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2007 Supreme(Del) 1171
High Court Of Delhi
J. M. MALIK
RAJENDER KUMAR - Appellant
Versus
DEEPAK MAKWANA - Respondents
CM 3206 Of 2007
Decided On : 28/05/2007
A.S.CHANDHIOK, Amit K.Gahlot
The central legal point established in the judgment is the protection of a minor's property rights under the Hindu Minority and Guardianship Act, 1956, and the restrictions imposed on the natural guardian in dealing with the minor's immovable property.
Headnote:
minor - property dispute - Hindu Minority and Guardianship Act, 1956, Section 8
Fact of the Case:
The case involves a dispute over the possession of immovable property belonging to a minor. The minor's father had allegedly illegally transferred possession of certain properties to other parties, leading to a lawsuit seeking recovery of possession and mesne profits.
Finding of the Court:
The Trial Court decreed the suit for recovery of possession and mesne profits, while the First Appellate Court modified the decree in favor of the minor. The court analyzed various legal provisions and found in favor of the minor, emphasizing the protection of a minor's property rights under the Hindu Minority and Guardianship Act, 1956.
Issues: The issues included the legality of the father's actions, the jurisdiction of the Civil Court, and the rights of the minor's mother to sue on behalf of the minor.
Ratio Decidendi: The court held that the father's actions were in violation of Section 8 of the Hindu Minority and Guardianship Act, which restricts the guardian from leasing or transferring the minor's property without court permission. The court also affirmed the mother's right to act as the minor's guardian and the jurisdiction of the Civil Court in the matter.
Final Decision: The appeal was admitted, and the minor was granted the decree for recovery of possession and occupational charges. The court kept the controversy regarding the payment of occupational charges open for final disposal.
J. M. MALIK, J.
( 1 ) THIS is a very significant appeal wherein the allegation is that a cloud has been cast over the immovable property of a minor. Sh. Khicchu was the owner of properties No. 20, 28/1, 29 to 33 comprised in Khasra No. 642 situated in village Chandrawali, abadi of Teliwara, Shahdara, Delh. Sh. Khicchu executed a Will and bequeathed the above said properties in favour of Deepak makwana, aged about 11 years respondent No. 1, his maternal grand son. After his death, respondent No. 1 has become the absolute owner of the above said properties.
( 2 ) BABU Prakash, defendant No. 1/respondent No. 2 is real father as respondent No. 1. He is addicted to liquor and gambling. In the instant suit which was filed through her mother, the minor plaintiff alleged that his father had acted illegally against his welfare and unauthorisedly parted with and delivered the possession of shop No. 32 and 33 to Rajender Kumar and Rajpal, appellants/defendants No. 2 and 3 by receiving a sum of Rs. 65,000/- from the appellants. Both the appellants are in physical possession of the shop since 24. 11. 1987. All the three defendants. e. appellants and respondent No. 2 while working in cahoots threatened to remove back wall of shop No. 33. Legal notice was sent to them but it did not ring the bell. Consequently, the instant suit was filed praying for a decree of permanent injunction restraining his father from alienating, transferring and parting with the property No. 29 to 33. It was further prayed that possession of shop No. 32 and 33 be delivered in favour of respondent No. 1 and appellants be asked to pay mesne profits in respect of shop No. 32 and 33.
( 3 ) ALL the three above said defendants defended the present suit. They filed common written statement and enumerated the following defences. Respondent no. 1 had not sought permission under Order 33 CPC to sue as an indigent person. Babu Prakash, father of respondent No. 1 was his natural guardian. Bimla Devi, mother of the plaintiff/respondent No. 1 had deserted her matrimonial home and children. In order to protect the property of minor, his father had leased out shop No. 32 and 33 at the rental of Rs. 120/- p. m. with effect from 24. 11. 1987 and rent uptil 04. 01. 1998 were deposited in nationalised bank. The father had acted for the benefit and welfare of the child. The walls of the shop had crumbled and the ceiling and floor were broken. The above said tenants/appellants got wall's ceiling repaired at their own cost.
( 4 ) THE Trial Court vide its judgment dated 07. 02. 2003 decreed the suit against the appellants for recovery of possession in respect of Shop No. 32 and 33. Trial Court also directed that respondent No. 1 was entitled to arrears of mesne profits @ Rs. 120/- with effect from 23. 8. 89 till the date of decree. Since the plaintiff had sued as indigent person, therefore, he was directed to pay the court fees.
( 5 ) THE First Appellate Court modified the decree in favour of respondent no. 1 and directed that respondent No. 1/plaintiff shall be entitled to mesne profits @ Rs. 200/- per month with effect from 23. 8. 1989 till actual realisation, instead of Rs. 120/- per month as directed by the Trial Court. The said order was passed on the basis of oral cross-objections raised by respondent no. 1/plaintiff in view of Apex Court judgment reported in Ravinder Kumar Sharma vs. State of Assam and Ors. 81 (1999) Delhi Law Times 795 (SC ).
( 6 ) THE following questions of law were drafted by the counsel for the appellants:
" (i) Whether mother can sue on behalf of the minor during the life time of father" (ii) Whether appointment of mother as guardian by the competent court is mandatory before she sues for and on behalf of the minor" (iii) Whether the respondent can raise cross objection orally at the time of final hearing of the appeal in violation of judgment rendered by the Hon'ble supreme Court in case titled Banarsi and Ors vs. Ramphal JT 2003 5 SC 224" (iv) Whether t
