Smt. Ramwati And Others vs Dharmdas
2013 Latest Caselaw 2509 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

AFR
 
Court No. - 34
 

 
Case :- SECOND APPEAL No. - 402 of 2011
 

 
Appellant :- Smt. Ramwati And Others
 
Respondent :- Dharmdas
 
Counsel for Appellant :- Syed Fahim Ahmed
 
Counsel for Respondent :- Pramod Kr. Sinha
 

 
Hon'ble Sudhir Agarwal,J.

1. This is defendants' appeal under Section 100 C.P.C. 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 C.P.C., 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.

4. The plaintiff-respondent instituted suit no. 171 of 2004 for cancellation of sale deed dated 09.10.2003, which was decreed by Trial Court vide judgment and decree dated 07.5.2008 and thereagainst defendants' appeal no.35/08 has also been dismissed by Lower Appellate Court vide judgment and order dated 27.01.2011. 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 Vs. 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 1 (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.191, area 0.560 hectare and Gata No.248, area 0.227 hectare, situate at Village Maminpur Ahmdabad 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 dated 9.10.2003 by defendant no.1 in favour of defendants 2 and 3. The plaintiff requested for cancellation of sale deed by notice dated 1.3.2004 and thereafter instituted original suit no.171 of 2004, seeking cancellation of aforesaid sale deed and permanent injunction in respect of disputed property.

11. The suit was contested by defendants claiming that plaintiff is neither son of late Bhajan Lal nor Smt. Ram Kali, mother of plaintiff, was wife of late Bhajan Lal and, instead, Sri Dharam Pal is the son of Khayali Ram, resident of Mohalla Gagampur, District Rampur. It also said that property in dispute was sold for solemnizing marriage of late Bhajan Lal's daughter Veerwati and there is no unauthorized or illegal transfer of property of late Bhajan Lal to anyone.

12. Trial Court formulated six issues and issue 1, being the substantial one for deciding the suit, reads as under:

^^D;k oknh fookfnr cSukes dks fujLr djk ikus dk vf/kdkjh gS+ \^^

"Whether plaintiff is entitled to get cancellation of the disputed sale deed"

(English Translation by the Court)

13. It held that plaintiff is the son of Bhajan Lal and Ram Kali is widow of (Late) Bhajan Lal. It also found that at the time of execution of sale deed, plaintiff was 12 years old. Defendant no.1 was not a natural guardian. Moreover, neither she obtained permission from District Judge under Section 29 of Act, 1890 before transferring minor's property to defendants 2 and 3, nor she could satisfy that the aforesaid transfer was for welfare and benefit of minor, particularly when transfer was made by defendant no.1 to her own sons, i.e. defendants 2 and 3. Issue 1, thus, was answered in favour of plaintiff. Consequently, suit was decreed partly, vide judgment and decree dated 7.5.2008, holding that sale deed is liable for cancellation but plaintiff is not entitled to permanent injunction, inasmuch as, disputed property still is a joint family property and there is no division/partition by metes and bound and plaintiff and defendants being co-owners, an injunction against co-owners cannot be granted. Aggrieved thereto, defendants preferred Civil Appeal No.35 of 2008, which has also been dismissed by the Lower Appellate Court i.e. Addl. District Judge, Court no.1, Rampur (hereinafter referred to as "LAC") vide judgment and decree dated 27.1.2011.

14. LAC formulated 4 questions for its determination but for the purpose of present case, questions no.1, 2 and 3 are relevant, which read as under:

^^1%& D;k izfrokfnuh la0&1 Jherh jkeorh us /keZiky dh lajf{kdk ds :i esa izfroknh la0&2] 3 ds i{k esa fn0 9&10&03 dks tks cSukek fd;k mls oknh [kf.Mr djkus dk vkf/kdkjh gS\

2%& D;k oknh /keZiky nsohnkl ds iq= Hktuyky dk iq= gS\

3%& D;k /keZiky LoxhZ; Hktuyky dk iq= ugh gS tSlk fd izfroknhx.k dk izfrokni= esa vfHkdFku gS\^^

"1. Whether the Plaintiff is entitled to go in for cancellation of the sale-deed executed on 09.10.03 by Plaintiff No. 1 Smt. Ramvati, as guardian of Dharmpal, in favour of Defendant Nos. 2 and 3.

2. Whether Plaintiff Dharmpal is son of Devidas's son Bhajanlal.

3. Whether Dharmpal is not the son of Late Bhajanlal as stated by the Defendants in the written statement."

(English Translation by the Court)

15. Questions no.2 and 3 were answered in favour of plaintiff- respondent. While deciding the aforesaid issues, LAC had observed that DW-1, Ratan Lal, in his cross examination, admitted that late Bhajan Lal had four children i.e. three daughters and one son. He also admitted that name of son of Bhajan Lal is Dharampal. It is in these circumstances and considering other evidence, it held that Dharampal is the son of late Bhajan Lal. It also held that Smt. Ram Kali and defendant no.1, are mother and grandmother of plaintiff, and, defendants no.2 and 3 are his real uncles.

16. Coming to question no.1, LAC observed that after death of Bhajan Lal, Dharampal's mother Ram Kali was his natural guardian. Subsequently on 23th March, 1990 instead of Ram Kali, defendant no.1 (Ram Wati), widow of Devi Das, was appointed as guardian of Dharampal, for the reason that Smt. Ram Kali, mother of plaintiff, remarried or started living with another person, namely, Khayali Ram, Son of Chunni Lal, and, is presently residing with him. LAC said that the aforesaid appointment was made by Revenue Officer but that would not result in cessation of mother's position of natural guardian. In case of a minor, property could not have been sold by defendants without taking permission under Section 8(2)(a) of Act, 1956 from District Judge, therefore plaintiff was entitled to seek cancellation of sale deed.

17. In this backdrop, question, formulated above, has to be considered, whether the sale deed in question was liable to be cancelled since no permission was obtained from district Judge.

18. The above facts make one thing very clear that judgment of Trial Court denying permanent injunction to the plaintiff has not been challenged by him and the same therefore, stands as it is. The reason for denying injunction is that in absence of any division, entire property being in co-ownership of all the parties, injunction at the behest of one co-owner against others cannot be granted. In other words, disputed property was not individual or separate property of plaintiff, either when he was minor, or, when he attained majority, but, in fact, he had only an interest/share in Joint Hindu Family property, which included disputed property also.

19. The property, admittedly, was ancestral, plaintiff though minor, had his share therein but in absence of any division/partition of share of co-owners/coparcener, entire property constituted property of a joint Hindu family of which defendant 1 being the eldest one, after death of her husband, became Karta. The joint family property status of disputed property continued till the date of execution of sale deed and, as is evident from the judgment of Trial Court, if it could not have been sold and status of joint Hindu family property of disputed land would have continued since there was no division/partition of joint property.

20. The concept of joint Hindu family and its Karta is quite ancient and an integral part of the way of living and customary rules of Society among Hindu. In India, and, particularly among Hindus, the family bonds are not only very strong but they have given right to a society who believe in a joint family even going to the extent of concept of village community. In the concept of property, there have been three layers, i.e., Patriarchal Family, Joint Family and Village Community. The patriarchal family is headed by father and consists of his offsprings. The joint family may include within itself the members, related to each other, though not having common ancestors and goes beyond the family flowing from father himself. It is said that unlike England, where the concept of ownership, as a rule, is single, independent and unrestricted, and it may be joint, but the presumption is to the contrary. It may be restricted but only in special instances and under special provisions. The situations in India is totally different. Here the joint ownership is normally the rule and may be presumed to succeed until contrary is proved. If an individual holds property in severalty, in the next generation, it will relapse into a stand of joint-tenancy. A Hindu may start with nothing and make a self acquired fortune by dint of his own labour, capacity and merits and he is the absolute owner of estate but in a couple of generations his offspring would ramify in a joint family, like a banyan tree which also stands as a single shoot. If the property is free from hands of its acquirer, it will become fettered in the hands of his heirs.

21. The "patriarchal family" may be defined as a group of natural or adoptive descendants, held together by subjection to the eldest living ascendant, father, grand-father, great-grandfather. Whatever be a formal prescription of law, the head of such a group is always in practice, despotic; and he is the object of respect, if not always of affection, which is probably seated deeper than any positive institution. Manu says, "three persons, a wife, a son and a slave, are declared by law to have in general no wealth exclusively their own; the wealth which they may earn is regularly acquired for the man to whom they belong." Narada says, "he is of age and independent, in case his parents be dead; during their lifetime he is dependent, even though he be grown old."

22. The "joint family" is normally a transitional form from "patriarchal family" at the death of common ancestors or head of house. If the family chooses to continue united, the eldest son would be the natural head. The former one was head of family by natural authority, the later other can only be so by a delegated authority. He is primus but inter pares. An undivided Hindu family thus is ordinarily joined not only in estate but in food and worship. The presumption, therefore, is that members of a Hindu family are living in a state of union unless contrary is established. This presumption however varies inasmuch as it is stronger in case of real brother than in case of cousin and farther one go, from the founder of family, the presumption becomes weaker and weaker. However, there is no presumption that a family, because it is joint, possesses joint property. Under Mitakshara Law, possession of property is not necessary requisite for constitution of a joint family, though where persons live together, joint in food and worship, it is difficult to conceive of their possessing no property whatever, such as ordinary household articles which they would enjoy in common.

23. The intention to break joint family by effecting partition in respect of joint family property has always been considered with great respect, where amicably and peacefully, intacting love and affection, the members of joint family have settled their rights mutually. It can be given effect, orally, as also in writing.

24. In Appovier Vs. Ramasubba Aiyan (1866) 11 MIA 75 Lord Westbury took a view that the partition covers both, a division of right and a division of property. This is also reiterated in Girja Bai Vs. Sadashiv Dhundiraj (1916) 43 IA 151. When the members of undivided family agreed amongst themselves either with respect to a particular property or with reference to entire joint estate that it shall thenceforth be the subject of ownership in certain defined shares, then the character of undivided property and joint enjoyment is taken away from the subject matter so agreed to be dealt with; and in the estate, each member has thenceforth a definite and certain share which he may claim the right to receive and to enjoy in severally although the property itself has not been actually severed and divided.

25. In Raghubir Singh Vs. Moti Kunwar (1913) 35 IA 41 PC and Anurago Kuer Vs. Darshan Raut, AIR 1938 PC 65 the partition by agreement was explained by observing, that, if there be a conversion of joint-tenancy of an undivided family into a tenancy of common of the members of that undivided family, the undivided family becomes a divided family with reference to the property, i.e., the subject to agreement and that is a separation in interest and in right, although not immediately followed by a de facto actual division of subject matter. This may, at any time, be claimed by virtue of the separate right. This was also held so in Amrit Rao Vs. Mukundrao (1919) 15 Nag LR 165 PC.

26. The "family arrangements" also stand and enjoy same status. It is an agreement arrived by members of family, either by compromise doubtful or disputed rights, or by preserving a family property or by avoiding litigation for the peace and security of family or saving its honour. A severance of joint status may result, not only from an agreement between the parties but from any act or transaction which has the effect of defining their shares in the estate though it may not partition the estate. Among all the coparceners, now it has been held, that, an agreement between all of them is not essential so as to result in disruption of joint status though it is required for the actual division and distribution of property, held jointly. A definite and unambiguous indication of intention by one member to separate himself from family and to enjoy his share in severalty will amount to a division in status. (See, Ram Narain Sahu Vs. Musammat Makhana ILR (1939) All. 680 (PC) and Puttrangamma and Ors., Vs. M.S. Ranganna and Ors. AIR 1968 SC 1018).

27. Further whenever there is a partition, the presumption is that it was a complete one both as to parties and property. There is no presumption that any property was excluded from partition. On the contrary, it has been held that burden lies upon him who alleges such exclusion to establish his assertion.

28. On the strength of above principles, it cannot be doubted that so long as property, which is part of a joint Hindu family, is settled as a separate share by the members constituting the joint family, it would continue to constitute corpus of joint Hindu family property and shall be in the ownership of all the members of family though Karta has right to enter into transaction, as may necessary, for benefit of family.

29. Under old Hindu Law, in the case of joint Hindu family governed by Mitakshara Law, it is a Karta or Manager of joint Hindu family, who has power to deal with the property of joint Hindu family, which comprise of minor children also. The Manager may be in some cases a member of joint Hindu family other than father or grand mother.

30. Looking to this aspect, in my view, permission of District Judge was not required since provisions pertaining to permission of District Judge would not apply in such a case.

Protection for Minor

31. Since ancient days, the king and the State are said to be under a duty to care for the class of persons who are incompetent to take care of themselves because of their immature intellect, imperfect discretion etc. arising from their age. Under the Hindu Law, the king was regarded as 'parens patriae'. The renowned Hindu sages said that the king, as the ultimate protector of the State, may give suitable directions for protection of the estate of infants. Under the statutory law, this protection has changed hands coming to the Courts as representative of the sovereign. In British India, one of the earliest enactment relating to minors came to be Act 40 of 1858, passed in Bengal Presidency applicable to Punjab and Oudh. This enactment was in respect of minors who were not British subjects and who were not under the superintendence of a Court of Wards. Act 9 of 1861 was enacted containing provisions of custody and guardianship of minors who were not European British subjects. It was made applicable to whole of India. In respect of minors, in Bombay Presidency, Act 20 of 1864 was enacted. In Madras Presidency, Acts and Regulations in Madras code used to govern minors. A consolidated Act, namely, the Guardians and Wards Act, 1890, was enacted and made applicable to whole of India except Jammu and Kashmir with an objective to consolidate and amend the law relating to guardians and wards. Sections 29 and 30 of Act 1890 read as under :

"29 - Limitation of powers of guardian of property appointed or declared by the Court.- Where a person other than a Collector, or than a guardian appointed by will or other instrument, has been appointed or declared by the Court to be guardian of the property of a ward, he shall not without the previous permission of the Court, --

(a) mortgage or charge, or transfer by sale, gift, exchange or otherwise, any part of the immovable property of his ward, or

(b) lease any part of that property for a term exceeding five years or for any term extending more than one year beyond the date on which the ward will cease to be a minor.

30. Voidability of transfers made in contravention of section 28 or section 29.- A disposal of immovable property by a guardian in contravention of either of the two last foregoing sections is voidable at the instance of any other person affected thereby."

32. Under the Act, 1890, a guardian could have been appointed by the Court under Section 7, for the welfare of a minor, of his person, or property or both. Where the guardian is appointed for welfare of the minor in respect of his property also, duties of such guardian of property are provided in Section 27 of Act, 1890, which read as under:

"Duties of guardian of property.- A guardian of the property of a ward is bound to deal therewith as carefully as a man of ordinary prudence would deal with it, if it were his own and subject to the provisions of this Chapter, he may do all acts which are reasonable and proper for the realisation, protection or benefit of the property."

33. Post independence, in respect of minors and guardians among Hindu, the Parliament enacted Act, 1956. Section 2 of Act, 1956 makes a declaration that subsequent Act shall be in addition to, and not, save as hereinafter expressly provided, in derogation of Act, 1890. Under Section 4(b) of Act, 1956, there are four kinds of guardians namely, a natural guardian; a guardian appointed by the will of the minor's father or mother; a guardian appointed or declared by a court; and, a person empowered to act as such by or under any enactment relating to any court of wards. "Natural guardian" is defined in Section 4(c) of Act, 1956, as under:

"natural guardian means any of the guardians mentioned in section 6."

34. Section 6 provides that 'natural guardians' of a Hindu minor, is the father, and after him, the mother: except in a case where minor is below five years wherein the mother comes first. Under Section 6(b) and (c), in the matter of an illegitimate child, the mother precedes the father and in the case of a married girl, it is the husband.

35. However, the aforesaid provision excludes from its operation the matters where minor has undivided interest in joint family property. Section 12 of Act, 1956 says, that, 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 minor in respect of such undivided interest.

36. Construing the aforesaid provision, in Dhanasekaran Vs. Manoranjthammal, AIR 1992 Madras 214, the Court said that management of Joint family and its affairs can be taken up not only by an adult male member of family but also by a female member of family like the mother.

37. Section 8 of Act, 1956 imposes a restriction upon natural guardian of a Hindu minor by stating that he shall not transfer immoveable property of minor without previous permission of the Court. Though under sub-section (1), he can do all such acts, which are necessary and reasonable and proper for the benefit of minor. Under sub-section (5) of Section 8 of Act, 1956, with reference to Section 29 of Act, 1890, certain provisions are made, which are to be taken into consideration while granting permission.

38. From careful reading of provisions of Act, 1890 and Act, 1956, I find that legislature has taken care to protect a minor's property so that he may not be subjected to misfeasance even in the hands of natural guardian but the 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 the ambit of above provisions of the two statutes. This aspect came to be considered before Apex Court in Sri Narayan Bal & Others (supra), and in para 5 of the judgment, the Court said :

"With regard to the undivided interest of the Hindu minor in joint family property, the provisions afore-culled are beads of the same string and need be viewed in a single glimpse, simultaneously in conjunction with each other. Each provision, and in particular Section 8, cannot be viewed in isolation. If read together the intent of the legislature in this beneficial legislation becomes manifest. Ordinarily the law does not envisage a natural guardian of the undivided interest of a Hindu minor in joint family of the property. The natural guardian of the property of a Hindu minor, other than the undivided interest in joint family property, is alone contemplated Under Section 8 where under his powers and duties are defined. Section 12 carves out an exception to the rule that should there be no adult member of the joint family in management of the joint family property, in which the minor has an undivided interest, a guardian may be appointed; but ordinarily no guardian shall be appointed for such undivided interest of the minor. The adult member of the family in the management of the Joint Hindu Family Property may be a male or a female, not necessarily the Karta. The power of the High Court otherwise to appoint a guardian, in situations justifying, has been preserved. This is the legislative scheme on the subject. Under Section 8 a natural guardian of the property of the Hindu minor, before the disposes of any immovable property of the minor, must seek permission of the court. But since there need be no natural guardian for the minor's undivided interest in the joint family property, as provided Under Sections 6 and 12 of the Act, the previous permission of the Court Under Section 8 for disposing of the undivided interest of the minor in the joint family property is not required. The joint Hindu family by itself is a legal entity capable of acting through its Karta and other adult members of the family in management of the joint Hindu family property. Thus Section 8 in view of the express terms of Sections 6 and 12, would not be applicable where a joint Hindu family property is sold/disposed of by the Karta involving an undivided interest of the minor in the said joint Hindu family property. The question posed at the outset therefore is so answered."

39. An attempt was made to distinguish the above decision contending that defendant-appellant 1 was not a natural guardian. She was grandmother. She may had the status of Karta/Manager of joint Hindu family to manage its property etc. but there was a clear bar under Section 11 of Act, 1956, which would have applied in the present case, since, the grandmother, at the best, would satisfy description of de facto guardian and without permission, she could/would not have disposed of or dealt with the property of Hindu minor. Here again I have no hesitation in observing that facts of present case up for consideration before this Court undisputedly show that there was no individual property of minor but he had only an interest/ share in a joint family property. Therefore also, in the context of Apex Court's decision in Sri Narayan Bal & Others (supra), I do not find that Section 11 of Act, 1956 would have any application hereat.

40. In any case, in a subsequent decision of Apex Court in Madhegowda (D) by Lrs. Vs. Ankegowda (D) by Lrs. and Ors., AIR 2002 SC 215, even Section 11 of Act, 1956 has been considered, besides its earlier decision in Sri Narayan Bal & Others (supra). The Court pointed out that expression 'de facto guardian' though often used in judgments and has also been used in the statute concerned but it is not as such defined anywhere. In law, there is nothing like de facto guardian. So far as Act, 1956 is concerned, it recognizes 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 of the general management of the estate of a minor, may be described as 'de facto manager'. The Court traced out the genesis of the necessity of adding Section 11 in Act, 1956 in Hanooman Persaud Panday Vs. Mt. Babooee Munraj Kunweree (1854-57) 6 M.I.A. 393, wherein Privy Council said that a de facto guardian had the same power of alienating the property of his ward as a natural guardian. This authority was done away by Section 11 of Act, 1956. Having said so, the Court referred to its decision in Sri Narayan Bal & Others (supra) and reiterated that joint Hindu family by itself is a legal entity, capable of acting, through its Karta and other adult members of a family in management of joint Hindu family property, hence Section 8, in view of express terms of Section 6 and 12, would not be applicable, where a joint Hindu family property is sold/disposed of by Karta involving an undivided interest of minor in the said joint Hindu family property. The Court also referred to two earlier judgments, one of Patna High Court and another of Madras High Court. In Nathuni Mishra and Ors. Vs. Mahesh Misra and Ors., AIR 1963 Patna 146, the Court took the view that Section 11 does not deal with disposal of undivided interest of a minor in a joint Hindu family governed by Mitakshara School of Law. This Section cannot be pleaded as a bar for disposal of joint family property by Manager or Karta of family for legal necessity. Having said so, the Court distinguished and held the above decisions not applicable in the case before it by observing :

"It is not the case of any of the parties that the suit property was a 'joint family property' in the hands of Ninge Gawda 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'."

41. The decision in Sri Narayan Bal & Others (supra) has been followed by various High Courts reiterating the dictum laid down therein. In Annam Malla Reddy Vs. Bangi Nagaiah and Ors., 2007(5) ALD 43 (Andhra Pradesh) relying on Sri Narayan Bal & Others (supra), the Court said:

"In the instant case the finding recorded by the Courts below is that Jagabandhu, the eldest male member in the family acted as a Karta in executing the sale and had joined with him the two widows for themselves and as guardians of the minor members of Joint Hindu Family, as supporting executants.

The act by itself is not indicative of the minors having a divided interest in the Joint Hindu Family property commencing before or at the time of the sale. In this view of the matter, Section 8 of the Act can be of no avail to the appellant's claim to nullify the sale."

42. This dictum has been followed by Karnataka High Court in Sri Nanjappa Vs. Sri Doddaiah, ILR 2009 Karnataka 2294, Madras High Court in U. Palanisamy Vs. K. Thangavelu and U.Krishnasamy, (2011) 6 MLJ 945 and Karuppana Gounder Vs. Minor Moorthy alias Venkatachalam (by Next Friend Mother Rajammal), (2012) MLJ 216; Delhi High Court in Braham Singh Vs. Sumitra and Ors., 2011 VIAD (Delhi) 353, and this Court in Km. Shivika Garg Vs. Yash Garg Major, 2012(1) ADJ 72.

43. The Courts below have missed out this distinction in respect of the property in dispute, which they have already conceived and found, in reference to the relief of permanent injunction, but have failed to apply the same while taking into consideration Section 29 of Act 1890 or Section 8(2)(a) of Act, 1956.

44. In view of the above, question formulated above, is answered in negative.

45. In this view of the matter, I find that judgment of Courts below cannot sustain. The appeal is allowed. The impugned judgments dated 7.5.2008 passed by Additional Civil Judge, Court No.3, Rampur in Original Suit No.171 of 2004 and 27.01.2011 passed by Additional District Judge, Court No.1, Rampur in Civil Appeal No.35 of 2008 are hereby set aside and plaintiff's suit no.171 of 2004 shall stand dismissed.

46. However, there shall be no order as to costs.

Order Date :- 22.5.2013

PS/KA