KAMAL KISHORE Vs. RAMSWARUP

JUDGEMENT

(1.) THE plaintiffs/appellants have come up in the present successive appeal. Suit filed by them was dismissed by the Trial Court. First appeal has also failed. Plaintiffs Ramkunwarbai, Kamal Kishore and Tilak Singh filed the suit alleging that on 11-3-65 Amar Singh sold the entire land admeasuring 25 bigha 6 Biswa bearing survey Nos. 70, 75, 245 and 287 situated at Village Kurwai, District Vidisha to Gorelal, Ramdheer Singh, Balram Singh and Baktobai. Plaintiffs came to know that Amar Singh sold the disputed land on 9-8-67 to Baktobai and others. Amar Singh was the husband of plaintiff Ramkunwarbai and father of Kamal Kishore and Tilak Singh. It is alleged that the property belonging to the minor plaintiff could not have been sold either by Amar Singh or even by Ramkunwarbai - their mother or by Gorelal - the elder brother of Kamal Kishorc and the Tilak Singh and son of Ramkunwarbai. If the sale-deed has been executed, the same is illegal for want of sanction in accordance with law. The plaintiffs challenged the alienation with respect to agricultural land comprising survey Nos. 70 and 75. Defendant Nos. 1 and 2 in their written statements denied the plaint allegations and contended that Amar Singh on 20-6-64 had sold the portion of survey No. 70 to Baktobai and handed-over the possession and out of the remaining portion of the said survey No. 9 and 1/2 Bigha land was sold by Gorelal, Randheer Singh and Tilak Singh to Ramswarup and Ramratan, on 6-1-65 for a sum of Rs. 1000/- and remaining 10 Bigha portion of survey No. 70 has been sold on 23-9-66 to Ramratan and Amolsingh by Gorelal and Ramkunwarbai acting as guardian of minor Kamal Kishore and Tilak Singh whereas Gorelal acted as guardian of other minor Randheer Singh and Balramsingh. Remaining portion of survey No. 70/1 admeasuring 3 Bigha 5 Viswa was sold by Amar Singh to Ramswarup and Ramratan for a sum of Rs. 1000/- and possession was handed-over. The defendants were continuing in possession. Suit was barred by limitation. Plaintiffs have not claimed the relief of cancellation of sale-deed, hence they are not entitled for restoration of possession. Other purchasers Baktobai and Amolsingh have not been impleaded as parties. Gorelal admitted the plaintiffs claim in written statement. Baktobai and Amolsingh were later on added as parties and filed their written statement and denied the claim of the plaintiffs. Trial Court dismissed the suit and found that sale-deeds were valid. On appeal first Appellate Court came to the conclusion that Amar Singh, father of two minor plaintiffs namely Tilak Singh and Kamal Kishore was residing at Bhopal and the plaintiffs were in the immediate charge of mother. Ramkunwarbai purchased the property for the benefit of minors from Amar Singh, her husband. As such she was capable of acting as a guardian of minors. There was no prayer made in the plaint to set-aside the sale-deeds. There was no plea of playing fraud or collusion and the sale-deeds were held to be valid. This second appeal has been admitted on the following substantial questions of law:

(2.) LEARNED counsel appearing for the respondents submitted that mother can also act as natural guardian. He submitted that even during the lifetime of the father mother can be the natural guardian of minor. He placed reliance on a Supreme Court decision in the matter of Githa Hariharan and another Vs. Reserve Bank of India and another, AJR 1999 SC 1149. It is submitted that Ramkunwarbai had purchased the property from Amar Singh for the benefit of the minor and it was the joint sale-deed in favour of several sons, one of them was major namely Gorelal. It is submitted that invalidity of the sale is not set up. The party is required to challenge the validity of the transaction on the specific ground. Plaint allegations are vague and it was in any case the joint family property and there was no partition, it was not the independent property of the minor, the sale-deed was jointly executed in favour of several persons by father. The property transferred within the family remained joint property and thus for sale the permission is not necessary.

(3.) AFTER hearing learned counsel for both the parties, I am of the opinion that this appeal has no merit and the same deserves to be dismissed. The submission raised that the mother can not act as a natural guardian of the minor in presence of father is no more res integra. The decision of Supreme Court in the case of Githa Hariharan (supra) is amply clear where it has been candidly laid down that in all situations where the father is not in actual charge of affairs of the minor either because of his indifference or because of an agreement between him and the mother of the minor (oral or written) and the minor is in the exclusive care and custody of the mother or the father for any other reason is unable to take care of the minor because of his physical and/or mental incapacity, the mother, can act as natural guardian of the minor and for all her actions husband would be deemed to be 'absent' for the purpose of Section 6 of Hindu Minority and Guardianship Act and Section 19 (b) of the Guardians and Wards Act (8 of 1890), Section 19 (b) of the Guardians and Wards Act has also to be similarly construed, so as to make them constitutionally valid. In view of the fact that father was residing at Bhopal, he was not the incharge of the custody of the minor. It was mother who was looking after the interest of the minor and his property. Mother can act as a guardian of the minor even in the presence of father. She has a matter of fact, had purchased the property from father Amar Singh, for the benefit of the minor.