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2019 SCC OnLine Bom 82 : (2019) 5 Mah LJ 945 : AIR 2019 Bom
77 : (2019) 2 AIR Bom R 325 : (2019) 2 Bom CR 765 : (2020)
210 AIC 313 : (2019) 2 RCR (Civil) 178

In the High Court of Bombay

Sale Of Minor's Property By Mother During Life Time Of Natural
Guardian Father : Is Void
(Aurangabad)
(BEFORE A.M. DHAVALE, J.)

Rameshwar Babasaheb Paul … Appellant;

Versus
Shivaji Eknathrao Paul and others … Respondents.
S.A. No. 650 of 2003
Decided on January 21, 2019

(a) Hindu Minority and Guardianship Act (32 of 1956), SS. 11 and 8 —
Sale of minor's property — De facto guardian not to deal with property of
minor — Mother sold minor's property though father, natural guardian was
alive — Suit challenging sale by minor — Maintainability — No case that
father was not taking care of minor — Mother being de facto guardian not
entitled to alienate property of minor — Transaction of such sale would be
void — No legal necessity for sale — Suit filed challenging sale for claiming
perpetual injunction and for possession was perfectly maintainable.
(Paras 11, 12, 19, 20 and 22)
(b) Transfer of Property Act (4 of 1882), S. 52 and Hindu Minority and
Guardianship Act (32 of 1956), SS. 11 and 8 — Sale of property during
pendency ofproceedings challenging sale of minor's property — Lis pendens
— Applicability — Sale of minor's property by mother during life time of
father who is natural guardian of minor — Challenge to sale by minor
claiming perpetual injunction and possession — Alleged purchaser sold said
property to third party during pendency of lis — Original purchaser would get
no right of title or interest by alleged sale deed — Principle of lis pendens
applies when rights or interest are in question — Third party acquires
possession only through original purchaser — No issue of lis pendens
involved when there is no transfer of any rights as transferor himself was
having no right — Consequently, such transfer would be void.
(Para 24)
Advocates who appeared in this case :
For appellant: Ms. Priyanka N. Matlane
For respondents: A.S. Deshmukh
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List of cases referred:

1. Narain Singh v. Sapuma Kaur, 1968 (16) BLJR 898 (Para 6)

2. Narayan Laxman Gilankar v. Udaykumar (Paras 7,13,14, 15,21)

Kashinath Kaushik, 1993 (2) Mh.LJ 1653 : AIR
1994 Bombay 152

Page: 946

3. Amrit Lal Jain v. Haryana Urban Development (Paras 7, 24)

Authority, AIR 1995 Punjab and Haryana 1417

4. Vimal Chand Ghevarchand Jain v. Ramakant (Para 11)

Eknath Jajoo, 2009 (5) Mh.L.J. 597

5. Panni Lal v. Rajinder Singh, (1993) 4 SCC 38 (Para 16)

6. Vishwambhar v. Laxminarayana, (2001) 6 SCC (Paras 18, 21)

163 : AIR 2001 SC 2607

7. Madhegowda v. Ankegowda, (2002) 1 SCC 178 : (Para 19)

AIR 2002 SC 215

8. Githa Hariharan (Ms.) v. Reserve Bank of India, (Para 21)

1999 (2) Mh.LJ. (S.C.) 703 : (1999) 2 SCC 228

JUDGMENT
A minor plaintiffs suit filed through his father as next friend for
declaration that the sale of his share by his mother was void and illegal,
was decreed with costs by the trial Court. The first Appellate Court
allowed the appeal and reversed the judgment. Hence, the plaintiff has
filed this Second Appeal.
2. The appellant-original plaintiff was aged 12 years when his father
as next friend filed Reg. Civil Suit No. 56/89 in the Court of Civil Judge
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Jr. Division, Selu, Dist. Parbhani. As per the plaint, land adm. 2H 90R
at Gut No. 254 at Digras was belonging to the plaintiff.
Kushavartabai/defendant No. 1 (his mother) had no title or right or
interest. Defendant Nos. 2 and 3 by use of undue influence, coercion
and force got a sale deed of the suit land executed in their name
without any consideration. That time, defendant No. 1 as mother acted
as a guardian when his father was alive. She had no authority to act as
guardian and to execute the sale deed. No permission of the Court was
obtained for sale of minor's property. Initially, the suit was for
declaration that the sale deed was void and for perpetual injunction but
in 1990, the plaintiff claimed that he was forcibly dispossessed and by
amending the plaint he claimed possession of the suit land. Defendant
No. 2-Shivaji alone contested the suit. He claimed that, there was
partition between the plaintiff, his father and his mother before
execution of the sale deed and the suit land was allotted to defendant
No. 1 and the plaintiff. The suit land was sold for legal necessity and for
the benefit of the minor. The sale is legal and binding on the plaintiff.
There was no coercion or undue influence or force. The suit proceeded
without written statement of defendants No. 1 and 3.
3. The learned trial Judge framed issues and after recording the
evidence he came to the conclusion that the plaintiff was exclusive
owner of the suit land. The sale deed was obtained by undue influence
and without consideration. It was not for legal necessity or benefit of
the minor. With these findings, he granted a decree of declaration that
the sale deed was null and void and not binding on the plaintiff and for
possession.
4. Defendant No. 2 challenged the judgment and decree by way of
Reg. Civil Appeal No. 177/1994 before the District Judge, Parbhani. The
learned District Judge held that, the said sale deed could not be
challenged during the minority of the plaintiff. The plaintiff alone can
challenge it after attaining

Page: 947

majority. Hence she allowed the appeal and dismissed the suit. Hence,
this appeal.

5. By order dt. 25-7-2005, the appeal was admitted on grounds No.

2 and 3 as substantial questions of law, which read as under:
(i) Whether the property of the minor can be alienated without the
permission of the Court?
(ii) Whether the sale of a property in the name of minor can be sold
(valid) without there being any legal necessity and whether
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property of the minor can be sold for the necessity of the other
family members?
6. Ms. Priyanka Matlane, learned counsel for the appellant argued
that, the property was belonging to the plaintiff/minor. At the time of
sale, his father was alive and his mother could not be his natural
guardian. The sale effected by the plaintiffs mother was void and not
voidable. In this regard, she relied on Narain Singh v. Sapurna Kaur,
reported in 1968 (16) BLJR 898. In this case, it is held that, when the
father was alive but he refused to act as natural guardian, the disposal
of the property of the minor by the mother is not valid as she has not
legally obtained the permission to dispose of the property. She could
have taken recourse to the legal proceedings to act as minor's
guardian.
7. Per contra, Mr. V.D. Hon, learned Sr. Counsel for respondent No. 1
submitted that, learned first Appellate Court has rightly relied on the
judgment of the Apex Court in Narayan Laxman Gilankar v. Udaykumar
Kashinath Kaushik, reported in 1993 (2) Mh.LJ. 1653 : AIR 1994
Bombay 152, to hold that the suit filed by the father of a minor during
his minority was not maintainable. He submitted that, respondent No. 5
has purchased the suit property after the judgment of the first
Appellate Court. The appeal was admitted after condonation of delay.
Respondent No. 5 is a bona fide purchaser. In this situation, the
doctrine of lis pendens will not be applicable. In this regard, he relied
on the judgment Amrit Lal Jain v. Haryana Urban Development
Authority, reported in AIR 1995 Punjab and Haryana 1417. He also
argued that, though sale transaction was executed by the mother of the
plaintiff, the plaintiffs father was a witness to it. It was sold for the
benefit of the minor. No substantial question of law is involved and
therefore the appeal be dismissed.
8. The substantial question of law with my findings are as follows:
(i) Whether the property of the minor can be alienated without the
permission of the Court?
…. Not by mother, who is not natural guardian.
(ii) Whether the sale of a property in the name of minor can be sold
(valid) without there being any legal necessity and whether
property of the minor can be sold for the necessity of the other
family members?
….When sale is not by natural guardian, legal necessity is
immaterial - In the negative.

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(iii) What order?

………… The appeal is allowed. The judgment and decree of the
first Appellate Court are set aside and the judgment and decree of
the trial Court is restored.
9. In view of argument of learned Advocate Mr. Hon, following
additional substantial question of law is framed.
(i) Whether the decree would be binding on respondent No. 5 or
not ?
….. Decree would be binding.
Reasons
10. From the pleadings and evidence on record, it is not disputed
that the suit land was belonging to the plaintiff, aged 12 years. In fact,
the defendant has purchased the land assuming that it is belonging to
the plaintiff and through his mother.
11. Admittedly, defendant No. 1-mother of the plaintiff during his
minority on 17-2-1989 executed sale deed of the suit land adm. 1H 1R
in favour of defendant No. 2-Shivaji, for Rs 30,000/-. The same is
signed on behalf of the plaintiff by defendant No. 1-Kushavartabai. It is
attested by the plaintiffs father. Sale deed was executed on 17-2-1989
and the suit is filed on 16-3-1989. The sale deed is in favour of
defendant No. 2 alone. Defendant No. 3 is not concerned. It was
contention that, the sale was without consideration however it is a
registered sale deed. There is evidence of the defendant about payment
of consideration. There is nothing suspicious to suggest that the sale
deed executed was without payment of consideration. The Id. trial
Judge held that, the sale was without consideration but he overlooked
the fact that there was a registered sale deed which has presumptive
value. In this regard, I rely on Vimal Chand Ghevarchand Jain v.
Ramakant Eknath Jajoo, reported in 2009 (5) Mh.L.J. 597. There is no
material to suggest that defendant No. 1-Kushavartabai was under any
pressure and she could have executed the sale deed without
consideration. The plaintiff has not examined Kushavartabai. In the
light of these facts, the learned first Appellate Court rightly set aside
the finding that the sale was without consideration.
12. The learned trial Judge held that, when the plaintiffs father was
alive, his mother was not a natural guardian and was not entitled to
execute the sale deed on behalf of the minor. He also held that, there
was no legal necessity.
13. The first Appellate Court relied on Narayan Gilankar's case
(supra), wherein it is held that when sale transaction is without
permission of the Court it is not void ab initio but is voidable at the
option of the minor and challenge to the sale can be made by the minor
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only after attaining majority and not during his minority through next
friend. It was observed by the first Appellate Court that the plaintiff
filed application dt. 4-12-1999 during the pendency of the appeal to
remove the natural guardian and sought permission to contest the suit
of his own. This was made after he had completed three years after
attaining majority (aged 22 years). Therefore, his claim was barred by
limitation.

Page: 949

14. In Narayan 's case (supra), one Kashinath Kaushik was the
common ancestor. He died in 1951 leaving behind a widow and two
minor sons. Half portion of the property was sold in Court auction in
November-1952 in execution of decree passed against deceased
Kashinath. On 4-10-1962, Rukhminibai sold the remaining 1/2 part on
behalf of heirs and natural guardian. In the year 1968, Udaykumar the
elder son filed a suit for himself and as next friend of minor brother
Babulal, against the purchaser Narayan Gilankar and mother
Rukminibai for a declaration that the transaction of sale was void and
for partition and separate possession of 2/3rd share. There was no
dispute that the mother was the natural guardian and the property was
not divided by metes and bounds and the minors had only undivided
unspecified shares in the same. It was held that, essence of
coparcenary property under Mitakshara is the unity of ownership in the
whole body of coparcenary. Relying on sub-clause (2) and (3) of section
8 of the Hindu Minority and Guardianship Act, 1956, it was held that,
sale transaction without permission of the Court is not void ab initio,
but is voidable at the option of the minor or any person claiming under
him and the said option can be exercised by him only after attaining
the majority and not during minority through next friend.
15. The learned first Appellate Court erred in not considering the
peculiar facts and circumstances of the case which are quite distinct
from the case of Narayan Gilankar's (supra). In that case, the brother
was not natural guardian and father was dead. In the present case,
father was alive and mother has executed the sale deed of the property
of the minor and father was attesting witness.
16. In Panni Lal v. Rajinder Singh, reported in (1993) 4 SCC 38.
Mother Gurkirpal sold the land owned by her minor sons Rajendra and
Baldeo during their minority by registered sale deed dt. 30-7-1964. The
respondents, upon attaining majority, sued the appellant for possession
of the said land on the ground that the sale thereof, having been made
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without the permission of the Court, was void. The appellants heavily
relied on the fact that sale deed had been attested by the father of the
respondents and that the sale must be deemed to have been a sale by
the legal guardian. It was also contended that the sale had been for
legal necessity and for the benefit of the respondents. In the light of
these facts, the Apex Court observed as follows:
6. ………………… In this behalf our attention was invited to this
Court's judgment in Jijabai Vithalrao Gajre v.Pathankhan, AIR 1971
SC 315. This was a case in which it was held that the position in
Hindu law was that when the father was alive he was the natural
guardian and it was only after him that the mother became the
natural guardian. Where the father was alive but had fallen out with
the mother of the minor child and was living separately for several
years without taking any interest in the affairs of the minor, who was
in the keeping and care of the mother, it was held that, in the
peculiar circumstances, the father should be treated as if nonexistent
and, therefore, the mother could be considered as the

Page: 950

natural guardian of the minor's person as well as property, having

power to bind the minor by dealing with her immovable property.

7. In the present case, there is no evidence to show that the

father of the respondents was not taking any interest in their affairs
or that they were in keeping and care of the mother to the exclusion
of the father. In fact, his attestation of the sale deed shows that he
was very much existent and in the picture. If he was, then the sale
by the mother, notwithstanding the fact that the father attested it,
cannot be held to be a sale by the father and natural guardian
satisfying the requirements of section 8.
17. The present case is squarely covered by the above judgment in
the facts of the present case.
18. In Vishwambhar v. Laxminarayana, (2001) 6 SCC 163 : AIR
2001 SC 2607, there was alienation of minors property by mother as
guardian and the suit was filed by minor for recovery of possession
from the purchaser. It was held that, the sales made by guardian were
ab initio void and liable to be ignored. It was held that, the suit should
have been for setting aside the sales. There was no such prayer initially
and the plaint was amended but the amendment was barred by
limitation of three years from the date of sale deed. In this case also,
the father Dattatraya died and the minors were in care and custody of
their widowed mother. She was managing the properties left by
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Dattatraya as guardians of the minors. She executed sale deeds in

1967. The declaration for setting aside the sale deed would be
necessary if the sale deed is executed by natural guardian which would
be voidable under section 8. Such prayer will not be necessary if the
sale is effected by de facto guardian. It is governed by section 11 which
declares the sale as void.
19. In this regard, I rely on Madhegowda v. Ankegowda, (2002) 1
SCC 178 : AIR 2002 SC 215. In this case, the original owner
Ninjegowda died leaving behind two daughters Sakamma and
Madamma. While Sakamma was minor, Madamma acting as guardian
sold her share by registered sale deed to Madhegowda on 24-4-1961. It
was sold for collecting funds for marriage of Sakamma. The appellant
was also put in possession of the property. Sakamma after attaining
majority sold her share of the property to Ankegowda, predecessor of
respondent Nos. 1 to 9 therein, by a registered Sale Deed dated 1-7-
1967. In the light of these facts, relying on section 11 prohibiting de
facto guardian from alienating the property of minor, it was held that,
“Section 11 had 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.
The Apex Court observed, “it is to be kept in mind that this is not
a case of alienation of minor's interest in a joint family property. As
noted earlier, Ninge Gowda died leaving his two daughters, namely
Smt.

Page: 951

Sakamma and Smt. Madamma. It is not the case of any of the parties
that the suit property was a joint family property in the hands of Ninge
Gowda or that the alienation by Smt. Madamma, who is the sister of
the minor, was a transfer of the minors interest in the joint family
property. Therefore, the question whether the provision in section 11 is
applicable in the case of transfer of minors interest in a joint family
does not arise for consideration here. Section 11 includes all types of
properties of a minor. No exception is provided in the section.
Undoubtedly Smt. Madamma, sister of the minor, is not a guardian as
defined in section 4(b) of the Act. Therefore, she can only be taken to
be a de facto guardian or more appropriately de facto manager. To a
transfer in such a case section 11 of the Act squarely applies, Therefore,
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there is little scope for doubt that the transfer of the minors 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 how that the minor has repudiated
the transfer made by the de facto guardian/manager.”

20. In the light of these facts, it is crystal clear that when the
property inherited and owned by the plaintiff which is not a Hindu Joint
Family property or interest in the joint Hindu Family and when father
was not shown to be not taking care of the minor, mother is not natural
guardian. She as a de facto guardian has no right to alienate the
property of her minor son.
21. When the transaction is voidable, it is voidable at the option of
the minor. Minor's father or natural guardian cannot exercise the option
which a minor alone can exercise. Obviously, the minor can exercise it
after attaining the majority. Therefore, when the sale is voidable, the
ruling in Narayan Gilankar's (supra) would be applicable but when the
sale is void and there was threat of dispossession or there was actual
dispossession, it was not necessary for minor to wait for attaining
majority. His natural guardian could have filed suit to protect his
interest and his civil rights in the property. Thus, the suit filed by the
plaintiff during his minority through his father a natural guardian as
next friend is certainly maintainable. The period of limitation in such
matters will be 12 years and not 3 years as there is no necessity of
claiming any declaration. The question of legal necessity as held in
Vishwambhar's case (supra) is irrelevant. The sale is void and the
transfer can be repudiated on attaining majority. I therefore find that
the learned first Appellate Court committed error in not properly
appreciating the above facts and did not follow the settled principles of
law as laid down in the above rulings.

Page: 952

The sale could have been voidable only if father was neglecting the
child and was in care, custody and maintenance of the mother. In this
regard, reliance can be placed on the judgment of the Apex Court in
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Githa Hariharan (Ms) v. Reserve Bank of India, reported in 1999 (2)

Mh.LJ. (S.C.) 703 : (1999) 2 SCC 228.

46. In our opinion, the word ‘after” shall have to be given a

meaning which would subserve the need of the situation, viz., the
welfare of the minor and having due regard to the factum that law
Courts endeavour to retain the legislation rather than declare it to be
void, we do feel it expedient to record that the word “after” does not
necessarily mean after the death of the father, on the contrary, it
depicts an intent so as to ascribe the meaning thereto as “in the
absence of’ be it temporary or otherwise or total apathy of the father
towards the child or even inability’ of the father by reason of ailment
or otherwise and it is only in the event of such a meaning being
ascribed to the word “after ” as used in section 6 then and in that
event, the same would be in accordance with the intent of the
legislation, viz., the welfare of the child.
47. In that view of the matter, the question of ascribing the literal
meaning to the word “after” in the context does not and cannot arise
having due regard to the object of the statute, read with the
constitutional guarantee of gender equality and to give a full play to
the legislative intent, since any other interpretation would render the
statute void and which situation, in our view, ought to be avoided.
22. There are neither pleadings nor evidence to make out these
situations which could have made the mother as natural guardian.
Hence, the sale effected by mother is void and the suit filed for
challenging the same and for claiming perpetual injunction and later on
for possession was perfectly maintainable.
23. As far as the arguments of learned Advocate Shri. Hon for
respondent No. 5 are concerned, he claims to be a bona fide purchaser
after the First Appeal was dismissed before it was restored. He claims
that the lis pendens would not be applicable and the decree would not
be binding on him.
24. In the light of the above discussion, it is apparent that
defendant No. 2 got no rights by virtue of sale deed executed by
defendant No. 1 as the same was void. When defendant No. 2 had no
rights, defendant No. 5 Karbhani would have got no rights of title or
interest by virtue of sale deed executed in his favour by defendant No.
2. The issue of lis pedens applies when the rights or interests are in
question. In the present case, respondent No. 5 is only in possession
through respondent No. 1 Shivaji (defendant No. 2). The issue of lis
pendens is not involved when there is no transfer of any rights as
defendant No. 2 Shivaji himself was having no right. As far as
possession is concerned, decree passed against defendant No. 2 Shivaji
would be binding on the persons claiming through him. The facts in
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Amrutlal Jain's case were quite different. In that case, the subsequent
purchaser was not made a party and there was allotment of the

Page: 953

disputed plot in his favour. The said ruling is not applicable to the facts
of the present case. Therefore, the judgment and decree of the first
Appellate Court will have to be set aside and the judgment and decree
of the trial Court will have to be restored. Since there is a registered
Sale Deed, copy of this judgment and decree needs to be sent to Sub-
Registrar before whom the sale deed was executed. Hence, I allow the
appeal as follows:

ORDER
(i) The Second Appeal is allowed with costs.
(ii) The judgment and decree of the first Appellate Court is set aside.
(iii) The judgment and decree of the trial Court is restored.
(iv) The trial Court is directed to forward the copy of this judgment
and decree of the trial Court as well as this Court to the concerned
Sub-Registrar before whom the sale deed declared as void was
executed.
Appeal allowed.
———
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