days where people gave respect to the custom and usage and that is why Hindu Law was only on the custom and usage and it is Shruti, Smriti and Sadachara. We are in modern days. In these days, we always want to have the right by law. Strict letters of law can only govern the relationship of parties including the parents, sons and daughters. Daughters have been given equal shares by means of Hindu Succession Act when the father dies intestate. Under the circumstances when such an in road has been introduced into the Hindu Law of Usage and Custom, it is but necessary that we have to strictly follow the Section of course with a bearing on the Old Hindu Law in interpreting the Sections especially Ss.6, 8, 12 in the instant case before us. In this view we have to find out whether the Court below is correct in having found that the alienation by the father is bad especially when he had not obtained the permission of the Court. As already observed by this Court, it is only a voidable transaction and not a void transaction.

(3.) Learned counsel for the appellant has relied on the decision in Prasad v. V. Govindaswami Mudaliar, 95 Mad LW (SOC) 130 for the proposition which occurs by way of observation.