NARAIN SINGH Vs. SAPURNA KUER

JUDGEMENT

(1.) The plaintiff-appellant brought a suit for declaration of his title and recovery of possession over 9 decimals of land including a house on plot No. 216 appertaining to khata No. 444 in village Krit-pura. His case was that he had purchased for Rs. 1,000 the suit property by a sale deed dated 23rd of December, 1959 from Lallan and Rameshwar and has been in possession over the same since then. Lallan was a major and Rameshwar was a minor at the time when the sale deed was executed, the latter being represented by his mother as guardian in the document. Both Lallan and Rameshwar were the recipients of the property from their grand mother under a deed of gift dated 26th of December, 1949 (Ext. 1). Their donor was Jadhni Kuer who along with the present respondent No. 1 Sapurna Kuer had received the gift of properties including the suit property from Rainath Singh, the recorded tenant of the properties in question. That was in the year 1935. There is not much dispute about the deeds of gift or the way in which the property came to Lallan Singh and Rameshwar Singh, but the plaintiff's suit was resisted on the ground that the deed of sale dated 23rd December, 1959 (Ext. 2) did not convey any title in respect of the interest belonging to Rameshwar as he being a minor, was not properly represented by his natural guardian in the transaction. The courts below had accepted this objection and non-suited the plaintiff. Hence, he has come in second appea] to this Court

(2.) The only point to be considered here is whether the plaintiff obtained any title under the sale deed (Ext. 2) in respect of Rameshwar Singh. The Courts below were of the view that after the Hindu Minority and Guardianship Act. 1956 came into force, no person is entitled to dispose of or deal with the property of a Hindu minor merely on the ground of his or her being the de facto guardian of the minor. Since Ramesh-war's father was alive he (father) was the natural guardian under Section 6 read with Section 4 of the Hindu Minority and Guardianship Act, 1956 (to be referred to hereafter as the Act). The mother of the minor could be a natural guardian only after the father and in that view, the courts thought that the mother of Rameshwar representing the minor only acted as a de facto guardian. As Section 11 of the Act provides a ban against disposal of properties of a minor by a de facto guardian the plaintiff was held not to have derived any title by the transaction purported to have been made by Rameshwar's mother.

(3.) Learned counsel's contention is that the mother of a minor does not come in the category of a de facto guardian and, therefore, Section 11 has got no application to the facts of the present case. To some extent this contention is right because the mother has been described under Section 6A of the Act as a natural guardian of the Hindu minor, but that is only after the father of a minor. As long as the father is alive the mother cannot claim to be the competent natural guardian of a Hindu minor. There cannot be any doubt about this position as it stands now. The position was not very much different in regard to father and mother of a minor even before this new Act came into force. A de facto guardian is a person who does not come under any of the categories given in Section 4 of the the new Act but who meddles with the properties or affairs of a minor To safeguard the minor's interest from any invasion whatsoever through the assistance of a de facto guardian, the provisions under Section 11 of the Act have been made. If the mother of a Hindu minor is not a de fact? guardian and if she cannot act as the natural guardian in presence of the father of the Hindu minor, then, although Section 11 may not be attracted in terms against the transaction made by such mother, yet, she will derive no authority whatsoever to act as a guardian for the purpose of disposing of the minor's property as she will not come under any of the categories given in Section 4 of the Act. Learned Counsel stressed upon the argument that when both father and mother have been designated as natural guardian they will retain that position concurrently and in a case where the father does not function as a guardian for a Hindu minor, the mother can exercise her powers as a natural guardian. He further argued that in case of a mitakshra Hindu Joint family where the father is alive, anything done by the mother of the Hindu minor can well be supposed to be with the consent of the father or. he further contended, the father will be deemed to have delegated his authority to the mother to act as the natural guardian of the Hindu minor. It is very difficult either to assume that in the present case there was any delegation of authority by the father of Rameshwar minor or to take it for granted that the father was aware of the transaction of sale that the mother of Rameshwar had entered into in favour of the plaintiff in regard to the minor's share in the properties. There is no material on record to warrant either of the two assumptions. As long as the father is alive the mother does not come forward as the natural guardian competent to act for the minor. In a case where the father refuses to act as the natural guardian or has neglected to discharge his obligations as a natural guardian in respect of a minor and his affairs and properties another person, more so, the minor's mother can take recourse to legal proceedings and obtain the powers to act as the guardian of the minor. In the present case that has not been done. So, in my view the mother of Rameshwar had no legal competency to dispose of the properties of the minor, as she purported to, under the sale deed (Ext. 2) dated 23rd December, 1959 in favour of the plaintiff.