1995 Supreme(AP) 296

Andhra Pradesh High Court
Judges : B.K.SOMASEKHARA
Vasant Rao - Appellant
Versus
Farooq Ali - Respondent
A.S.No.607/83
Decided On : 06-27-95
Advocates Appeared :
Mr. J.V. Suryanarayana Rao, M/s. J. Chamanti, J.V. Prasad

Headnote:HINDU MINORITY AND GUARDIANSHIP ACT, 1956, Sec.11 and TRANSFER OF PROPERTY ACT, Secs.53-A and 54 - Alienation of personal property of minor children by their mother acting as de facto guardian when father is alive - No legal necessity for alienation established - Such alienation is void and hit by Sec.11 of Hindu Minority and Guardianship Act and alienee is not entitled to relief on basis of Sec.53-A of Transfer of Property Act ;. Distinction between a defacto guardian and a dejure guardian - Stated.

       HELD: The settled law both in India and elsewhere even apart from the Hindu Sastric law is that the father is the natural guardian of the person and of the separate property of his minor children and next to him the mother. In the absence of the father, the mother is entitled to the custody of the person and of his separate property if any. (P.624 and 625, Secs.518 and 518 of Mulla 15th Edn:) In other words, the status of a mother to be the natural guardian of the minor child is not totally taken away, but she loses such a status during the life time of the father. But still the law authorises her to act for the minor children in particular situations subject to some statutory prohibitions. When, the father is alive, mother cannot act as a guardian in the true sense of the term particularly, in regard to the property and specially in regard to the personal property of the minor children.

       A natural guardian can be styled as one who by virtue of his or her relationship to the child has a claim to be its guardian. Father s right to be the guardian of the person and property of the minor is paramount and comes first. (P .168 Raghavachariar s Hindu Law 8th Edn..1987).

       A defacto guardian is one who is not a legal guardian in the sense that he is either a natural guardian or a testamentary guardian or a Court Guardian, but who, being interested in the minor, though a stranger, takes charge of the management of the minor s property. Such an expression in law is employed in contradistinction to de jure guardian. Both the expressions imply a relationship to the ward which is regular and continuous, and not casual or one which acts by fits and starts. What the de facto guardian lacks, as compared to a de jure guardian, is legal authority to act for the minor. He is factual guardian who acts in the regular course of over a period of time. A fugutive or an isolated act of a person with regard to the minor s property would not make him a de facto guardian of the minor nor would staying with a minor for a time make him a de facto guardian. In order to enable one to become a de facto guardian, there must be a continuous course of conduct as guardian of a minor in regard to his property; the length of the period so required to constitute on a de facto guardian would depend upon the circumstances of each case. A de facto guardian has to be distinguished from a guardian ad hoc who cannot claim the powers of a de facto guardian.

       Now the law relating to the guardian, legal guardian, de facto-guardian and other types of guardian etc., ·etc., etc., can be summed up in brief. In law guardian means a legal guardian who can and who should take care of the person of the minor and manage the property of the minor unless he is disqualified in law or in fact when he may ·be replaced by intervention of the court or by a statute and if any other person acts for the minor, he or she can never, be recognised as a guardian in law except to bind the minor and his estate by rule of estoppel and rule of representation for the benefit of the minor or the estate by legal fiction and not by rule and which can be either ratified or repudiated by the minor after attaining the age of minority. Therefore, in law guardian is synonym to only legal guardian and to no other person. The expressions de jure guardian and de facto guardian etc., are all protectory quasi coverage for the benefit of the minor and his estate and legal transactions as public policy and not as a substitute to the real legal status and legal consequences. Therefore, in the absence or death of the father the natural guardian or when he conflicts the interest of the minor the mother or any other person can act for the interests of the minor and his estate to bind him and his interests within the regulation of law and not otherwise.

       The alienation of the suit property by defendant No.4 as a defacto guardian is not proved to be for legal necessity or for the benefit of the estate of the minor plaintiffs. In such a situation, the trite law appears to be that not only such an alienation is not binding on the minor plaintiffs but it is also void and void abinitio and conferred no title on the alienee (P.637, Hindu Law, Mulla, Supra). Although the legal expressions in some situations say that such an alienation is voidable and may be ratified by the plaintiffs after attaining the majority, the developmental law leading to modification of the same by virtue of section 11 of the Hindu Minority and Guardianship Act, has made the consequences as void and void ab nitio.

       A document to be governed or operated under Section 53 of the Transfer of Property Act depends upon whether a sale deed has been registered or not to attract Section 54 of the Transfer of Property Act. The absence of the sale deed for the purpose of Section 54 of the Transfer of Property Act and the non-registration of document or a sale deed for the purpose of section 54 of the transfer of Property Act finds no distinction. One is a case of total absence and another is a case of absence in the eye of law, because anything which is thrown into void has since not come into existence. In EX.A.2 becomes void in law for any reason as proposed by the learned advocate for the plaintiffs, it would be as much as not in existence or void ab nitio.