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KARTA'S RIGHT TO SELL JOINT FAMILY PROPERTY

Section 8 of the Hindu Minority and Guardianship Act, 1956 is not applicable in respect of a joint Hindu family property, which is sold/disposed of by the Karta involving an undivided interest of the minor in the said joint family property.

It is to be borne in mind that Section 8 of the Hindu Minority and Guardianship Act, 1956 prevents a natural guardian of Hindu minor to transfer by sale, gift, exchange or otherwise any part of the immovable property of the minor without prior sanction/permission of the Court. This restriction on the natural guardian in respect of the property of the minor applies only to the separate or absolute property of the minor. It does not include the minor's undivided share in the joint family property as there cannot be a natural guardian in respect of such property which is specifically excluded as per Section 6.

Hon'ble Supreme Court Sri Narayan Bal and others V. Sridhar Sutar and others in AIR 1996 Supreme Court 2371 wherein it is held hereunder: Under Section 8 a natural guardian of the property of the Hindu minor, before he disposes of any immovable property of the minor, must seek permission of the Court. But since there need be no natural guardian for the minor's undivided interest in the joint family property, as provided under Sections 6 and 12 of the Act, the previous permission of the Court under Section 8 for disposing of the undivided interest of the minor in the joint family property is not required. The joint Hindu family by itself is a legal entity capable of acting through its Karta and other adult members of the family in management of the joint Hindu family property. Thus Section 8 in view of the express terms of Sections 6 and 12, would not be applicable where a joint Hindu family property is sold/disposed of by the Karta involving an undivided interest of the minor in the said joint Hindu family property.

It cannot be gainsaid that term 'Natural Guardian' as mentioned in Section 6 of the Act is a guardian for the separate property of the minor and not in respect of his interest in joint family property, in the considered opinion of this Court. Under the old Hindu law, in the case of a joint Hindu family governed by Mitakshara law, it is the karta or the manager of the joint family who has the power to deal with the property of the joint Hindu family, which comprises of minor children also. The manager may be in some cases a member of the joint family other than the father. Section 6 of the Act by excluding the interest in the joint family property recognises the old Hindu law principle in regard to joint family property of the minor as per decision Pattayi V. Subbayya in 1980 HLR 500 (Mad).

Under the Hindu law, the father has special powers of alienation of joint family property including the minor son's share either for legal necessity or for the benefit of the estate. He can even sell the joint family property including the minor son's share for the discharge of antecedent debts, which are not tainted by illegality or immorality as per decision Ramaraja (V.V.V.) V. Korada Malleswara Rao in 1999 (2) HLR 257 (AP). It is well settled that under Hindu Law the father has special powers of alienation of joint family property including the son's share either for legal necessity or for the benefit of the estate. He can also sell joint family property including the son's share for the discharge of antecedent debts, which are not Avyavaharika i.e., which are not tainted by illegality or immorality.

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