Sirikonda Veera Sameera Kumar Dev vs Ogiralal Gouri Shankar and others

Ramesh Madhav Bapat, J

The appellant herein was the original plaintiff, who had instituted OS No.191 of 19S3 in the Court of the Principal Subordinate Judge, Guntur. The plaintiff had made averments in the suit that the suit schedule property originally belonged to the first defendant by name Ogirala Venkata Subbamma. She had one son by name Krishna Murthy, who is the father of defendants 2 and 3 and husband of Ramatulasamma, who is the mother of the defendants 2 and 3. As the said Krishnamurthy was leading a way-ward life and he was not looking after the family and not attending to the welfare of the children, the first defendant, who was holding the property, settled the said property in the names of defendants 2 and 3, who are the grand-sons of first defendant. They were represented by their mother Ramahdasamma as Guardian by executing a Registered Settlement Deed dated 13 -12-1970 reserving life interest for herself and giving vested remainder rights in the property to the defendants 2 and 3. The property is situated at Guntur. The family of the defendants later on moved to Ongolc and they were residing there. As the suit house, which is an old tiled house, was badly in need of repairs and it was not fetching proper rent and as they were not in a position to effect the required repairs, the first defendant, who was having life interest and defendants 2 and 3, who were having vested remainder rights represented by their mother, as the Guardian wanted to dispose of the property and therefore they entered into an agreement of sale dated 25-6-1980 in favour of the plaintiff, agreeing to sell the same for consideration of Rs.3V,500/-. An amount of Rs.7,500/- out of sale consideration was paid by way of advance to the defendants 1 to 3 who specifically agreed to obtain the permission of the District Court, Guntur for selling the property on behalf of the minor defendants 2 and 3 and execute the required registered sale deed in favour of the plaintiff within the specified period.

It was further alleged by the plaintiff that defendants 1 to 3 filed a petition in the District Court, Guntur seeking such permission and the District Court directed the mother of the defendants 2 and 3 to get herself appointed as Guardian of the minors and as such OP No.206 of 1980 was filed in the District Court and the mother was appointed as Guardian of her two minor sons in the said OP.

It was further pleaded by the plaintiff that defendants failed to pursue the matter to obtain permission of the District Court for selling the suit property to the plaintiff- Later on, southern portion of the suit house, which was in the occupation of some tenants, fell vacant and the plaintiff was permitted to take possession of the said portion of the house and he accordingly took, possession of the same and continued to reside in the said portion.

It was further pleaded by the plaintiff that later on defendants 1 to 3 started giving evasive replies and did not obtain the required permission from the District Court and did not execute the sale deed in favour of the plaintiff in pursuance of the suit agreement of sale. The defendants started issuing notices setting up the plea that the plaintiff was occupying a portion ofthe suit house as their tenants and started demanding him to pay the rent Inspite of the notice issued by the plaintiff demanding the defendants 1 to 3 to execute the required sale deed after obtaining the permission of the District Court as agreed, they refused to do so. As such the plaintiff instituted OS No.191 of 1983 on the file of the Principal Subordinate Judge, Guntur against defendants 1 to 3 and also against the 4th defendant, who was occupying the other portion of the suit house as tenant under defendants 1 to 3 seeking the specific performance of the contract of sale and recovery of possession of the suit schedule house from the defendants.

The first defendant and defendants 2 and 3, who were minors represented by their mother as Guardian, contested the suit contending that the plaintiff manipulated the suit agreement of sale in his own favour by colluding with the father of the minor defendants 2 and 3 and by committing fraud and misrepresentation and therefore the suit agreement is not valid and legal and as such the plaintiff is not entitled for the discretionary relief of specific performance of agreement of sale.

It was further contended by the defendants that having come to know about the fraud and misrepresentation, the mother of the minor defendants 2 and 3 resiled from the contract as it was not for the benefit of the minor defendants and that the plaintiff is, therefore, not entitled to seek the relief of specific performance of such agreement. It was also contended by the defendants that the plaintiff occupied the southern portion of the suit house as a tenant promising to pay the rent and later on failed to pay the rent to them and that he is liable to pay the rent due to them for occupying their house.

It further appears from the record that during the pendency of the suit, the 2nd defendant attained the age of majority and contested the suit by filing separate written statement contending that the agreement said to have been executed by his mother and grand-mother in favour of the plaintiff is not valid and binding upon him and his brother, who is the 3rd defendant as their mother had no right to alienate such property by entering into a contract with the plaintiff. It was further contended that the act of his mother in executing the alleged agreement of sale is in violation of Section 8 of the Hindu Minority and Guardianship Act, 1956 and therefore pleaded that the suit is liable to be dismissed.

It further appears from the record that the first defendant in OS No.577 of 1984 filed another suit OS No.9 of 1986 on the file of the Subordinate Judge, Guntur against the plaintiff in OS No.191 of 1983 contending that the plaintiff occupied the southern portion of the suit house in which she is having life interest and the plaintiff is a tenant and refusing to pay the rent, as such the suit was filed for recovery of the rent. As far as this appeal is concerned, OS No.577 of 1984 is not the subject-matter but suffice it to say that the Subordinate Judge tried both the suits jointly and held that the agreement of sale, which is alleged to have been executed by the defendants 2 and 3 in favour of the plaintiff was for the benefit of minors and he granted decree for specific performance of the contract. The defendants 2 and 3 in OS No.191 of 1983 filed the appeal before this Court in AS No.1788 of 1989 questioning the decree and judgment passed by the Subordinate Judge, which was disposed of by the learned single Judge of this Court and the decree passed in OS No.191 of 1983 was set aside by the learned single Judge of this Court. Aggrieved by the judgment and decree of the- learned single Judge dismissing the suit of the plaintiff, the plaintiff has filed the present LPA.

Considering the pleadings of both the parties and the evidence led before the trial Court, the only point that arises for our consideration is as to whether an agreement of sale if at all executed by the mother of the defendants 2 and 3 without obtaining the permission of the District Court is valid and is binding on the minor children ?

Section 8 of the Hindu Minority and Guardianship Act reads as follows :

"8(1) The natural guardian of a Hindu minor has 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 realisation, protection or the benefit of the minor''s estate, but the guardian can in no case bind the minor by a personal covenant.

(2) The natural guardian shall not, without the previous permission of the Court, --

(a) mortgage or charge, or transfer by sale, exchange or otherwise any part of 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.

(4) xxx xxx xxx (5) xxx xxx xxx (6) xxx xxx xxx

Section 8(2) of the aforesaid Act contemplates that the natural guardian of a Hindu minor shall not alienate the properties of the minors without the previous permission of the Court and Section 8(3) of the aforesaid Act provides that any disposal of immovable property by a natural guardian in contravention of subsection (1) or sub-section (2) is voidable at the instance of the minor or any person claiming under him.

As stated earlier the second defendant became major and filed separate written statement and contended that his mother had no right to sell his property and if at all she has entered into an agreement of sale, it is not binding on him. In other words, it can be stated that the minor after attaining the majority exercised option of not agreeing to sell the property to the plaintiff.

The learned Counsel Mr. B.V. Subbaiah appearing on behalf of the appellant herein submitted at the Bar that as a matter of fact, the mother of the minor children and the grand-mother of minor children had entered into an agreement with the plaintiff agreeing to sell the suit schedule house to the plaintiff and they had also received consideration of Rs.7,500/- by way of advance. The learned Counsel further submitted that in an agreement of sale, there was a covenant that the mother of the minor would file a legal proceedings in the District Court under the Hindu Minority and Guardianship Act and would seek the permission of the District Court and would execute the sale deed in favour of the plaintiff but subsequently no action was taken by the mother of the minors. The learned Counsel further submitted that whatever the part of the agreement was to be performed by the plaintiff was performed by him, the defendants failed to do the part of their contract and as such the learned trial Judge rightly held that the agreement of sale Ex. A2 is a valid document and the plaintiff is entitled for the relief of specific performance. The learned Counsel further submitted that the first defendant executed an agreement as a mother of minor defendants 2 and 3 voluntarily out of her free-will and proposed to sell the property for the benefit of the minor defendants 2 and 3 and there are absolutely no reasons to interfere with the findings of the trial Court in view of the evidence adduced in the suit,

It is seen that Ex.A1, which is a registered Settlement Deed dated 30-12-1970, was executed by the first defendant long prior to the suit agreement of sale. She choose to settle the property in favour of her two minor grand-children, who arc minor defendants 2 and 3, by giving vested remainder and reserving the life interest in the suit schedule property. She had shown the mother of the minors as a Guardian on account of the fact tliat her only son Krishna Murthy, who was the rather of defendants 2 and 3, was leading a way-ward life and was not looking after the interests of the minors.

The learned Counsel Mr. B.V. Subbaiah further submitted tliat it is in the evidence that the suit house was in dilapidated condition. It was beyond the capacity of the defendants to carry out the repairs and therefore they had shifted from Guntur to Ongole and as such the defendants were not in need of the suit house. Therefore, they had agreed to sell the suit house and there is a covenant in the agreement Ex. A2 tliat the sale amount will be kept in Fixed Deposit for the benefit of minor children and as such Ex.A2 itself clearly shows that the property was intended to be sold by the mother of minor children and grand-mother for the benefit of the minor children.

While rebutting the aforesaid arguments, the learned Counsel Mr. V. Parabrahma Sastry appearing on behalf of the defendants submitted at the Bar that the law gives a right to rescind from the contract when the minor attained the age of minority and the law also provides that if at all the guardian of the minor children wants to sell the property which stood in the name of minor children, the guardian has to seek the permission from the District Court. Otherwise, such contract or agreement becomes void and not enforceable in law. The learned Counsel Mr. V, Parabrahma Sastry placed reliance on the decision of this Court reported in Kanchi Kamma v. Yerramsetti, 1973 (2) An. WR 74, and another decision of this Court reported in Meka Peethambaram v. Nanduri Lakshmmarayana, 1978 (1) An. WR 512 and submitted at the Bar that as per the aforesaid rulings even the guardians of the minor children arc not entitled to sell the properties of minors unless the permission from the District Court is sought for.

We are in agreement with the submission made by the learned Counsel for the respondents having regard to the legal position settled in several binding pronouncements.

Our attention was also invited to the ruling reported in B. Ramender Reddyv. Satya Narayana Reddy, 1986 (1) ALT 240. It was held by their Lordships at para 8 of the judgment as follows:

"8(1) The natural guardian of a Hindu minor has 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 realisation, protection or benefit of the minor''s estate; but the guardian can in no case bind the minor by a personal covenant.

(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.

(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.

Hence after the Act came into force any agreement entered into by the guardian without the sanction of the Court cannot be enforced against the minor or his estate and no question of the Court examining the beneficial nature of the transaction and the requisite capacity of the minor to do so would arise and hence under subsection (3) the minor can avoid the contract. Such power is given not only to the minor but also persons claiming under him."

Our attention was also invited by the learned Counsel for the respondents to the ruling reported in Biswanath Charit Vs. Damodar Patra and Others, . Their Lordships were pleased to hold at para 9 of the judgment as under :

"9. The point raised by Mr. Banerjee appears to us to be of some importance. It must be remembered that the decision of the Privy Council in the case of Mir Sarwarjan v. Fakhrucidm, (1912) 39 Ind. App 1, stands revised to a great extent by the view expressed by the Privy Council in the later decision in the case of Subrahtnanyam v. Subba Rao, 75 Ind. App 155 = AIR 1948 PC 95, where the Privy Council approved the following principle enunciated by Pollock and Mulla, namely, "It is, however, different with regard to contracts entered into on behalf of a minor by his guardian or by a manager of his estate. In such a case, it has been held by the High Courts of India, in cases which arose subsequent to the governing decision of the Privy Council that the contract can be specifically enforced by or against the minor, if the contract is one which is within the competence of the guardian to enter into on his behalf so as to bind him by it, and, farther if it is for the benefit of the minor. But if either of these two conditions is wanting the contract cannot be specifically enforced at all," One must, however, remember that such was the principle enunciated and approved by the Privy Council at a time when under the Hindu Law the natural guardian of a Hindu minor had power in the management of his estate to mortgage or sell any part, thereof in case of necessity or for the benefit of the estate. At that time, the limitations enacted in Section 29 of the Guardians and Wards Act, 1890, were applicable to a guardian appointed or declared by the Court and not to a natural guardian. But there has been a material change in the law in this regard introduced by the Hindu Minority and Guardianship Act, 1956. Section 8 of the said Act has rendered the powers of the natural guardian substantially the same and subject to the same limitations as are imposed on the powers of a guardian declared or appointed by a Court under the Guardians and Wards Act. Subsection (2) has taken away the independent power of alienation originally possessed by the natural guardian under the Hindu Law and forbids mortgage or charge or transfer by sale, gift, exchange or otherwise or even lease for a term exceeding 5 years or for a term extending one year beyond the date on which the minor will attain majority, any part of the immovable property of the minor except with the previous permission of the Court. Reflex of such a change on a claim of specific performance of a contract for any transfer coming within that sub-section appears not to have been considered by the Courts below. We, feel no hesitation in agreeing with and accepting the view that it was competent for the natural guardian to enter into and execute an agreement for sale as in the present case for the benefit of the minors and such an agreement will not be void altogether but only voidable, at the instance of the minor if it can be shown to be not for his benefit. But in our view the mere fact that the agreement is not void would not by itself render it straightway specifically enforceable at the instance of the purchaser by the natural guardian. It could have been so enforceable if, as the law stood before, the natural guardian himself could have fulfilled the contract by executing the conveyance. But that power has since been made subject to the previous permission of the Court. Complying with a decree for specific performance as made in the present case would constitute contravention on the part of the natural guardian of sub-section (2) of Section 8 of the Hindu Minority and Guardianship Act, and.it is settled principle that no Court should compel a person to contravene the law. The matter can be looked at from another angle, namely, that even where the Court grants such a decree and the natural guardian executes the conveyance in terms of that decree, that transfer can be set at naught at the instance of the minor merely on the ground that such transfer is in contravention of sub-section (2). No Court is expected to pass such an infructuous decree. But the question still remains what would happen to such an agreement, particularly when as has been found in the present case the agreement is within the competence of the natural guardian and is for the benefit of the minor. Would it remain an agreement not enforceable in law ? In our view the legal position is that such an agreement is enforceable but only upon a previous permission being obtained from the Court. Where the natural guardian in exercise of his powers under subsection (1) of Section 8 of the said Act enters into such an agreement for the benefit of the minor he by necessary implication enjoins himself to take the necessary permission from the Court and then execute the conveyance which would not contravene in any manner sub-section (2) thereof. The decree in such a case, therefore, should be in terms similar to the one as the Supreme Court indicated in the case of Mrs. Chandnee Widya Vati Madden Vs. Dr. C.L. Katial and Others, . The decree must direct the natural guardian to seek the necessary permission from the Court as contemplated by sub-section (6) of Section 8 and such permission being obtained to effect the conveyance.''''

The learned single Judge of this Court relied upon a ruling reported in Darbara Singh Vs. Karminder Singh and Others, . It was observed by His Lordship V.R. Krishna Ayyar, J., as under :

"In the present case, however, we are concerned with a specific statute, namely, Section 8 of the Hindu Minority and Guardianship Act, 1956. It is indisputable that no sanction of the Court was taken for the alienation in the present case by the mother acting as the guardian of the minor, and, therefore there is a plain violation of Section 8(2) of the Act. Consequently Section 8(3) is attracted and the disposal of the property even though by natural guardian becomes voidable at the instance of the minor. Should this process of avoidance be effected by a suit to set aside the alienation, or is it enough if the minor repudiated the transaction by his own act. I have considered this question in an unreported decision in S.A. No.683/69 (Ker.) and the view (1971 Ker. LT (SN) 32) expressed by me there, which after all the arguments on both sides. I am not inclined to change, is that when a minor is entitled to avoid a transfer effected by his guardian on the ground of absence of permission of the Court, it becomes a nullity on his unilateral act. He can merely avoid it by his conduct and there is no need to file a suit for avoiding the transfer."

The learned single Judge of this Court has also extracted the passage from the commentary on Principles of Hindu Law by Mulla 1990 Edition page 866. The learned Author has observed as follows :

"Section 8(2) : The effect of this subsection read with Section 5 of the Act is to supersede the law relating to the powers of a natural guardian in the matter of disposal of the immovable property of the minor hitherto applied in the case of Hindu Minors. It is now laid down in express and explicit terms that the natural guardian cannot without the previous permission of the Court, mortgage or charge, or transfer by sale, gift exchange or otherwise any part of the immovable property of the minor, nor can he without such previous sanction lease any part of such property for any term exceeding five years or for a term extending more than one year beyond the date on which the minor attains majority. Application for the sanction of the Court cannot be made by an intending purchaser or other transferee. Only the natural guardian would have to apply for sanction. Even in respect of an agreement by a natural guardian which is within his or her competence and for the benefit of the minor, the legal position is that such an agreement is enforceable only on a previous permission being obtained from the Court."

We are in agreement with the views expressed by the learned single Judge.

Mr. B. V. Subbaiah, learned Counsel for the appellant has argued that whatever the part of the contract was to be performed by the plaintiff was performed by him but the part of the contract which was to be performed by the defendants was not performed by them by obtaining the permission of the District Court. The finding of the trial Court that the sale was for the benefit of minor has been stressed and it was pointed out that the agreement not being void, can be enforced if it was for the benefit of minor and the minor cannot avoid the same in such an event. The above argument may be plausible but we are inclined to hold that the legal position is totally against the plaintiff and therefore the learned single Judge rightly allowed the appeal and dismissed the suit filed by the plaintiff for specific performance of the contract. The statutory mandate cannot be allowed to be defeated by placing any other interpretation. The appellant ought to have taken the necessary precaution of getting the permission from Court, more so when the guardian filed a petition initially and later withdrew the same.

We find no reasons to interfere with the judgment and decree under appeal. Hence, we dismiss the LPA. We make no order as to costs.

Learned Counsel for the petitioners has sought leave to appeal to the Supreme Court. We are unable to certify under Article 134-A read with Article 133 of the Constitution of India that there is any substantial question of law of general importance fit to be decided by the Supreme Court. Hence the oral application for leave is rejected.