2001 Supreme(SC) 1596

2001(8) Supreme 292
SUPREME COURT OF INDIA
(From Karnataka High Court)
D.P. Mohapatra & Doraiswamy Raju, JJ.
Madhegowda (D) by LRs. -Appellants
versus
Ankegowda (D) by LRs. & Ors. -Respondents
Civil Appeal Nos. 5652-5653 of 1998
Decided on 20-11-2001
Counsel for the Parties :
For the Appellants : Pranab Kumar Mullick, Advocate.

IMPORTANT POINT
The transfer of the minor s interest by her elder sister (a de facto guardian/manager) having been made in violation of express bar provided under Section 11 of the Hindu Minority & Guardianship Act, 1956 is per se invalid. The existence or otherwise of legal necessity is not relevant in the case of such invalid transfer. A transferee of such an alienation does not acquire any interest in the property.

Headnote:Hindu Minority & Guardianship Act, 1956-Section 11-De facto guardian not to deal with minor s property-Interpretation of section along with Sections 4(b) and 4(c), 6, 8, 12 and 29-One N, owner of property in dispute, died leaving two daughters S (minor) and M-M acting as guardian sold half share of N for her marriage to appellant-N, on attaining majority, sold it to respondents-Whose right will prevail-Whether of appellant or of respondents? (The later)-Effect-Appeals dismissed-Case law discussed.

       Held : The question that falls for determination in the case relates to competence of Smt. Madamma to sell the interest of her minor sister Smt. Sakamma in the property as her guardian. If the question is answered in the affirmative and it is held that Smt. Madamma was competent to alienate the share of her minor sister as her guardian, then the trial court and the first Appellate Court were right in holding that the transaction of sale was voidable one and Smt. Sakamma having failed to repudiate the sale within the prescribed period of three years after attaining majority, the sale in favour of the appellant stood confirmed. If, on the other hand, it is held that Smt. Madamma had no competence to alienate the share of her minor sister in the property, then the transaction was a void one which was not required to be repudiated by Smt. Sakamma by filing a suit within the prescribed period. Then the judgment of the High Court holding the sale to be void is to be confirmed. (Para 6)

       This Section brings about a material change in the law relating to de facto guardians or de facto managers of a Hindu minor s estate by enacting in express terms that after the commencement of the Act, no person has the right or authority to do any act as a de facto guardian of such minor. Although the expression de facto guardian is often used in judgments, there is in law nothing like a de facto guardian. The statute recognises a natural guardian or a testamentary guardian or a guardian appointed by the Court. In law a person who is not a guardian as aforementioned who takes interest upon himself, the general management of the estate of a minor can be more appropriately described as de fecto manager . Before enforcement of the Act some confusion prevailed over the powers of de facto guardian or manager for alienating the property of his/her ward. It was held by the Privy Council in Hunoomen Persuad Pandey s case, 6 MIA 393, that a de facto guardian had the same power of alienating the property of his ward as a natural guardian. Section 11 has done away with the authority of any person to deal with or dispose of any property of a Hindu minor on the ground of his being the de facto guardian of such minor. Any alienation by a de facto guardian will be governed by the provisions in Section 11 of the Act. The alienation, being against the statutory prohibition, would be void ab initio and the alienee would not acquire any title to the property. (Para 12)

       From the statutory provisions noted above, it is clear that with the avowed object of saving the minor s estate being mis-appropriated or squandered by any person, by a relation or a family friend claiming to be a well-wisher of the minor, Section 11 was enacted to prohibit any such person from alienating the property of the minor. Even a natural guardian is required to seek permission of the Court before alienating any part of the estate of the minor and the Court is not to grant such permission to the natural guardian except in case of necessity or for an evident advantage to the minor. So far as de facto guardian or de facto manager is concerned, the statute has in no uncertain terms prohibited any transfer of any part of minor s estate by such a person. In view of the clear statutory mandate, there is little scope for doubt that any transfer in violation of the prohibition incorporated in Section 11 of the Act is ab initio void. (Para 14)

       We have carefully considered the principles laid down in the aforementioned decisions so far as relevant for the purpose of adjudication of the issue arising in the present case. It is to be kept in mind that this is not a case of alienation of minor s interest in a joint family property . As noted earlier, Ninge Gowda died leaving his two daughters, namely Smt. Sakamma and Smt. Madamma. It is not the case of any of the parties that the suit property was a joint family property in the hands of Ninge Gowda or that the alienation by Smt. Madamma, who is the sister of the minor, was a transfer of the minor s interest in the joint family property . Therefore, the question whether the provision in Section 11 is applicable in the case of transfer of minor s interest in a joint family does not arise for consideration here. Section 11 includes all types of properties of a minor. No exception is provided in the Section. Undoubtedly Smt. Madamma, sister of the minor, is not a guardian as defined in Section 4(b) of the Act. Therefore, she can only be taken to be a de facto guardian or more appropriately de facto manager . To a transfer in such a case Section 11 of the Act squarely applies. Therefore, there is little scope for doubt that the transfer of the minor s interest by a de facto guardian/manager having been made in violation of the express bar provided under the Section is per se invalid. The existence or otherwise of legal necessity is not relevant in the case of such invalid transfer. A transferee of such an alienation does not acquire any interest in the property. Such an invalid transaction is not required to be set aside by filing a suit or judicial proceeding. The minor, on attaining majority, can repudiate the transfer in any manner as and when occasion for it arises. After attaining majority if he/she transfers his/her interest in the property in a lawful manner asserting his/her title to the same that is sufficient to show that the minor has repudiated the transfer made by the de facto guardian / manager . In the case in hand there is no finding recorded by the trial Court or the First Appellate Court that Smt.Sakamma, the minor, after attaining majority, had ratified the invalid transfer, even assuming that the flaw in the transfer could be cured by ratification. On the facts of the case the High Court was justified in setting aside the judgment of the trial Court which was confirmed by the First Appellate Court and was right in decreeing the suit for partition and separate possession. Thus, these appeals, being devoid of merit, are dismissed. However, in the circumstances of the case, there will be no order as to costs. (Paras 21, 22 & 23)