NARAYAN LAXMAN GILANKAR Vs. UDAYKUMAR KASHINATH KAUSHIK

JUDGEMENT

(1.) (I) Does section 8 of the Hindu Minority and Guardianship Act, 1956 (the Act) apply to the disposal of minors undivided interest in the joint family property by a natural guardian? (ii) Has a minor, during his minority, right to challenge the transaction as being in violation of section 8? These two questions of law - and no other points - are pressed for consideration in this Second Appeal.

(2.) FIRST the short undisputed relevant factual background-House No. 22 situated at Malegaon, district Nasik, belonged to deceased Kashinath Kaushik. He died on 4th April, 1951 leaving behind widow Rukminibai (original defendant No. 2) and minor sons Udaykumar (original plaintiff No. 1) and Babulal (original plaintiff No. 2 ). Half northern portion was sold in a Court auction dated 11th November, 1952 in execution of a decree passed against deceased Kashinath. Remaining half southern portion was sold on 4th October, 1962 by Rukminibai on her behalf as well as on behalf of minor sons as natural guardian to Narayan Laxman Gilankar, (original defendant No. 1 ). In the year 1968, Udaykumar who had by then become major filed a suit for himself and as next friend of minor brother Babulal, against the purchaser Narayan and mother Rukminibai for a declaration that the transaction of sale dated 4th October, 1962 was void and for partition and separate possession that 2/3rd share. Initially, challenge was on several grounds including want of legal necessity but as the litigation progressed, several points were steadily given up and ultimately the challenge is confined to point No. (i) in the opening part of the judgment. The trial Court granted a decree for declaration, partition and possession of 2/3rd share in the property sold on 4th October, 1962 with a direction to the plaintiffs to pay the proportionate amount of consideration to defendant No. 1 with interest. The judgment and decree passed by the trial Court was challenged by the plaintiffs as well as defendant No. 1. Defendant No. 2 had remained ex parte. The plaintiffs contention was that there was no justification for ordering the plaintiffs to repay the amount. Defendant No. 1 contended that no decree could be passed since the suit itself was not maintainable. The Appellate Court allowed the appeal filed by the plaintiffs and dismissed the cross objections filed by defendant No. 1.

(3.) NOW, the following positions are undisputed : (i) property was a joint family property owned by the widow mother and her two minor sons, (ii) mother was the natural guardian, and (iii) property was not divided by metes and bounds and minors had only undivided unspecified share in the same.