The natural guardian of a Hindu minor has supreme right, and alienation by a de facto guardian is invalid under S.11 of the Hindu Minority and Guardianship Act.

Second defendant in O.S.390 of 1976 of the Munsiff's Court, Neyyattinkara is the appellant. Plaintiffs 1 to 3 filed the suit originally for declaration and partition. Subsequently it was amended for recovery of possession of plaintiffs' share also. The trial Court held that plaintiffs are entitled to recover possession of half share of the plaint schedule property with mesne profits. This finding has been confirmed by the Sub Judge, Trivandrum. While confirming the preliminary decree the second defendant was allowed reimbursement of Rs.100/- spent by him for taking Ext.B6 release deed.

2. The property originally belonged to Kumaran Panicker who gifted the same in 1123 M.E. to his children viz. plaintiffs' mother, first defendant, Kamalakshi and Bhavani. Plaintiffs' mother purchased 1/4 share of the first defendant. She thus became entitled to half share in the property. Second defendant purchased the rights of Kamalakshi and Bhavani and obtained half right in the property. Third defendant who is the sister of the plaintiffs' mother executed a document in favour of the second defendant assigning rights of the plaintiffs in the property. This is challenged by the plaintiffs on the ground that the third defendant had no right to do so she being not their natural guardian or guardian appointed by the Court.

3. Contention of the second defendant is that plaintiffs' father went to Kanyakumari District as a laborer in a rubber estate and since then he neglected his children and the third defendant acting as their guardian was well within her right in executing the assignment deed especially when an alternative plot was acquired by her in their favour. Learned counsel for the plaintiffs contended that the assignment made by the third defendant in favour of the second defendant is void ab initio and merely on the ground that another property was acquired by the third defendant in favour of the plaintiffs it cannot improve the position so far as they are concerned. That apart, there is no evidence of acquisition of any alternative site in favour of plaintiffs and even if there was any acquisition it would not validate the void document.

4. S.6 of the Hindu Minority and Guardianship Act, 1956 (for short, the act) provides that the natural guardian of a Hindu minor in respect of the minor's person as well as in respect of the minor's property (excluding his or her undivided interest in joint family property) is his father in the case of a boy or an unmarried girl and after him the mother. Father of a minor who is the natural guardian continues to be so unless he has ceased to be a Hindu or renounced the world. After commencement of the Act the question as to who is the natural guardian has to be determined as per the provisions of the Act and not according to Hindu Law before it was codified. S.6 makes the position clear that so long as the father is alive the mother cannot be the natural guardian of the minor.

5. As plaintiffs' father was admittedly alive and as there is no case that he has ceased to be a Hindu or renounced the world, it has to beheld that he continued to be their natural guardian of his minor children. Merely because he was not residing with the plaintiffs he did not cease to be the natural guardian-. The natural guardian ceases to be so only under the two grounds mentioned in the proviso to S.6. The proviso makes the position clear that no person shall be entitled to act as the natural guardian of a minor if he has ceased to be a Hindu or if he has completely and finally renounced the world by becoming a hermit (vanaprastha) or an ascetic (yati or sanyasi ).

6. Even if father of the minors abandoned them any other person cannot assume the role of their guardian and alienate their property on the pretext that the alienation is beneficial to them or that as a result of the alienation another property has been purchased for the benefit of the minors. Under S.7 of the Guardians and Wards Act the Court can appoint a