Sale transfer of minor’s immovable property by natural guardian without permission of the court is not void but merely voidable: High Court of Delhi
Section 8(2) provides that the natural guardian shall not without the previous permission of the court, inter alia, transfer by way of a sale any part of the immovable property of a minor. 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. Such transactions are not void but merely voidable. It was also held that a suit must be filed by a minor in order to avoid the transaction within the period prescribed under Article 60 of the Limitation Act and the same was upheld by High Court of Delhi through the learned bench led by Justice Yashwant Varma in the case of ANIL KAPOOR &amp; ANR. vs. UNION OF INDIA &amp; ANR. [W.P.(C) 10713/2020] on 18.02.2022. The facts of the case are that one Ugar Sain Mohan bequeathed his interest in the property to his four sons in terms of a Will. The submission of the aforesaid no objection is also not disputed by the respondents. One of the sons of the original lessee is stated to have died in 1991. He left behind a last will and testament bequeathing all his movable and immovable properties in favour of his wife. The three surviving sons as well as the widow are thereafter stated to have executed agreements to sell with respect to the subject property in favour of the petitioners here. This was done without seeking the permission of the competent Court with respect to the rights of the two minor children whose share also was liable to be recognized as existing one’s the father passed away. The petitioner assails the validity of an order passed by the respondents pursuant to which their prayer for conversion of the subject property from leasehold to freehold has come to be rejected. The petitioner’s counsel submitted that the view taken by the respondents clearly falls foul of the provisions made in Section 8(3) of the Hindu Minority and Guardianship Act, 1956 as it is a well settled a disposition that the transfer of the share of a minor is not void in the eyes of law. In view of aforesaid facts and circumstances, the Court held that respondents are clearly incorrect and unjustified in viewing the transfer made by the widow in favour of the petitioners as being void because it is not the case that the two minors have either assailed or questioned the alienation made by the natural guardian. The Court observed, “Section 8(2) provides that the natural guardian shall not without the previous permission of the court, inter alia, transfer by way of a sale any part of the immovable property of a minor. 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. Such transactions are not void but merely voidable. It was also held that a suit must be filed by a minor in order to avoid the transaction within the period prescribed under Article 60 of the Limitation Act.”
IN THE HIGH COURT OF DELHI AT NEW DELHI Date of decision: 18 February 2022 W.P.(C) 10713 2020 ANIL KAPOOR & ANR. Petitioners Through: Mr. Harkirat Sawhney Ms. Rati Coshic and Ms. Aashna Aggarwal UNION OF INDIA & ANR. Respondents Through: Mr. Awadhesh Kumar Singh for R 1 HON BLE MR. JUSTICE YASHWANT VARMA YASHWANT VARMA J.The petitioner assails the validity of an order dated 6 September 2017 passed by the respondents pursuant to which their prayer for conversion of the subject property from leasehold to freehold has come to be rejected. As would be evident from a reading of the impugned order the respondents have taken the position that the application has not been signed by a person who is eligible to apply for conversion and that since the transfer also involved the conveyance of the share of minors without the permission of the competent court the prayer as made was liable to be refused. Although the impugned order refers to “clause 20.5” it is admitted before this Court on behalf of the respondents that no such clause exists or stands incorporated in the lease deed in question. The twin objections taken in the W.P.(C) 10713 2020 impugned order admittedly rest on the singular fact of the rights of minors having been transferred without the requisite permission of the competent court. Before proceedings to deal with the merits of the objection taken by the respondents it would be apposite to notice the following essential facts. The petitioners disclose that one Ugar Sain Mohan was granted leasehold rights in respect of the property in question. He is stated to have bequeathed his interest in the property to his four sons Madan Lal Mohan Mukund Lal Mohan Prahlad Chander Mohan and Fit. LT. Subhash Mohan in terms of a Will executed on 28 March 1986. The record further reflects that the original lessee died on 14 April 1987. The daughters of the original lessee have submitted their no objection in respect of their respective shares in the property and for the same devolving upon the sons exclusively. The submission of the aforesaid no objection is also not disputed by the respondents. In fact it has come on the record that pursuant to the aforesaid no objection submitted by the daughters of the original lessee the name of the four sons came to be duly mutated. Flt. Lt. Subhash Mohan one of the sons of the original lessee is stated to have died on 8 January 1991. He left behind a last will and testament dated 18 March 1986 bequeathing all his movable and immovable properties in favour of his wife Smt. Vineeta Mohan. Upon the death of Flt. Lt. Subhash Mohan and in terms of the aforesaid will his widow came to acquire 1 4th undivided share in the leased premises. The three surviving sons as well as the widow of Flt. Lt. Subhash Mohan are thereafter stated to have executed agreements to sell with respect to the subject property in favour of the petitioners here. The petitioners are stated W.P.(C) 10713 2020 to have been inducted into physical possession of the subject property pursuant to the said agreements to sell in February 1991. The petitioners upon acquiring interest in the lease property applied for its conversion to freehold in 2011. They are also stated to have submitted the monies as demanded by the L&DO authorities from time to time. However their right to seek conversion of the property from leasehold to freehold has come to be refused in terms of the order impugned. Having noticed the salient facts the Court notes that the sole ground which appears to have weighed with the respondents is the fact that Smt. Vineeta Mohan conveyed her interest in favour of the petitioner here without seeking the permission of the competent Court with respect to the rights of the two minor children whose share also was liable to be recognized as existing once the father passed away. The Court finds itself unable to countenance or accept the objection taken for the following The view as taken by the respondents clearly falls foul of the provisions made in Section 8(3) of the Hindu Minority and Guardianship Act 1956 which reads thus: “Sec 8. Powers of natural guardian. 3) Any disposal of immovable property by a natural guardian in contravention of sub section or sub section is voidable at the instance of the minor or any person claiming under him.” As is well settled a disposition made and which may also entail the transfer of the share of a minor is not void in the eyes of law. As Section 8(3) in unambiguous terms stipulates it is merely voidable. It is voidable at W.P.(C) 10713 2020 the instance of the minor provided an appropriate action is brought seeking repudiation of the transfer made by the natural guardian within the period of limitation as prescribed in Article 60 of the Limitation Act. The ambit of Section 8 was succinctly explained by the Supreme Court in Nangali Amma Bhavani Amma Vs. Gopalkrishna and others 8 SCC 785] as follows: “7. But the learned counsel for the appellant is right in contending that the High Court had misconstrued the provisions of Section 8 of the Act. Section 8(1) empowers the natural guardian of a Hindu minor to do all acts which are necessary or reasonable and proper for the benefit of a minor or for the realisation protection or benefit of the minor s estate subject to two exceptions of which we may only note the exception carved out in sub sectionof Section 8. Section 8(2) provides that the natural guardian shall not without the previous permission of the court inter alia transfer by way of a sale any part of the immovable property of a minor. The effect of violation of this provision has been provided for in the section itself under sub sectionAny disposal of immovable property by a natural guardian in contravention of sub sectionor sub sectionis voidable at the instance of the minor or any person claiming under him.” 8. In view of the express language used it is clear that the transaction entered into by the natural guardian in contravention of sub sectionwas not void but merely voidable at the instance of the minor. To hold that the transaction in violation of Section 8(2) is void would not only be contrary to the plain words of the statute but would also deprive the minor of the right to affirm or ratify the transaction upon attaining majority. This Court in Vishwambhar v. Laxminarayan6 SCC 163] has also held that such transactions are not void but merely voidable. It was also held that a suit must be filed by a minor in order to avoid the transaction within the period prescribed under Article 60 of the Limitation Act. The High Court did not consider the issue of limitation at all in view of its finding on the effect of a violation of Section 8(2) of the Act. As the conclusion of the High Court on this aspect of the matter is unsustainable the impugned decision must be set aside.” W.P.(C) 10713 2020 Viewed in light of the principles laid down in the aforesaid decision it is clear that the impugned order would not sustain. It becomes relevant to note that it is not the case of the petitioners that the two minors have either assailed or questioned the alienation made by the natural guardian upon attaining the age of majority. The respondents are thus clearly incorrect and unjustified in viewing the transfer made by the widow in favour of the petitioners as being void. Accordingly and for reasons aforenoted the writ petition is allowed. The impugned order of 6 September 2017 is quashed and set aside. The respondents are hereby commanded to attend to the application made by the petitioner for conversion of the subject property to freehold in accordance with law and bearing in mind the observations made hereinabove. YASHWANT VARMA J. FEBRUARY 18 2022 SU W.P.(C) 10713 2020 