Bombay High Court
Santosh Hariprasad Borale ... vs Vishal Babanrao Lakade And Others on 19 July, 2016
Bench: Ravi K. Deshpande
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
SECOND APPEAL NO.39 OF 2016
1] Santosh Hariprassad Borale
(dead) thr. his legal heirs.
1-a] Amit Santosh Borale,
Aged about 40 years,
Occ: Business.
1-b] Prashant Santosh Borale,
Aged about 38 years,
Occ: Service.
1-c] Sau. Reena Mukesh Rai,
Aged about 40 years,
Occ: Household work.
1-d] Sau. Seema Rakesh Rai,
aged about 36 years,
Occ: Household work.
1-e] Smt. Urmila Santosh Borale,
Aged about 66 years,
Occ: Household.
All R/o Near Rest House,
Washim Road, Pusad,
Tq. Pusad, Dist. Yavatmal. ....... APPELLANTS
...V E R S U S...
1] Vishal Babanrao Lakade,
Aged about 38 years,
Occ: Service.
2] Vikas Babanrao Lakade,
Aged about 36 years,
Occ: Business.
Both R/o Vasant Ward,
New Pusad, Tq. Pusad,
Dist. Yavatmal.
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3] Parvatibai Banbanrao Lakade,
Aged about 63 years,
Occ: Household,
R/o Shankar Nagar, Pusad,
Tq. Pusad, Dist. Yavatmal. ....... RESPONDENTS
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Shri N.S. Deshpande, Advocate for Appellants.
Shri R.S. Kalangiwale, Advocate for Respondent Nos.1 to 3.
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CORAM: R.K. DESHPANDE, J.
th JULY, 2016.
DATE: 19
ORAL JUDGMENT
1] Regular Civil Suit No.160 of 1999 filed by the
respondents-plaintiffs for recovery of possession on the basis of the title
to the suit property was dismissed by the trial Court on 30.11.2000.
The lower Appellate Court allowed Regular Civil Appeal No.05 of 2010
on 19.12.2015 and set aside the judgment and decree passed by the trial
Court. The lower Appellate Court decreed the suit filed by the plaintiffs
holding that they are entitled to possession of the suit property from the
defendant No.1. The defendant No.1 is, therefore, before this Court in
this second appeal.
2] On 05.07.2016 this Court had passed an order as under:
The only question involved in the present case is
whether the sale of the property belonging to minor by the
mother by registered sale-deeds dated 16.12.1983 and
07.06.1985 is void or voidable.
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Shri Chavan, the learned counsel appearing for the
plaintiff has relied upon the decision of the Apex Court in the
case of Panni Lal v. Rajinder Singh and another reported in
(1993)4 SCC 38, more particularly, in paragraph 8 of the
said decision, wherein it is held that the transfer of the
property belonging to minor to the exclusion of the father by
the mother is void and not voidable. If this position is
accepted then there is no dispute that the suit without the
prayer for setting aside the sale-deed would be maintainable.
It is also not in dispute that if the transaction is to be held as
voidable, then in that event, it would be necessary for the
plaintiffs to have asked for setting aside said sale-deeds.
The lower Appellate Court has recorded the findings in
paragraph 11 and 13 demonstrating as to how the
transaction becomes void in the present case.
Shri Deshpande, the learned counsel appearing for the
appellant seeks one week time to address this Court
particularly, on the decision of the Apex Court cited supra.
Put up this matter on 18.07.2016 as part-heard at
Sr.No.1.
3] The learned counsel appearing for the parties are heard on
the substantial question of law as to whether sale of the property
belonging to minor by the mother as per the sale-deed dated 16.12.1983
and 07.06.1985 is void or voidable. There cannot be any dispute over the
proposition that the father would be the natural guardian in terms of
clause (a) of Section 6 of the Hindu Minority and Guardianship Act read
with Section 4(c) therein. The constitutional validity of Section 6(a) of
the said Act was the subject-matter of challenge before the Apex Court in
the case of Githa Hariharan (Ms) and another v. Reserve Bank of India
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and another reported in (1999) 2 SCC 228. Para 10 of the said decision
being relevant is reproduced below:
10. We are of the view that Section 6(a) (supra) is
capable of such construction as would retain it within the
constitutional limits. The word "after" need not necessarily
mean "after the lifetime". In the context in which it appears in
Section 6(a) (supra), it means "in the absence of", the word
"absence" therein referring to the father's absence from the
care of the minor's property or person for any reason
whatever. If the father is wholly indifferent to the matters of
the minor even if he is living with the mother or if by virtue of
mutual understanding between the father and the mother, the
latter is put exclusively in charge of the minor, or if the father
is physically unable to take care of the minor either because of
his staying away from the place where the mother and the
minor are living or because of his physical or mental
incapacity, in all such like situations, the father can be
considered to be absent and the mother being a recognized
natural guardian, can act validly on behalf of the minor as the
guardian. Such an interpretation will be the natural outcome
of a harmonious construction of Section 4 and Section 6 of the
HMG Act, without causing any violence to the language of
Section 6(a) (supra).
4] In view of the aforesaid law laid down by the Apex Court
the expression, "in the absence of" used in Section 6(a) of the said Act
has been construed as father's absence from the care of the minor's
property or person for any reason whatever. If the father is wholly
indifferent to the matters of the minor even if he is living with the
mother or if by virtue of mutual understanding between the father and
the mother, the latter is put exclusively in charge of the minor, or if the
father is physically unable to take care of the minor either because of his
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staying away from the place where the mother and the minor are living
or because of his physical or mental incapacity, in all such like situations,
the father can be considered to be absent and the mother being a
recognized natural guardian, can act validly on behalf of the minor as
the guardian. In view of this position of law laid down by the Apex Court
if it is shown that it is the mother who was actually managing the affairs
of minor son, who was under her care and protection, and though the
father was alive, he was not taking any interest in the affairs of the
minor, the mother would be considered as a natural guardian in terms of
clause (a) of Section 6 of the said Act.
5] In the present case, the averments made in the plaint itself
indicate that though, the father of the plaintiff was alive and could be
called as a natural guardian, he suffered disability from acting as such
and by mutual understanding mother was appointed as guardian to take
care of the minor. The case of the plaintiffs was that the father was
addicted to vices, and therefore, mother was entrusted with the custody
and welfare of the minor as a guardian in the absence of father being
available. In such a situation, it cannot be said that the sale by mother on
15.12.1983 and 07.06.1985 was void ab initio, the sale was voidable.
6] The lower Appellate Court has failed to look into the
averments made in the plaint and in recording the finding that there is
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no case of the defendant No.1 that there were indifferences between the
mother and father of the minor and they were residing separately and
the custody of the minors was exclusively with the mother and she was
taking care of person and property of the minor. The substantial question
of law is answered accordingly.
7] The decision in Panni Lal's case relied upon by the learned
counsel Shri Kalangiwale, appearing for respondent No.1 turns upon its
facts and it has been distinguished in the case of Githa Hariharan (Ms)
cited supra.
8] In the result, the appeal is allowed. The judgment and order
dated 19.12.2015 passed by the lower Appellate Court in Regular Civil
Appeal No.5 of 2010, is hereby quashed and set aside. The decree passed
by the trial Court is restored. No order as to costs.
JUDGE
NSN
