Bombay High Court
Gulabsing Vijesing Tawar (Patil) And ... vs The State Of Maharashtra on 4 March, 2025
2025:BHC-AUG:6271
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IN THE HIGH COURT OF JUDICATURE OF BOMBAY
BENCH AT AURANGABAD
FIRST APPEAL NO. 2173 OF 2024
1. Gulabsing S/o Vijesing Tawar (Patil),
Age : 44 Years, Occ : Agri,
2. Sai Gulabsing Tawar (Patil),
Age : 13 years, Occ. Education,
(Through his Natural Guardian
Appellant No. 1 i.e. father of
appellant No. 2)
Boath R/o at Post Jalu,
Taluka Erandol, District : Jalgaon. ...APPELLANTS
(Original Applicants)
VERSUS
The State of Maharashtra ...RESPONDENT
................
Mr. A.V.Deshmukh : Learned Advocate for Appellants
Mr.V.S.Badakh : Learned AGP for Respondent-State
...............
CORAM : S. G. CHAPALGAONKAR, J.
Date of reservation : 25.02.2025
Date of Pronouncement : 04.03.2025
JUDGMENT :
1. Appellants impugns judgment and order dated 05.07.2024
passed by learned District Judge-5, Jalgaon in Civil Misc. Application No.
196 of 2023.
2. Appellants filed proceeding under Section 8 (2) of the Hindu
Minority and Guardianship Act, 1956, (Hereinafter referred to as "the Act"
for brevity), seeking permission to alienate/transfer land ad-measuring
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1 H 44 R from Gut No. 102/1, situated at Village Kunzar, Taluka
Chalisgaon, District Jalgaon. It is case of appellants that it is ancestral
property of appellants. Appellant No. 2 is minor son of appellant No. 1.
Land in question allotted to them in partition. They wish to alienate land
for a consideration of Rs. 4,61,000/- and want to spend amount for
education of appellant No. 2 and purchase plot or land at village Jalu.
Learned District Judge declined to grant permission to sell observing that
proposed sale is not for benefit of minor or it would not give any advantage
to him.
3. Mr. Deshmukh, learned Advocate appearing for appellants
submits that land in question is ancestral property of appellants.
Appellant No. 1 is guardian of appellant No. 2. Land in question is
allotted in partition and mutated in their names. Due to drought situation
at village Kunzar it is impossible for them to cultivate said land. Appellant
No. 1 is working in ginning factory at Jalu, Taluka Yerendol, District
Jalgaon for livelihood. They have received offer to purchase said land. He
would further submit that although permission for sale would not be
necessary in this case, an application was erroneously made before
learned District Judge, who pleased to reject it on merit.
4. Having considered submissions advanced, it appears from
record landed property proposed to be sold, is a joint family property of
appellants. Appellant No. 1 is father of appellant No. 2. As such, he is
natural guardian and Karta of family. If appellants have joint interest in
ancestral land, the provisions of Hindu Minority and Guardianship Act
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would not attract. It is well settled that harmonious reading of Section 8
with Sections 6, 9 and 12 of the Act, leaves no room of doubt that Section
8 has no application in case of fluctuating interests of minors in undivided
share in the joint family property. The Karta, who is incharge can exercise
his powers to deal with minor's interest in joint family property and to deal
with it keeping in mind aspect of legal necessity, interest and benefit of
minor. As such alienation would not be voidable at the instance of minor.,
once it is proved that same is made for legal necessity and for benefit of
minor. Aforesaid legal position has been explained by Supreme Court in
case of Shri Narayan Bal and others Vs. Sridhar Sutar and others, AIR
1996 SC 2371, in paragraph No. 5 of the judgment which reads thus :
"With regard o 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
provisions, and in particular Section 8, cannot be viewed in
isolation. If read together the intent of the legislative 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 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
he disposes of any immovable property of the minor, must
seek permission of the court. But since there need be no
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natural guardian for the minor's undivided interest in the
joint family property, as provided under Sections 6 & 12 of
the Act, the previous permission of the Court under Section
8 of 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 & 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."
5. In yet another judgment same view has been reiterated in case
of Sandhya Rajan Antapurkar and Others Vs. State of Maharashtra - 1,
wherein, following observations are made :
"11. Under the Hindu Law, the manager or karta of the family
of the minor can alienate minor's undivided interest in the
joint family property without the permission of the Court,
provided alienation is for legal necessity or for the benefit of
the minor and this right is left untouched by the Hindu
Minority and Guardianship Act, 1956."
6. In the light of aforesaid exposition of law, this Court holds
that appellant No. 1 being natural guardian and Karta of joint family can
deal with property for himself and on behalf of minor, keeping in mind
aspect of legal necessity. In that case provisions of Hindu Minority and
Guardianship Act would have no application.
7. In the result impugned order is quashed and set aside and
First Appeal is allowed and disposed off in aforesaid terms.
( S. G. CHAPALGAONKAR )
JUDGE
mahajansb/
1(2000) 2 Mh.L.J. 158
