V.M. Kanade, J.
1. The appellant is the original plaintiff and the respondent Nos. 1 and 2 are the original defendants. The original defendant No. 1 died and in her place, Sulochana-respondent No. 1 is brought on record.
FACTS
2. The peculiar admitted facts in the present case are that the property was owned by one Gopalrao. Gopalrao had a wife Anjanabai. However, he had no issues. The said Gopalrao, when he was almost 70 years old, gifted the suit property to Rainesh, the plaintiff herein, who was 9 months old at that time and who was Gopalrao's nephew. Sushilabai was the natural guardian of Rainesh. The father of Ramesh, Uttamrao was a Patwari working in the revenue office. In this admitted background, it would be relevant to examine the facts of the present case. Plaintiff Ramesh, who was a minor, filed a suit through his natural guardian father Uttamrao against Anjanabai, the wife of Gopalrao, challenging the document dated 2.9.69 executed by the mother of the plaintiff in favour of Anjanabai in respect of the suit field admeasuring 7 acres of the eastern side of Survey No. 36/1 of village Deulgaon-Kundapal. The case of the plaintiff in the suit was that the suit transaction was not binding on him, as he was a minor at that time and that her mother had no authority to give away the said land to the defendant No. 1 Anjanabai without obtaining permission from the Court. In such circumstances, he was seeking possession of the suit field. At this stage, it would be relevant to mention here that Anjanabai's husband Gopalrao, during the lifetime of Anjanabai, had gifted his self acquired property, admeasuring 24 acres and 26 gunthas to the said minor Ramesh. There was a dispute between Anjanabai and mother of minorRamesh Sushilabai and proceedings under Section 145 of the Code of Criminal Procedure were pending in the Court and Anjanabai continued to be in possession of the entire plot and the father of the minor Ramesh was admittedly not in the picture at any time during this period and under such circumstances, Sushilabai, mother of plaintiffRamesh, had arrived at a compromise with Anjanabai and had given an area of 7 acres out of Survey No. 36/1 by executing a document dated 2.9.69.
3. The defendants filed their written statement. The defendant No. 1 Anjanabai denied the averments of the plaintiff in the plaint and she contended that the suit property was the ancestral property of her husband and that the father of the minor plaintiff, by taking advantage of the old age of the Gopalrao, had executed the gift deed which was void ab initio. She further contended that during the pendency of the proceedingsUnder Section 145 of the Cr.P.C. which were started by the plaintiffs father, the plaintiffs father had agreed to give defendant No. 1 half (1/2) share in the property and accordingly a compromise gift deed was executed by the mother of the plaintiff as his guardian. The defendant No. 2, who had purchased the property from Anjanabai, contended that he was a bona fide purchaser for valuable consideration.
4. At this stage, the another fact which has to be noted is that when the initial gift deed was executed by Gopalrao, husband of defendant No. 1 Anjanabai, in favour of Ramesh, who was 9 months old at that time, in the said gift deed also Sushilabai has been shown as a natural guardian of Ramesh and she has also put her thumb mark on the said document as natural guardian on behalf of Ramesh and his father had not come in picture at any time during the said transaction.
5. The Trial Court framed the issues and came to the conclusion that the gift deed dated 2.9.69 executed by the mother of Ramesh Sushilabai in favour of defendant No. 1 was void, as Section 6 of the Hindu Minority and Guardianship Act specifically lays down that in respect of a minors the father is the natural guardian first during his lifetime and, thereafter, the mother would become the natural guardian and, therefore, the Trial Court held that in the absence of that mother had no right to bequeath the minor's property to defendant No. 1 Anjanabai. The Trial Court also held that in view of Section 8 of the Hindu Minority and Guardianship Act, the minor's property could not be sold without the previous permission of the Court and, therefore, in the absence of permission being obtained from the Competent Court, the said trans action was void. The Trial Court accordingly directed the defendant No. 2 to hand over the possession of 7 acres of land to the plaintiff. The defendant. No. 1 had in the counter claim has challenged the initial gift deed dated 24.8.64 as void. The said counter claim was dismissed. Anjanabai and defendant Nos. 1 and 2 preferred an appeal against the said Judgment and Order, being Regular Civil Appeal No. 141 of 1985. The said appeal was allowed by the Additional District Judge, Buldhana vide its Judgment and Order dated 10.4.1990 and set aside the Judgment and Order passed by the Trial Court. The original plaintiff being aggrieved by the said Judgment and Order has preferred this second appeal. The second appeal was admitted on 2.7.1991 and substantial question of law which was framed by this Court at the time of admission, is as follows :
Admit. Competence of transfer of a title in favour of respondent No. 1 on the basis of gift deed dated 24.8.64 in favour of Ramesh, when he was minor, would be the substantial question of law, involved in this appeal.
6. I have heard the learned Counsel appearing on behalf of the appellant, and learned Counsel appearing on behalf of the respondent at length. In my view, the substantial question of law which is raised in this second appeal is whether Sushilabai, mother of plaintiff Ramesh was competent to transfer the property admeasuring 7 acres out of Survey No. 36/1 in favour of defendant No. 1 Anjanabai by the alleged compromise gift deed dated 2.9.69 without obtaining permission of the Court and during the lifetime of the father of Ramesh who was alive at that time.
7. In order to decide the said substantial question of law it would be necessary to take into consideration the relevant provisions of Hindu Minority and Guardianship Act. Section 2 of the said Act makes it clear that the said Act is in addition to the provisions of the Guardian and Wards Act, 1890 and it was supplemental to the said Act. Section 6 of the said Act defined the term natural guardian of a Hindu minor. Section 6 reads as under :
6. 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 ease 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) 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 by becoming a hermit (vanaprastha) or an ascetic (yati or sanyasi).
Explanation.- In this section, the expression 'father' and 'mother' do not include a step-father and a step-mother.
A perusal of Clause (a) of Section 6 provides that in the case of a boy or unmarried girl, the father and after him the mother will be the natural guardian. The question which is to be considered is this whether a father and mother are the natural guardian of the 'child' or the words 'the father and after him the mother', contemplate a situation that the child's natural guardian would be father during his lifetime and only after he is dead, the mother would be the natural guardian. In my view, it is not possible to accept such a interpretation being made in respect of the said clause.
8. Learned Counsel appearing on behalf of the respondent has relied on a Judgment, of the Apex Court in the case of Githa Hariharan (Ms.) and Anr. v. Reserve Bank of India and Anr. with Dr. Vandana Shiva v. Jayanta Bandhopadhyaya and Anr. : [1999]236ITR380(SC) where the Apex Court was called upon to answer the said expression 'natural guardian'. The Apex Court has interpreted 'after the lifetime', in the context of Section 6(a) to mean 'in the absence of and the Apex Court further has observed that the word 'absence' refers to fathers absence from the care of the minor's property or person for any reason whatever. It would be profitable to consider the relevant paragraph of the Apex Court judgment reported in : [1999]236ITR380(SC) (supra). Paragraphs 6, 7, 8, 9 and 10 are reproduced below :
Para 6 : Section 6 of the H.M.G. Act reads as follows :
6. 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) in the case of an illegitimate boy or an illegitimate unmarried girl - the mother, and after her, the father;
(c) in the ease 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 by becoming a hermit (vanaprastha) or an ascetic (yati or sanyasi).
Explanation.- In this section, the expression 'father' and 'mother' do not include a step-father and a step-mother.
7. The expression 'natural guardian' is defined in Section 4(c) of the H.M.G. Act as any of the guardians mentioned in Section 6 (supra). The term 'guardian' is defined in Section 4(b) of the H.M.G. Act as a person having the care of the person of a minor or of his property or of both, his person and property, and includes a natural guardian among others. Thus, it is seen that the definitions of 'guardian' and 'natural guardian' do not make any discrimination against mother and she being one of the guardians mentioned in Section 6 would undoubtedly be a natural guardian as defined in Section 4(c). The only provision to which exception is taken is found in Section 6(a) which reads 'the father, and after him, the mother' (emphasis ours). That phrase, on a cursory reading, does give an impression that the mother can be considered to be the natural guardian of the minor only after the lifetime of the father. In fact, that appears to be the basis of the stand taken by the Reserve Bank of India also. It is not in dispute and is otherwise well settled also that the welfare of the minor in the widest sense is the paramount consideration and even during the lifetime of the father, if necessary, he can be replaced by the mother or any other suitable person by an order of the Court, where to do so would be in the interest of the welfare of the minor.
8. Whenever a dispute concerning the guardianship of a minor, between the father and mother of the minor is raised in a Court of law, the word 'after' in the section would have no significance, as the Court is primarily concerned with the best interests of the minor and his welfare in the widest sense while determining the question as regards custody and guardianship of the minor. The question, however, assumes importance only when the mother acts as the guardian of the minor during the lifetime of the father, without the matter going to the Court, and the validity of such an action is challenged on the ground that she is not the legal guardian of the minor in view of Section 6(a) (supra). In the present case, the Reserve Bank of India has questioned the authority of the mother, even when she had acted with the concurrence of the father, because in its opinion she could function as a guardian only after the lifetime of the lather and not during his lifetime.
9. Is that the correct way of understanding the section and does the word 'after' in the section mean only 'after the lifetime'?. If this question is answered in the affirmative, the section has to be struck down as unconstitutional as it undoubtedly violates gender equality, one of the basic principles of our Constitution. The H.M.G. Act came into force in 1956, i.e. six years after the Constitution. Did Parliament intend to transgress the constitutional limits or ignore the fundamental rights guaranteed by the Constitution which essentially prohibits discrimination on the grounds of sex? In our opinion - No. It is well settled that if on one construction a given statute will become unconstitutional whereas on another construction which may be open, the statute remains within the constitutional limits, the Court will prefer the latter on the ground that the Legislature is presumed to have acted in accordance with the Constitution and Courts generally lean in favour of the constitutionality of the statutory provisions.
10. We are of the view that Section 6(a) (supra) is capable of such construction as would retain it within the constitutional limits. The word 'after' need not necessarily mean 'after the lifetime'. In the context in which it appears in Section 6(a) (supra), it means 'in the absence of, the word 'absence' therein referring to the father's absence from the care of the minor's property or person for any reason whatever. If the father is wholly indifferent to the matters of the minor even if he is living with the mother or if by virtue of mutual understanding between the father and the mother, the latter is put exclusively in charge of the minor, or if the father is physically unable to take care of the minor either because of his staying away from the place where the mother and the minor are living or because of his physical or mental incapacity, in all such like situations, the father can be considered to be absent and the mother being a recognised natural guardian, can act validly on behalf of the minor as the guardian. Such an interpretation will be the natural outcome of a harmonious construction of Section 4 and Section 6 of the H.M.G. Act, without causing any violence to the language of Section 6(a) (supra),
9. Learned Counsel appearing on behalf of the respondent also relied on a Judgment of the Apex Court reported in : AIR1972Ker71 . In fact, in the judgment considered hereinabove, this very judgment is considered in para 11 and the Apex Court has held that the interpretation which was supplied by the Court in the earlier part of the judgment on Section 6(a) (supra) was only an expansion of the principles set out by the Bench in Jijabai Vitthalrao Gajre's case (supra). In my view, the ratio of both the judgments would be squarely applicable to the facts of the present case. In the present case, it is an admitted position that initially when the first gift deed was executed by the husband of Anjanabai in favour of Ramesh, the mother of plaintiff Ramesh has acted as a natural guardian. Similarly, when the second compromise gift deed was executed in 1969, it was executed by Sushilabai as natural guardian of Ramesh. The Lower Appellate Court while construing the document Exh. 58 has held that the said document cannot be strictly termed as a gift deed but was, in fact, a gift deed in the garb of compromise, and, therefore, the real transaction was a compromise deed in respect the dispute which was admittedly pending in the Court in respect of the proceedings which were initiated under Section 145 of the Code of Criminal Procedure. The Lower Appellate Court, therefore, came to the conclusion that the question of obtaining consent from the Court did not arise. The Lower Appellate Court has reproduced recitals of the said gift deed at Exh. 58. In my view, the finding of the Lower Appellate Court will have to be confirmed.
10. It is further admitted that inspite of the gift deed by Gopalrao in favour of Ramesh, Anjanabai continued to be in possession of the property and dispute was pending before the Criminal Court under Section 145 of the Code of Criminal Procedure and under such circumstances, out of the total property of 24 acres and 26 gunthas, 7 acres was given to Anjanabai by Sushilabai mother of Ramesh, since Anjanabai's position was financially weak and she was on the verge of starvation. The entire dispute was, therefore, resolved by virtue of the said compromise gift deed, after securing possession of the remaining 17 acres of land from Anjanabai. The father of Ramesh Uttamrao has filed the present suit as guardian of the minor. Under this background, the findings of the Lower Appellate Court cannot be faulted. Uttamrao, father of Ramesh, was no where in the picture right from 1964 to 1969 and the proceedings under Section 145 of the Cr.P.C. also appears to have been initially contested by Sushilabai. In my view, therefore, there is no reason to interfere, under such circumstances, with the findings given by the Lower Appellate Court. The second appeal is, therefore, dismissed. Under the circumstances, there shall be no order as to costs.