Dismissed

Gyanendra Pr.Tripathy v. Sanjaya Kumar @ Manas Ranjan Khuntia

Orissa HC14 May 2024RSA/366/2016

Case brief

AI extract

What is this about?

Appellant challenged confirmation of trial court decree declaring sale deed executed by mother over minors' property void for lack of District Judge permission. High Court dismissed appeal, upholding that without court permission under Section 8 of Hindu Minority and Guardianship Act, the alienation is voidable. Claim of legal necessity was rejected due to failure to examine mother as witness.

What did the court decide?

Appeal dismissed; judgment and decree of learned Courts below confirmed; no costs. Declaration that Registered Sale Deed dated 11.05.2001 is void.

Gyanendra Pr.Tripathy Vs Sanjaya Kumar @ Manas… — Succession and Inheritance | Orissa HC (2024)

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IN THE HIGH COURT OF ORISSA AT CUTTACK

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RSA No. 366 of 2016

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(An appeal under Section 100 of the Civil Procedure Code)

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Gyanedra Pr. Tripathy ...… Appellant -Versus-

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Sanjaya Kumar @ Manas Ranjan Khuntia & Anr .... Respondents

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Advocate(s) appeared in this case:-

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For Appellant : Mr. B.K.Nayak, Advocate. For Respondents : Mr. P.K.Sahoo, Advocate. _______________________________________________________ CORAM:

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JUSTICE SASHIKANTA MISHRA

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JUDGMENT 14^th May, 2024

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SASHIKANTA MISHRA, J.

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The defendant in the trial Court is the appellant

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who seeks to challenge the judgment passed by learned 3^rd Additional District Judge, Cuttack in RFA No. 42 of 2009/114 of 2014 on 25.07.2016 followed by decree whereby, the judgment and decree passed by learned

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Civil Judge, (Junior Division), Salepur in Civil Suit No.17 of 2006 on 08.04.2009 was confirmed.

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For convenience, the parties are referred to as per their respective status in the trial Court.

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The plaintiffs (respondents herein) filed the

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aforementioned suit seeking a declaration that the registered sale deed No. 816 dated 11.05.2001 is void and that the defendant be permanently restrained to come upon the suit land and interfere in any manner in the peaceful possession of the plaintiffs. The plaintiffs’ case is that the suit land was acquired by them through their mother guardian vide RSD No. 983 dated 03.06.1996 from its lawful owner Madhabananda Khuntia. Subsequently, by another registered sale deed bearing No. 816 dated 11.05.2001, the suit land was alienated by the plaintiffs through their mother guardian in favour of the defendant. The plaintiff No.1, on attaining the age of the majority, along with his minor brother, plaintiff No.2, filed the suit mainly on the ground that the property of the minors had been sold in

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favour of the defendant without obtaining prior permission of the District Judge in terms of Section 8(2) of Hindu Minority and Guardianship Act 1956 and therefore, the sale deed is void. It was further alleged that there was no delivery of possession of suit land to the defendant and consideration money was also not spent for the benefit of the plaintiffs who were minors.

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The defendant entered appearance and filed his written statement inter alia questioning the maintainability of the suit mainly on the ground that the mother of the plaintiffs namely, Rukmani Khuntia had purchased the suit land out of her own money in the name of her minor sons (plaintiffs) and as such they have no exclusive right and title over the same. Their father Prafulla Kumar Khuntia was cited as witness in the sale deed. The property, being the self-acquired property of Rukmani Khuntia, she was competent to sell the same. She sold the property to the defendant as mother-guardian entirely for the benefit of her minor sons to meet their educational expenses. Further,

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consideration amount of Rs. 4,500/- was also paid and after purchase, the defendant was delivered possession, whereupon he mutated the property in his favour and has received ROR. He has been possessing the said property since then and is paying rent.

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On such rival pleadings, the trial Court framed the following issues for determination.

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1. Whether the suit is maintainable?

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2. Whether there is cause of action for filing of the suit?

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3. Whether the suit is bad due to non-joinder of necessary parties?

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4. Whether the Regd. Sale Deed No. 816 dated 11.05.2001 is a void document?

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5. Whether the plaintiffs are entitled to get a decree of permanent injunction?

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6. To what other reliefs are the plaintiff entitled?”

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The plaintiffs examined four witnesses of whom, P.W

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4 is the Plaintiff No.1, P.W. 2 is the maternal

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grandfather of the plaintiffs and P.Ws.1 and 3 are covillagers. The plaintiffs also proved the documents marked Ext. 1 to 4. On the other hand, the defendant examined 5 witnesses including himself as D.W.5 and the co-villagers as D.W. 1 to 4. He also filed certain

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documents which were marked as Ext. A to M.

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The Trial Court, after analyzing the evidence on record, answered the issues in favour of the plaintiffs by holding that the transfer of the property in question through RSD No. 816 dated 11.05.2001 by the mother as the guardian of the plaintiffs is void in the eye of law. As such, it was held that the defendant has no right, title or interest over the suit land and the plaintiffs are entitled to a decree of permanent injunction against him.

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Being aggrieved, the defendant carried the matter in appeal before the District Court. It was contended that the mother-guardian, having purchased the suit land, is legally competent to transfer the same and no permission was necessary and further that the transaction in question was for meeting the educational expenses of the minors for which it cannot be treated as voidable.

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Considering the grounds raised, the first Appellate Court framed the following points for consideration:

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(i) Whether the sale of suit property of minors without prior permission of the competent authority i.e. District Judge is valid.

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(ii).Whether the mother of the minors is competent to sell the suit property of her minor children?

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(iii).Whether attestation by the father in the alleged R.S.D. amounts to conveyance?

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(iv).Whether the question of legal necessity is relevant in the case of sale of minor’s property?

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(v)Whether a woman can act as Karta or Manager of a joint Hindu family?

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The First Appellate Court took up all the above

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points together for consideration. It was found that there was no proof that the property was sold by the mother to meet the educational expenses of her sons. Further, mere attestation by the father of the plaintiffs on the sale deed cannot confer it with validity as the mother is not the natural guardian competent to alienate the land in view of Section 6 of the Hindu Minority and Guardianship Act. Since no permission of the District Judge was obtained before sale of the

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property admittedly belonging to the minors, the sale was held to be void. On such findings, the appeal was dismissed, and the judgment of the trial Court was

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confirmed. Feeling further aggrieved, the defendant has preferred the present appeal.

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After considering the grounds raised, the appeal was admitted on the following substantial questions of law:

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(i) Whether the learned courts below are correct in observing that the mother guardian of the minor-plaintiff can execute the sale deed on their behalf and same decision is contravening under Section 6(a) of the Hindu Minority and Guardianship Act, 1956?

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(ii) Whether the Courts below have erred in law by not dismissing the suit on the ground that the suit is bad for non-joinder of necessary party due to nonimpletion of the mother of the minor-plaintiff?

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Heard Mr. B.K.Nayak, learned counsel appearing for

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the appellant. Despite repeated opportunities there was no appearance from the side of the plaintiff

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respondents.

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Mr. Nayak, learned counsel appearing for the defendant appellant would argue that firstly, there is no pleading much less any proof that the parties to the suit

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are Hindus which raises a doubt as regards the applicability of the provisions of the Hindu Minority and Guardianship Act. He further, submits that the mother

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of the respondent having executed the sale deed in question was the best person to show whether the sale

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was for the purpose as shown therein. The mother is a necessary party in the absence of whom, the suit could not have been entertained for adjudication. Further, as per Section 8(3) of the Hindu Minority and Guardianship Act, not obtaining the requisite

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permission of the District Judge before alienation of the property of minor would render it voidable but the Courts below have proceeded to declare the same void ab initio .

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As regards the contention that the parties are not governed by the Hindu Minority and Guardianship Act, 1956 in the absence of any pleading or proof that they are Hindus, this Court finds that such a plea was never taken in the trial Court. The written statement filed by the defendant is entirely silent in this regard. Even otherwise, it is not the case of the defendant that the parties are not Hindus. It is only claimed that the parties have not come forward to claim and prove that they are Hindus. Since there was never any dispute as

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regards their religion, the above point raised belatedly cannot be taken into consideration.

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The other ground raised by the appellant is that the mother of the plaintiffs is a necessary party in the absence of whom the suit could not have been entertained and adjudicated upon. Who is a proper party and necessary party is no longer matter of debate. It is trite law that necessary party is one in whose absence, the suit cannot be adjudicated. Proper party on the other hand, is one whose presence is required for a just decision of the case. In the instant case, admittedly, the mother of the plaintiffs had executed the sale deed. It has been argued by Mr. Nayak, learned counsel for the appellant that the mother is the best person who could have said about the necessity of executing the sale deed or the necessity of selling the property. She could also have proved that the sale was effected in order to meet the educational expenses of the plaintiffs and thereby proved that the sale was beneficial to the plaintiffs’ interest. As such, the mother of the

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plaintiffs was a necessary party. Citing the provision under Order 1 Rule 9 Proviso, Mr. Nayak would argue that the suit deserves to be dismissed on such ground alone. On merits, it is the case of the Mr. Nayak that not obtaining the permission from the District Judge before executing the sale deed can only render the sale voidable at the instance of the plaintiffs but not render the document void ab initio. According to Mr . Nayak, the Courts below have treated the sale deed as void and proceeded accordingly to decree the suit.

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After hearing learned counsel for the appellant and on going through the impugned judgments including the plaint and the written statement available in the LCR, this Court finds that the defendant has taken a plea that the sale was executed for the legal necessity that is, to meet the educational expenses of the plaintiffs. If such was the case, the defendant could as well have examined the mother of the plaintiff from his side as a witness to prove such contention. Be it noted that the defendant has examined as many as five witnesses. So

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what stopped him from calling the mother of the plaintiff to the witness box. The mother of the plaintiff could have substantiated the stand taken by the defendant. But then if the defendant himself did not deem it proper to call the mother of the plaintiff to the witness box and at the same time takes the plea of nonjoinder of necessary party, it amounts to taking a contradictory plea and therefore, not acceptable. This Court holds that the mother of the plaintiff cannot be treated as necessary party to the suit.

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On merits, this Court finds that both the Courts below have held that the RSD was executed by the mother of the plaintiffs and therefore, not tenable in the eye of law, for the reason that the mother is not the natural guardian of the minor plaintiffs. True, the father has attested the deed but the same cannot lend any validity to the otherwise invalid deed.

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Section 6 of the Hindu Minority and Guardianship Act provides that the father is the natural guardian of a minor and hence, competent to deal with the minors’

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property subject to limitations and conditions imposed by law and as specifically provided under sub-section (2) of Section 8. In the instant case, it is not disputed that the father of the plaintiffs was alive at the relevant time and in fact, also signed on the RSD in question. This, as already stated would not confer any sanctity or legality to the transaction. The position of law in this regard is also well-settled. Reference may be had to the decision of the Supreme Court in the case of Pannilal v. Rajinder Singh¹ , where the law was explained as

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under:

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“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.

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8. The provisions of Section 8 are devised to fully protect the property of a minor, even from the depredations of his parents. Section 8 empowers only the legal guardian to alienate a minor's immovable property provided it is for the necessity or benefit of the minor or his estate and it further requires that such alienation shall be effected after the permission of the court has been obtained. It is difficult, therefore, to hold

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1 1993 (4)SCC 38

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that the sale was voidable, not void, by reason of the fact that the mother of the minor respondents signed the sale deed and the father attested it.”

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It is undisputed that no permission was obtained

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from the District Judge as required under subsection (2) of Section 8 of the Hindu Minority and Guardianship Act. It is for such reason that the plaintiffs approached the Court by filling the suit seeking to declare the deed as void. This is entirely in consonance with the provision under sub-section (3) of Section 8 of the said Act. Thus, the requirement of law was not complied with. Further, it could not be established that the sale was beneficial to the interest of the minor sons. As such, the transaction was rightly held to be invalid by the Courts below. Reference in this context may be had to the decision of the Supreme Court in the case of Vishwambhar v. Laxminarayan² , wherein the following was stated:

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“As noted earlier, the trial court as well as the first appellate court accepted the case of the plaintiffs that the alienations in dispute were not supported by legal necessity. They also held that no prior permission of the court was taken for the said

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2 (2001) 6 SCC 163

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alienations. The question is, in such circumstances, are the alienations void or voidable? In Section 8(2) of the Hindu Minority and Guardianship Act, 1956, it is laid down, inter alia, that the natural guardian shall not, without previous permission of the court, transfer by sale any part of the immoveable property of the minor. In sub-section (3) of the said section, it is specifically provided that any disposal of immoveable property by a natural guardian, in contravention of sub-section (2) is voidable at the instance of the minor or any person claiming under him. There is, therefore, little scope for doubt that the alienations made by Laxmibai which are under challenge in the suit were voidable at the instance of the plaintiffs and the plaintiffs were required to get the alienations set aside if they wanted to avoid the transfers and regain the properties from the purchasers.”

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Thus, after going through the impugned judgments, vis-a-vis the grounds raised in this appeal,

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this Court finds no error in the findings of the Courts below so as to be persuaded to interfere.

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For the foregoing reasons therefore, this Court finds no merit in the appeal which is therefore, dismissed but in the circumstance, without any costs.

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……..…………………..

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Sashikanta Mishra, Judge

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Signature Not Verified

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Digitally Signed Signed by: DEEPAK PARIDA Reason: Authentication Location: OHC,Cuttack The 14^th May, 2024/ Deepak Date: 16-May-2024 14:42:30

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Gyanendra Pr.Tripathy v. Sanjaya Kumar @ Manas Ranjan Khuntia

Case brief

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Gyanendra Pr.Tripathy v. Sanjaya Kumar @ Manas Ranjan Khuntia

Case brief

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