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A mother is not competent to act as the natural guardian of a Hindu Minor if the father of the Hindu Minor is alive

Esheta Lunkad ,
  26 September 2020       Share Bookmark

Court :

Brief :
The Judge concurred with the view taken of the below courts and affirmed that the judgment and decree passed in the case and dismissed the appeal. A there was no appearance for the respondents, there was no order for costs.
Citation :
Plaintiff: Narain Singh Respondent: Sapurna Kuer and Ors Citation: AIR 1968 Pat 318

Bench:

H Mahapatra

Issue:

whether the plaintiff obtained any title under the sale deed (1959) in respect of Rameshwar Singh?

Facts:

• The plaintiff brought a suit for declaration of his title and recovery of possession over 9 decimals of land including the house in village Krit-pura. His case was that he had purchased the suit property for Rs.1000 by a sale deed in 1959 from Lallan and Rameshwar and has been in possession of the same since then.

 

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• Lallan was major and Rameshwar was a minor at the time of the deed, and latter was being represented by his mother as guardian in the document. Both were the recipients of the property from their grandmother under a gift deed of 1949 (Ext1) .

• Their donor was Jadhni Kuer who along with the present respondent No.1 Sapurna Kuer had received the gift of properties including the suit property from Rainath Singh, the recorded tenant of the properties in question, in the year 1935.

• There was not much dispute about the gift deeds or the way in which the property came to Lallan and Rameshwar, but the plaintiff’s suit was resisted on the ground that the deed of sale, in 1959(Ext. 2) did not convey any title in respect of the interest belonging to Rameshwar as he being a minor was not properly represented by his natural guardian in the transaction.

• The courts below had accepted this objection and non-suited the plaintiff, on the ground that, after HMGA, 1956 came into force, no person is 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. Since Rameshwar’s father was alive, he was the natural guardian under Section 6 read with Section 4 of HMGA, 1956. the mother could be the guardian only after the father, and in that view the courts thought that the mother of Rameshwar representing the minor only acted as a de facto guardian. As Section 11 of the Act provides for a ban against disposal of properties of a minor by a de facto guardian, the plaintiff was held not to have derived any title by the transaction made by Rameshwar’s Mother.

• The Plaintiff the filed for a second appeal in Patna High Court ( current proceeding ).

Appellant’s Contention:

• Mother of a minor does not come into the category of a de facto guardian and, therefore, Section 11 has got no application to the facts of the present case. The mother is described under Section 6A of the Act as a natural guardian of the Hindu minor, but that is only after the father of the minor.

• As long as the father is alive the mother cannot claim to be the competent natural guardian of a Hindu minor. There cannot be any doubt about this position as it stands now. The position was not very much different in regard to father and mother of a minor even before this new Act came into force.

• A de facto guardian is a person who does not come under any of the categories given in Section 4 of the the new Act but who meddles with the properties or affairs of a minor to safeguard the minor's interest from any invasion whatsoever through the assistance of a de facto guardian, the provisions under Section 11 of the Act have been made. If the mother of a Hindu minor is not a de facto guardian and if she cannot act as the natural guardian in presence of the father of the Hindu minor, then, although Section 11 may not be attracted in terms against the transaction made by such mother, yet, she will derive no authority whatsoever to act as a guardian for the purpose of disposing of the minor's property as she will not come under any of the categories given in Section 4 of the Act.

• When both the father and mother have been designated as natural guardian they will retain the position concurrently and in a case where the father does not function as a guardian for a Hindu minor, the mother can exercise her powers as a natural guardian.

• In case of mitakshra Hindu Joint family where the father is alive, anything done by the mother of the Hindu minor can well be supposed to be with the consent of the father or the father will be deemed to have delegated his authority to the mother to act as the natural guardian of the Hindu minor.

• Both in the deed of gift (Ext. 1) and in a partition suit instituted in 1950 in the court of Additional- Subordinate Judge, Arrah, against the present respondent No.1, minor Rameshwar was represented by his mother guardian. The respondent had accepted that position in the sense that he was a party to the partition of the suit which was ultimately decreed and in execution whereof delivery of possession through the court was taken by the two brothers, from her.

• Under the provisions of Order 32 of the Code of Civil Procedure, in any legal proceeding a minor can be represented by his or her next friend and in an appropriate case where such next friend does not come to represent the minor the Court can appoint any person to act as the guardian of the minor in that legal proceeding. A next friend can be any person, not necessarily any of the guardians enumerated in Section 4 of the Hindu Minority and Guardianship Act, 1956.

• The powers of a person accepted by the court either as a next friend or as a guardian of the minor is only limited to that legal proceedings and not beyond that. The present respondent having been a party in that partition suit, cannot therefore be taken to have been recognized as to be a competent guardian so as to dispose of the properties of the minor.

•  There cannot be any estoppel against her to raise an objection of legal incompetency in respect of transfer of title of the minor by his mother.

Judgment:

The Judge concurred with the view taken of the below courts and affirmed that the judgment and decree passed in the case and dismissed the appeal. A there was no appearance for the respondents, there was no order for costs.

Relevant Paragraphs:

It is very difficult either to assume that in the present case there was any delegation of authority by the father of Rameshwar minor or to take it for granted that the father was aware of the transaction of sale that the mother of Rameshwar had entered into in favour of the plaintiff in regard to the minor's share in the properties. There is no material on record to warrant either of the two assumptions. As long as the father is alive the mother does not come forward as the natural guardian competent to act for the minor. In a case where the father refuses to act as the natural guardian or has neglected to discharge his obligations as a natural guardian in respect of a minor and his affairs and properties another person, more so, the minor's mother can take recourse to legal proceedings and obtain the powers to act as the guardian of the minor. In the present case that has not been done. So, in my view the mother of Rameshwar had no legal competency to dispose of the properties of the minor, as she purported to, under the sale deed (Ext. 2) dated 23rd December, 1959 in favour of the plaintiff.

5. Though the minor Rameshwar Singh was described as a donee in the deed of gift (Ext. 1) dated 26th of December, 1949, as represented by his mother, that will give no benefit to the plaintiff in the present case because that will not clothe the mother of the minor with any authority to dispose of the properties if otherwise she has not such legal competency. A donor cannot make an incompetent as a competent guardian of a minor donee. If this line is stretched further, it may come to this that the minor was not properly represented in that deed of sift and did not, therefore, accept the gift which, in other words, would mean that he did not derive any title which the plaintiff claims to have received by purchase under Ext. 2. It is, however, not necessary to investigate further in the present case into that aspect because it is enough to say that the mother of the minor Rameshwar Singh was not competent to transfer title in respect of the minor's share in the property to the plaintiff under Ext. 2 as long as the preferential natural guardian of the minor, namely, the father, as provided under Section 6 of the Act, was there. It has not been shown by any material on the record, as I already pointed out, that either the father refused to act as the natural guardian or that he had delegated any such authority to the mother of the minor.

 
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Published in Constitutional Law
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