ARUN KUMAR Vs. CHANDRAWATI AGRAWAL

JUDGEMENT

(1.) THE facts necessary for the decision of this second appeal can be narrated in brief. A suit was filed in forma pauperis by the plaintiffs who claimed themselves to be sons and daughters of Gaya Prasad. defendant No. 3. It is stated that Gaya Prasad executed a conditional sale of the disputed house No. 8, Khushal Parbat, Allahabad in favour of defendant No. 4, Chaudhary Naunihal Singh. Subsequently, in the year 1959, the defendant No. 3 and defendant No. 4, namely, Gaya Prasad and Chandhary Naunihal Singh respectively, sold the house to Smt. Chandrawati Agarwal and Devi who were defendants Nos. 1 and 2 in the suit. THE plaintiffs' allegations were that at the relevant time when the sale-deed was executed, they were minors and the sale-deeds were not for their benefits. It is further stated that the sale had been executed by Gaya Prasad without obtaining the permission of the District Judge and, as such, it was in violation of the provisions of S. 8 of the Hindu Minority and Guardianship Act No. 32 of 1956. THE plaintiffs claimed that the sale-deed be declared to be invalid and they be given possession of the house and compensation as well.

(2.) THE suit was contested by defendants Nos. 1 and 2. THEir contention was that the sale deed was for legal necessity and for payment of antecedent debts so they were binding on the plaintiffs. It was further pleaded that the plaintiff Nos. 2 to 6 are not entitled to sue because plaintiffs No. 2 to 5 have no interest in the property being daughters of Gaya Prasad and the plaintiff No. 6 is not the son of Gaya Prasad.

(3.) THE question which has been raised by the learned counsel for the appellants has been considered by the various High Courts and they have held that the provisions of S. 8 of the Hindu Minority and Guardianship Act do not prevent a ' Karta' of a Joint Hindu Family to which the minor belongs from disposing of the immovable property provided it is otherwise permissible under Hindu law. In the case of Sakharam Sheku v. Shiva Deorao (ILR (1974) Bom 1113), the Bombay High Court, while dealing with this problem, has observed as follows : " Mr. Abhyankar, the learned Advocate for the appellant, argued that the lower appellate Court was in error in holding that S. 8 of the Hindu Minority and Guardianship Act governed this case. It was submitted by him that so far as undivided interest of a minor in the Joint Hindu Family is concerned, the Act is not applicable. This contention is well founded and must be accepted. Section 8 (2) no doubt provides that the natural guardian of a Hindu minor shall not, without the permission of the Court, in any way transfer any part of the immovable property of the minor. Had this provision stood alone, perhaps the view taken by the learned Judge was right. But we have also to take into account the other provisions in the Act. It is a well-settled principle that every statute must be construed ex visceribus actus i. e. within the four corners of the Act. When construing the terms of any provision found in a statute, the Court is bound to consider other parts of the statute which throw light on the intention of the Legislature and serve to show that the particular provision ought not to be construed as it would be if it stood alone and apart from the rest of the statute. Every clause of a statute must be construed with reference to the context of other clauses in the statute so as to make, as far as possible, a consistent enactment of the whole statute. No part of a statute can be construed in isolation, because the intention of makers of law is to be found not in one part of the statute or another but in the entire enactment and that intention can best be gathered by viewing a particular part of the statute not in detachment from its context in the statute but in conjunction with its other provisions. Now, coming to the provisions of the Hindu Minority and Guardianship Act, S. 4 (b) defines " guardian" while Cl. (c) thereof defines " natural guardian" as meaning any of persons mentioned in S. 6. Now S. 6 deals with natural guardians of a Hindu minor. It mentions in the order of priority the persons who are entitled to be natural guardians of a Hindu minor. THE opening words of the section, however, say that " 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 those mentioned below in the section. THE words " excluding his or her undivided interest in joint family property" which have been put in brackets make it clear that the undivided interest of a Hindu minor is excluded from the operation of the provisions of the Act and the subject-matter with which the Act deals is limited to guardians in respect of minor' s person or in respect of minor' s property other than his undivided interest in joint family property, whether they be natural guardians or testamentary guardians or guardians appointed or declared by Court. THE concept of a guardian in respect of undivided interest in the joint family property is thus specifically excluded from the purview of the Act. THE powers which a Hindu father therefore has, as a natural guardian of his minor sons under Hindu Law, are kept intact and are not in any way affected by the provisions of the Hindu Minority and Guardianship Act so far as the undivided interest of a Hindu minor in the joint family property is concerned. THE restrictions contained m S. 8, therefore, do not apply in respect of the undivided interest of a minor in joint family property and consequently S. 8 does not debar the Manager or karta of a joint Hindu family from alienating joint family property including the interest of minor without obtaining the previous permission of the Court, even if the Manager or Karta happens to be the natural guardian in respect of the separate property of any one or more of the minor coparceners. Of course the alienation would have to be justified under Hindu Law but S. 8 does not require that any previous permission of the Court should be obtained before effecting such alienation. Under Hindu Law a Manager and Karta of a joint Hindu family can alienate joint family property so as to bind the interest of minor coparceners in such property provided the alienation is either for legal necessity or for the benefit of the estate. If the Manager and Karta happens to be the father he has certain additional powers of alienation under Hindu Law and in exercise of those powers he can alienate joint family property so as to bind the interest of his minor coparceners in such property. THEse powers are not at all curtailed or affected in any way by the provisions of the Hindu Minority and Guardianship Act." In the case of re Krishnakant Maganlal (AIR 1961 Guj 68), the Gujarat High Court while considering the provisions of S. 8 of the Hindu Minority and Guardianship Act observed as follows (At p. 71) : " (5) THE argument of Mr. B. J. Shelat in the main has been that S. 8 deals with the powers of a natural guardian and alongwith the powers the Parliament has also prescribed certain restrictions in the said section and every natural guardian who wants to deal with the property of a minor can do so only in accordance with and subject to the restrictions contained in the said section. It has been urged by Mr. B. J. Shelat that the reference to the ' minor' s estate' and the ' immovable property of the minor in the said section is not limited to the separate property of the minor but also extends to the undivided share of the minor in joint family property. According to Mr. B. J. Shelat there is nothing in the said section which requires that the words ' the minor' s estate' and the immovable property of the minor should be lead in any narrow sense as excluding the undivided share of the minor in joint family property. THE undivided share of the minor in joint family property is as much a part of his estate or immovable property as his separate property and there is no justification, argues Mr. B. J. Shelat for excluding the undivided share of the minor in joint family property from the scope and meaning of the words ' the minor' s estate' and ' the immovable property of the minor' . occurring in the said section. It has been urged by Mr. B. J. Shelat that if these words are given their plain and natural meaning as they ought to be given, the restrictions contained in the said section would apply equally in respect of the undivided share of a minor in joint family property as they apply an respect of the separate property of the minor and the natural guardian, even though he be the manager and karta, cannot sell or mortgage the undivided share of the minor in joint family property without the previous permission of the Court. This permission has to be obtained from the Court and the said section lays down the principles governing the exercise of the Court' s discretion in granting or refusing such permission. According to Mr. B. J. Shelat the learned District Judge had, therefore jurisdiction to make the said order dated 30th April, 1960 under S. 8 of the Act.