R.S.A.No. 940 of 1993 (O&M) 1 In the High Court of Punjab and Haryana at Chandigarh R.S.A.No. 940 of 1993 (O&M) Date of decision: 16.3.2011 Ram Pal ......Appellant Versus Om Parkash and others .......Respondents CORAM: HON'BLE MRS. JUSTICE SABINA Present: Mr.Kanwaljit Singh, Sr. Advocate with Mr.Vikas Kumar, Advocate, for the appellant. Mr. B.R.Mahajan, Advocate Mr.V.S.Rana, Advocate and Mr.Avinash Jain, Advocate for respondents **** SABINA, J. Plaintiffs had filed a suit for declaration and possession. The case of the plaintiffs, in brief, was that plaintiff No.1 was born on 22.4.1971, plaintiff No.2 was born on 4.12.1975 and plaintiff No.3 was born on 10.12.1977. Santa, mother of the plaintiffs, sought to be appointed as a guardian of the plaintiffs and further sought a permission to sell the land bearing Rect. No.26 killa R.S.A.No. 940 of 1993 (O&M) 2 No.7/1 (3-18), 11/2(3-0), 12 (8-0), 14/2(0-11), 15/2(7-11), 19/1(3-15) measuring 26 kalans 15 marlas. The said permission was granted to Santa by the Court. Santa had filed a suit on the basis of false representation that money was required for maintenance and education of the minor children. In fact, Santa had no necessity to sell the land belonging to the plaintiffs. Santa sold the suit land to defendants vide sale deed dated 11.6.1984. In fact, no permission had been sought qua Rect. No.34 Kila No.4/1 (1-15), 5/1/1 (1-7), 7/1 (7-4) measuring 10 kanals 6 marlas. No part of the sale consideration had been utilised for the benefit of the plaintiffs. Defendant, in his written statement, averred that the plaintiffs were major and could not be sued through their father Het Ram. Santa had executed the sale deed in favour of the defendant after obtaining requisite permission from the Guardian Court. Defendant was bonafide purchaser for consideration. On the pleadings of the parties, following issues were framed by the trial Court:- “1. Whether the plaintiffs are the owners in possession of the land detailed in para No.1 of the plaint? 2. Whether all the plaintiffs were minors as alleged? 3. Whether the plaintiffs have no locus standi to file the present suit ? 4. Whether the suit is barred by time ? 5. Whether the plaintiff are estopped by their act and conduct from filing the present suit ? 6. Whether the suit is bad for non-joinder of necessary parties ? R.S.A.No. 940 of 1993 (O&M) 3 7. Whether the plaintiffs have no cause of action to file the present suit ? 8. Whether the defendant be awarded compensation i.e. Sale consideration, stamp charges, etc. from the plaintiffs in case the suit is decreed ? 9. Whether the defendant is a bona fide purchaser for consideration without notice ? 10. Relief.” The Sub Judge, Ist Class dismissed the suit of the plaintiffs vide judgment and decree dated 15.2.1992. Aggrieved by the same, plaintiffs preferred an appeal and the same was allowed vide judgment and decree dated 15.1.1993 passed by the Additional District Judge. Consequently, the suit filed by the plaintiffs was decreed. Hence, the present appeal by the defendant. Learned counsel for the appellant has submitted that there was no pleading qua the fact that the permission to Santa had been granted vide judgment dated 14.3.1983 Ex.P-6 for only one year to sell the land belonging to the plaintiffs. Hence, the said fact could not be taken in consideration by the first Appellate Court while deciding the appeal. The appellant was a bonafide purchaser for consideration. The judgment Ex.P-6 had attained finality and had not been challenged by the plaintiffs. Hence, it could not be said that the mother could not be appointed as a guardian of her minor children. In support of his arguments, learned counsel has placed reliance on Ms. Githa Hariharan and another vs. Reserve Bank of India 1999 (1) HLR 160, wherein, it was held as under:- “Whenever a dispute concerning the guardianship of a R.S.A.No. 940 of 1993 (O&M) 4 minor, between the father and mother of the minor is raised in a Court of law, the word 'after' in the Section would have no significance, as the Court is primarily concerned with the best interests of the minor and his welfare in the widest sense while determining the question as regards custody and guardianship of the minor. The question, however, assumes importance only when the mother acts as guardian of the minor during the life time of the father, without the matter going to Court, and the validity of such an action is challenged on the ground that she is not the legal guardian of the minor in view of Section 6 (a) (supra). In the present case, the Reserve Bank of India has questioned the authority of the mother, even when she had acted with the concurrence of the father, because in its opinion she could function as a guardian only after the life time of the father and not during his life time.” Learned counsel for the appellant has further placed reliance on Bachhaj Nahar vs. Nilima Mandal and another 2009 (1) RCR (civil), 855, wherein it was held as under:- “It may even be appropriate in a civil suit while proposing to grant as relief, a lesser or smaller version of what is claimed. But the said observation is misconceived if it is meant to hold that a civil court may grant any relief it deems fit, ignoring the prayer. It is fundamental that in a civil suit, relief to be granted can be only with reference to the prayers made in the pleadings. That apart, in civil R.S.A.No. 940 of 1993 (O&M) 5 suits, grant of relief is circumscribed by various factors like court fee, limitation, parties to the suits, as also grounds barring relief, like res judicata, estoppel,acquiescence, non-joinder of causes of action or parties etc., which require pleading and proof. Therefore, it would be hazardous to hold that in a civil suit whatever be the relief that is prayed, the court can on examination of facts grant any relief as it thinks fit.” Learned counsel for the appellant has also placed reliance on Anathula Sudhakar vs. P.Buchi Reddy (Dead) By LRs. and Others, 2008 (3)CCC 294 ( SC) wherein it was held as under:- “No amount of evidence or arguments can be looked into or considered in the absence of pleadings and issues, is a proposition that is too well settled.” Learned counsel for the respondents, on the other hand, has submitted that the Court while interpreting the judgment Ex.P-6 could not be said to have travelled beyond the pleadings. The judgment Ex.P-6 clearly stipulated that the mother of the plaintiffs could sell the land described therein within one year of the passing of the judgment dated 14.3.1983. The mother could not be described as natural guardian of the plaintiffs in the presence of their father. Learned counsel has further made reference to Sections 6 and 8 of the Hindu Minority and Guardianship Act, 1956 ( for short 'the Act'). After hearing learned counsel for the parties, I am of the opinion that the present appeal is devoid of any merit and deserves dismissal. Sections 6 and 8 of the Hindu Minority and Guardianship R.S.A.No. 940 of 1993 (O&M) 6 Act, 1956 read as under:- 6.Natural guardians of a Hindu minor .- The natural guardians of a Hindu, minor, in respect of the minor's person as well as in respect of the minor's property (excluding his or her undivided interest in joint family property), are— (a) in the case of a boy or an unmarried girl— the father, and after him, the mother: provided that the custody of a minor who has not completed the age of five years shall ordinarily be with the mother; (b) in the case of an illegitimate boy or an illegitimate unmarried girl—the mother, and after her, the father; (c) in the case of a married girl—the husband; Provided that no person shall be entitled to act as the natural guardian of a minor under the provisions of this section— (a) if he has ceased to be a Hindu, or (b) if he has completely and finally renounced the world by becoming a hermit (vanaprastha) or an ascetic (yati or sanyasi) Explanation.—In this section, the expressions 'father' and 'mother' do not include a step-father and a step-mother. 8.Powers of natural guardian .- (1) The natural guardian of a Hindu minor has power, R.S.A.No. 940 of 1993 (O&M) 7 subject to the provisions of this section, to do all acts which are necessary or reasonable and proper for the benefit of the minor or for the realization, protection or benefit of the minor's estate; but the guardian can in no case bind the minor by a personal covenant. (2) The natural guardian shall not, without the previous permission of the court,— (a) mortgage or charge, or transfer by sale, gift, exchange or otherwise any part of the immovable property of the minor or (b) lease any part of such property for a term exceeding five years or for a term extending more than one year beyond the date on which the minor will attain majority. (3) 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. (4) No court shall grant permission to the natural guardian to do any of the acts mentioned in sub-section (2) except in case of necessity or for an evident advantage to the minor. (5) The Guardians and Wards Act, 1890 (8 of 1890), shall apply to and in respect of an application for obtaining the permission of the court under sub-section (2) in all respects as if it were an application for obtaining the R.S.A.No. 940 of 1993 (O&M) 8 permission of the court under section 29 of that Act, and in particular— (a) proceedings in connection with the application shall be deemed to be proceedings under that Act within the meaning of section 4A thereof. (b) the court shall observe the procedure and have the powers specified in sub-sections (2), (3) and (4) of section 31 of that Act; and (c) an appeal lie from an order of the court refusing permission to the natural guardian to do any of the acts mentioned in sub-section (2) of this section to the court to which appeals ordinarily lie from the decisions of that court. (6) In this section, "Court" means the city civil court or a district court or a court empowered under section 4A of the Guardians and Wards Act, 1890 (8 of 1890), within the local limits of whose jurisdiction the immovable property in respect of which the application is made is situate, and where the immovable property is situate within the jurisdiction of more than one such court, means the court within the local limits of whose jurisdiction any portion of the property is situate.” Thus, as per Section 6 of the Act, father is the natural guardian of the minor and in case, the father is not available or is unfit then the mother of the minor would be the natural guardian. In the present case, the mother of the minors had R.S.A.No. 940 of 1993 (O&M) 9 approached the Guardian Court and had sought permission to sell the property belonging to her minor children. The question that requires consideration is as to whether the mother had the authority to sell the land belonging to her minor children. Ex.P-6 is the important document in this regard. The Guardian Court in a suit filed by Santa held that the mother could sell the property belonging to her minor children within one year. The relevant portion of the judgment Ex.P-6 dated 14.3.1983 reads as under:- “ In view of this evidence necessary permission to sell the land in question belonging to Om Parkash, Jai Dev and Chaman Lal minors is granted to their guardian Smt.Santa within one year from today or from the date of attaining majority by the minors, whichever period is earlier, because it is stated the sale is for the benefit of the minors, subject to condition that the sale proceeds of the land in question belonging to the minors are deposited by Smt.Santa guardian in the names of the minors in the State Bank of India, Branch at Ballabgarh/Faridabad and that Smt.Santa furnishes security in the sum of ` 50,000/- to reimburse the minors, if any, illegal or unlawful act is committed by her with regard to the sale proceeds of the land in question, belonging to the minors.” Thus, as per the decision given by the Guardian Court, the mother of the minor children could only sell the property belonging to her children within one year from the passing of the judgment dated 14.3.1983. However, the sale deed in the present R.S.A.No. 940 of 1993 (O&M) 10 case was executed by Santa on 11.6.1984 in favour of the defendant. Hence, at the time of execution of the sale deed by Santa in favour of the defendant she had no authority to execute the sale deed on behalf of the minors. When the impugned sale deed was executed by the mother of the minor children during the life time of their father without any permission from the Court then the question as to whether she was the natural guardian of the minor children gains significance. The Apex court in Githa Hariharan's case (supra) has held that the question as to whether the mother is a guardian or not during the life time of father assumes importance only when the mother acts as a guardian of the minor children during the life time of the father without the matter going to the Court and the validity of such an action is challenged on the ground that she is not the legal guardian of the minor in view of Section 6 of the Act. In the case before the Apex Court, the mother had acted with the concurrence of the father. Hence, the facts of the said case are different. However, in the present case there is nothing on record to suggest that the mother had acted on behalf of the minors with the concurrence of the father while executing the sale deed in favour of the defendant. There is also nothing on record to suggest that the father was incapable of taking care of the minors at the time of execution of the sale deed. As per Section 6 of the Act, the father is the guardian of the minors and it is only if the father is not available or is unfit for any reason then the mother can act as a guardian of the minors. However, there is nothing on record to suggest that the father was not available or was unfit to look after the interest of the minors at the time of execution of the sale deed by the mother in favour of the defendant. In these circumstances, the suit filed by the plaintiffs was liable to succeed. R.S.A.No. 940 of 1993 (O&M) 11 The first Appellate Court has not travelled beyond the pleadings but has merely interpreted the judgment Ex.P-6. In these circumstances, there is no force in the argument raised by learned counsel for the appellant in this regard. No substantial question of law arises in this regular second appeal, which would warrant interference by this Court. Accordingly, the same is dismissed. (SABINA) JUDGE March 16, 2011 anita