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ALLAHABAD HIGH COURT
Sudhir Agarwal, J.
Smt. Ramwati and Ors. —Appellants
versus
Dharmdas —Respondent
Second Appeal No 402 of 2011
Decided on 22.5.2013
Counsels for the Parties:
For the Appellants:Syed Fahim Ahmed, Advocate.
For the Respondents:Pramod Kr. Sinha, Advocate.
IMPORTANT POINT
There is no necessity to obtain permission from District Judge before sale of share of property of minor by head of Joint Hindu Family.
Headnote:(A) Guardians and Wards Act, 1890—Section 29—Hindu Minority and Guardianship Act, 1956—Section 8—Sale of share of property of minor by head of Joint Hindu Family—Necessity to obtain permission from District Judge—Disputed property was not individual or separate property of plaintiff, either when he was minor, or, when he attained majority but he had only an interest/share in Joint Hindu Family property which included disputed property also—Among all coparceners, agreement between all of them is not essential so as to result in disruption of joint status though it is required for actual division and distribution of property held jointly—So long as property which is part of a Joint Hindu Family, is settled as a separate share by members constituting joint family, it would continue to constitute corps of Joint Hindu Family property and shall be in ownership of all members of family though Karta has right to enter into transaction, as may necessary, for benefit of family. (Paras 18, 26 and 28)
(B) Guardians and Wards Act, 1890—Section 29—Hindu Minority and Guardianship Act, 1956—Section 8—Sale of share of property of minor by head of Joint Hindu Family—Necessity to obtain permission from District Judge—Legislature has taken care to protect a minor’s property so that he may not be subjected to misfeasance even in hands of natural guardian but prevailing Hindu Law principles applicable to joint family property wherein a minor has an interest/share which is undetermined, i.e. not divided by metes and bound, have been left untouched and such cases are not within ambit of provisions of the statutes—Joint Hindu Family by itself is a legal entity capable of acting through its Karta and other adult members of family in management of Joint Hindu family property—Section 8 would not be applicable where a Joint Hindu Family property is sold/disposed of by Karta involving an undivided interest of minor in joint Hindu family property. (Paras 38 and 39)
Result: Second Appeal allowed.
Sudhir Agarwal, J.— This is defendants’ appeal under Section 100 CPC and having lost in both the Courts below, he has come up in this appeal. The appeal has arisen from judgment and decree dated 27th January, 2011 passed by Sri Gopal Shankar Pathak, Additional District Judge, Court No.1, Rampur in Civil Appeal No.35 of 2008 dismissing appeal and confirming the judgment dated 7th May, 2008 of Trial Court i.e. Smt. Noopur, Additional Civil Judge (Junior Division), Court No.3, Rampur passed in Original Suit No.171 of 2004.
2. While hearing this appeal under Order 41, Rule 11 CPC, this Court formulated only one substantial question of law having arisen in this appeal, needs to be adjudicated by this Court:
Whether defendants-appellants were obliged to obtain permission under Section 29 of Guardians & Wards Act, 1890 (hereinafter referred to as “Act, 1890”) or Section 8 of Hindu Minority and Guardianship Act, 1956 (hereinafter referred to as “Act, 1956”) from District Judge before selling the share of the property of minor despite the fact that defendant-appellant No.1, who is the head of Joint Hindu Family and the property in dispute was a joint Hindu Property, in which the minor had her share.
3. Heard Syed Fahim Ahmed, learned counsel for the appellants and Sri P.K. Sinha, learned counsel for the respondent.
A. The plaintiff-respondent instituted suit No.171 of 2004 for cancellation of sale deed dated 9.10.2003, which was decreed by Trial Court vide judgment and decree dated 7.5.2008 and thereagainst defendants appeal No.35/08 has also been dismissed by Lower Appellate Court vide judgment and order dated 27.1.2011. Both the Courts below have held that property in dispute belongs to a minor and there being no permission obtained from District Judge, sale deed executed by the mother of minor relating to property of minor was illegal. On this aspect, Trial Court formulated issue No.1, which was returned against defendant-appellants. Sri Syed Fahim Ahmed, Advocate, placing reliance on Apex Court’s decision in Sri Narayan Bal & Others v. Sridhar Sutar and Others, 1996(8) SCC 54. contended that no such permission was required. The Courts below have committed patent error and impugned orders are liable to be set aside.
5. Sri. Sinha, however, contended that natural guardian of minor was her mother Smt. Ram Kali widow of Bhajan Lal and even if she was residing separately with her son and one Khayali Ram, that would not deprive her, status of guardian and therefore, property in question could not have been sold by defendants-appellants even if defendant (grand-mother of minor) was Head and elder of Joint Hindu Family, without seeking permission of District Judge under Section 29 Act, 1890 or under Section 8 of Act, 1956.
6. Before coming to answer the above question, it would be appropriate to have a brief factual matrix of the case, which would help in arriving at a just conclusion.
7. The dispute relates to property i.e. Gata No.l91, area 0.560 hectare and Gata No.248, area 0.227 hectare, situate at Village Maminpur Ahmedabad Swar, District Rampur, Sri Devi Das, Son of Hulasi was bhumidhar with transferable rights and tenure holder of the aforesaid land. He had four sons namely Bhajan Lal, Ram Chandar, Ram Charan and Ratan Lal.
8. Bhajan Lal died during lifetime of Devi Das, leaving his son Dharampal. In other words, the plaintiff, Dharam Pal, is the grandson of Devi Das, (now deceased). Defendant No.1 Smt. Ramwati is widow of Devi Das and grandmother of Dharampal.
9. Defendants 2 and 3, as already said, are the sons of late Devi Das. At the time of death of Devi Das, plaintiff was minor being 2 or 3 years old. There was no partition of land during life time of late Devi Das and after his death, it devolved upon his legal heirs in accordance with the provisions of Section 171 of U.P. Zamindari Abolition & Land Reforms Act, 1950 (hereinafter referred to as “Act, 1950”).
10. The disputed land was transferred vide sale deed da
