24.02.2025 Parbha/ (deceased) through her LRs and another v. CORAM:- HON'BLE
Case Details
RSA No.1797 of 1990 (O&M) IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH **** RSA No.1797 of 1990 (O&M) Reserved on:10.02.2025 Pronounced on: 24.02.2025 Parbha/ (deceased) through her LRs and another .....Appellants Smt. Lalita (deceased) through LR and others .....Respondents Vs. CORAM:- HON'BLE MR. JUSTICE DEEPAK GUPTA Present:- Mr. R.A. Yadav, Advocate for the appellants. Mr. Vishal Yadav, Advocate for the respondents. DEEPAK GUPTA, J. **** Suit filed by plain!ffs – Smt. Lalita Yadav and Lal Kaur (now contes(cid:9)ng respondents) seeking decree of permanent injunc!on regarding the property in dispute was dismissed by the trial Court on 30.01.1988. Both the contes!ng par!es went in appeal. Defendants- Parbha!, Jee Sukh and Paras Ram (appellants herein through their respec(cid:9)ve LRs) filed appeal against the finding, whereby sale deed in their favour was held to be null and void. On the other hand, plain!ffs filed the appeal against the finding, whereby relief of permanent injunc!on was declined to them despite holding sale deed in their favour to be valid. 2. In order to avoid confusion, par!es shall be referred as per
Legal Reasoning
their status before the trial Court. Trial Court record was called and the same has been perused. 3. Plain!ffs claimed that they along with proforma defendants No.4 to 16 are owner in possession of the land measuring 06 kanal 14 marlas delineated by le;ers `X Y Z Q' in the site plan a;ached with the RENU 2025.02.25 17:40 I attest to the accuracy and integrity of this document Chandigarh Page No.1 out of 7 pages RSA No.1797 of 1990 (O&M) plaint on the basis of sale deed dated 24.10.1979, 26.10.1979, 27.02.1981, 27.10.1979, 21.04.1975 and 17.04.1972 (Ex.PW1/2 to Ex.PW1/4, Ex.PW6/1 & Ex.PW6/2 and Ex.PW14/1). Out of this land, plain!ffs along with defendants No.13 to 16 are owners of the por!on shown in le;ers `ABCD' on the basis of oral par!!on, on which they had raised construc!on of Chhappar, brick wall etc., as shown in red colour in the site plan and which was in possession of Satvir and Yudhvi sons of Sultan. Defendants No.13 to 16 were stated to be owner in possession of the northern por!on. It was alleged that contes!ng defendants being forcible persons were out to dispossess the plain!ffs from the disputed por!on shown by le;ers `DCEF” without having any right to do so. With these allega!ons, decree for permanent injunc!on was sought against the contes!ng defendants so as to restrain them from interfering in the possession of plain!ffs over the suit land. 4. Only defendants No.1 to 3 contested the suit and submi;ed in the wri;en statement that they are owner of suit land by virtue of sale deed dated 30.03.1970 and that they are in con!nuous possession thereof. It was claimed that defendant- Parbha! had raised factory for manufacturing glue and for that purpose, he had raised construc!on of furnace, boundary wall, room etc. Sale deeds relied upon by the plain!ffs are alleged to be based on forged and fic!!ous documents. Claiming that plain!ffs had no right, !tle or interest in the suit land, these defendants prayed for dismissal of the suit. 5. Necessary issues were framed. Evidence produced by the par!es was taken on record. 6. Trial Court found that sale deed dated 30.03.1970 Ex.DW2/1 relied by the defendants had been executed by Smt. Sarwan wife of Major Rai Singh, ac!ng as guardian of her minor son Raghwinder Singh. Said sale deed was held to be void transac!on having been executed by the mother of minor owner, in the presence of the father of the minor. The sale deeds RENU 2025.02.25 17:40 I attest to the accuracy and integrity of this document Chandigarh Page No.2 out of 7 pages RSA No.1797 of 1990 (O&M) relied by the plain!ffs were held to be the valid documents. However, on the issue of possession, it was held that contes!ng defendants were in possession of the suit land on the basis of sale deed dated 30.03.1970. Thus, in nut shell, the trial Court held contes!ng defendants to be in possession of the suit land but it is the plain!ffs, who were found to be owners thereof. Based on these findings, the suit filed by the plain!ffs seeking decree of permanent injunc!on was dismissed. 7. As stated earlier, both the par!es went in appeal. Defendants challenged the findings of the trial Court, whereby sale deed in their favour was held to be a void document. On the other hand, plain!ffs challenged the findings, whereby relief of permanent injunc!on was declined to them. Both the appeals were heard together by learned Addi!onal District Judge, Narnaul and vide a common judgment dated 18.07.1990, the appeal filed by the defendants was dismissed; whereas the appeal filed by the plain!ffs was accepted and accordingly, decree of permanent injunc!on as sought by the plain!ffs was granted in their favour against the contes!ng defendants. 8. Against the afore-said reversal, the contes!ng defendants have approached this Court. 9. The sole submission made by learned counsel for the appellants- defendants is that the Courts below have erred in holding the sale deed dated 30.03.1970 to be a void transac!on. It is submi;ed that
Legal Reasoning
said sale deed was executed by Smt. Sarwan, the mother of her minor son Raghwinder with a par!cular recital that money was required for care and educa!on of the said minor and this fact was accepted by the father of Raghwinder Singh for a con!nuous period of ten years, when the suit was filed in 1981. It is contended that had the sale transac!on been not in the interest of minor, his father, who was a Military Officer and who used to come off and on, would have certainly challenged the said sale transac!on and would not have kept silent for a period of more than ten years. Learned counsel contends that the case is fully covered by the ra!o of RENU 2025.02.25 17:40 I attest to the accuracy and integrity of this document Chandigarh Page No.3 out of 7 pages RSA No.1797 of 1990 (O&M) judgment of Hon'ble Supreme Court in Jijabai Vithalrao Gajre vs Pathankhan & Ors, AIR 1971 SCC 315. Contending that Courts below have erred in misinterpre!ng the legal proposi!on and defini!on of ‘guardian’ as laid down in Hindu Minority and Guardianship Act, 1956, prayer is made for seSng aside the impugned judgments passed by the Courts below and to dismiss the suit of the plain!ffs – contes!ng respondents, by allowing this appeal. 10. On the other hand, learned counsel for the respondents- plain!ffs have defended the judgment passed by the First Appellate Court contending that the Courts below have rightly held the sale deed in favour of the contes!ng defendants- appellants to be a void document. 11. This Court has considered submissions of both the sides and have appraised the record carefully. 12. Sale deed Ex.DW2/1 dated 30.03.1970 was executed by Smt. Sarwan, the mother of her minor son -Raghwinder Singh in favour of the contes!ng defendants- appellants. It is not disputed before this Court that on the date of execu!on of said sale deed, father of Raghwinder Singh, namely, Shri Rai Singh was alive. The conten!on of learned counsel is that since Shri Rai Singh was in military service, and minor Raghwinder Singh was under the care and protec!on of her mother - Smt. Sarwan, as such, Smt. Sarwan was the de facto guardian of minor under Sec!on 6 of the Hindu Minority and Guardianship Act, 1956 and therefore, she was well within her legal rights to execute the impugned sale deed in favour of the defendants. The reliance has been placed in this regard on Jijabai Vithalrao Gajre's case (supra). 13. Learned counsel has specifically referred to the observa!ons made by Hon'ble Supreme Court in para No.11 of the judgment, which are as under:- RENU 2025.02.25 17:40 I attest to the accuracy and integrity of this document Chandigarh “……………..We have already referred to the fact that the father and Page No.4 out of 7 pages RSA No.1797 of 1990 (O&M) mother of the appellant had fallen out and that the mother was living separately for over 20 years. It was the mother who was actually managing the affairs of her minor daughter, 'who was under her care and protec!on. From 1951 onwards the mother in the usual course of management had been leasing out the proper!es of the appellant to the tenant. Though from 1951 to 1956 the leases were oral, for the year 1956-57 a wri;en lease was executed by the tenant in favour of the appellant represented by her mother. It is no doubt true that the father was alive but he was not taking any interest in the affairs of the minor and it was as good as if he was non-existent so far as the minor appellant was concerned. We are inclined to agree with the view of the High Court that in the par!cular circumstances of this case, the mother can be considered to be the natural guardian of her minor daughter. It is needless to state that even before the passing of the Hindu Minority and Guardianship Act, 1956 (Act 32 of 1956) the mother is the natural guardian aVer the father. The above Act came into force on August 25, 1956 and under s. 6 the natural guardians of a Hindu minor in respect of the minor's person as well as the minor's property are the father and aVer him the mother. The posi!on in the Hindu Law before this enactment was also the same. That is why we have stated that normally when the father is alive he is the natural guardian and it is only aVer him that the mother becomes the natural guardian. But on the facts found above, the mother was rightly treated by the High Court as the natural guardian. 14. It is clear from the afore-said facts of the cited authority that in that case, father had fallen out from the mother of the minor. Mother was living separately from the father for the last 20 years. It was the mother, who was actually managing the affairs of her minor daughter and who was under her care and protec!on. From 1951 onwards, it is the mother, who in usual course of management, had been leasing out the property of minor to the tenant. It was in these peculiar facts and circumstances that mother was treated as guardian of the minor. RENU 2025.02.25 17:40 I attest to the accuracy and integrity of this document Chandigarh Page No.5 out of 7 pages RSA No.1797 of 1990 (O&M) 15. Facts in the present case are en!rely different. In the present case, as rightly observed by the Courts below, there is not an iota of evidence on the file that Rai Singh, husband of Smt. Sarwan and father of minor Raghwinder Singh had falled out with his wife or that he had lost all interest in the minor Raghwinder Singh. It may be possible that because of the exigencies of the du!es of Military Officer, said Rai Singh used to remain absent from his house for longer period but that could not mean that he had no interest in the care and protec!on of the minor. It has been rightly observed by learned appellate court that military personnel even on ac!ve duty are allowed to proceed on leave to see their kith, kin, near and dear ones. There is no evidence on record to show that Rai Singh at any given !me for very long spell did not visit his house. In these circumstances, it cannot be held that father of Raghwinder Singh i.e. Rai Singh, was in any way, disqualified to act as a guardian of the minor. As such, mother of minor could not act as the natural or de facto guardian. In these circumstances, the authority of Jijabai Vithalrao Gajre's case (supra), as relied by learned counsel for the plain!ffs is clearly dis!nguishable on facts and does not advance the case of the appellants. 16. As per the se;led proposi!on of law, and as observed by Hon’ble Supreme Court in Jijabai Vithalrao Gajre's case (supra), even before the passing of the Hindu Minority and Guardianship Act, 1956 (Act 32 of 1956), the mother is the natural guardian aVer the father. The above Act came into force on August 25, 1956 and under s. 6 the natural guardians of a Hindu minor in respect of the minor's person as well as the minor's property are the father and aVer him the mother. The posi!on in the Hindu Law before this enactment was also the same. That is why we have stated that normally when the father is alive he is the natural guardian and it is only aVer him that the mother becomes the natural guardian. Therefore, it is only the natural guardian, who can alienate the property of the minor and not the de facto guardian and when the father was alive, he is the only person who can deal with the property of the minor and therefore, the sale RENU 2025.02.25 17:40 I attest to the accuracy and integrity of this document Chandigarh Page No.6 out of 7 pages RSA No.1797 of 1990 (O&M) effected by the mother of her minor son's property is not only simply voidable but the same is a void transac!on. 17 In view of the factual & legal posi!on as above, this Court does not find any merit in the conten!on raised by learned counsel for the appellants. There is no scope for interference in the well-reasoned findings of facts as well as law as rendered by the First Appellate Court. As such, holding the present appeal to be devoid of any merit, the same is hereby dismissed. February 24, 2025 renu (DEEPAK GUPTA) JUDGE Whether Speaking/reasoned Whether Reportable Yes/No Yes/No RENU 2025.02.25 17:40 I attest to the accuracy and integrity of this document Chandigarh Page No.7 out of 7 pages