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2014 DIGILAW 463 (ORI)

Kanhei Charan Das v. Ramakanta Das

2014-08-05

B.K.NAYAK

body2014
Judgment B.K.NAYAK, J. Common order dated 19.8.1983 passed by the Consolidation Officer, Simulia, in objection case nos.1045/82 and 1121/82 (Annexure-1) and the confirming order dated 13.1.1995 (Annexure-2) passed by the Additional Commissioner, Settlement and Consolidation, Bhubaneswar in consolidation revision case no.394 of 1993 are the subject matters of challenge in this writ application. 2. The undisputed facts are that the case land appertaining to Sabik Plot nos.792, 796 and 789 measuring total area of Ac.0.40 under Khata No.66 was the ancestral land of Krutibas Das and stood recorded in his name. After the death of Krutibas and his wife, the property devolved on his two sons, namely, Banamali and Ramakanta as joint owners thereof, both having 50% share each. Ramakanta being a minor was being looked after by his major brother-Banamali, who was managing the joint family properties including the undivided interest of Ramakanta. By registered sale deed dated 18.6.1975 Banamali sold the entire disputed land of 40 decimals on behalf of himself and also as brother guardian of Ramakanta in favour of one Agani Dash. Agani in his turn sold the disputed land to one Sanatan and the present petitioner Kanehei by registered sale deed dated 26.7.1977 and 1.12.1983. 3. During the consolidation operation, the disputed land was recorded as plot no.696-Ac.0.40 under consolidation Khata No.103 in the name of Sanatan Dash and petitioner-Kanhei. Ramakanta, the present opposite party no.1, filed objection case no.1045/82 claming to record his half share in the disputed land in his name on the ground that his brother-Banamali had no right to alienate his share. Another objection case bearing no.1121of 1982 was filed by petitioner Kanhei to delete name of Sanatan Dash, on the ground that he has sold his entire share in the disputed land in his favour. 4. By the impugned order under Annexure-1, the Consolidation Officer directed to record the case land jointly in the names of Kanhei(petitioner), Ganesh Prashad Das and Suresh Kumar Das(opposite party nos.4 and 5), sons of Sanatan Das and Ramakant Das. Challenging the order of the Consolidation Officer, the present petitioner and opposite party nos.4 and 5 filed consolidation revision case no.394 of 1993 before the Additional Commissioner, Settlement and Consolidation, Bhubaneswar. By the impugned order under Annexure-2 the Additional Commissioner confirmed the order passed by the Consolidation Officer. Challenging the order of the Consolidation Officer, the present petitioner and opposite party nos.4 and 5 filed consolidation revision case no.394 of 1993 before the Additional Commissioner, Settlement and Consolidation, Bhubaneswar. By the impugned order under Annexure-2 the Additional Commissioner confirmed the order passed by the Consolidation Officer. For allowing the claim of Ramakanta, both the consolidation authorities, held that Banamali was merely defacto guardian, but not the legal guardian of minor, Ramakanta and, therefore, he had no authority to deal with and transfer the properties of the minor, in view of the bar contained in section-11 of the Hindu Minority and Guardianship Act, 1956, and, therefore, the sale to the extent of the minor’s half share in the disputed property is void, and that the sale is valid only to the extent of 50 % share of Banamali and as such Kanhei and Sanatan, by virtue of their purchase from Agani, were entitled to only 50 % share in the property. 5. Learned counsel for the petitioner submitted that Banamali and Ramakanta being members of joint Hindu Family, no guardian in respect of the undivided interest of Ramakanta in the disputed property which was the joint family property of both, could have been appointed in view of the provision of section-12 of the Hindu Minority and Guardianship Act, and that Banamali being the adult male member of the joint family sold the disputed land in his capacity as Karta or Manager of the family, for legal necessity, and, therefore, the finding of the consolidation authorities that Banamali could not have sold the undivided interest of minor-Ramakanta is untenable. His further submission is that the finding of consolidation authorities that sale was void being in contravention of section-11 of the Hindu Minority and Guardianship Act is not sustainable for the reason that section-12 of the Act is by-nature an exception to section-11. His last submission is that Banamali having sold the interest of the minor Ramakant in case it is proved that there was no legal necessity or benefit of estate,the sale would be voidable only at the instance of Ramakanta and not void, and that in case Ramakanta wanted to avoid the sale on such ground, he should have approached the Civil Court, since, the consolidation authority lacks power and jurisdiction to decide the voidabililty of the sale transaction. Learned counsel appearing for opposite party no.1-Ramakanta contended that the prohibition for sale of minor’s property by a de-facto guardian under section-11 of the Act applies to the minors separate property as well as his undivided interest in the joint family property and any sale of minors property in contravention of section-11 is void, and, therefore, the impugned orders warrant no interference. For such contention he relies on the decision of the Apex Court reported in AIR 2002 S.C.215: Madhegowda v. Ankegowda. 6. To appreciate the contentions raised by the learned counsel for the parties, it is appropriate to see some relevant provisions of the Hindu Minority and Guardianship Act, 1956 (in short ‘the Act’) Section 6 of the Act declares the natural guardians of the Hindu Minor in following terms:-“ 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 complete the age of five years shall ordinarily be with the mother; (b) in the case of an illegitimate boy or an illegitimate unmarried girl-the mother, and after her, the father; (c) in the case of a married girl-the husband: Provided that no person shall be entitled to act as the natural guardian of a minor under the provisions of this section- (a) if he has ceased to be a Hindu, or (b) if he has completely and finally renounced the world becoming a hermit (vanaprastha) or an ascetic (yati or sanyasi). Explanation.-In this section, the expressions “father” and “mother” do not include a step-father and a step-mother”. 7. Section 8 of the Act deals with the powers of natural guardian. Sub-sections (1) to (4) of the said section which are relevant for our purpose are quoted hereunder:- “8.Powers of natural guardian.-(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 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. (4) No Court shall grant permission to the natural guardian to do any of the acts mentioned in subsection (2) except in case of necessity or for an evident advantage to the minor.” 8. Section 11 of the Act prohibits the de facto guardian to dispose of and deal with minor’s property, whereas Section 12 bars appointment of a guardian for minor’s undivided interest in joint family property. The said sections are extracted hereunder:- “11. De facto guardian not to deal with minor’s property-After the commencement of this Act, no person shall be entitled to dispose of, or deal with, the property of a Hindu minor merely on the ground of his or her being the de facto guardian of the minor”. “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 that nothing in this section shall be deemed to affect the jurisdiction of a High Court to appoint a guardian in respect of such interest”. 9. In case it be held that the transfer of the undivided interest of Ramakanta in the disputed property by his adult brother, Banamali was void and invalid, then the further question as to how the transaction shall be avoided by Ramakanta needs no consideration. In case it is held that the sale of minor’s undivided interest by his brother Banamali was voidable at the instance of Ramakanta, then the question of modalities for avoidance would fall for consideration. 10. In case it is held that the sale of minor’s undivided interest by his brother Banamali was voidable at the instance of Ramakanta, then the question of modalities for avoidance would fall for consideration. 10. Learned counsel for the petitioner contends that Banamali being the adult member of the joint family of himself and Ramakanta sold the case land including Ramakanta’s undivided interest therein as Karta and Manager of the joint family and therefore if such sale is for legal necessity or for benefit of estate, the sale would be valid, and on the other hand, if the sale is with out legal necessity or benefit of estate, it would be voidable at the instance of Ramakanta and not void. It is also submitted that for avoiding the sale of minor’s undivided interest, the minor on attaining majority shall have to file a suit in the Civil Court within the prescribed period of limitation, and that the consolidation authorities being not empowered to decide the question of voidability of a sale transaction, the impugned orders are liable to set aside. 11. In the case of Madhegowda (supra) on which the learned counsel for opposite party no.1 placed reliance was a case where the original owner of the property died living behind two daughters, one of whom was major and the other a minor, and that the major daughter sold the land including the undivided interest of the minor sister acting as her de facto guardian. In such circumstances the Hon’ble Apex Court held that the transfer of minor’s property being in contravention of section 11 of the Act was void and invalid. 12. In the case of Sri Narayan Bal and others v. Sridhar Sutar and others : (1996) 8 SCC 54 considering the relative scope of Sections 6, 8, and 12 of the Hindu Minority and Guardianship Act,1956, the Hon’ble Supreme Court held as follows : “5. With regard to the undivided interest of the Hindu minor in joint family property, the provisions afore-culled are beads of the same string and need to be viewed in a single glimpse, simultaneously in conjunction with each other. Each provision, and in particular Section 8, cannot be viewed in isolation. If read together the intent of the legislature in this beneficial legislation becomes manifest. Each provision, and in particular Section 8, cannot be viewed in isolation. If read together the intent of the legislature 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 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 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. 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.” The aforesaid observation in Sri Narayan Bal and others (supra) as also the Division Bench decision of the Patna High Court in the case of Nathuni Mishra and others v. Mahesh Misra and others : AIR 1963 PATNA 146 (V 50 C 42) where it was held that Section 11 does not deal with the disposal of the undivided interest of minor in a joint Hindu Family governed by the Mitakshara school of law and therefore, cannot be pleaded as a bar for disposal of joint family property by the Manager or the Karta of the family for legal necessity was taken note of in Madhegowda (supra). In Madhegowda (supra) therefore, in paragraph-23 of the judgment the apex Court explained that case of Madhegowda (supra) is not one of alienation of a minor’s interest in a joint family property since it was not the case of any of the parties that the suit property was a joint family property in the hands of the father of the two daughters and that the transfer by major daughter was a transfer of the minor’s interest in the joint family property. 13. It is thus clear that the apex Court while not doubting the correctness of the proposition and principles laid down in Sri Narayan Bal and others (supra) and Nathuni Mishra and others (supra), decided the question of sale of minor’s property by a de facto guardian excluding the minor’s undivided interest in the joint family property. Therefore, the proposition in Madhegowda (supra) that sale of minor’s property in contravention of Section 11 of the Act is void and invalid must be held to be applicable to all properties of minor except where the sale is by a Karta or Manager of a joint Hindu Family of the undivided interest of the minor in the joint family property. The observations made in Sri Narayan Bal and others (supra) also holds good to the extent that Section 12 of the Act is also by nature an exception to the provision of Section 11 of the Act. The observations made in Sri Narayan Bal and others (supra) also holds good to the extent that Section 12 of the Act is also by nature an exception to the provision of Section 11 of the Act. In other words, it must be held that where the de facto-guardian of a minor is also the Karta or Manager or an adult member of the joint family including the minor himself, for sale by him of the joint family property including the undivided interest of the minor in such property, no permission of the court is necessary. Such sale shall be governed by the un-codified Mitakshara school of Hindu law, according to which sale by the Karta or Manager of the Hindu Joint Family Property without any legal necessity or benefit of estate shall be voidable at the option of the minor with regard to his undivided interest. 14. With regard to the mode of avoiding a voidable transaction it has been held by Division Bench of this Court in the case of Pranakrushna Sahu and others v. Raghunath Sahu and others : 1994 (I) OLR 313 that in case of voidable document the competent forum is the civil court and not the Consolidation Authorities. 15. It is not clear from the impugned orders as to whether the challenge to the sale transaction by opposite party no.1-Sri Ramakanta Das was on the ground of want of legal necessity or not. However, since the learned counsel for both the parties have argued the case on the ground of want of legal necessity for sale of the joint family property by Banamali including undivided interest of Ramakanta Das, who was then a minor, and that the sale of Ramakanta’s undivided interest is voidable at his option, it must be held that the Consolidation Authorities have no jurisdiction to decide such question. The finding of the Consolidation Authorities in the impugned orders that the sale of Ramakanta’s undivided interest in the disputed joint family property by Banamali was void and invalid being in contravention of Section 11 of the Hindu Minority and Guardianship Act,1956 cannot be sustained. Accordingly, this writ petition is allowed and the impugned orders under Annexures-1 and 2 are quashed. No costs.