1993 (4) SCC 38,: - The Hindu Minority and Guardianship Act,
1956: Section 8--Intent of--Whether protects the property of a minor from the
depredations of the parents even. Words and Phrases--Voidable and Void--
The mother of the respondent minors, acting as their guardian, sold their land, while they were still minors, to the appellant under a registered sale deed dated July 30,1964. The respondents, upon attaining majority, sued the appellant for possession of the said land on the ground that the sale thereof, having been made without the permission of the court, was void. The appellant in his written statement and at the time of hearing of the suit contended that the sale deed had been attested by the father of the respondents and the sale should, therefore, he deemed to have been a sale by the legal guardian of the respondents. It was also pleaded that the sale had been for legal necessity and the benefit of the respondents. It was also alleged that the suit was barred by limitation because the sale was voidable and not void and the suit had not been brought within three years of each of the respondents attaining majority. The trial court framed appropriate issues and came to the conclusion that it had not been proved that the sale was for legal necessity or for the benefit of the respondents, that the sale by the respondent's mother without the permission of the court was void, and the sale was void and not voidable and the suit was, therefore, in time and was decreed. The appeal filed by the appellant before the Additional Distt. Judge and the High Court failed. The appellant, therefore, preferred this appeal by special leave. Dismissing the appeal, this court,
1. The provisions of section 8 of the Hindu Minority and Guardianship Act, 1956 are devised to fully protect the property (.if 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."
2. It was difficult, therefore, to hold that the sale, by reason of the fact that the mother of the minor respondents signed the sale deed and the father attested it, was voidable, not void.
3. The attestation of the sale deed by the father showed 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 he held to be sale by the father and natural guardian satisfying the requirements of section 8.
Jijabai Vithalrao Gajre vs. Pathankhan and ors., AIR 1971 S.C. 315. This was a case in which it was held that the position in Hindu law was that when the father was alive he was the natural guardian and it was only after him that the mother became the natural guardian. Where the father was alive but had fallen out with the mother of the minor child and was living separately for several years without taking any interest in the affairs of the minor, who was in the keeping and care of the mother, it was held that, in the peculiar circumstances, the father should be treated as if nonexistent and, therefore, the mother could be considered as the natural guardian of the minor's person as well as property, having power to bind the minor by dealing with her immovable property.