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BOMBAY HIGH COURT
A. M. Dhavale, J.
Rameshwar —Appellant
versus
Shivaji and Anr. —Respondents
Second Appeal No.650 of 2003
Decided on 21.1.2019
Counsel for the Parties:
For the Appellant:Ms. Priyanka N. Matlane, Advocate
For the Respondent Nos.1, 4 and 5:Mr. A.S. Deshmukh, Advocate
IMPORTANT POINT
Minor’s father or natural guardian cannot exerciseoption which a minor alone can exercise.
Headnote:Hindu Minority and Guardianship Act, 1956—Section 11—Rights of de-facto guardian of minor—When property inherited and owned by plaintiff which is not a Hindu Joint Family property or interest in joint Hindu Family and when father was not shown to be not taking care of minor, mother is not natural guardian—She as a de facto guardian has no right to alienate property of her minor son—When transaction is voidable, it is voidable at option of minor—Minor’s father or natural guardian cannot exerciseoption which a minor alone can exercise—Minor can exercise it after attaining majority. (Paras 20 and 21)
Result: Second Appeal allowed with costs.
A. M. Dhavale, J.—A minor plaintiff’s suit filed through his father as next friend for declaration that the sale of his share by his mother was void & illegal, was decreed with costs by the trial Court. The first Appellate Court allowed the appeal and reversed the judgment. Hence, the plaintiff has filed this Second Appeal.
2. The appellant-original plaintiff was aged 12 years when his father as next friend filed Reg. Civil Suit No. 56/89 in the court of Civil Judge Jr. Division, Selu, Dist. Parbhani. As per the plaint, land adm. 2H 90R at Gut No. 254 at Digras was belonging to the plaintiff. Kushavartabai / defendant No. 1 (his mother) had no title or right or interest. Defendant Nos. 2 and 3 by use of undue influence, coercion and force got a sale deed of the suit land executed in their name without any consideration. That time, defendant No. 1 as mother acted as a guardian when his father was alive. She had no authority to act as guardian and to execute the sale deed. No permission of the court was obtained for sale of minor’s property. Initially, the suit was for declaration that the sale deed was void and for perpetual injunction but in 1990, the plaintiff claimed that he was forcibly dispossessed and by amending the plaint he claimed possession of the suit land. Defendant No. 2 – Shivaji alone contested the suit. He claimed that, there was partition between the plaintiff, his father and his mother before execution of the sale deed and the suit land was allotted to defendant No. 1 and the plaintiff. The suit land was sold for legal necessity and for the benefit of the minor. The sale is legal and binding on the plaintiff. There was no coercion or undue influence or force. The suit proceeded without written statement of defendants No. 1 and 3.
3. The learned trial Judge framed issues and after recording the evidence he came to the conclusion that the plaintiff was exclusive owner of the suit land. The sale deed was obtained by undue influence and without consideration. It was not for legal necessity or benefit of the minor. With these findings, he granted a decree of declaration that the sale deed was null and void and not binding on the plaintiff and for possession.
4. Defendant No. 2 challenged the judgment and decree by way of Reg. Civil Appeal No. 177/1994 before the District Judge, Parbhani. The learned District Judge held that, the said sale deed could not be challenged during the minority of the plaintiff. The plaintiff alone can challenge it after attaining majority. Hence she allowed the appeal and dismissed the suit. Hence, this appeal.
5. By order dt. 25.07.2005, the appeal was admitted on grounds No. 2 and 3 as substantial questions of law, which read as under:—
(i) Whether the property of the minor can be alienated without the permission of the court?
(ii) Whether the sale of a property in the name of minor can be sold (valid) without there being any legal necessity and whether property of the minor can be sold for the necessity of the other family members?
6. Ms Priyanka Matlane, learned counsel for the appellant argued that, the property was belonging to the plaintiff/minor. At the time of sale, his father was alive and his mother could not be his natural guardian. The sale effected by the plaintiff’s mother was void and not voidable. In this regard, she relied on Narain Singh Vs. Sapurna Kaur and Ors. reported in 1968 (16) BLJ R 898. In this case, it is held that, when the father was alive but he refused to act as natural guardian, the disposal of the property of the minor by the mother is not valid as she has not legally obtained the permission to dispose of the property. She could have taken recourse to the legal proceedings to act as minor’s guardian.
7. Per contra, Mr V. D. Hon, learned Sr. Counsel for respondent No. 1 submitted that, learned first appellate Court has rightly relied on the judgment of the Apex Court in Narayan Laxman Gilankar v. Udaykumar Kashinath Kaushik reported in AIR 1
