Smt. Aripally Laxmi vs To Whom So Ever It May Concern
2023 Latest Caselaw 349 Tel

      THE HON'BLE DR. JUSTICE CHILLAKUR SUMALATHA

                                     AND

        THE HON'BLE SMT. JUSTICE M.G. PRIYADARSINI

                           F.C.A. No.75 of 2022


JUDGMENT: (Per the Hon'ble Smt. Justice M.G. Priyadarsini)

       Assailing the order dated 03.12.2021 in G.W.O.P. No.20 of

2021 passed by the Judge, Family Court-cum-Additional District &

Sessions Judge, Nizamabad, the appellant preferred the present

appeal.


2.     Vide    aforesaid    order,   the    Court    below     dismissed the

application filed by the appellant under Section 29(a) & (2) of the

Guardians and Wards Act, 1890 (for short 'the Act, 1890') r/w

Section 8(2) of the Hindu Minority and Guardianship Act, 1956 (for

short, 'the Act, 1956')        seeking ratification of sale transaction

covered by registered sale deed vide document No. 2086 of 2017

entered between the appellant and Kede Lachmanna in respect of

the schedule property as absolute sale transaction on her behalf

and also on behalf of her minor children i.e., Kumari Aripally

Harini, Master Harshith and Kumari Hasini.


3.     The appellant herein is the petitioner before the Court below.

She is the mother of three minor children i.e., Kumari Aripally

Harini, Master Harshith and Kumari Hasini.                   According to the
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                                                         F.C.A. No. 75 of 2022



appellant, her husband, Aripally Chinna Narasaiah, was absolute

owner and possessor of petition schedule property i.e., land to an

extent of Ac.0.26 guntas in Sy. No. 621/EE, situated at Pipri

Village, Armoor Mandal, Nizamabad District having purchased the

same from its original owner through an unregistered sale deed.

Upon the death of her husband on 29.05.2015 leaving the

appellant and the three minor children as his legal heirs, the

appellant got the property mutated in her name, converted the said

land into house site plots and sold the same in favour of Kede

Lachanna vide registered sale deed document No. 2086 of 2017 by

delivering the vacant possession in his favour. In light of the fact

that the minor children of appellant are equally having share in the

subject property but the sale deed was executed exclusively by the

appellant, since the bank authorities rejected the request of the

purchaser for grant of housing loan, the appellant had approached

the Court below with the present O.P. seeking ratification of the

sale transaction contending that she being the Karta of the Hindu

Joint Family, has sold the property and the sale consideration of

3/4th share was utilized only for the benefits of the minors.


4.    Before the Court below, apart from marking 21 documents

such as title deeds, pahanies, death certificate of husband of

appellant, aadhar cards of parties of sale transaction & minors, the

appellant got examined P.Ws.2 and 3. The evidence of P.Ws.2 and
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                                                              F.C.A. No. 75 of 2022



3 is to the effect that the late husband of appellate was owner and

possessor of the petition scheduled property, upon his death on

29.05.2015

, the appellant got the property mutated on her name,

converted the land into house site plots, sold away the plots in

favour of Kede Lachanna by executing a registered sale deed and

utilized the sale consideration for the benefit of minors.

Considering the said evidence, the Court below was of the view that

the sale transaction covered by the registered sale deed document

No. 2086 of 2017 is in contravention of Section 29 of the Act, 1890

as enunciated under Section 30 of the Act, 1890 and therefore, the

said transaction cannot be approved by the Court at this juncture

and accordingly dismissed the O.P.

5. The only contention of the learned counsel for the appellant

is that the appellant is none other than the mother and the natural

guardian of the minors, who has executed the sale deed vide

document No. 2086 of 2017 in favour of Kede Lachmanna in the

capacity of Karta of joint family by selling away the petition

schedule property, which is the undivided property of the joint

family, for the benefit of minors and as such, the Court below

ought to have granted permission ratifying the sale transaction as

the said sale transaction is not void under the Act, 1956 or under

Act, 1890. Since the sale is not absolute void, but is voidable, it is

contended that even subsequent to the sale deed, the sale can be 4 Dr.CSL,J & MGP,J F.C.A. No. 75 of 2022

validated by granting permission. It is lastly contended that

inasmuch as the minors and their mother (appellant) constitute a

Joint Hindu Family upon the death of late Aripally Chinna

Narsaiah, each of the member is having undivided share in the

property and in the absence of late Aripally Chinna Narsaiah, the

appellant being the natural guardian of minors can alienate even

the share of the minors in the property being Kartaa of the Joint

Hindu Family.

6. There is no dispute that upon the death of Aripally Chinna

Narsaiah in the year 2015, the appellant-wife and the three minor

children, being his legal heirs, got undivided share over the petition

schedule property. Even as per the admissions of appellant, the

property that was sold by her through registered sale deed vide

document No. 2086 of 2017 is a joint family property in which her

minor children, three in number, are having 3/4th share. She had

executed the registered sale deed in her individual capacity. It is

only when the bank officials refused to grant housing loan in

favour of the purchaser as against the petition schedule property,

the appellant approached the Court below seeking ratification of

the said sale transaction. As rightly pointed out by the Court

below, even the appellant did not bother to make the minor

children as parties to the O.P. nor has she shown their names in

the cause title.

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                                                                      F.C.A. No. 75 of 2022

7. In the present case, sale transaction that took place in 2015

is sought to be ratified by the appellant by invoking the provision

under Section 29 of the Guardians and Wards Act, 1890 and

Section 8 of the Hindu Minority and Guardianship Act, 1956. As

seen from the impugned order, the Court below dismissed the O.P.

mainly on the ground that since the appellant had not obtained

prior permission of the Court to sell the property of the minors as

required under Section 29 of the Act, 1890 subsequently, she

cannot seek for ratification of such sale transaction. In this

context, it is relevant to refer the provisions of Section 29 of the

Act, 1890 which deals with the limitations of powers of guardian of

property.

"29. Limitations 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 change, 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."

8. Thus, a reading of Section 29 of the Act, 1890 clearly

indicates that the limitations prescribed thereunder are applicable

only in cases where a person has specifically been appointed or

declared to be a guardian of the property of a minor. However, in 6 Dr.CSL,J & MGP,J F.C.A. No. 75 of 2022

the case on hand, upon the death of Aripally Chinna Narasaiah,

the appellant, being his wife, became the natural guardian of their

three minor children. Therefore, the limitations/prohibitions

contained under Section 29 of the Act are not applicable to the

case on hand.

9. Now, the other contention of the learned counsel for the

appellant is that as per Section 8 of the Act, 1956, no previous

permission of Court is required to be obtained before disposing of

an immovable property wherein the minor''s interest/share is

involved in respect of a joint Hindu family property

10. At this juncture, it is relevant to refer Sections 6 & 8 of the

Hindu Minority and Guardianship Act, 1956. Section 6 prescribes

the natural guardians of a Hindu minor, which reads as under:-

"6. Natural guardians of a Hindu minor.--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 the mother:

(b) xxx

(c) xxx"

                                                                (emphasis added)
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                                                                     F.C.A. No. 75 of 2022

11. Thus, as per Section 6 of the Act, 1956, the appellant is no

doubt, natural guardian of her minor children. The words

"excluding his or her undivided interest in joint family property"

which have been put in brackets make it clear that undivided

interest of a Hindu minor is excluded from the purview of the

operation of the provisions of the Act, 1956 and the subject-matter

with which the Act deals is limited to guardians in respect of

minor's person or in respect of minor's property other than his

undivided interest in joint family property, whether they be natural

guardians or testamentary guardians or guardians appointed or

declared by Court. The concept of a guardian in respect of

undivided interest in the joint family property is specifically

excluded from the scope of the Act.

12. Section 8 deals with ''powers of natural guardian'' and the

same is extracted as follows:

"8. Powers of natural guardian. -(1) The natural guardian of a Hindu minor has a power, subject to the provisions of this section, to do all acts which are necessary or reasonable and proper for the benefit of the minor or for the realization, protection or benefit of the minor's estate, but the guardian can in no case bind the minor by a personal convenant. (2) The natural guardian 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 the minor, or

(b) lease any part of such property for a term exceeding five years or for a term extending more than one year beyond the date on which the minor will attain majority.

(3) Any disposal of immovable property by a natural guardian, in contravention of sub-section (1) or sub-section (2), is voidable at the instance of the minor or any person claiming under him.

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                                                                      F.C.A. No. 75 of 2022

(4) No Court shall grant permission to the natural guardian to do any of the acts mentioned in sub-section (2) except in case of necessity or for an evident advantage to the minor.

(5) The Guardians and Wards Act, 1890, shall apply to and in respect of an application for obtaining the permission of the court under sub-section (2) in all respects as if it were an application for obtaining the permission of the court u/s 29 of that Act, and in particular

(a) proceedings in connection with the application shall be deemed to be proceedings under that Act within the meaning of section 4A thereof;

(b) the Court shall observe the procedure and have the powers specified in sub-sections (2), (3) and (4) of Section 31 of that Act; and

(c) an appeal shall lie from an order of the court refusing permission to the natural guardian to do any of the acts mentioned in sub-section (2) of this Section to the court to which appeals ordinarily lie from the decisions of that court.

(6) In this section, "court" means the city civil court or an district court or a court empowered u/s 4A of the Guardians and Wards Act, 1890 within the local limits of whose jurisdiction the immovable property in respect of which the application is made is situate, and where the immovable property is situate within the jurisdiction of more than one such court, means the court within the local limits of whose jurisdiction any portion of the property is situate.

13. It is also relevant to refer Section 12 of the Act, 1956, which

reads thus:

"12. Guardian not to be appointed for minor's 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 xxx"

14. Thus, Section 8 of the Act, 1956, prevents natural guardian

of Hindu minor to transfer by sale, gift, exchange or otherwise any

part of immovable property of the minor without previous

permission of the Court. This restriction on the natural guardian in 9 Dr.CSL,J & MGP,J F.C.A. No. 75 of 2022

relation to the property of the minor applies only to the separate or

absolute property of the minor. It does not include the minor's

undivided share in the joint family property, as, under Section 6,

there cannot be a natural guardian in respect of such property

which is specifically excluded. The restriction contained in Section

8 do not apply in respect of the undivided interest of a minor in

joint family property and consequently Section 8 does not debar

the manager or Karta of a joint Hindu Family from alienating joint

family property, including the interest of minor without obtaining

the previous permission of the Court, even if the manager or Karta,

happens to be the natural guardian in respect of the separate

property of any one or more of the minor coparceners. Section 8

does not require that any previous permission of the Court should

be obtained before effecting such alienation. Under Hindu law a

manager and Karta of a joint Hindu family can alienate joint family

property so as to bind the interest of minor coparceners in such

property provided the alienation is either for legal necessity or for

the benefit of the minor. The composite High Court of Andhra

Pradesh in the case of Koutarapu Venkata Chenchayya v.

Koutarapu Ramalingam and Others1 has observed that 'the Karta

of a joint Hindu family is entitled to alienate for value, joint family

property, so as to bind the interest of both adult and minor

AIR 1957 AP 744 10 Dr.CSL,J & MGP,J F.C.A. No. 75 of 2022

coparceners in the property, provided the alienation is made for legal

necessity and/or the benefit of the estate'.

15. While answering the reference whether the provisions of

Section 8 of the Hindu Minority and Guardianship Act, 1956 were

applicable to the Joint Hindu Family property sold or disposed of

by the Karta, the Apex Court in Narayan Bal & Ors. V. Sridhar

Sutar & Ors.2, considering Sections 6, 8 & 12 of the Act, has

observed as under:-

"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, whereunder 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 natural guardian for the minor's undivided interest in the joint family property, as provided under sections 6 to 12 of the Act, the previous permission of the Court under Section 8 of disposing of the

AIR 1996 SC 2371 11 Dr.CSL,J & MGP,J F.C.A. No. 75 of 2022

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."

16. The Apex Court in a recent decision reported in M.R. Vinoda

vs. M.S. Susheelamma3 dealing with the issue has categorically

held that Section 8 of the Act, 1956 which requires a guardian of a

Hindu minor to seek necessary permission of the Court before

he/she disposes of any immovable property of the minor, but the

same is not applicable when a Karta or adult head/member of the

family alienates joint Hindu family property. In the case on hand,

admittedly the appellant is the head of the family after the death of

her husband; that after the death of the husband, the property in

question was devolved upon the appellant and the minor children

as the legal heirs of the deceased. In the present case, the

appellant has asserted, apart from examining P.W.2, that the sale

proceeds were utilized for the benefit of the minors. However, no

details or particulars in this regard or the ages of the minors were

furnished by the appellant in the O.P.

17. For the forgoing reasons, we are of the view that the sale

transaction entered by the appellant in the capacity of karta is not

(2021) SCC Online SC 1258 12 Dr.CSL,J & MGP,J F.C.A. No. 75 of 2022

bad either under the provisions of Section 29 of the Guardians and

Wards Act, 1890 or under the Hindu Minority and Guardianship

Act, 1956. However, we are of the view that while a minors (being

members of a joint Hindu family) are entitled to (a) object to sale of

their share in the joint family property, and (b) get the sale made in

favour of a third party purchaser declared void, such right of the

minors is subject to (a) limitation provided under the Limitation

Act, 1963 i.e., within three (3) years from the date of attaining

majority and (b) the minors proving that the alienation made by the

Karta of the joint Hindu family was without any legal necessity

and/or for benefit of the estate.

18. In the result, the appeal stands disposed of as indicated

above. No order as to costs.

Miscellaneous Petitions, if any pending, shall stand closed.

_________________________________ DR. CHILLAKUR SUMALATHA, J

________________________ M.G. PRIYADARSINI, J 27-01-2023 tsr 13 Dr.CSL,J & MGP,J F.C.A. No. 75 of 2022

THE HON'BLE DR. JUSTICE CHILLAKUR SUMALATHA

AND

THE HON'BLE SMT. JUSTICE M.G. PRIYADARSINI

F.C.A. No.75 of 2022

DATE: -01-2023