A.N. Venugopala Gowda, J.
1. The material facts of the case in a nutshell are as follows:
One Eraiah, son of Goni Eraiah, was the owner of land measuring 1 acre 15 guntas in Sy. No. 256/3 of Kenkere Village, Gandasi Hobli, Arasikere Taluk. He executed a deed of settlement on 7.5.1965 (Ex.P10), settling the said property and other items of properties, in favour of one Smt. Ningamma w/o Chikkanna @ Hitiaiah and one Era Chikkaiah, son of Goni Erachikkaiah. Said Era Chikkaiah and his wife Smt. Sanna Thopamma, passed away leaving behind them, their minor daughter Kum. Rangamma. For better appreciation of the case, it is necessary to notice the genealogical tree of the said parties, which is as follows:
Genealogy|------------------------------------------------------------------| | |Dyavaiah Goni Eraiah Era Chikkaiah(Dead) (Dead) (Dead)| | |No issues Eraiah |-------------------------| | |Chikkanna Gonajja Era Chikkaiah@Hittaiah (Dead) (Dead)(Dead) | || | |Ningamma Nanjappa Sannthopamma(Dead) (Dead)| || Rangamma| (Deft.-2 in O.S. 88/2000)--------------------------| | |Lakkamma Thopamma KotammaSmt. Ningamma, wife of Chikkanna @ Hittaiah, for herself and on behalf of the said Kum. Rangamma (minor), conveyed an extent of 36 guntas of land in Sy. No. 256/3 in favour of one Eraiah, son of Gowdannanavara Era Chikkaiah, (DW.3) along with another item of property to an extent of 21 guntas of land In Sy. No. 257/2, under a registered sale deed dated 5.9.1966 (Ex.D1). Eraiah, son of Gowdannanavara Era Chikkaiah, thereafter conveyed an extent of 19 guntas of land showing Sy. No. 256/4 (claimed to be Sy. No. 256/3) in favour of Doddaiah (1st defendant in both the suits) under a registered sale deed dated 27.11.1970 (Ex.D2). Eraiah, son of Gowdannanavara Era Chikkaiah, conveyed an extent of 17 guntas of land under another registered sale deed dated 27.11.1970 (Ex.D3) by showing the land as Sy. No. 256/4 (claimed as Sy. No. 256/3) in favour of Sri Thopaiah, son of Nagegowda (2nd in defendant O.S.67/1998)
2. According to the case of the appellant/plaintiff, 19 guntas of land in Sy. No. 256/3 (suit item No. 1) held by Ningamma, upon her death, devolved on Smt. Thopamma under a family partition dated 5.5.1985, who conveyed the same in his favour, under a registered deed of sale dated 22.11.1990 (Ex.P1). It is his further case that, suit item No. 2 was held by Rangamma and she conveyed the same in his favour, under the registered sale deed dated 3.12.1997 (Ex.P2). Claiming that, Smt. Ningamma could not have conveyed an extent of 36 guntas of land in Sy. No. 256/3 in favour of Eraiah, son of Gowdannanavara Era Chikkaiah, under the sale deed dated 5.9.1966 (Ex.D1) on behalf of Kum.Rangamma, without obtaining permission from the Court, as contemplated under Section 8 of the Hindu Minority and Guardianship Act, 1956 ('the Act' for short) and that, no right was acquired by the purchaser-Eraiah, son of Gowdannanavara Era Chikkaiah and he could not have conveyed the property in favour of the defendants and the said conveyances dated 5.9.1966 and 27.11.1970 (Exs.D1, D2 and D3) does not bind the share and interest of Rangamma and the mutation entry dated 15.1.1998 (Ex.D4) made out is incorrect, the appellant filed O.S.67/1998 for a declaration that he is the owner of suit schedule item Nos. 1 and 2 lands and also for a decree of perpetual injunction. He also filed O.S.88/2000 to set aside the order dated 8.12.2000 passed by the Assistant Commissioner in Case No. 81/97-98 (Ex.D11) and for perpetual injunction against the defendants.
3. According to the 1st defendant/1st respondent, Ningamma, was taking care of minor Kum.Rangamma and she had conveyed the property in favour of Eraiah, son of Gowdannanavara Era Chikkaiah, under the sale deed dated 5.9.1966 (Ex.D1) and the same is not in violation of any provisions of law. According to him, there is mis-description of the Sy. No. in Ex.D2, the sale deed dated 27.11.1970, executed by Eraiah son of Gowdannanavara Era Chikkaiah, in favour of him, though the boundaries remained the same. According to him, the mis-description was rectified in the mutation at Ex.D4. He had filed R.A.81/1997-98 against Smt. Rangamma in the Court of the Assistant Commissioner, challenging the mutation entry effected in favour of Rangamma by virtue of ICR 8/1998-99 dated 28.1.1997, which was allowed by the Assistant Commissioner on 8.12.2000.
4. Both the suits were clubbed, common evidence was recorded, wherein PWs.1 to 3 and DWs. 1 to 5 deposed and Exs.P1 to 11 and D1 to 13 were marked and a common judgment was passed dismissing the suits. The main reason for dismissal of the suits is that, the property which was obtained under the settlement deed dated 7.5.1965 (Ex.P10), was sold by Smt. Ninfamma, for herself and as guardian of minor Rangamma, in favour of Eraiah (DW.3), under the sale deed dated 5.9.1966 (Ex.D1), which was not challenged and became final and hence Smt. Thopamma, D/o Ningamma and Rangamma, had no saleable interest to convey the suit property in favour of the plaintiff under the sale deeds dated 22.11.1990 and 3.12.1997 (Exs.P1 and P2). While arriving at the said conclusion, it was also held that, Smt. Rangamma having not challenged the sale transaction within 3 years from the date of she attaining majority, the suit is also beyond the period of limitation.
5. Against the decrees passed by the Trial Court in the said suits, the plaintiff filed R.A.20/2002 and R.A.21/2002, which having been heard together, were dismissed by the first appellate Court, by common judgment and separate decrees dated 21.8.2002, by recording the concurrent finding that, Smt. Rangamma (defendant No. 2
O.S.88/2000), had no valid title in the property as on the date on which she executed the registered sale deed in favour of the plaintiff, since her right, title and interest in the suit property had already been sold in favour of Eraiah, son of Gowdannanavara Era Chikkaiah (Ex. D1) who in turn, had sold the property to the defendants in O.S.67/1998 (Exs. D2 & D3). Feeling aggrieved thereby, these second appeals have been preferred.
6. A Sri Ravishankar, learned Counsel for the appellant would contend;
I) Admittedly, Ningamma was not the natural guardian of the minor Rangamma, at best, she could only be a de-facto guardian and Section 8 of the Act regulates the actions of the natural guardian so far regarding the dealing of minor's property is concerned.
II) Section 12 does not give any power to a guardian to sell the property without permission of the Court and it only envisages that, no guardian shall be appointed if the minors undivided interest in the joint family is in the hands of a adult member of the family.
III) Section 12 states, when a minor has an undivided interest in the joint family and when the management is with the adult member of the family, no guardian shall be appointed for the minor with respect to her undivided interest.
IV) Smt. Ningamma and Era Chikkaiah, together got 1 acre 15 guntas of land in Sy. No. 256/3 and thereafter Era Chikkaiah and his wife Smt. Sanna Thopamma died and thus their daughter Rangamma, became the absolute owner of the property belonging to her father, she being the sole surviving member of the family and hence, the right, title and interest held by the minor, could not have been conveyed by the self styled guardian Smt. Ningamma, as admittedly, no Court had authorised or permitted Smt. Ningamma, to be the guardian of minor Rangamma, in order to enable her to sell the property of the minor.
V) Section 11 of the Act bars a de-facto guardian to deal with the minors property and hence the alienation of Rangamma's right by Ningamma is ab-initio void, which is also supported by the ratio of law declared in the cases of, Madhegowda (dead) by L.Rs. v. Ankegowda (dead) by Lrs. : (2002) 1 SCC 178 and Talari Erappa v. Muthyappa AIR 1972 Mys 31.
VI) The lower Appellate Court has wrongly Interpreted Section 12 of the Act as a right envisaged to the guardian under the Act for the sale of the property, without considering the bar contained under Section 11 of the Act, which specifically bars a de-facto guardian to deal with the property of the minor.
VII) Section 12 of the Act has no application to the facts of the case, which has been wrongly applied and the case illegally decided by the Courts below.
VIII) Both the Trial and the first Appellate Courts have gravely erred in holding that, the unregistered palupatti dated 5.5.1995 is not an admissible piece of evidence. The Courts below ought to have recognised MR 8/97-98 (Ex.P9) under which Rangamma separately acquired 19 guntas of land in Sy. No. 256/3 and the cancellation of mutation entry by the Assistant Commissioner after the property was conveyed in favour of the plaintiff, could not have extinguished her title to the property. The palulpatti ought to have been allowed to be marked tentatively as an exhibit and decided the matter at the final hearing stage, as held in the case of, Bipin Shanthital Panchal v. State of Gujarat and Anr. AIR 2001 SC 1158
IX) Suit is maintainable as against the decision concerning mutation entry, as held in the case of Jana Bai v. Deputy Commissioner : ILR 1996 Kar 1280
7. Per contra, Sri. A.G. Shivanna, learned Counsel for the respondents, strenuously would contend;
I) Kumari Rangamma, the minor, was admittedly taken care of by Smt. Ningamma and being her guardian, she had the right to convey the property for the welfare of the minor and that the sale made in favour of Eraiah on 5.9.1966 is not opposed to law and hence, obtaining of permission of the Court, for sale of the property, was unnecessary.
II) There is only a mis-description of the property in mentioning the survey number in the sale deed dated 27.11.1970 (Ex.D2) executed by Eraiah in favour of Doddaiah, though the boundaries remain the same and the identity being clear. There was no property available for Eraiah in Sy. No. 256/4 for being conveyed and the mis-description has been rectified in EX.D4.
III) In the facts and circumstances of the case, it is Section 12 of the Act which is applicable, which operates on its own and the provisions contained in Sections 8 and 11 of the Act, do not put any fetters on Section 12 of the Act.
IV) The undivided interest in a joint family property can be sold by the family member and that, Section 12 saves the alienations made by the member of a joint family or the Kartha as the case may be.
V) The first Appellate Court has erred in answering point No. 6 in the negative.
VI) In view of the concurrent finding on facts by the Courts below, the impugned Judgements have not given rise to any substantial question of law and the one framed at the time admission of this appeal on 30.01.03 or the reframed substantial question of law on 20.2.2009, indeed, does not arise for consideration and consequently, the second appeal is not maintainable.
VII) Strong reliance was placed on the decisions, in the case of;
(1) Gangoji Rao and Anr. v. Channappa and Ors. 1983 (1) Kar LJ 177;
(2) Kamalamma v. Ramabhadra Gupta : ILR 1988 Kar 20;
(3) Sri Narayan Bal and Ors. v. Sridhar Sutar and Ors. : AIR 1996 SC 2371 and
(4) Sannamma and Ors. v. Shivanna and Ors. : ILR 2007 KAR 3641
in support of the contentions and also the findings/conclusions of the Courts below.
8. Having heard the learned Counsel on both sides in part and after perusing the record of the appeals, in my opinion, the substantial questions of law, raised on 30.1.2003 at the time of admission, required re-framing and hence, in exercise of jurisdiction vested under Section 100(5) CPC, was re-framed on 20.2.2009. The following are re-framed substantial questions of law;
(i) Whether, the sale deed dated 5.9.1966 (Ex.D1) executed by Smt. Ningamma, for herself and also as the de-facto guardian on behalf of minor Kum.Rangamma, is void ab initio, to the extent of the right and interest of minor Kum.Rangamma, on account of the bar under Section 11 of the Hindu Minority and Guardianship Act, 1956?
(ii) Whether, the defendants/'respondents have acquired under the sale deeds, Exs.D2 and D3, valid right, title and interest, even in respect of the property of minor Kum. Rangamma?
9. Learned Counsel on both the sides, were heard at length, with reference to the re-framed substantial questions of law.
10. Keeping in view record of the case and rival contentions, the core question that falls for determination, relates to the competence of Smt. Ningamma, to sell the right, title and interest of minor Rangamma in the suit property, by acting as her guardian. If the question is answered in the affirmative and it is held that, Smt. Ningamma had the competence to alienate the share of minor Rangamma, as her guardian, then, the Trial Court and the First Appellate Court, were right and justified, in holding that the transaction of sale is binding on Smt. Rangamma and the persons claiming through her, resulting in dismissal of the suits. On the other hand, if it is held that, Smt. Ningamma had no competence to alienate the right of minor Rangamma in the said property, then, the sale transactions are void ab-initio and consequently, the impugned judgments and decrees, passed by the Courts below, are liable to be modified.
11. To be a substantial question of law, as contemplated under Section 100 CPC, the question that arises in a case as between the parties, should have an impact or effect of question of law, on the decision in the lis between the parties. A question of law, which incidentally or collaterally, having no bearing on the final outcome, will not be a substantial question of law. If the question of law has been settled by a decision of the Hon'ble Supreme Court or of this Court, it cannot be said that, the case involves a substantial question of law, in that, the case will not be considered as giving rise to a substantial question of law, since, identical question of law was decided earlier. However, if the trial/first appellate Court, have not noticed the relevant statutory provisions applicable to the matter or the binding decision of the Hon'ble Supreme Court or this Court or misinterpreted or misapplied the decision and the correct application of law, as declared, would have led to a different decision, the appeal rises a substantial question of law, despite the law earlier having been settled by binding precedent. The impugned Judgments have given raise to the aforementioned substantial questions of law.
12. To answer the substantial questions of law, Section 11 of the Act and its interaction with other relevant provisions of the Act, are required to be first noticed.
I. In Section 4(b) of the Act, the expression 'guardian' is defined to mean, a person having the care of the person of a minor or of his property or of both his person and property and includes;
(i) a natural guardian;
(ii) a guardian appointed by the will of the minor's father or mother;
(iii) a guardian appointed or declared by court; and
(iv) a person empowered to act as such by or under any enactment relating to any court of wards.
II. In Clause (c), the term 'natural guardian' is defined to mean, any of the guardians mentioned in Section 6. In Section 6, provisions have been made regarding natural guardians of a Hindu minor in respect of minor's person as well as in respect of the minor's property. Incidentally, the power of natural guardian to alienate the property of a minor for which provision has been made under Section 8 is also required to be kept in view.
III. Sub-section (1) of Section 8 empowers a natural guardian of a Hindu minor, subject to the provisions of the 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 in no case can bind the minor by a personal covenant. In Sub-section (2) of 5.8, it has been mandated that, the natural guardian shall not, without the previous permission of the court, do any of the acts mentioned therein. Sub-section (3) thereto mandates that, any disposal of the immovable property by a natural guardian in contravention of Sub-section (1) or (2) to be voidable at the instance of the minor or any person claiming under him. Sub-section (4) of Section 8 mandates that, 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.
13. It is the contention of Sri. A. Ravishankar, that, it is Section 11 which alone applies to the case on hand and if the same is applied in the manner mandated by law and as interpreted in the case of Madhegowda (supra), the dismissal of the suit and appeal of the appellant, by the Courts below, is illegal and that, the appellant is entitled to relief, atleast, to the extent of Rangamma's right in the suit property. Hence, it is necessary to refer to Section 11, which reads as follows:
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.
14. The Act has come into force on 25.08.1956. In terms of Section 11, no person has the right or authority to do any act as a de facto guardian of a minor, to dispose of or deal with the property of a Hindu minor, on the ground of his or her being a de facto guardian of the minor. Thus, Section 11 has put a complete bar on the authority of any person to deal with or dispose of any property of a Hindu minor and any alienation made thereunder, being against the statutory provision, would be void ab initio and the alienee, would not acquire any title to the property.
15. In the case of Talari Erappa (supra), it has been held as follows:
As the law stands after the coming into force of the Act under no circumstances a de facto guardian can transfer the minor's property merely on the ground of his being a de facto guardian. If in those circumstances, defendant 5 claiming himself to be a de facto guardian alienated the properties of the minor plaintiff after the coming Into force of the Act, the transfers are void and if that be so, the question is whether void transactions could be ratified by a minor after he attains majority. The effect of the transaction being void is that no title passes to the alienee and the minor continues to be the owner of the property even after such transfer.
(Emphasis supplied by me)
16. In the case of Ganayya v. Radhabai : (1997) 11 SCC 332, it has been held as follows:
5. A bare reading of Section 11 goes to show that it explicitly provides that after the commencement of the said 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.
17. However, Sri. A.G. Shivanna, would contend that, it is Section 12, which has application to the case on hand; the same has been rightly applied by the Courts below and by applying the provisions thereunder, the appeal is devoid of merit and is liable to be dismissed. Hence, it is necessary to make a reference to Section 12, which reads as follows:
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.
18. To find an answer to the rival legal contentions, it is necessary to notice the decision in the case of Madhegowda, wherein, after making a reference to the provisions contained in Sections 4, 6, 8, 11 and 12 of the Act, it has been held as follows:
18. From the statutory provisions noted above, it is clear that with the avowed object of saving the minor's estate being misappropriated or squandered by any person, by a relation or a family friend claiming to be a well-wisher of the minor, Section 11 was enacted to prohibit any such person from alienating the property of the minor. Even a natural guardian is required to seek permission of the court before alienating any part of the estate of the minor and the court is not to grant such permission to the natural guardian except in case of necessity or for an evident advantage to the minor. So far as a de facto guardian or de facto manager is concerned, the statute has in no uncertain terms prohibited any transfer of any part of minor's estate by such a person. In view of the clear statutory mandate, there is little scope for doubt that any transfer in violation of the prohibition incorporated in Section 11 of the Act is ab initio void.
(Emphasis supplied by me)
19. It is also the contention of Sri. A.G. Shivanna that, Smt. Ningamma and minor Rangamma were members of the Joint Hindu Family and Smt. Ningamma being the kartha, had the right to take decisions in the interest of minor Rangamma. Strong reliance was placed on the decision in the case of Sri. Narayan Bal (supra) to contend that, In the circumstances of the case, previous permission of the court under Section 3 for disposing of the undivided interest of minor Rangamma, in the joint property held by Ningamma and Rangamma, was not required. It has to be stated that, the decision in the case of Sri. Narayan Bal has been noticed and its effect and applicability has been stated in the case of Madhegowda. Consequently, it is unnecessary to deal with the contention in greater detail. Suffice to notice that, in the case of Sri. Narayan Bal, natural guardians of their minor sons along with another, who was the Kartha of the joint family, had together executed the sale deed pertaining to certain joint family lands in favour of the first defendant, who made a further sale in favour of the second defendant and the plaintiffs who were all members of the Hindu Joint Family, filed a suit to have declared the sale deed as illegal and void, on the plea that the transaction was vitiated by fraud, misrepresentation and taking undue advantage of illiteracy of the guardians. The suit, which was contested, was dismissed by the Trial Court and was upheld by the Appellate Courts and before the Hon'ble Apex Court, the question posed and considered was 'whether the provisions of Section 8 of the Hindu Minority & Guardianship Act, 1956 were applicable to the Joint Hindu Family property sold or disposed of by the Kartha'. While answering the said question, it has been held as follows:
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 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. 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. The question posed at the outset therefore is so answered.
As is evident from the material facts noticed supra, the persons who had acted on behalf of the minors were the natural guardians and the property that was the subject matter of alienation was Joint Hindu Family property, which was conveyed by the natural guardians and also the Kartha of the Joint Hindu Family. Provisions of Section 11 of the Act did not fall for consideration and was not considered and no finding is rendered therein. Hence, the ratio of law declared in the said decision, has no application to the instant case, since, Smt. Ningamma was not the natural guardian of minor Rangamma, but, was a de facto guardian and the property involved, is also not the property of a Joint Hindu Family, but, was a property obtained under a settlement deed - Ex.P10.
20. In the case of Gangoji Rao (supra), the person who had acted on behalf of minors was a natural guardian and the Court taking into consideration the effect Sections 6, 8 and 12 of the Act, while deciding the appeal, has also held as follows:
Therefore, a natural guardian, who is empowered to manage the properties of her minor sons, can never be described as a guardian de facto. Hence. Section 11 of the Act would never come into play on the facts of the present case.
(Underling is by me)
Hence, the said decision, has no application to the instant case.
21. In the case of Kamalamma (supra), again, the guardian who had acted on behalf of minor was a natural guardian, taking which circumstance into account and also considering Section 12 of the Act, it was held as follows:
7.3 In the case of a Manager of a joint Hindu family consisting of minor members, the power of the Manager is not curtailed by the Hindu Minority and Guardianship Act. Section 12 of the Act specifically provides that where a minor has an undivided interest in joint family property and the property is under the management of the adult member of the family, no guardian shall be appointed for the minor in respect of such undivided interest, provided that nothing in the Section shall be deemed to affect the jurisdiction of a High Court to appoint a guardian In respect of such interest. The recitals contained in the two mortgage deeds, clearly establish that the mortgaged property is a joint family property. Further, it is not the case of defendants 2 and 3 that the mortgaged property is not a joint family property. As far as defendant -1 is concerned, he does not dispute that he executed both the mortgages as the kartha of the Joint Hindu family consisting of himself and his two brothers who are defendants 2 and 3. Thus, defendant -1 has not executed the two mortgages in question as a de facto guardian of defendants 2 and 3 but he has executed them as the kartha of the joint Hindu family consisting of himself and defendants 2 and 3. It is also very pertinent to notice that defendants 2 and 3 have not challenged the mortgage transactions on the grounds that there were not made either for legal necessity or for the benefit of the estate.
(Underlining is by me)
Hence, the said decision, wherein, it was not the de facto guardian who had acted on behalf of the minor, but, it was the natural guardian who acted, that too, in respect of a Joint Hindu Family property, has no application.
22. In the case of Sannamma (supra), one Nanjundappa had mortgaged certain property in favour of Mallappa and thereafter, his wife sold the property in favour of the mortgagee - Mallappa. Subsequently, suit was filed by her sons, challenging the sale deed executed by their mother. The suit was contested by the defendants inter alia contending that, the sale was for discharge of family and legal necessities by the mother of the plaintiffs and that in continuation of usufructory mortgage, the sale has taken place. Trial Court decreed the suit for redemption and the decree was questioned by the defendants in appeal, which was dismissed, challenging which, second appeal was preferred, wherein, a remand was made, directing the Lower Appellate Court, to consider whether, the sale is valid without the Court's permission; whether the mother can be a de facto guardian entitled to act under Section 11; whether such a sale is valid; whether there is any legal necessity in the eye of law and even if it be held, whether the sale is binding so far as the mother's share is concerned. After receipt of the remand order, the First Appellate Court having considered the matter, again dismissed the appeal and assailing the same, the second appeal was filed, wherein, it was inter alia held that, there is a rider in Section 11 to seek permission of the Court before such alienation. However, noticing the decision in Sri. NARAYAN BAL, the appeal was allowed in part holding that, the sale of the property in respect of minor's share is invalid, but so far as sale by the mother of the plaintiff to the extent of her share in favour of defendants -appellants is concerned, to be valid. Ultimately it was ordered as follows:
Further, in so far as right of redemption of share of the plaintiffs to the extent of 2/3rd share in the suit property is concerned, they are entitled to the same on depositing the mortgage amount to the extent of 2/3rd share and they are entitled to delivery of share to the extent of 2/3rd on deposit of the mortgage amount.
The said decision, does not support the case of the respondents, but on principle, it supports the case of the appellant.
23. In the case of Madhegowda, the facts were that, one Ninge Gowda was the original owner of the property In dispute. He died, leaving two daughters viz., Smt. Sakamma and Smt. Madamma. When Smt. Sakamma was a minor, her sister Smt. Madamma purportedly acting as a guardian, sold her share of the property left by Ninge Gowda, to Madhegowda, the appellant, under a registered sale deed dated 24.4.1961. The appellant - Madhegowda contended that, the sale of share of minor was to collect funds for her marriage and that, he has been put in possession of the property and continues to be in possession of the same. Said minor Sakamma, after attaining majority, sold her share of property to Ankegowda - respondent, by a registered sale deed dated 1.7.1967. Since there was a dispute regarding possession of the property, Ankegowda initiated proceedings under Section 145 of Cr.P.C. before the Sub-Divisional Magistrate, wherein, the learned Magistrate held that, Madhegowda was in possession of the property on the date of preliminary order and he would continue to remain in possession of the same till dispossessed by the competent Court. Thereafter, Ankegowda, as plaintiff, filed suit in the Trial Court seeking declaration of title, for partition of the share of his vendor Smt. Sakamma and for delivery of the same. The suit was dismissed and the appeal filed thereafter also failed, wherein it was held that, Smt. Sakamma had no valid title to the property as on 1.7.1967, the date on which she executed registered sale deed in favour of the plaintiff, since her interest in the suit property had already been sold in favour of Madhegowda (defendant No. 3) by registered sale deed dated 24.4.1961 executed by her sister Smt. Madamma. It was further held that Smt. Sakamma could not have sold the property to the plaintiff without getting the sale deed dated 24.4.1961 annulled by filing a suit within 3 years of attaining majority, presumably under the notion that, the sale was not void, but voidable only. Ankegowda, filed second appeal in this Court against the said decrees and this Court allowed the second appeal, setting aside the impugned decrees and held that, the L.Rs. of the plaintiff are entitled to half share in the suit property and ordered for partition and delivery of possession of their share out of the property. The review petition filed subsequently was dismissed and the matter was carried by the L.Rs. of the deceased Madhegowda to the Supreme Court, wherein, while dismissing the appeal as devoid of merit, interpreting Section 11 of the Act, it was held as follows:
This section brings about a material change in the law relating to de facto guardians or de facto managers of a Hindu minor's estate by enacting in express terms that after the commencement of the Act, no person has the right or authority to do any act as a de facto guardian of such minor. Although the expression 'de facto guardian' is often used in judgments, there is in law nothing like a de facto guardian. The statute recognises a natural guardian or a testamentary guardian or a guardian appointed by the court. In law a person who is not a guardian as aforementioned who takes interest upon himself, the general management of the estate of a minor can be more appropriately described as 'de facto manager'. Before enforcement of the Act some confusion prevailed over the powers of a de facto guardian or manger for alienating the property of his/her ward. It was held by the Privy Council in Hunoomanpersaud Panday case (Hunoomanpersaud Panday v. Babooee Munraj Koonweree (1854-57) 6 MIA 393 : 18 WR 81 (PC)) that a de facto guardian had the same power of alienating the property of his ward as a natural guardian. Section 11 has done away with the authority of any person to deal with or dispose of any property of a Hindu minor on the ground of his being the de facto guardian of such minor. Any alienation by a de facto guardian will be governed by the provisions in Section 11 of the Act. The alienation, being against the statutory prohibition, would be void ab initio and the alienee would not acquire any title to the property.
(Emphasis supplied by me)
24. Now reverting back to the facts of the case, firstly, the property in question is not a joint family property, but is a property settled by Eraiah under Ex.P10 jointly in favour of Smt. Ningamma and Era Chakkaiah. Secondly, the alienation made under Ex.D1 by Smt. Ningamma In favour of Eraiah, son of Gowdannanavara Era Chikkaiah, is not an alienation of minor's interest in a joint family property. Therefore, the decision in the case of Sri. Narayan Bal, has no application.
25. Section 11 includes ail types of properties of a minor and no exception is provided in the Section. Indisputably, Smt. Ningamma who is the aunt of minor Rangamma, is not a guardian as defined under Section 4(b) of the Act. Therefore, she can only be taken to be a de facto guardian. To a transfer, in such a case, Section 11 of the Act squarely applies. In such a situation, the law laid down by the Hon'ble Supreme Court in Madhegowda case, to the following effect, squarely applies.
Therefore, there is little scope for doubt that the transfer of the minor's interest by a de facto guardian/manager having been made in violation of the express bar provided under the section is per se invalid. The existence or otherwise of legal necessity is not relevant in the case of such invalid transfer. A transferee of such an alienation does not acquire any interest in the property. Such an invalid transaction is not required to be set aside by filing a suit or judicial proceeding. The minor, on attaining majority, can repudiate the transfer in any manner as and when occasion for it arises. After attaining majority, if he/she transfers his/her interest in the property in a lawful manner asserting his/her title to the same that is sufficient to show that the minor has repudiated the transfer made by the 'de facto guardian/manager.
26. Smt. Ningamma and late Era Chikkaiah i.e., father of Rangamma, jointly obtained the suit property under the settlement deed Ex.P10. Indisputably, there was no partition of the property between them nor between Ningamma and Rangamma. Without partition and share of Rangamma being separated, Ningamma has sold the property under Ex.D1 in favour of DW3-Eraiah. The sale of Rangamma's right by Ningamma, is in the capacity as a de facto guardian. Hence, the same being against the express bar contained in Section 11 of the Act, Ex.D1 to the extent of sale of Rangamma's right in the suit property, is per se invalid. The purchaser under Ex.D1 viz., Eraiah (DW.3) has not acquired any right or interest in the suit property, to the extent of Rangamma's right. Hence, the transaction in respect of Rangamma's right under Ex.D1 being an invalid transaction, is not required to be got set aside by filing a suit. Rangamma, on attaining majority, can repudiate the transfer in any manner. After attaining majority, she has transferred her right and interest in the suit property in a lawful manner by executing the sale deed dated 3.12.1997 (Ex.P2) in favour of the plaintiff, thereby asserting her title to the property, which is sufficient to show that, the minor has repudiated the transfer made by the de facto guardian Smt. Ningamma. Both the Courts below have not applied Section 11 of the Act and have not noticed the decision of this Court in the case of Talari Erappa. Defendants/respondents have admitted the fact that, Rangamma had right and Interest over the suit property, but their claim is that, her guardian Ningamma, sold the property to DW.3, from whom they purchased, under the sale deeds as at Exs. D2 and D3. Rangamma's right and interest in the property could not have been sold by Ningamma, in view of the express bar contained in Section 11 of the Act and the transferee of such an alienation has not acquired any interest in the property. The effect of transaction of Ningamma under Ex. D1 to the extent of Rangamma's right being void ab initio, no title to the said extent has passed on to the alienee DW.3 or the subsequent alienees i.e., the respondents and Rangamma continued to be the owner even after the said transfer. Smt. Rangamma having sold her right and interest in the property under Ex.P2 in favour of the plaintiff, is sufficient to show the repudiation of the transfer by her and she having lawfully conveyed her right and interest in the property in favour of the plaintiff, the plaintiff has acquired valid right to the extent of Rangamma's right in the suit property. Hence, the findings and conclusions of the Courts below, to the extent of Rangamma's right in the suit property being against the provisions in Section 11 of the Act and the ratio of law declared in the cases of Talari Erappa and Madhegowda, are clearly erroneous and have to be modified.
27. To the extent of alienation of Rangamma's right in the suit property by her de facto guardian Ningamma, the Courts below have drawn wrong inferences from proved facts by applying the law erroneously. Instead of applying Section 11 of the Act, both the Courts below have erroneously applied Section 12 of the Act and have held that Ningamma being the kartha of the joint family, had the right to alienate the property. Both the Courts below have misdirected themselves in applying the law and also in the matter of appreciation of the record, with reference to the correct provision of law. Hence, interference to the aforesaid extent is called for, despite the concurrent findings of the Courts below, since, perversity on their part has been duly established.
28. Indisputably, the suit properties form part and parcel of the land measuring 1 acre 15 guntas in Sy. No. 256/3 of Kenkere Village. Ningamma had conveyed the said property under Ex.01 in favour of DW3, who later sold and conveyed the same under the sale deeds at Ex.D2 and D3 in favour of the defendants. The description of the property in the sale deed at Ex.D2 showing the land as Sy. No. 256/4, instead of part of Sy. No. 256/3, is only a clerical/arithmetical error and the identity of the property is clear from the boundaries. It is trite, when there is a discrepancy in the measurements and boundaries or numbers and the boundaries, it is the boundaries which should prevail since the property can be clearly identified with reference to the boundaries.
29. Rangamma's name had been entered in the mutation register, in respect of 19 guntas of land in Sy.No. 256/3 in ICR No. 8/97-98 dated 28.11.1997. The said order having been challenged by Doddaiah -respondent I/defendant 1, in Appeal No. 81/97-98, the Assistant Commissioner, Hassan Sub-Division, has passed the order dated 8.12.2000 as at Ex.D11, allowing the appeal, setting aside the entry showing the name of Smt. Rangamma and ordering restoration of the name of Doddaiah. The order at Ex.D11 was put in challenge by the plaintiff, the alienee from Rangamma, in O.S.88/2000 on the ground that the same is illegal and void. Since the property had already been sold in favour of the plaintiff, he ought to have been made a party in the said appeal by the 1st respondent herein. Without the plaintiff/appellant who had purchased the property being made a party, the order at Ex.D11 has come to be passed, which is opposed to the principles of natural justice. A suit for declaration of title and rectification of entries in Record of Rights, is maintainable, as held by this Court in the case of Stumpp Scheule & Somappa (P) Ltd. v. Chandrappa : ILR 1985 Kar 3872. It is also been held in the case of Janabai v. Deputy Commissioner : ILR 1996 Kar 1280 that, when an order is passed in a mutation proceedings either in appeal or revision, the only remedy is a suit under proviso to Section 135. Keeping the said position of law in view, the lower appellate Court has rightly held that O.S.88/2000 is maintainable. Hence, the contention canvassed by Sri A.G. Shivanna that the lower appellate Court has committed an error in answering point No. 6 in the negative, is devoid of merit.
30. The findings of the Courts below to the effect that Thopamma daughter of Ningamma had no saleable interest in the property conveyed by her in favour of the plaintiff under the sale deed dated 22.11.1990 (Ex.P1) is well founded. Whatever right Ningamma had in the property which she had obtained under Ex.P10, was sold and conveyed by her under D1 in favour of Eraiah son of Gowdannavara Era Chikkaiah (DW3). Hence no portion of property in Sy. No. 256/3 of Kenkere Village, which belonged to Ningamma, devolved upon her daughter Thopamma, for being conveyed by Thopamma in favour of the plaintiff. The plaintiff has not acquired any right and interest in the suit property through his vendor Thopamma and to the said extent, the findings of the Courts below are correct and are liable to be upheld, only to the said extent.
31. An appeal is a continuation of the suit. The appellate Court, in view of Order 7, Rule 7 of CPC, may take into consideration the events to mould the relief. In the given facts, circumstances and the record of the case and also the findings recorded supra with reference to the right of Smt. Rangamma and the correctness of the findings of the Courts below with reference to the right of Smt. Thopamma, I deem it just and necessary, to mould the relief and hence, I pass the following:
ORDER
i) The appeals are allowed in part.
ii) In modification of the Judgment and decree dated 6.3.2002 passed by the learned Civil Judge,(Sr. Dn.), Arsikere, in O.S. Nos. 67/1998 and 88/2000 and the Judgment and decree passed by the learned Additional District Judge, Hassan in R.A. Nos. 20/2002 and 21/2002 dated 21.8.2002, O.S. Nos. 67/1998 and 88/2000 on the file of the Civil Judge,(Sr.Dn.), Arsikere, shall stand decreed in part.
iii) The plaintiff is declared as the owner of 13 guntas of land in Sy. No. 256/3, situated at Kenkere Village, Gandasi Hobli, Arsikere taluk , Hassan District (i.e., half extent of the two items of suit schedule properties).
iv) The order dated 8.12.2000 passed in R.A.81/97-98 by the Assistant Commissioner, Hassan, shall stand set aside, to an extent of 18 guntas of land in Sy. No. 256/3 situated at Kenkere Village, Gandasi Hobli, Arsikere taluk , Hassan District, (i.e., half extent of the two items of the suit schedule properties).
v) Appellant/plaintiff is granted liberty to institute a suit for partition and separate possession of 18 guntas of land, out of the land in Sy. No. 256/3 Kenkere Village, Gandasi Hobli, Arsikere taluk , Hassan District and have the share bifurcated by metes and bounds and seek such other reliefs flowing therefrom.
vi) O.S. Nos. 57/1998 and 88/2000 on the file of the Civil Judge (Sr.Dn.,), Arasikere, shall stand decreed in the above terms.
In the facts and circumstances of the case, the parties shall bear their respective costs throughout.