High Court
Legal Reasoning
1 fa2760.24 jugmentIN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABADFIRST APPEAL NO. 2760 OF 2024Pooja W/o Ganesh Popalghat,Age; 28 years, Occ; Household,R/o; Salegaon, Tq. Kaij, District Beed,Now Residing at Malwadi, Punjhawale,Pune City, Maharashtra....APPELLANT. VERSUSThe State of Maharashtra ...RESPONDENT.…………….Mr.R.J.Nirmal : Learned Advocate for AppellantMr. V.S. Badakh : Learned Advocate for Respondent-State…………... CORAM : S. G. CHAPALGAONKAR, J. Date of reservation : 10.02.2025 Date of Pronouncement : 24.02.2025JUDGMENT :1.Appellant impugns judgment and order dated 01.12.2023,passed by Additional District Judge, Kaij, District Beed, in Civil Misc.Application No. 30 of 2023, by which appellant’s prayer under Section 8 ofthe Hindu Minority and Guardianship Act, 1956 to grant permission tosale land of herself and her three minor children has been declined.2.Appellant approached Additional District Judge, Kaij underSection 8 of Hindu Minority and Guardianship Act, seeking permission tosale agriculture land bearing Gut No. 478, ad-measuring 85 R, situated atvillage Salegaon, Tq. Kaij, District Beed, standing jointly in her name with
Legal Reasoning
2 fa2760.24 jugmentminor children. It is contention of appellant that her husband committedsuicide. He was owner of suit land. After his death, her name with threeminor children have been mutated in record of rights over suit property.Appellant is working in Private Sector at Pune. Her minor children aretaking education. Appellant was unable to meet education expenses ofchildren. Land in question is situated at District Beed, therefore, it isdifficult for her to cultivate the same from Pune. Approximate valuation ofthe land is Rs. 12,75,000/-. She wish to invest aforesaid amount in nameof minor children and want to utilize same for their education andmaintenance. Learned Additional District Judge, Kaij rejected appellant’sprayer observing appellant has already deposited school fees of childrenand there remains no outstanding. Minor children are taking education atV.K. Mate High School, Chinchwad and Zilla Parishad High School atJambhe, Tq. Mulshi, Pune. However, receipts placed on record are fromM.S.S. High School, Shridharnagar, Chinchwad of Morya EducationInstitute. As such, there is variance in pleadings and evidence.3.Heard Mr. R.J.Nirmal, learned Advocate appearing forappellant and Mr. V.S. Badakh, learned AGP appearing for Respondent-State.4.Mr. Nirmal, submits that land in question is joint familyproperty of appellant and her three minor children. It was originallyowned by appellant’s husband and upon his death, it has been jointlymutated in the names of minors and herself, therefore, for sale of propertyby mother being natural guardian of minor, permission under Section 8 ofthe Hindu Minority and Guardianship Act would not be required, however,appellant’s application under Section 8 of the Act has been erroneouslyrejected on merit by learned District Judge. 3 fa2760.24 jugment5.Having considered submissions advanced, issue raised forconsideration in this appeal is as to “Whether appellant being naturalguardian and joint holder of agriculture land alongwith minors, requiredto seek permission under Section 8 of Act to alienate property.”6.Perusal of record shows that late Ganesh Manik Popalghatwas owner of land Gut No. 478 to the extent of 85 R. He expired on04.07.2022, leaving behind appellant Pooja, two daughters Tanishka andMokshada and a son Kshitij. Consequently, mutation entry No. 4672dated 24.08.2023 has been certified, thereby names of appellant and herthree minor children have been mutated. Un-disputedly, agriculture landis joint Hindu Family property with fluctuating interest of legalrepresentatives of late Ganesh Manik Popalghat. In light of aforesaidfactual background, it would be necessary to delve into scheme of Act. TheHindu Minority and Guardianship Act has been passed to amend andcodify law relating to minority and Guardianship amongst the Hindus ascan be observed from Section 2 of the Act. Its provisions are in-addition toand not in derogation of Guardian and Wards Act, 1890. Section 6 of Actdeals with natural Guardian of Hindu minor and his property.Significantly, un-divided interest of minor in joint family property isspecifically excluded from application of Section 6 of the Act. Section 12of the Act further clarifies that a guardian need not be appointed fordealing with minors' undivided interest in joint family property, which isunder management of adult member of family. Scheme of Act asdiscernible from Section 2, 5, 6, 9 and 12 of Act suggests undividedinterest of minor in joint family property is kept outside of purview of Actand natural guardian has been left to deal with it in accordance with thecustomary Hindu Law. In other words, provisions of Act deals withindividual and definite immovable property of minor. 4 fa2760.24 jugment7.The Section 8 of the Act1 reads as under :“8. Powers of natural guardian.—(1) The natural guardian of a Hindu minor has power, subjectto the provisions of this section, to do all acts which arenecessary or reasonable and proper for the benefit of the minoror for the realization, protection or benefit of the minor’s estate;but the guardian can in no case bind the minor by a personalcovenant.(2) The natural guardian shall not, without the previouspermission of the Court,—(a) mortgage or charge, or transfer by sale, gift,exchange or otherwise, any part of the immovableproperty of the minor; or(b) lease any part of such property for a term exceedingfive years or for a term extending more than one yearbeyond 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 voidableat the instance of the minor or by any person claiming underhim.(4) No court shall grant permission to the natural guardian todo any of the acts mentioned in sub-section (2) except in thecase of necessity or for an evident advantage to the minor.(5) The Guardians and Wards Act, 1890 (8 of 1890), shallapply to and in respect of an application for obtainingpermission of the Court under sub-section (2) in all respects asif it were an application for obtaining the permission of the courtunder section 29 of that Act, and in particular—(a) proceedings in connection with the applicationshall be deemed to be proceedings under that Actwithin the meaning of section 4A thereof;(b) the court shall observe the procedure and have thepowers specified in sub-sections (2), (3) and (4) ofsection 31 of that Act; and(c) an appeal shall lie from an order of the courtrefusing permission to the natural guardian to do anyof the acts mentioned in sub-section (2) of this sectionto the court to which appeals ordinarily lie from thedecisions of that Court.1Sec. 8 of Hindu Minority & Guardianship Act, 1956 5 fa2760.24 jugment(6) In this section “Court” means the city civil Court or adistrict Court or a Court empowered under section 4A of theGuardian and Wards Act, 1890 (8 of 1890), within the locallimits of whose jurisdiction the immovable property in respect ofwhich the application is made is situate, and where theimmovable property is situate within the jurisdiction of morethan one such Court, means the court within the local limits ofwhose jurisdiction any portion of the property is situate.”8.Plain reading of aforesaid Section depicts that it does notexpressly exclude undivided interest of minor in joint family property.However, Section 8 cannot be read in isolation, which would have to beread along with Section 6, 9 & 12. Harmonious reading of which, in thebackdrop of preamble of Act would show restrictions imposed by Section 8cannot be applied to fluctuating interest of minors in undivided share injoint family property. Therefore, natural guardian being eldest member ofjoint family, in-charge of property, can exercise powers to deal with minorsin joint family property keeping in mind aspect of legal necessity, interestand benefit of minor. Needless to state that no such alienation would bevoidable at instance of minor if it is proved that same was made for legalnecessity and for benefit of minor.9.At this stage, reference can be given to judgment of SupremeCourt of India in case of Sri Narayan Bal and Others Vs. Shridhar Sutarand Others,2, wherein answering question as to whether Section 8 of theHindu Minor Minority and Guardianship Act was applicable to HinduFamily property to sell or dispose of it by the “Karta” of family. Followingobservations are made in paragraph No. 5, which read as under :“With regard to the undivided interest of the Hindu minor injoint family property, the provisions afore-culled are beads ofthe same string and need be viewed in a single glimpse,simultaneously in conjunction with each other. Each2 (1996) 8 SCC 54 6 fa2760.24 jugmentprovisions, and in particular Section 8 cannot be viewed inisolation. If read together the intent of the legislature in thisbeneficial legislation becomes manifest. Ordinarily the lawdoes not envisage a natural guardian of the undivided interestof a Hindu minor in joint family property. The naturalguardian of the property of a Hindu minor, other than theundivided interest in joint family property, is alonecontemplated under Section 8 where under his powers andduties are defined. Section 12 carves out an exception to therule that should there be no adult member of the joint familyin management of the joint family property, in which the minorhas an undivided interest, a guardian may be appointed; butordinarily no guardian shall be appointed for such undividedinterest of the minor. The adult member of the family in themanagement of the Joint Hindu Family property may be amale or a female, not necessarily the Karta. The power of theHigh Court otherwise to appoint a guardian, in situationsjustifying, has been preserved. This is the legislative schemeon the subject. Under Section 8 a natural guardian of theproperty of the Hindu minor, before he disposes of anyimmovable property of the minor, must seek permission of thecourt. But since there need be no natural guardian for theminor's undivided interest in the joint family property, asprovided under Section 6 to 12 of the Act, the previouspermission of the Court under Section 8 of disposing of theundivided interest of the minor in the joint family property isnot required. The joint Hindu family by itself is a legal entitycapable of acting through its Karta and other adult membersof the family in management of the joint Hindu familyproperty. Thus Section 8 in view of the express terms ofSection 6 and 12 would not be applicable where a joint Hindufamily property is sold/disposed of by the Karta involving anundivided interest of the minor in the said joint Hindu familyproperty. The question posed at the outset therefore is soanswered.”10.Same view has been reiterated by two judgments of this Courtfirstly in case of Sandhya Rajan Antapurkar and Others Vs. State ofMaharashtra3, wherein, following observations are made :“11. Under the Hindu Law, the manager or karta of the familyof the minor can alienate minor's undivided interest in the3 (2000) 2 Mh.L.J. 158 7 fa2760.24 jugmentjoint family property without the permission of the Court,provided alienation is for legal necessity or for the benefit ofthe minor and this right is left untouched by the HinduMinority and Guardianship Act, 1956.”11.In yet another Judgment in case of Shripati s/o Santu ManeVs. Goroba s/o Nivarti Ghutukade and another4, by referring Article 525of page 524 of Mulla’s Principles of Hindu Law, Twentieth Edition, Vol-I, itis observed that“Where father is not alive, mother is natural guardianand therefore, alienation made by her without seekingpermission under Section 8 of the Act is held as valid.”Further observation is that “intention of Section 8 ofthe Act is not fettered customary powers of naturalguardian in the matter of dealing with Hindu jointfamily property including minor sons’ undividedshares.”12.Reliance was placed on observations of judgment of this Courtin case of Narayan Laxman Gilankar Vs. Udaykumar Kashinath Kaushik5.13.As rightly pointed out Mr. R.J.Nirmal learned Advocateappearing for appellant that a similar view is reiterated by Single Judge ofAllahabad High Court in case of Preeti Arora Vs. Subhash Chandra AroraAllahabad High Court.6 14.In light of aforesaid exposition of law, this Court holds thatappellant being natural guardian can act as manager of joint family forherself and on behalf of minors and deal with property, in interest ofminors and joint family subject to legal necessity. Her powers are not4 (2008) 6 Mah LJ 7075 1993, Mh.L.J. 16536 First Appeal From Order No. 272 of 2024, decided on March 05, 2024 Allahabad High Court. 8 fa2760.24 jugmentfettered by or governed by provisions of Hindu Minority and GuardianshipAct, 1956. 15.In result, appeal is allowed. The impugned judgment andorder dated 01.12.2023 passed by learned Additional District Judge, Kaij,District Beed, in Civil Misc. Application No. 30 of 2023, is hereby quashedand set aside. ( S. G. CHAPALGAONKAR ) JUDGEmahajansb/