Any transfer of the nature mentioned in sub- Section 2 of Section 8 Hindu Succession Act, of the minor’s immovable property without the permission of the Court is not binding on the minor irrespective of the fact whether it was necessary or for an evident advantage to him/her and that such a transfer even made with Court’s permission shall be voidable at the instance of the minor if he/she can show it does not fall in the category of acts which were necessary or reasonable or proper for the benefit of the minor or for realization, protection or benefit of the minor’s estate.
The plaintiff has filed the present suit, inter-alia, seeking a decree for specific performance of the agreement to sell to deliver the possession of suit property and execute all deeds, necessary documents in order to carry out and execute sale deed in respect of property X in favour of the plaintiff; permanent injunction restraining the defendants from parting possession or creating any third-party right in the suit property or in the alternative a decree of damages and compensation against the defendants. As per the plaint the defendant No.1 and her two daughters i.e. defendant No. 2 and 3 are the absolute owners of the suit property having inherited the same from late Dr. G.K.J. Malvankar. Defendant No.1 for the benefit of defendant No.2 and 3 intended to sell the suit property and thus defendant No.1 through defendant No.4 her lawful attorney and her brother- in-law entered into an agreement to sell dated 11th December, 2005 for the sale of the suit property with the plaintiff for a total sale consideration of `68 lakhs out of which a sum of `2 lakhs was paid At this stage defendant No.4 approached the plaintiff and told that besides defendant No.1, Defendant No.2 and 3 were also the co-owners of the suit property and the two daughters being minor, permission of the Court was necessary. Thus, a fresh agreement was executed between the parties by defendant No.1 to 3 through their attorney defendant No.4 on 20th May, 2006 for the sale of suit property for the same consideration i.e. `68 lakhs out of which the plaintiff paid a further sum of `4 lakhs thus totaling to `6 lakhs. The balance sale consideration of `62 lakhs was to be paid at the time of registration of the sale deed and handing over the vacant possession of the suit property to the plaintiff. One of the terms of the agreement to sell was that the defendant No.1 would get the suit property converted into freehold from DDA before execution of the sale deed and since defendant No.2 and 3 were minor, defendant No.1 would also take necessary permission required to sell the property. The expenses were to be borne by defendant No.1. As the time for effecting the sale was coming to an end on 27 th May, 2007 and the conversion of suit property to freehold, as also the permission of sale from the learned District Judge was under process, defendant No.1 requested plaintiff for extension of time till 31 st October, 2007. Accordingly the plaintiff vide agreement to sell addendum dated 8th May, 2007 agreed that the sale will be completed by 31st October, 2007 by giving a notice of at least two months to the plaintiff. Further, as per the agreement dated 20th May, 2006 the sale price was increased by 5% thus taking the total sale consideration to `71,40,000/-. The balance amount of `65,40,000/- was to be paid at the time of execution of the sale documents. However, even after getting an enhanced sale price and extension of time, the defendants were delaying the execution of sale and taking no effective steps for conversion to freehold and completing other necessary formalities. Thus, the plaintiff issued a legal notice dated 7th September, 2007 thereby calling on the defendants to execute the sale deed in respect of the suit property failing which the plaintiff would file a suit for specific performance in the Court of law and get a sale deed executed in her favour through the Court. However, the plaintiff received a letter dated 24th September, 2007 from defendants No.2 and 3 through their counsel stating that they had no desire to sell their house and as no permission to sell the suit property had been obtained from the Court, defendants No.2 and 3 were not bound by the said agreement to sell. Defendant No.4 through his letter dated 23rd September, 2007 informed the plaintiff that defendants No.2 and 3 have refused to sell the property, however malafidely stated that the plaintiff did not want to take the permission from the Court for sale. The letter further stated that defendants No.2 and 3 had attained majority and thus he was no more the attorney of defendants No.2 and 3. Plaintiff and her husband again re-started the pending work of conversion and remaining formalities and in this regard defendants No. 1 to 3 sent their duly signed photographs to the plaintiff’s husband in December, 2007 to be submitted in the DDA. These were received around 10th December, 2007 i.e. after defendant No.2 and 3 attained majority. However, defendant No.1 sent another letter dated 11 th February, 2008 in the name of plaintiff’s husband refusing to go ahead with the sale of suit property and to further talk to the defendant No.4 who was her attorney. Thus, the plaintiff got a public notice got issued through her lawyer on 27th February, 2008 and thereafter has filed the suit.
After completion of pleadings, amongst other issues, the following issues were settled:
“1. Whether the Agreements dated 11th December, 2005, 20th May, 2006 and 8th May, 2007 are concocted and fabricated documents? (OPD)
2. Whether defendant No.1 was not entitled to enter into an Agreement to sell on behalf of defendant Nos. 2 and 3 being minors? (OPD)
There is no denial of the agreements to sell even on behalf of defendants No.2 and 3 and it is only stated that defendants No.2 and 3 were minors and no permission of the Court was taken for the sale of immovable property of the defendants No.2 and 3 and thus they were not bound by the agreements.
There is no reply to this notice by defendant No.1 and hence there is no denial of the agreements to sell as noted above.
Thus, there was a legal and valid agreement to sell dated 20th May, 2006 entered into between the plaintiff and the defendant No.4 as duly authorized lawful attorney of defendants No.1 to 3, followed by the addendum dated 8th May, 2007 with a clear intention to sell. Thus, issues No. 1&4 are decided in favour of the plaintiff and against the defendants.
The defendants have stated that since the defendant No.2 and 3 were minors the defendant No.1 was not entitled to enter into an agreement to sell on behalf of defendant No.2 and 3. It is thus to be ascertained whether defendant No.1 was entitled to sell the property in terms of Section 8 and 12 of the Hindu Minority and Guardianship Act, 1956. The main plank of argument of the learned counsel for the defendant is that there was no necessity of funds and hence in the absence of necessity of funds, defendant No.1 could not have sold the undivided interest of the minors in the suit property. The plaintiff has placed on record photocopy of the Suit No. 410/2006 filed by the defendant No.1 through her attorney defendant No.4 before the learned District Judge, Tis Hazari under Section 29 of the Guardianship and Ward Act, 1890 read with Order 32 of the CPC seeking permission to sell the suit property.
Learned counsel for the defendants have relied upon Section 8 of the Hindu Minority and Guardianship Act, 1956 (in short the Act) to contend that the defendant No.1 though the natural guardian could not have entered into an agreement to sell in respect of the undivided interest of the defendants No. 2 and 3 in the joint family property. Learned counsel for the plaintiff relying upon Section 6 and 12 of the Hindu Minority and Guardianship Act, 1956 states that Section 8 of the Act has no application to the facts of the present case.
As per Section 12 in case where a minor has undivided interest in joint family property and the property is under the management of an adult member of the family, no guardian is required to be appointed for the minor in respect of the undivided interest. Further, as noted above Section 6permits the natural guardian of a Hindu minor to act in respect of the minor’s property excluding his or her undivided interest in joint family property. Section 8 deals with the power of the natural guardian which provides that the natural guardian without the previous permission of the Court cannot mortgage or charge, or transfer by sale, gift, exchange or otherwise, part with the possession of the immovable property. In Narayan Bal((1996) 8 SCC 54) the Supreme Court held:
“4. Section 8 thereof inter alia provides that 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 realization, protection or benefit of the minor’s estate; but the guardian can in no case bind the minor by a personal covenant. Furthermore the natural guardian shall not, without the previous permission of the court, mortgage or charge, or transfer by sale, gift, exchange or otherwise, any part of the immovable property of the minor or 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. 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 on behalf of the minor. Section 12 provides that where a minor has an undivided interest in the 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: Provided that nothing in this section shall be deemed to affect the jurisdiction of a High Court to appoint a guardian in respect of such interest.
5. Each provision, and in particular Section 8, cannot be viewed in isolation. If read together the intent of the legislature in this beneficial legislation becomes manifest. Ordinarily the law does not envisage a natural guardian of the undivided interest of a Hindu minor in joint family property. The natural guardian of the property of a Hindu minor, other than the undivided interest in joint family property, is alone contemplated under Section 8, whereunder his powers and duties are defined. Section 12 carves out an exception to the rule that should there be no adult member of the joint family in management of the joint family property, in which the minor has an undivided interest, a guardian may be appointed; but ordinarily no guardian shall be appointed for such undivided interest of the minor. The adult member of the family in the management of the joint Hindu family property may be a male or a female, not necessarily the Karta. The power of the High Court otherwise to appoint a guardian, in situations justifying, has been preserved. This is the legislative scheme on the subject. Under Section 8 a natural guardian of the property of the Hindu minor, before he disposes of any immovable property of the minor, must seek permission of the court. But since there need be no natural guardian for the minor’s undivided interest in the joint family property, as provided under Sections 6 and 12 of the Act, the previous permission of the court under Section 8 for disposing of the undivided interest of the minor in the joint family property is not required. The joint Hindu family by itself is a legal entity capable of acting through its Karta and other adult members of the family in management of the joint Hindu family property. Thus Section 8 in view of the express terms of Sections 6 and 12, would not be applicable where a joint Hindu family property is sold/disposed of by the Karta involving an undivided interest of the minor in the said joint Hindu family property. The question posed at the outset therefore is so answered.
6. In the instant case the finding recorded by the courts below is that Jag Bandhu, the eldest male member in the family acted as a Karta in executing the sale and had joined with him the two widows for themselves and as guardians of the minor members of joint Hindu family, as supporting executants. That act by itself is not indicative of the minors having a divided interest in the joint Hindu family property commencing before or at the time of the sale. In this view of the matter, Section 8 of the Act can be of no avail to the appellant’s claim to nullify the sale.”
In the present case, the suit property has devolved on defendant Nos. 1 to 3 under Section 8 of the Hindu Succession Act and the same cannot be termed as joint Hindu family property. Defendant No.1 through defendant No.4 had agreed to sell the property of defendants No. 2 and 3 for necessity as is evidence from the petition filed before the Court under Section 29 of the Guardians and Wards Act by defendant No.4 on the basis of a lawful power of attorney executed in his favour Ex.4/D1,D2,D3. Thus defendant No.1 could have entered into an agreement to sell with the plaintiff in view of the necessity subject to the permission of the Court which was duly applied for though the same could be avoided by the minors on attaining majority.
Mrs. Meera Narula vs Mrs. G.G. Malvankar And Ors CS (OS) 1047/2008
Delhi High Court