1. Defendants 2 and 3 are the appellants. The 1st respondent, after becoming major, the 2nd respondent being minor represented by his brother the 1st respondent, laid the suit but subsequently he was declared as major by order dt. June 29, 1977 in I.A No. 392 of 1977. The suit was for possession of plaint A and B schedule properties and to eject the 1st defendant from plaint A Schedule property and the appellants from plaint B Schedule property consisting of one acre. The trial Court granted decree, as against it, the appellants have filed this appeal.
2. The admitted case is, that one Bathina Krishna Murthy, the 7th defendant is their father and Bathina Nandeeswaramma the 4th defendant is mother. The father executed a gift deed, Ex. A-3 dt. Feb. 21, 1956, gifting over the plaint schedule property and other properties in favour of the respondent, appointing their mother as guardian. Subsequently, the mother executed on behalf of the respondents, the contract of sale dated February 9, 1964 under Ex. B-7 alienating the B Schedule property, in favour of the predecessor-in-title of the appellants for a valuable consideration of Rs. 2,800/- and received Rs. 300/- as advance and inducted the appellants' predecessor-in-title, in possession. Thus, under the contract of sale, the appellants' predecessor-in-title and subsequently the appellants continued to be in possession of B schedule property. They have also improved the land. The appellants are always ready and willing to perform their part of the contract.
3. The respondents laid the suit on the ground that the mother was not a legal guardian since their father Krishnamurthy is alive. The property is a joint family property. She is not a manager, there is no legal necessity and accordingly she cannot alienate the property. No permission of the Court to alienate the property was obtained. The sale is not for the benefit of the estate of the minors. Thereby she has no manner of right to alienate the property. The appellants are trespassers. Accordingly, the sale is invalid and it is not binding on them.
4. The Court below framed as many as eight issues and three additional issues. As regards the point in issue in this appeal it was held that the gift deed dt. Feb. 21, 1986 is invalid since the father is not competent to alienate any particular item of joint family property. It is further held that the sale is void as the mother is not competent to alienate the property it is not open to the appellants to plea that the sale is a bona fide one without notice of defect of title. Therefore, they cannot claim any equities. Thus the sale is not binding on the respondents. The suit has been decreed for possession and ejectment.
5. Sri Sadasiva Reddy, learned counsel for the appellants has contended that the Court below has committed error in declaring that the sale is invalid. The father has relinquished his right to be a guardian by executing the settlement deed and appointing their mother a guardian to represent their estate and subsequently the mother has assumed as a guardian of the minors, she entered into a contract of sale with the appellants' predecessor-in-title. Admittedly there is a specific recital in Ex. B-7 that the sale was made for the benefit of the estate of the respondents to purchase lands elsewhere. The appellants' predecessor-in-title denied the plea that it is not a bona fide contract of sale for the benefit of the estate of the minors. Therefore, the Court below grievously erred in decreeing the suit. Sri Vinay Kumar, learned counsel for the respondents resisted on three-pronged attack. It is contended that the father being a legal guardian no one other than was (sic) appointed by Court has got any right to represent the estate of the minors. It is nextly contended, that admittedly the properties are the joint family properties, father as karta or the eldest son alone are competent to act as karta, and therefore, the mother cannot act as karta of the joint family. No permission of the Court was obtained by the mother to act as guardian, and accordingly the contract of sale is not valid. Alternatively it is contended that the contract of sale Ex. B-7 is of the year 1964 and the suit was not filed to enforce the contract within three years statutory period though the period contracted under Ex. B-7 is only two months. They are not bona fide purchasers since they took no steps during the subsistence of the contract to have the sale deed executed. Therefore, they have lost their right to enforce the contract, and accordingly they are trespassers and cannot remain in possession after the expiry of the statutory period.
6. The first question that arises for consideration is, whether Ex. B-7 contract of sale is valid in law? It is held that it is not valid, further questions do not arise. Thereby, the need to go into them becomes redundant. The admitted facts are that the plaint B Schedule property is the joint family property. The father Krishnamurthy had executed a gift deed Ex. A-3 dt. Feb. 21, 1956 gifting over the B Schedule property and other properties in favour of the respondents, and he appointed the mother as guardian thereunder. Subsequently the mother, as guardian, entered into the contract of sale Ex. B-7, in favour of P. Lakshmaiah the predecessor-in-title of the appellants. It is also an admitted fact that the mother, father and the children were living together. In the contract of sale, Ex. B-7, there is a specific recital that the contract had been entered into with a view to purchase the lands elsewhere to augment the estate of the minors. The lands to be purchased would be given as a security for the lands, the subject matter of the contract of sale under Ex. B-7, in the event of defect in title is found to be noticed subsequently. From these facts, the question that emerges is, whether the mother can act as a guardian on behalf of the minors. Undoubtedly, under S. 11 of the Hindu Minority and Guardianship Act, 1956 (Act 32 of 1956) in short “the Act”, after the commencement of the Act, no person shall be entitled to dispose of, or deal with, the property of Hindu minor merely on the ground of his or her being the de facto guardian of the minor, where the minor has an undivided interest in the joint family property. Section 12 postulates that in respect of an undivided interest of a minor in joint family where 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 S. 12 shall be deemed to affect the jurisdiction of a High Court to appoint a guardian in respect of such interest, thereby it provides that the father of a coparcenary governed by Mitakshara law is entitled to the management of the Joint family property, and in his absence the adult member of the family is entitled to assume the management thereof. In such an event the need to appoint property guardian does not arise. The proviso preserved the power of the High Court to appoint a property guardian. But S. 9 of the Act provides that a Hindu father is entitled to act as the natural guardian of his minor legitimate children in respect of his person or property other than the undivided interest referred to in S. 12 or in respect of both. Sub-sec. (3) of S. 9 provides thus;
“A Hindu widow entitled to act as the natural guardian of her minor legitimate children and a Hindu mother entitled to act as the natural guardian of her minor legitimate children by reason of the fact that the father has become disentitled to act as such, may, by will, appoint a guardian for any of them in respect of the minor's person or in respect of the minor's property (other than the undivided interest referred to in S. 12) or in respect of both.”
A conjoint reading of these provisions clearly leads to the conclusion that under S. 9(1) father is entitled to act as a natural guardian and if he becomes disentitled to act as such, either widow or the mother, is entitled to act as a natural guardian of the minor legitimate children both in respect of the person or property of the minor other than undivided interest in the joint family. Section 12 provides that where a minor has undivided interest in a joint family property and the property is in the management of an adult member of the family, no guardian shall be appointed for the minor in respect of such undivided interest. As on the date of the contract of sale Ex. B.7, the respondents are minors and the mother, 4th defendant was nominated by the father 7th defendant to be the guardian and she was in management of the joint family property. The question, therefore, is whether the mother is an “adult member” of the family within the meaning of S. 12 of the Act, when the father has disclaimed his right to be a guardian or has become disentitled for any reason and no other male member is major? The question has to be angulated from the point of view of the management of the coparcenary property. Admittedly the mother is a member of the coparcenary. The father the 7th defendant karta is alive but for whatever may be the reason, he disclaimed his right to the management of the joint family and has entrusted the same to the mother, 4th defendant. In fact, under Ex. B-3 settlement deed, he nominated the mother to be the guardian of the minors. Admittedly she was in the management of the joint family properties and she entered into the contract of sale Ex. B-7. It is implicit from S. 9(1) that the widow or the person appointed in a will executed by the kartha is entitled to assume management of the person and property of a minor only after the demise of the kartha. On the other hand, the disentitlement may be on one of the grounds, viz., either incurring any of the disqualifications to act as a kartha or legal disability or voluntary disclaimer. So long as the father, kartha is alive S. 12 prohibits appointment of the property guardian to a minor in respect of his undivided interest in the coparcenary. Therefore, during the lifetime of the Kartha, the entitlement or the need to appointment of a Court Guardian to the undivided interest of the minor coparcener does not spring into being. As seen, Krishna Murthy, the father of the respondent has disclaimed to manage the joint family property on the other hand, he nominated his wife to manage the joint family property. In those circumstances, the mother becomes the adult member of the family within the meaning of S. 12 of the Act. It is not the case that the sale fetched no adequate consideration or she acted detrimental to the interest of the estate of the minors. It is sold under Ex. B-7 for a valuable consideration, and in fact, the terms disclose that the sale is for the benefit of the estate of the minors. There was a specific recital in the contract of sale that the property proposed to be purchased without consideration under Ex. B. 7 would be given as a security to the appellants in the event of any defect in the title in Ex. B-7, was subsequently discovered (sic). These facts clearly show that it is a bona fide contract of sale and the appellants obviously made enquiries of the need to sell the lands and are satisfied that the sale is for the benefit of the minors. Thereafter, they entered into the contract of sale. When such is the situation, the mother by operation of S. 9(3) of the Act, becomes entitled to represent as a guardian of the estate of the minors, and the need to appoint a property guardian by the Court, as contemplated under S. 12, is obviated. She becomes the “adult member of the family”. Therefore, the contract of sale is neither void nor vitiated by any error of law.
7. It is next to be seen whether the sale is binding on the appellants. I am unable to agree with the learned counsel for the respondents that the sale becomes unenforceable. Admittedly under the contract of sale possession was given to the vendee and the appellants' predecessor-in-title and the appellants continued to be in possession under the contract of sale, Ex. B-7. The cause of action to enforce it arises only when the right under Ex. B-7 is repudiated. Till then, they are entitled to continue in possession, and S. 53-A of the Transfer of Property Act steps in and protects the appellants of their possession so long as the contract is enforceable, the possession of the vendees do not become unlawful. Section 58A of the Transfer of Property Act provides that there shall be a contract of sale in writing and the terms thereof must be clear and specific. In pursuance of the contract of sale, there shall be delivered possession of immovable property. He/they did something in furtherance of the contract, he/they shall always be ready and willing to perform his/their part of the contract. On satisfying all these conditions the vendee/vendees in possession are entitled to protect his/their possession. As stated earlier, the appellants are always ready and willing to perform their part of the contract, and therefore, they are entitled to the protection of Sec. 53-A of the Transfer of Property Act to protect their possession. It is not the case of the respondents that either they repudiated the contract with a notice to the appellants or called upon the appellants to perform the contract, and they refused to do the same. Under these circumstances no limitation began to run for the enforcement of the contract, and therefore, mere lapse of three years from the date of agreement does not automatically put an end to the contract. Accordingly I do not find any illegality in the possession of the appellants. The Court below has committed grievous error, on the facts in this case, to grant a decree of possession. The appeal is accordingly allowed. In view of the circumstances of the case, each party is directed to bear their own costs.
Appeal allowed.