Madhya Pradesh High Court
Kailash vs Kumari Sabiha on 9 February, 2024
Author: Achal Kumar Paliwal
Bench: Achal Kumar Paliwal
1
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE ACHAL KUMAR PALIWAL
ON THE 9 th OF FEBRUARY, 2024
SECOND APPEAL No. 19 of 2022
BETWEEN:-
1. KAILASH S/O CHHOGALAL, AGED ABOUT 24
YEARS, OCCUPATION: LABOUR VILL. TIJALPUR,
PO SALAMATPUR, TAH. AND DISTT. RAISEN
(MADHYA PRADESH)
2. SURESH ALIAS SURENDRA S/O CHHOGALAL
CASTE YADAV, AGED ABOUT 21 YEARS,
OCCUPATION: LABOUR R/O VILLAGE TIJALPUR
P.O.SALAMATPUR, TAHSIL AND DISTRICT
RAISEN (MADHYA PRADESH)
.....APPELLANTS
(BY SHRI SANTOSH ANAND - ADVOCATE )
AND
1. KUMARI SABIHA D/O ABDUL RAHMAN KHAN,
AGED ABOUT 25 YEARS, INAYATPUR, KOLAR
ROAD, TAH. AND DISTT. BHOPAL (MADHYA
PRADESH)
2. CHHOGALAL S/O PYARELAL, AGED ABOUT 70
YEAR S , OCCUPATION: FARMER R/O VILLAGE
KATSARI TAHSIL AND DISTRICT RAISEN
(MADHYA PRADESH)
3. AWADH NARAYAN S/O CHHOGALAL, AGED
ABOUT 33 YEARS, OCCUPATION: FARMER R/O
VILLAGE KATSARI TAHSIL AND DISTRICT
RAISEN (MADHYA PRADESH)
4. STATE OF MADHYA PRADESH THROUGH THE
C O L L E C T O R DISTRICT-RAISEN (MADHYA
PRADESH)
.....RESPONDENTS
( SHRI GAURAV PATHAK P.L. APPEARING ON BEHALF OF ADVOCATE
Signature Not Verified
GENERAL.
Signed by: S HUSHMAT
HUSSAIN
Signing time: 27-02-2024
10:43:26
2
This appeal coming on for admission this day, th e court passed the
following:
ORDER
This appeal has been filed by the appellants against the judgment dated
22.09.2021 passed by Principal District Judge, Raisen in RCA No.21/2019
arising out of judgment dated 26.9.2019 passed by Civil Judge, Class-I, Raisen
in Civil Suit No.1900086/2016.
2. Brief facts of the case are that planitiffs filed a suit for declaration of
title as well as declaring sale deed executed by defendants No.2 and 3 in favour
of defendant No.1 is null and void to the extent that plaintiffs' share on the
ground that in the suit property, plaintiffs have 1/3 share each and plaintiffs
share had been soled without obtaining prior sanction/permission. There was no
bonafide requirement to sale property, defendant no.2 is in the habit of drinking
and plaintiffs are son of defendant No.2 and defendant No.3 is brother of
plaintiffs.
3. Learned counsel for the appellants after referring to judgments passed
by Hon'ble Apex Court in the cases of Saroj Vs. Sunder Singh and others,
(2013) 15 SCC 727, Nangali Amma Bhawani Amma Vs. Gopal Kishnan
& others, (2004) 8 SCC 785, Nagappan Vs. Ammaasai Gounder &
others, 2004 13 SCC 480 submits that in view of Section 8 (2) of Hindu
Minority and Guardianship Act, 1956 father of appellant was not competent to
sold the minor property. At the time of execution of sale deed, appellant was
minor. Further, after referring to judgment in the case of Amirtham
Kudumbah Vs. Sarnam Kudumban(1991) 3 SCC 20, it is also urged that
where there are pronouncements of Apex Court, of both sides. statutes itself
should be referred and beneficial to minor should be adopted. It is also urged
that learned Courts below have wrongly dismissed the suit filed by the
appellants. On above grounds, it is also urged that substantial questions of law
arises in the second appeal and it be admitted for final hearing.
4. I have heard learned counsel for the appellant and perused the record
of the case.
5. It is apparent from the record of the case that trial Court decreed the
suit but the Appellate Court allowed the appeal of the defendants and dismissed
the plaintiffs suit.
6. Learned trial Court vide judgment dated 26.09.2019 passed in RCS
No.1900086/2016 decreed the suit but the Appellate Court vide judgment dated
22.09.2021 passed in RCA No.21/2019 allowed the appeal filed by the
defendants and dismissed the suit.
10. Perusal of submissions of learned counsel for the appellants reveals
that sole issue involved in the case is whether defendants No.2 and 3 was
required to obtain prior permission or sanction under Section 8 (2) of the Hindu
Minority and Guardianship Act before executing sale of plaintiffs share.
Learned counsel for appellants relying upon Nangali Amma (supra), Saroj
(supra) and Nagappan (supra) has submitted that defendants No.2 and 3 had
not obtained prior permission/sanction as per section 8 (2) and (3) of Hindu
Minority and Guardianship Act, therefore, sale deed executed by them was
voidable at the instance of appellants.
11. Perusal of plaint averments reveals that in para-1 of plaint, it is
mentioned that plaintiffs have 1/3rd share each in survey no.44/3 and plaintiff as
well as defendant No.3 are the owner of above number. In plaint itself, it is no
where mentioned that plaintiffs as well as defendant Nos.2 and 3 are not
member of Joint Hindu Family and father of defendant No.2 is not
Karta/Manager of above Joint Hindu Family. It is also not averred in the plaint
that suit property is not Joint Hindu property of plaintiffs and defendants No.2
and 3. Admittedly, plaintiffs as well defendants No.2 and 3 are son and father
and if we gone through the depositions of plaintiffs witness then from
deposition of plaintiffs witnes, it is more than apparent that plaintiffs and
defendants no.2 and 3 are member of Joint Hindu Family, suit property appears
to be joint Hindu Property and appellant No.2 appears to be Karta of above
Joint Hindu Family Property. Further, perusal of paras 12, 13, 23 and 24 of the
appellate Court judgment also reveals that it is not proved that suit property is
ancestral property of plaintiffs/defendants and Appellate Court has also
concluded that plaintiffs and defendants are members of Joint Hindu Family,
property is Joint Hindu Family proprty and father of plaintiff is Karta of above
Hindu Family Property.
12. With respect to above facts, para 5 of Sri Narayan Bal and others Vs.
Sridhar Sutar and Others (1996) 8 SCC 54 is relevant, which reads as follows:-
"5......................................................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 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.
13. Thus, principle of law laid down in the case of Sri Narayan Bal
(supra) are applicable to the facts of the present case.
14. In view of forgoing in the forgoing paras, in this Court's considered
opinion, in the instant case, defendant No.2 was not required to obtain prior
permission under section 8(2) and (3) of the Hindu Minority and Guardianship
Act before executing sale deed with respect to plaintiffs share for family
necessity.
(ACHAL KUMAR PALIWAL)
JUDGE
sh
