Bade Sriramulu Vs Chedalavada Prabhakara Rao, Minor by Ch. Venkaiah and Others

P. Ramakrishnam Raju, J.@mdashThis appeal is brought by the first defendant against the decree and judgment in O.S. No. 61 of 1976. The first respondent being minor, represented by his maternal uncle Chunduri Venkaiah filed the suit for partition and separate possession of half share in the plaint schedule property and also for declaration that he is entitled to recover possession of the other half after the life time of his mother, the second defendant together with future profits.

2. One Chadalavada Venkata Ramanjaneyulu, a Medical Practitioner at Ongole purchased vacant site at Ongole in the year 1958 and 1961 and constructed a terraced house thereon which is the plaint schedule property. He executed a settlement deed dated 28-5-1966 giving a half share in the said house to his son the plaintiff with absolute rights and the other half to his wife, the second respondent for life and the vested remainder to the plaintiff. Anjaneyulu died on 8-6-1968. The second respondent, his widow was managing the property of the minor plaintiff. After the death of Anjaneyulu some of his creditors obtained decrees against his estate. As the Co-operative Building Society brought pressure upon the second respondent, she sold the said property for a low price of Rs. 15,000/- while its value at that time was Rs. 50,000/-. As the second respondent neglected the plaintiff, his maternal uncle took him under his care and protection. As the sale of the minor''s property by the second respondent is illegal, this suit is filed.

3. The plaintiff examined three witnesses and marked Exs. A-l to A-3; while the respondent (defendant) Nos. l and 3 examined 8 witnesses including themselves as D.Ws.l and 8 respectively, apart from marking Exs.B-1 to B-90. The trial Court decreed the suit in the following terms:-

" In view of my foregoing findings, I hold that the plaintiff is entitled to claim partition and immediate possession of his half share in the suit property and a declaration that he is entitled to recover possession of the other half share after the life time of the second defendant on condition of his restoring to the first defendant the sale consideration of Rs. 15,000/- with interest at 6% per annum from the date of the suit till the date of payment. On such payment being made, the first defendant shall put the plaintiff and the second defendant in possession of the suit property.

Hence the appeal by the first defendant.

4. Sri C. Poornaiah, the learned Advocate appearing for the appellant vehemently contended that the half share of the house gifted by late Anjaneyulu to the second respondent gets enlarged u/s 14(1) of the Hindu Succession Act, 1956, and therefore, she becomes an absolute owner. As such, the alienation made in respect of her half share cannot be questioned by the minor. He also further contended that the second respondent being the natural guardian is entitled to alienate the minor''s half share since it is a joint family property in the hands of the minor for legal necessities or for the benefit of the estate.

5. Under Ex.A-1 settlement deed dated 28-5-1966 late Anjaneyulu gifted half of the plaint schedule property to the minor plaintiff with absolute rights and the other half to his wife, the second defendant for enjoyment during her life time and vested remainder to the minor plaintiff absolutely. It is stated that the said settlement deed was executed purely out of love and affection. Therefore in such circumstances, the first question for consideration is whether the property in the hands of the widow would enlarge into a full estate, or she has a mere right to enjoy during her life time as stipulated in the settlement deed.

6. Section 14 of the Hindu Succession Act, 1956 - hereinafter called ''the Act'' may be usefully extracted:

" 14 (1) Any property possessed by a female Hindu, whether acquired before or after the commencement of this Act, shall be held by her as full owner thereof and not as a limited owner.

Explanation:- In this sub-section "property" included both moveable and immovable property acquired by a female Hindu by inheritance or devise, or at a partition, or in lieu of maintenance or arrears of maintenance, or by gift from any person, whether a relative or not, before, at or after her marriage, or by her own skill or exertion, or by purchase, or by prescription, or in any other manner whatsoever, and also any such property held by her as stridhana immediately before the commencement of this Act.

(2) Nothing contained in sub-section (1) shall apply to any property acquired by way of gift or under a will or any other instrument or under a decree or order of a Civil Court or under an award where the terms of the gift, will or other instrument or the decree, order or award prescribed a restricted estate in such property."

7. A reading of this section shows that the property which is in possession of a female Hindu whether acquired before or after the commencement of this Act shall be enjoyed by her with absolute rights and not as a limited owner. Therefore, it is clear that the concept of limited estate was sought to be abolished by introduction of this section .The words " not as a limited owner" employed in this section would clearly convey that a female Hindu who would have been a limited owner under the old Hindu Law would become a full and absolute owner of the property by virtue of Section 14(1). The words, "whether acquired before or after the commencement of this Act," occurring in sub-section (1) of Section 14, would further demonstrate that irrespective of the fact whether the property was acquired by a female Hindu before or after the commencement of the Act, the property shall be held by her as full owner and not as limited owner. The explanation amplifies further that "property" includes both movable and immovable acquired by any manner including gift or at partition or in lieu of maintenance etc., However, sub- section (2) of Section 14 carves an exception to the general rule of enlarging into full ownership. Exceptions as specified therein are the restrictions on enjoyment when the property was acquired by way of a gift, will or other instrument, decree or order of a Civil Court or under an award. Therefore, merely being a female Hindu or being in possession of property is not enough to attract the application of Section 14(1) of the Act, but what is essential is that the female Hindu should be a limited owner when she acquired the said property. This view of mine gets support from the decision in Bai Vijia v. Thakorbhai Chelabhai, wherein it is held that for applicability of sub-section (1) two conditions must co-exist, namely, (i) the concerned female Hindu must be possessed of property; and (ii) such property must be possessed by her as a limited owner. The same view is reiterated in Kalawatibai Vs. Soiryabai and others, wherein it is observed as follows:

"On a plain reading of the section, and its interpretation by this Court in various decisions, a female Hindu possessed of the property on the date the Act came into force could become absolute owner only ii she was a limited owner."

In the light of the above discussion, we have to see whether the second respondent is a limited owner in whose hands the half share gifted to her by her husband would get enlarged. The second respondent was living with her husband at the time of execution of Ex.A-1. The gift of the property, on a plain reading of the settlement deed shows that it was made out of love and affection towards his wife and son. No pre-existing right whatsoever can be culled out from the said settlement deed, nor was it existing at that time.

8. Sri C. Poornaiah, the learned Advocate appearing for the appellant cited the following decisions:

(2) Kalawatibai v. Soiryabai (2 supra)

(3) Maharaja Pillai Lakshmi Ammal Vs. Maharaja Pillai Thillanayakom Pillai and Another,

(4) Mangat Mal (Dead) and Another Vs. Smt. Punni Devi (Dead) and Others, . ;

These are the cases where a female Hindu was put in possession of the property either towards maintenance or under a compromise decree or in lieu of some pre-existing right. Therefore, these decisions in my view cannot help the appellant. The restrictions imposed in the settlement deed have to be given effect to, and if the interpretation placed by the appellant is accepted it amounts to ignoring Section 14(2) in its entirety which is impermissible. Accordingly, I hold that this case is squarely governed by Section 14(2) and not Section 14(2). Hence the half share held by the second respondent does not enlarge into a full or absolute estate, but the second respondent takes the , property under the terms of the settlement deed (Ex.A-1) and enjoy the same during her life time without the power of alienation.

9. The next question that remains to be considered is whether the second respondent can alienate the minor''s property without the permission of the District Court.

10. Sri C. Poornaiah, the learned Advocate for the appellant submits that in view of the over-whelming evidence adduced in this case that the property was alienated for discharging antecedent debts contracted by late Anjaneyulu, the second respondent who is the natural guardian of the minor plaintiff is empowered to alienate the same.

11. Section 8, of the Hindu Minority and Guardianship Act, 1956 deals with the power of the natural guardian which is extracted hereunder :

"(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 ; the guardian can in no case bind the minor by a personal covenant.

(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) ......................

(5) ......................

(6) ......................

Under sub-section (2) of Section 8, the previous permission of the Court is mandatory before any disposal of Immovable property of the minor by the natural guardian and under sub-section (3), the said alienation is voidable at the instance of the minor.

12. It is admitted that late Anjaneyulu was a Medical Practitioner. He purchased the site and constructed the double storied building at Ongole. It was his self-acquired property. While so, he conveyed the same under a registered settlement deed (Ex.A-1) during his life time. At the time of execution of the settlement deed though the minor plaintiff and his father late Anjaneyulu constitute a joint Hindu family, they had no joint family property. What was conveyed by late Anjaneyulu was his self-acquired property. Under those circumstances, we have to examine the nature of the property in the hands of the minor son represented by his mother as guardian. The concept of Hindu joint family is wider in connotation than the term Hindu coparcenary, in the sense there maybe female members in Hindu joint family, but not in Hindu coparcenary. But in usage both the terms, joint family property and coparcenary property are used synonymously as the same concept, with the result there are only two classes of property, namely joint family property and separate property. What is contended by the learned Advocate for the appellant is that the self-acquired property as gifted by late Anjaneyulu would partake the character of joint family property in the hands of minor plaintiff and his mother, the second respondent. If this is acceptable, the learned Advocate for the appellant develops his argument further and submits that u/s 12 of this Act, no guardian shall be appointed in respect of the undivided interest in joint family property when the property is under the management of an adult member of the family. The learned Advocate would be justified in placing reliance on Section 12 of this Act in support of his contention that Section 12 is an embargo for appointment of a guardian and as such, the second respondent cannot approach the Court for appointment of a guardian for the minor''s property. He relied on the decision of the Supreme Court in Sri Narayan Bal and Ors. v. Sri Sridhar Sutar and Ors., 1996 (1) Supreme 638 wherein the Supreme Court held as follows:

" u/s 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 u/s 8 for disposing of the undivided interest of the minor in the joint family property is not required."

Therefore, the vital question is whether the property alienated by the second respondent as guardian of the minor plaintiff is the joint family property or the self-acquired property of the minor. A Division Bench of this Court in W.T. Commissioner, A.P. v. Mukundgiriji, 1983 Taxation Law Reports 1370 in a similar case held as follows:

" The properties which devolved upon the assessee on his father''s death are assessable in the status of ''individual'' and not in the status of ''Hindu undivided family'' comprising of the assessee and his son or sons, as the case may be."

The said view was upheld by the Supreme Court in Commissioner of Wealth Tax, Kanpur and Others Vs. Chander Sen and Others, . In P. Rajulu Goud and others Vs. P. Jeevan Kumar and others, a learned Judge of this Court observed that the mere fact that the house was built by one member of the joint family on joint family land cannot be regarded as sufficient by itself to show that he intended to waive his right in the said house as his separate property if he built the house with his separate funds. The learned Judge further held that when the site was purchased with self-acquired funds of a member of the family the house having been built with the joint family funds, the same principle would apply and the character of the land as separate property cannot be erased. A Division Bench of the Madras High Court in Dhanasekaran v. Manoranjithammal, AIR 1992 Madras 219 considered similar question where the sale was effected by the mother of a minor plaintiff. In that case the property was the joint family property of one R. Padayachi, his son the plaintiff and his wife, the first defendant. R. Padayachi died in the year 1960 leaving behind him his widow, the first defendant and his son, the plaintiff. The minor plaintiff would be entitled to half share on notional partition on the date of death of R. Padayachi and that in the half share of R. Padayachi, both the plaintiff and the first defendant would be entitled to equal shares. Therefore, in all the plaintiff would get 3/4th share and the first defendant would get the remaining 1/4th share. While so, the first defendant alienated the property including the 3/4th share of the minor as his defacto-guardian for legal necessities. The Division Bench of the Madras High Court held that the half share which came to the plaintiff on the notional partition between himself and his father immediately before the death of his father by survivorship as well as the 1/4th share which was inherited by him from his father on his death out of the remaining 1/4th (sic. 1/2) share which was got by his father pursuant to the aforesaid notional partition, are not the joint family properties, but are the separate properties of the minor plaintiff. In a recent case reported in Kallathil Sreedharan and Another Vs. Komath Pandyala Prasanna and Another, the Supreme Court observed that the mandatory requirement of sanction from the Court for alienating the property of the minor as required u/s 8 of the Hindu Minority & Guardianship Act, 1956 has not been obtained by the mother of the minor, and therefore, the sale to the extent of half share of the minor in the joint property of the mother and her minor son does not bind the minor, and accordingly declined to grant a decree for specific performance under the said agreement. Therefore, from the above discussion, it is clear that the property got by the minor plaintiff in the present case is his self-acquired property and as such, sanction of the Court before alienating the same by the natural guardian is a must; inasmuch as the same was not obtained by the second respondent, the sale under Ex.A-2 dated 29-9-1969 is voidable and the plaintiff is entitled to avoid the said sale.

13. When the sale is voidable and not void what is the proper decree to be passed is the next question. In Janardhanan Pillai Appukuttan Nair and Others Vs. Bhagavathykutty Amma Radhamma, Justice T. Kochu Thommen, J. as he then was observed that the sale is invalid and it does not mean that the plaintiff can keep the property and the money received under the sale deed as he would not be entitled to double enrichment and equity demands that the consideration received by or on behalf of the plaintiff must be repaid. The lower Court also following the said judgment granted decree for repayment in favour of the appellant. I have no hesitation in agreeing with the principle enunciated in the decision cited supra.

14. In the view I have taken that the minor''s property which was alienated by his mother as guardian is the self-acquired property of the minor plaintiff, it is unnecessary for me to go into the evidence let in by the appellant that the sale consideration went towards the discharge of antecedent debts of late Anjaneyulu. However, if a finding is necessary on this issue, I have no hesitation in agreeing with the lower Court in view of the overwhelming evidence that out of the sale consideration of Rs. 15,000/- most of it went in discharge of debts. I may also observe that there is no obligation on the part of the alienee to see that each pie of the consideration went towards the discharge of antecedent debt only, Authority is found for this proposition in State of Maharashtra v. Mahboob S. Allibhoy 1996 (2) ALT 316 : AIR 1996 SCW 2572 enough if the vendee shows that he made genuine enquiries and satisfied himself regarding the pressure for sale of the land.

15. In view of the foregoing discussion, there are no merits in this appeal and it is accordingly dismissed, but in the circumstances without costs.