JUDGMENT
1. This appeal by plaintiff 1 and 2 is directed against the judgment and decree dated 18-1-1975 passed by the District Judge, Kolar, in Regular Appeal No. 47 of 1974, on his file, dismissing the appeal on confirming the judgment and decree dated 29-9-1969 passed by the Munsiff, Chikballapur, in Original Suit No. 89 of 1966, on his file, dismissing the suit of the plaintiffs.
2. The plaintiffs instituted a suit for declaration of their title to the suit property and for possession of the same from the defendant with past mesne profits of Rs. 300/- and future mesne profits to be determined by the Court.
3. One Krishnoji, Rao, great-grandfather of appellant-1 and grandfather appellant-2, had two sons by name Annoji Rao and Pilla Santoji. Annoji Rao died in the year 1954 leaving behind him his widow Makkayyamma and his four children by name Venkoji Rao, Venkatamma, Vellu Bai and Narayana Rao (appellant-2). Venkoji Rao, the eldest son, also died in the year 1955, leaving behind him his widow Akkayyamma and a child by name Gangoji Rao (appellant-1). The suit property was the ancestral property belonging to the joint family of the two plaintiffs. Akkayyamma and Makkayyamma, jointly sold the suit property to the defendant under a registered sale deed dated 29-9-1960, as guardians of the minor plaintiffs. According to the plaintiffs, the said Akkayyamma and Makkayamma were not their guardians at any time. The appellants were under the care and protection of their relative Narasinga Rao. Therefore, they contended that the said sale was neither necessary nor beneficial to the family and that Akkayyamma and Makkayyamma had no right to sell the suit property without the permission of the District Judge. They further submitted that the defendant did not, therefore, acquire any title, right or interest in the suit property, by virtue of the said sale, which was void. Hence, they instituted the suit for declaration of their title and for possession of the suit property with past and future mense profits as also the costs of the suit.
4. The suit was resisted by the defendant on various grounds. He denied that the plaintiffs, in their minority, were under the care and custody of Narasinga Rao. On the other hand, they contended that they were under the care and custody of their mothers Akkayyamma and Makkayyamma. According to him, Makkayyamma (the mother of plaintiff-2) was managing the affairs of the family after the death of her first son Venkoji Rao and the suit property was sold by her for the legal necessity and benefit of the family. He further claimed that the mothers of the two plaintiffs were the respective natural guardians of the two plaintiffs and that therefore, the sale deed executed by them in his favour was valid and binding on the plaintiffs. He had improved the land after purchasing the same. The suit was bad for non-joinder of parties. He also contended that the Court-fee paid was not sufficient.
5. The trial Court raised the following issues as arising from the pleadings :
(1) Is the sale deed executed in favour of the defendant void for the reasons stated at para 4? Or (2) Whether the sale was for legal necessity and family benefit, and, as such, binding on the plaintiffs?
(3) Whether the defendant has vastly improved the land after purchase?
(4) Is the suit not maintainable for the reason stated at para 16 of the written statement?
(5) Is the suit bad for non-joinder of necessary parties?
(6) Whether plainiff-2 cannot prosecute the suit in view of the compromise petition filed by him on 30-7-1966?
(7) Whether the suit has been properly valued and sufficient Court-fee paid?
(8) To what reliefs, if any, are the parties entitled?
6. The trial Court, appreciating the evidence on record, answered the issues as follows:
Issue No. 1 : The sale in favour of the defendant is not valid for any of the reasons pleaded.
Issue No. 2 : The sale in favour of the defendant is for legal necessity and for the benefit of the family. There is evidence to show that there was necessity for the sale not only to clear the antecedent debts but also that the family was in straightened circumstances.
Hence, the sale is favour of the defendant birds the plaintiffs.
Issue No. 3: The defendant has improved the suit land by removing the silt in the well and fixing electric pump-set thereto. He has also shown that the suit land is converted as a ‘Bhagayat’ land. Thus, the defendant has made improvements to the extent of two thousand or three thousand rupees.
Issue No. 4: It is not proved that the suit is not maintainable as pleaded.
Issue No. 5 : The suit is bad for nonjoinder of necessary parties as this is not a partition suit.
Issue No. 6: The compromise petition by plaintiff-2 has not been proved. Hence, it does not bind plaintiff-2.
Issue No. 7: The suit has not been properly valued and proper court-fee has not been paid. The plaintiffs should pay court-fee on the valuation of Rupees 1,000/-, which is the value in the document which they seek to get over. Hence, they have to pay a court-fee of Rs. 75- of which they have paid Rupees 7.50 P., and they have yet to pay Rs. 67.50 P., within one month.
Issue No. 8: The plaintiffs’ suit has to fail and they are not entitled to any reliefs.
In that view, the trial Courts dismissed the suit of the plaintiffs.
7. Aggrieved by the said judgment and decree, the plaintiffs went up in appeal before the Civil Judge, Kolar, and, subsequently, the appeal was withdrawn by the District Judge, Kolar, and it was registered as Regular Appeal No. 47 of 1974, on his file. Before the learned District Judge, only one point was pressed for consideration. It was contended that the sale deed executed by the mothers of the respective plaintiffs, after the coming into force of the Hindu Minority and Guardianship Act, 1956, (hereinafter referred to as ‘the Act’), was void in law and, hence, it was submitted before him that the sale deed should be set aside. The other points answered against the plaintiffs were not agitated before the learned District Judge. It is so made clear in para -8 of the judgment. The learned Judge, considering that aspect, came to the conclusion that it was not necessary under S. 8 of the Act to take the permission of the Court for alternating the property by the mothers of the respective plaintiffs and, in that view, he dismissed the appeal and confirmed the judgment and decree of the Trial Court dismissing the suit of the plaintiffs. Aggrieved by the same, the plaintiffs have come up with the above second appeal before this Court.
8. The learned counsel appearing for the appellants strenuously urged before me that even assuming that S. 8 of the Act did not apply to the facts of the case, even under the Hindu Law, the mother could not be the ‘kartha’ of the coparcenary and, hence, she has no right to sell the immovable property of her minor son for legal necessity or for the benefit of the estate. According to him, so far as the property is concerned, the mothers of the respective plaintiffs were de facto guardians only and, as such, S. 11 of the Act applies and the sale was void in the eye of law.
9. As against that, the learned counsel appearing for the respondent/defendant invited my attention to the wordings of S. 6 of the Act and submitted that in S. 5 and other concerned sections in the Act, the words ‘Joint Family’ were not used in the sense of coparcenary as they are used in the Common Hindu Law and , further , he pointed out that in S. 12 of the Act, it is specifically stated that the Court has no power to appoint a guardian if there is an adult member in the family to manage the property. Thus, he submitted that though, under the Common Law, the mother could not become the manager of the coparcenary, she could become the manager of the joint family as contemplated under the provisions of the Act. He further submitted that since the sale was made, as held by the Courts below, for legal necessity and for the benefit of the minors, the sale was rightly held to be legal and valid.
10. The points, therefore, that arise for my consideration in the appeal are:
(1) Whether the Courts below were justified in holding that S. 8 of the Act could not be invoked on the facts of this case? and (2) Whether the mothers of the respective plaintiffs as natural guardians, could legally and validity sell the property of their minor wards for legal necessity and for the benefit of the estate?
11. It is necessary for answering these points to understand and appreciate the scheme of the Act. Section 6 of the Act speaks of natural guardians of a Hindu minor. It reads :
“The natural guardians 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) are –
(a) in the case of a boy or an unmarried girl – the father, and after him, the mother; provided that the custody of a minor who has not completed the age of five years shall ordinarily be with he mother :
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12. Thus, reading the above section carefully, it becomes clear that this section excludes the undivided interest of the minor-his or her undivided interest in the joint family property. The Legislature, in its wisdom, has used the words ‘his or her undivided interest’. If the words ‘Joint Family’ were used in the sense of coparcenary as used in the common (Hindu) Law, it is obvious that there would be no share of a female in the Hindu coparcenary because a female member is not given any status in the coparcenary. It consists of three generations of male descendants i.e. sons, grandsons and great-grandsons of the holder of the joint property. Since the Legislature has used ‘his or her undivided interest in the joint family property’ and excludes it from the purview of S. 6 of the Act, it becomes clear that the term ‘joint family property’ is used in wider sense including the shares of those female members who have a share in the joint family property e.g., the mother’s share, the daughter’s share etc. A joint Hindu family consists of all persons directly descended from a common ancestor, and includes their wives and unmarried daughters. This is made further clear by S. 12 of the Act, which reads:
“Guardian not to be appointed for minors undivided interest in joint family property : Where a minor has an undivided interest in joint family property and the property is under the management of an adult member of the family, no guardian shall be appointed for the minor in respect of such undivided interest :
Provided that nothing in this section shall be deemed to affect the jurisdiction of a High Court to appoint a guardian in respect of such interest.”
Thus, in this Section, the Legislature has, in its wisdom, stated ‘the property is under the management of an adult member of the family’ and not ‘an adult male member of the coparcenary, implying there by that in the joint family, in the wider sense in which it is used under the Act, a female adult member can also become the manager of the family and, in that case, the Court is not competant to appoint a guardian. In fact this is different from the common (Hindu) Law concept in a coparcenary.
13. In S.159, Mulla in his ‘Principles of Hindu Law’, (Fifteenth Edition), at page 625 states :
“Guardianship of property where family is joint – If the minor is a member of the joint family governed by the Mitakshara Law, the father as Karta(manager) is entitled to the management of the whole coparcenary property including the minor’s interest. After the father’s death, the management of the property, including the minor’s interest therein, passes to the eldest son as karta. The mother is not entitled to the custody of the undivided interest of her minor son in the joint property, because such property is not separate property, though she is entitled to the custody of his person and his separate property, if any. (Gharib Ullah v. Khalak Singh (1903) ILR 25 All 407 (PC); Gourah v. Gujadhar (1880) ILR 5 Cal 219; Virupakshappa v. Nilgangava (1895) ILR 19 Bom 309 (FB) etc.”
14. It is in that sense that the learned counsel appearing for the appellants urged that the mother never becomes the guardian of the coparcenary property and, as such her assuming rights as guardian would only amount to her being a de facto guardian. In that sense, he submitted that any sale or alienation brought about by a de facto guardian is void in law. That is what S. 11 of the Act states.
15. I should have accepted the argument of the learned counsel appearing for the appellants if the term ‘joint family property’ was used in the narrow and restricted sense of coparcenary property under the Act. As explained above, this is used in a wider sense, including the property of all members – male and female – in the joint family and, as is made clear in S. 12 of the Act, the Legislature has, in its wisdom, stated that no Court guardian can be appointed in case there is an adult member in the family who could manage the properties. In fact, the earlier view under the common law was that in case children were minors, the mother could not act as guardian for the properties of the minor children and it was necessary that the Court should appoint a guardian for the properties of the minor children till one of them attains the age of majority.
That is made clear by Mulla in Illustration ‘b’ to S. 519 at page 626 of the aforesaid book. It reads :
“If in the case put in ill. (a), A also is a minor, the Court may appoint a guardian of the whole joint property under the Guardians and Wards Act, 1890, and the Court may in such a case appoint even B’s mother as such guardian : Bindaji v. Mathuraba, ((1906) ILR 30 Bom 152)……..”
16. Since, as explained above, the joint family property used under the Act is wider in its connotation, than the restricted sense in which it is used in the term ‘coparcenary’ under the Common Law, it becomes obvious especially in view of what is contained in S. 12 of the Act that the mother who is the natural guardian of the person, can also become the manager in the case of the properties of her minor sons under the Act, and, in that case, she can alienate the properties of the minors for legal necessity and for the benefit of the estate as a manager or ‘Karta’ of a Hindu coparcency can do. In that case as rightly conceded by the counsel for the appellant S. 8 of the Act would not be attracted.
17. The view that I have taken finds support in the ruling rendered by the High Court of Rajasthan in the case, Girdhar Singh v. Anand Singh . In a similar case, the High Court of Rajasthan, in para 12 of the judgment, has held thus :
“As regards the question of taking permission from a competant Court of law in this case, I am in agreement with the view taken in Sunnamani Dei v. Babaji Das that when the minor and his mother constitute a Hindu Joint Family, each with a moiety of undivided interest in any movable property be longing to the family, in the absence of the father, the mother as natural guardian, can alienate even the minor’s half share in the immovable property under the personal law. Section 8 of the Hindu Minority and Guardianship Act will not apply to such alienation. This view finds support from Smt. Suggabai v. Hira Lal .”
18. In Re. Krishnakant Maganlal, , Bhagwati J., delivering the judgment has observed. (at p. 73) “The restrictions contained in Section 8 do not apply in respect of the undivided interest of a minor in joint family property and Section 8 does not debar a Manager and Karta of a joint family from alienating joint family property without obtaining the previous permission of the Court even if the Manager and Karta happens to be the natural guardian in respect of the separate property of any one or more of the minor coparceners. Of course the alienation would have to be justified under Hindu Law, but Section 8 does not require that any previous permission of the Court should be obtained before effecting such alienation……..”
19. The High Court of Madras, in the case, Rajalakshmi v. Ramachandran, , has explained as to who is a guardian de facto. It is ruled in that case that a natural guardian, a testamentary guardian or a guardian appointed by the Court could never be described as a guardian de facto .
20. Therefore, a natural guardian, who is empowered to manage the properties of her minor sons, can never be described as a guardian de facto. Hence, Section 11 of the Act would never come into play on the facts of the present case.
21. The decisions discussed above would clearly establish that the term ‘joint family property’ is used in a wider sense in the relevant sections in the Act than in the restricting term ‘Coparcenary’ used in the Common (Hindu) Law. It further becomes established that in a family, consisting of the mother and her minor children, the mother can act as Manager of the joint family properties though she could not do so under the Common (Hindu) Law with regard to coparcenary properties. It is further established that the mother, as manager of the joint family properties, has the same rights as the ‘karta’ under the Common (Hindu) Law to bring about alienation of the joint family properties, including the share of the minors for legal necessity or for the benefit of the estate.
22. In the instant case, the Courts below have held that the sale was for legal necessity and for the benefit of the estate. That finding is not challenged. That being so, the Courts below were justified in holding that the impugned sale in favour of the defendant is legal and valid. I have no ground to interfere with the judgments and decrees of the Courts below passed concurrently in the case.
23. In the result, therefore, the appeal fails and is dismissed.
24. On the peculiar facts of the case, I make no order as to costs of this appeal.
25. Appeal dismissed.
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