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High Court of Karnataka
THE HONOURABLE MR. JUSTICE A.N. VENUGOPALA GOWDA
Nanjappa
Versus
Doddiah & Another
Regular Second Appeal No. 834 of 2002, C/w RSA No. 835 of 2002
Decided on : 31-03-2009
HINDU MINORITY & GUARDIANSHIP ACT, 1956 - Section 11: [A.N. Venugopala Gowda, J] Bar against de facto guardian dealing with minor’s property - Held, In terms of Section 11, no person has the right or authority to do any act as a de facto guardian of a minor, to dispose of or deal with the property of a Hindu minor, on the ground of his or her being a de facto guardian of the minor. Thus, Section 11 has put a complete bar on the authority of any person to deal with or dispose of any property of a Hindu minor and any alienation made there under, being against the statutory provision, would be void ab initio and the alienee, would not acquire any title to the property. On facts held, To the extent of alienation of minor’s right in the suit property by her de facto guardian "N" the Courts below have drawn wrong inferences from proved facts by applying the law erroneously. Instead of applying section 11 of the Act, both the Courts below have erroneously applied Section 12 of the Act and have held that "N" being the kartha of the joint family, had the right to alienate the property. Both the Courts below have misdirected themselves in applying the law and also in the matter of appreciation of the record, with reference to the correct provision of law. Hence, interference to the aforesaid extent is called for, despite the concurrent findings of the Courts below, since perversity on their part has been duly established.
Venugopala Gowda, J
The material facts of the case in a nutshell are as follows:
One Eraiah, son of Goni Eraiah, was the owner of land measuring 1 acre 15 guntas in Sy.No.256/3 of Kenkere Village, Gandasi Hobli, Arasikere Taluk. He executed a deed of settlement on 7.5.1965 (Ex.P 10), settling the said property and other items of properties, in favour of one Smt. Ningamma w/o Chikkanna @ Hitlaiah and one Era Chikkanah, son of Goni Erachikkaiah. Said Era Chikkhiah and his wife Smt. Sanna Thopamma, passed away leaving behind them, their minor daughter Kum. Rangamma. For better appreciation of the case, it is necessary to notice the genealogical tree of the said parties, which is as follows:
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Smt. Ningamma, wife of Chikkanna @ Hittaiah, for herself and on behalf of the said Kum. Rangamma (minor), conveyed'an extent of 36 guntas of land in Sy.No.256/3 in favour of one Eraiah, son of Gowdannanavara Era Chikkaiah, (DW.3) along with another item of property to an extent of 21 guntas of land in Sy.No.257/2, under a registered sale deed dated 5.9.1966 (Ex.D1). Eraiah, son of Gowdannanavara Era Chikkaiah, thereafter conveyed an extent of 19 guntas of land showing Sy.No.256/4 (claimed to be Sy. No.256/3) in favour of Doddaiah (1St defendant in both the suits) under a registered sale deed dated 27.11.1970 (Ex.D2). Eraiah, son of Gowdannanavara Era Chikkaiah, conveyed an extent of 17 guntas of land under another registered sale deed dated 27.11.1970 (Ex.D3) by showing the land as Sy.No.256/4 (claimed as Sy.No.256/3) in favour of Sri Thopaiah, son of Nagegowda (2nd in defendant O.S.67/1998)
2. According to the case of the appellant/plaintiff, 19 guntas of land in Sy.No.256/3 (suit item No.1) held by Ningamma, upon her death, devolved on Smt. Thopamma under a family partition dated 5.5.1985, who conveyed the same in his favour, under a registered deed of sale dated 22.11.1990 (Ex.P 1). It is his further case that, suit item No.2 was held by Rangamma and she conveyed the same in his favour, under the registered sale deed dated 3.12.1997 (Ex.P2). Claiming that, Smt. Ningamma could not have conveyed an extent of 36 guntas of land in Sy.No.256/3 in favour of Eraiah, son of Gowdannanavara Era Chikkaiah, under the sale deed dated 5.9.1966 (Ex.D1) on behalf of Kum. Rangamma, without obtaining permission from the Court, as contemplated under Section 8 of the Hindu Minority and Guardianship Act, 1956 (‘the Act' for short) and that, no right was acquired by the purchaser- Eraiah, son of Gowdam anavara Era Chikkaiah and he could not have conveyed the property in favour of the defendants and the said conveyances dated 5.9.1966 and 27.11.1970 (Exs.D1, D2 and D3) does not bind the share and interest of Rangamma and the mutation entry dated 15.1.1998 (Ex.D4) made out is incorrect, the appellant filed O.S.67/1998 for a declaration that he is the owner of suit schedule item Nos. 1 and 2 lands and also for a decree of perpetual injunction. He also filed O.S.88/2000 to set aside the order dated 8.12.2000 passed by the Assistant Commissioner in Case No.81/97-98 (Ex.D11) and for perpetual injunction against the defendants.
3. According to the 1st defendant/1st respondent, Ningamma, was taking care of minor Kum. Rangamma and she had conveyed the property in favour of Eraiah, son of Gowdannanavara Era Chikkaiah, under the sale deed dated 5.9.1966 (Ex.D1) and the same is not in violation of any provisions of law. According to him, there is mis-description of the Sy.No. in Ex.D2, the sale deed dated 27.11.1970, executed by Eraiah son of Gowdannanavara Era Chikkaiah, in favour of him, though the boundaries remained the same. According to him, the mis-description was rectified in the mutation at Ex.D4. He had filed R.A.81/1997-98 against Smt. Rangamma in the Court of the Assistant Commissioner, challenging the mutation entry effected in favour of Rangamma by virtue of ICR 8/1998-99 dated 28.1.1997, which was allowed by the Assistant Commissioner on 8.12
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