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.

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.

17. The present case is squarely covered by the above judgment in the facts of the present case.

18. In Vishwambhar and others v. Laxminarayana MANU/SC/0374/2001 : AIR 2001 SC 2607, there was alienation of minors property by mother as guardian and the suit was filed by minor for recovery of possession from the purchaser. It was held that, the sales made by guardian were ab initio void and liable to be ignored. It was held that, the suit should have been for setting aside the sales. There was no such prayer initially and the plaint was amended but the amendment was barred by limitation of three years from the date of sale deed. In this case also, the father Dattatraya died and the minors were in care and custody of their widowed mother. She was managing the properties left by Dattatraya as guardians of the minors. She executed sale deeds in 1967. The declaration for setting aside the sale deed would be necessary if the sale deed is executed by natural guardian which would be voidable u/s 8. Such prayer will not be necessary if the sale is effected by de facto guardian. It is governed by Section 11 which declares the sale as void.

19. In this regard, I rely on Madhegowda v. Ankegowda MANU/SC/0739/2001 : AIR 2002 SC 215. In this case, the original owner Ninjegowda died leaving behind two daughters Sakamma and Madamma. While Sakamma was minor, Madamma acting as guardian sold her share by registered sale deed to Madhegowda on 24.04.1961. It was sold for collecting funds for marriage of Sakamma. The appellant was also put in possession of the property. Sakamma after attaining majority sold her share of the property to Ankegowda, predecessor of respondent nos. 1 to 9 therein, by a registered Sale Deed dated 1.7.1967. In the light of these facts, relying on Section 11 prohibiting de facto guardian from alienating the property of minor, it was held that,

"Section 11 had done away with the authority of any person to deal with or dispose of any property of a Hindu minor on the ground of his being the de facto guardian of such minor. Any alienation by a de facto guardian will be governed by the provisions in Section 11 of the Act. The alienation, being against the statutory prohibition, would be void ab initio and the alienee would not acquire any title to the property.

IN THE HIGH COURT OF BOMBAY (AURANGABAD BENCH)

Second Appeal No. 650 of 2003

Decided On: 21.01.2019

Rameshwar Vs.   Shivaji and Ors.

Hon'ble Judges/Coram:

A.M. Dhavale, J.

Citation: 2019(5) MHLJ 945

#minor

#sale