1. Being aggrieved and dissatisfied with the order dated 4.1.2021 passed below Exh-5 in Special Civil Suit No. 120 of Page 1 of 87 Downloaded on : Thu Jun 16 21:17:56 IST 2022 C/AO/6/2021 JUDGMENT DATED: 15/06/2022 2020 by the learned 4th Additional Senior Civil Judge, Ahmedabad (Rural) at Mirzapur, the appellant who is the original plaintiff has filed the present Appeal from Order under Order 43 Rule 1(r) of CPC .

2. The appellant is the plaintiff and respondents are original defendant before the trial Court. For the sake of brevity and convenience, the parties are referred to in this order, as per the status assigned to them before the trial Court i.e. plaintiff and defendants.

3. The brief facts of the present appeal in nutshell, are as under:

the sale should be for legal necessity or for the benefit of the estate., Vijay A. Mittal & Ors v. Kulwant Rai (Dead ) through Lrs & Ors., (2019) 3 SCC 520; Mulla on Hindu Law (22nd Edition), Pg. 372. The onus for establishing the existence of legal necessity is on the alienee.

In Rani & Anr. v. Santa Bala Debnath & Ors.,6 this Court held that:

(emphasis supplied) 8.2. In the present case, the onus was on the alienee i.e. Respondent No. 1 to prove that there was a legal necessity, or benefit to the estate, or that she had made bona fide enquiries on the existence of the same.

8.3. Respondent No. 1 has completely failed to discharge the burden of proving that Dharam Singh had executed the two Sale Deeds dated 01.09.1999 in her favour out of legal necessity or for the benefit of the estate. In fact, it has come on record that the Sale Deeds were without any consideration whatsoever.

Dharam Singh had deposed before the Trial Court that he sold the suit property to Respondent No. 1 without any consideration. Respondent No. 1 had also admitted before the Collector, Ferozepur that the Sale Deeds were without Page 6 of 87 Downloaded on : Thu Jun 16 21:17:56 IST 2022 C/AO/6/2021 JUDGMENT DATED: 15/06/2022 consideration. Hence, the ground of legal necessity or benefit of the estate falls through.

8.4. As a consequence, the Sale Deeds dated 01.09.1999 are hereby cancelled as being illegal, null and void. Dharam Singh could not have sold the coparcenary suit property, in which the Appellant was a coparcener, by the aforesaid alleged Sale Deeds.

9. Since Respondent No. 1 has not obtained a valid and legal title to the suit property through the Sale Deeds dated 01.09.1999, she could not have passed on a better title to Respondent Nos. 2 & 3 either.

The subsequent Sale Deed dated 30.10.2007 executed by Respondent No. 1 in favour of Respondent Nos. 2 & 3 is hit by the doctrine of lis pendens. The underlying principle of the doctrine of lis pendens is that if a property is transferred pendente lite, and the transferor is held to have no right or title in that property, the transferee will not have any title to the property.7 The Sale Deed dated 30.10.2007 executed by Respondent No. 1 in favour of Respondent Nos. 2 & 3 being null and void, is hereby cancelled.

2. Subodhkumar and Others v. Bhagwant Namdeorao Mehetre and others, reported in (2007) 10 SCC 571, paras-11 and 12 read as under:

3. Smt. Rani and Another v. Smt. Santa Bala Debnath and others , reported in 1970 (3) SCC 722, paras-10 and 11 read as under:

4. Sunil Kumar and Another v. Ram Prakash and Others , reported in (1988) 2 SCC 77, it is observed in Paras- 6, 24 and 25 as under:

24. The managing member or karta has not only the power to manage but also power to alienate joint family Page 15 of 87 Downloaded on : Thu Jun 16 21:17:56 IST 2022 C/AO/6/2021 JUDGMENT DATED: 15/06/2022 property. The alienation may be either for family necessity or for the benefit of the estate. Such alienation would bind the interests of all the undivided members of the family whether they are adults or minors. The oft quoted decision in this aspect, is that of the Privy Council in Hanuman Parshad v. Mt. Babooee.There it was observed at p. 423: "That the power of the manager for an infant heir to charge an estate not his own is, under the Hindu law, a limited and qualified power. It can only be exercised rightly in case of need, or for the benefit of the estate." This case was that of a mother, managing as guardian for an infant heir. A father who happens to be the manager of an undivided Hindu family certainly has greater powers to which I will refer a little later. Any other manager however, is not having anything less than those stated in the said case. Therefore, it has been repeatedly held that the principles laid down in that case apply equally to a father or other coparcener who manages the joint family estate."

25. Remedies against alienations:

7. Rajnikant Chhotabhai Patel v. Patel Kantibhai Fulabhai Bin Mathurbhai Deed Thro. Heirs, reported in 2013 (2) GLR 1550, paras-20 and 21 read as under:

8. Gangubai Bablya Chaudhary and Others v. Sitaram Bhalchandra Sukhtankar and others , reported in (1983) 4 SCC 31, wherein Para-6 read as under:

C/AO/6/2021 JUDGMENT DATED: 15/06/2022

9. Maharwal Khewaji Trust (Regd) Faridkot v. Baldev Dass , reported in (2004) 8 SCC 488, wherein Para-10 reads as under:

10. Asha John Divianathan v. Vikram Malhotra , reported Page 22 of 87 Downloaded on : Thu Jun 16 21:17:56 IST 2022 C/AO/6/2021 JUDGMENT DATED: 15/06/2022 in AIR 2021 SC 2932, paras-19 and 20 read as under:

20. de Smith, Woolf and Jowell in their treatise Judicial Review of Administrative Action, 5th Edn., para 5044, have summarised the concept of void and voidable as follows:

21. Clive Lewis in his work Judicial Remedies in Public Law at p. 131 has explained the expressions "void and voidable" as follows:

22. Thus the expressions "void and voidable" have been the subject-matter of consideration on innumerable occasions by courts. The expression "void" has several facets. One type of void acts, transactions, decrees are those which are wholly without jurisdiction, ab initio void and for avoiding the same no declaration is necessary, law does not take any notice of the same and it can be disregarded in collateral proceeding or otherwise. The other type of void act, e.g., may be transaction against a minor without being represented by a next friend. Such a transaction is a good transaction against the whole world. So far as the minor is concerned, if he decides to avoid the same and succeeds in avoiding it by taking recourse to appropriate proceeding the transaction becomes void from the very beginning. Another type of void act may be which is not a nullity but for avoiding the same a declaration has to be made. Voidable act is that which is a good act unless avoided, e.g., if a suit is filed for a declaration that a document is fraudulent and/or forged and fabricated, it is voidable as the apparent state of affairs is the real state of affairs and a party who alleges otherwise is obliged to prove it. If it is proved that the document is forged and fabricated and a declaration to that effect is given, a transaction becomes void from the very beginning. There may be a voidable transaction which is required to be set aside and the same is avoided from the day it is so set aside and not any day prior to it. In cases Page 25 of 87 Downloaded on : Thu Jun 16 21:17:56 IST 2022 C/AO/6/2021 JUDGMENT DATED: 15/06/2022 where legal effect of a document cannot be taken away without setting aside the same, it cannot be treated to be void but would be obviously voidable."

20. It is well established that a contract is void if prohibited by a statute under a penalty, even without express declaration that the contract is void, because such a penalty implies a prohibition. Further, it is settled that prohibition and negative words can rarely be directory. In the present dispensation provided under Section 31of the 1973 Act read with Sections 47, 50 and 63 of the same Act, although it may be a case of seeking previous permission it is in the nature of prohibition as observed by a three Judge Bench of this Court in Mannalal Khetan & Ors. v. Kedar Nath Khetan & Ors.18 . In every case where a statute imposes a penalty for doing an act, though, the act not prohibited, 18 (1977) 2 SCC 424 yet the thing is unlawful because it is not intended that a statute would impose a penalty for a lawful act. When penalty is imposed by statute for the purpose of preventing something from being done on some ground of public policy, the thing prohibited, if done, will be treated as void, even though the penalty if imposed is not enforceable. We may usefully reproduce paragraphs 18 to 22 of the said reported decision, which read thus:

11. Selvam and other v. Mangaiyarkarasi, reported in 2013 (2) CTC 626, wherein Para-13 reads as under:

We agree with the reasoning and the conclusions reached by the Division Bench of the High Court and as such this appeal has to be dismissed.µ

(iii) Explaining the object behind the introduction Of Section 8 of the Hindu Minority and Guardianship Act, the Hon'ble Supreme Court, in the case reported in 1994-1- Page 30 of 87 Downloaded on : Thu Jun 16 21:17:56 IST 2022 C/AO/6/2021 JUDGMENT DATED: 15/06/2022 L.W.40 ( Panni Lal v. Rajinder Singh & another ) (SC), held as follows:-

(iv) Contending that the contract entered into is not a valid contract but a contingent contract, the validity of which would depend upon the permission obtained from the Court, the decision reported in 1999-L.W.110 (DB) (Thilakam, M. v. M.R.Radhika, 1986 (99) LW 110 (DB) is relied upon.

(v) When the inhibition of the transaction is by a statute and when the statute in plain and unambiguous language prohibit alienation of property, without the permission from the Court, the transaction cannot be upheld, even if the sale is for legal necessity. So contending, the decision reported in (1985) 2 MLJ 366 ( Dhanasekaran v. Manorajnithammal , 1985 (2) MLJ 366, is relied upon. In this decision, it has been held as follows:-

( vi) Vishwambhar v. Laxminarayan 2001 (3) CTC 316 (SC) :

Ankegowda) is relied upon. The relevant and important observation runs as follows:-

(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.

12. In sub-section (3) in which the consequences of contravention of sub-section (1) or sub-section (2) are provided it is laid down that "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".

(ix) Brammagiri v. Minor Sivasubramaniam, 2007 (3) CTC

718. In this decision, it has been held that a release deed executed without obtaining prior permission of Court, would not be binding on the plaintiff minor son and a claim for partition would be possible without reference to release.

(x) Koothayyan v. Minor Ayyappan, 2008 (6) MLJ 1004. In this decision, it has been held that when the minor's property has been sold by the mother of the minor, without obtaining the permission of the District Court and it was not established that the sale was for the benefit of Page 34 of 87 Downloaded on : Thu Jun 16 21:17:56 IST 2022 C/AO/6/2021 JUDGMENT DATED: 15/06/2022 the minor, then the said sale is liable to be cancelled at the instance of the minor.

13.1. Learned counsel for the appellants has also placed reliance upon the decision reported in Geetha Hariharan v. Reserve Bank of India , AIR 1999 SC 1149 , pointing out the facts which are distinguishable. In the said decision , where the father was not taking any interest in his minor's daughter's affairs and it was the mother, who was actually managing the affairs of her minor daughter, the Hon'ble Supreme Court held that when the father was not taking any interest in the affairs of the minor, then it was as good, as if he was non-existent, so far as the minor was concerned.

13.2. The factual aspect available in this case does not show that the father was not taking any interest in the affairs of the minor.

12. Saroj v. Sunder Singh and Others , reported in (2013) 15 SCC 727, Para-12 reads as under;

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.

As per clause (a) of sub-section (2) of Section 8 no immovable property of the minor can be mortgaged or charged, or transferred by sale, gift, exchange or otherwise without the previous permission of the Court. Under sub-section (3) of Section 8 disposal of such an immovable property by a natural guardian, in contravention of sub-section (1) or sub-section (2) of Section 8 , is voidable at the instance of the minor or any person claiming under him.

13. Amirtham Kudumbah v. Sarnam Kudumbah, reported in (1991) 3 SCC 20;

C/AO/6/2021 JUDGMENT DATED: 15/06/2022 "8. As concurrently found by the courts below, the sale effected by the guardian during the minority of his daughter was not in compliance with the provisions of section 18(i) of the Guardianship Act. The property was transferred by him without obtaining the previous permission of the Court and the transfer was not for the benefit of the minor. Such a sale by the minor's father who is his natural guardian is, unlike in the case of transfer by a de facto guardian ( Section 11 ), not a void sale, but only a voidable sale. Such a sale until set aside is sufficiently effective to pass title, but being a voidable sale, what the buyer has obtained is a defeasible title which is liable to be set aside at the instance of the person entitled to impeach it. Section 8(3) of the Guardianship Act says: "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."(emphasis supplied)

9. The effect of this sub-section is that any disposal of immovable property by a natural guardian otherwise than for the benefit of the minor or without obtaining the previous permission of the Court is voidable. A person entitled to avoid such a sale is either the minor or any person claiming under him. This means that either the minor, or his legal representative in the event of his death, or his successor- in-interest claiming under him by reason of transfer inter vivos, must bring action within the period prescribed for such a suit, i.e., three years from the date on which the minor died or attained majority, as the case may be. In the present case, the suit was brought, as found by the courts below, within three years after the minor attained majority.

C/AO/6/2021 JUDGMENT DATED: 15/06/2022

14. In the instant case, on the facts found, the transfer of the property made by the guardian was a voidable transaction and it was, therefore, open to the minor to challenge it and seek recovery of possession. Such a right of the minor is a right or interest in property which he himself or "any person claiming under him" may enforce by instituting a suit [Section 8(3) of the Guardianship Act].

15. Section 8(3) confers a right of suit in the special circumstances postulated in that provision. The object of the Act being the protection of the minor, the legislature has thought it fit to confer a right of suit in certain circumstances not only on the minor, but also on a person to whom the minor has transferred his rights. The right transferred is an interest in property which is capable of enforcement at the instance of the transferee as it was at the instance of the ex-minor prior to the transfer. Such a provision, indeed specially for the protection of the interests of the minor, must be read in harmony and consistently with the general provisions contained in section 6 of the T.P. Act. [See The J.K. Cotton Spinning & Weaving Mills Co. Ltd. v. The State of Uttar Pradesh & Ors. , [1961] 3 S.C.R. 185, 194 and Ashoka Marketing Ltd. & Anr. v. Punjab National Bank & Ors. , [1990] 3 JT SC 417, 439].

16. The transfer made by the father during his son's minority was voidable at the instance of his son who was the real owner, and any person purchasing such property from the natural guardian obtained only a defeasible title. The minor retained a right in the property to defeat existing adverse claims, and such right is an assignable right. We are in complete agreement with what has been Page 38 of 87 Downloaded on : Thu Jun 16 21:17:56 IST 2022 C/AO/6/2021 JUDGMENT DATED: 15/06/2022 stated on the point in Palaniappa Goundan v. Nallappa Goundan & Ors. , AIR 1951 Madras 817 and in P. Kamaraju v. C. Gunnayya & Ors. , AIR 1924 Madras 322. We do not agree with the contrary view expressed on the point in Jhaverbhai Hathibhai Patel v. Kabhai Bechar Patel & Ors. , AIR 1933 Bom. 42; Mon Mohan Battacharjee & Ors. v. Bidhu Bhushan Dutta & Ors. , AIR 1939 Cal. 460 and Palani Goundan & Anr. v. Vanjiakkal .

14. Murugan & Ors. v. Kesava Gounder , reported in (2019) 20 SCC 633;

(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.

C/AO/6/2021 JUDGMENT DATED: 15/06/2022 (3) Any disposal of immovable property by a natural guardian, in contravention of subsection (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 permission of the court under sub-section (2) in all respects as if it were an application for obtaining the 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 shall 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 Page 40 of 87 Downloaded on : Thu Jun 16 21:17:56 IST 2022 C/AO/6/2021 JUDGMENT DATED: 15/06/2022 court within the local limits of whose jurisdiction any portion of the property is situate."

16. This Court in Dhurandhar Prasad Singh Vs. Jai Prakash University and Others , (2001) 6 SCC 534 had noted the distinction between Void and Voidable. In Paragraph No. 22, following has been laid down:-

17. In Vishwambhar and Others Vs. Laxminarayan (Dead) Through LRs . and Another, (2001) 6 SCC 163, which was 21 a case of challenge to alienation without Court's sanction and without legal necessity, this Court held that the alienation by natural guardian was voidable. In the above case , the mother, natural guardian of two minors has executed the sale deed before they attained majority. Minors after attaining majority had filed suit pleading that sale deeds are not binding and operative on the legal rights of plaintiff, and prayed that the said sale deeds be set aside to the extent of their share and the suit for possession of the land be decreed. In the above case , after considering Section 8 this Court held that sale deeds were voidable at the instance of the plaintiff. This Court further held that if the plaintiffs were required to have the sale deeds set aside before making any claim in respect of suit properties sold then a suit without such a prayer was of no avail to the plaintiffs. Following was held in Paragraph No.9:-

18. To the same effect is the judgment of this Court in Madhegowda (dead) by LRs. Vs. Ankegowda (dead) by LRs. and Others, (2002) 1 SCC 178, where in Paragraph No. 25, following has been held:-

19. This Court further held in Nangali Amma Bhavani Amma Vs. Gopalkrishnan Nair and Others, that the alienation made in violation of Section 8(2) is voidable, holding it to be 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. Following was held in Paragraph No.8:-

28. This Court time and again held that setting aside of a sale which is voidable under Section 8(3) is 30 necessary for avoiding a registered sale deed. We may, however, not to be understood that we are holding that in all cases where minor has to avoid disposal of immovable property, it is necessary to bring a suit. There may be creation of charge or lease of immovable property which may not be by registered document. It may depend on facts of each case as to whether it is necessary to bring a suit for avoiding disposal of the immovable property or it can be done in any other manner. We in the present case are concerned with disposal of immovable property by natural guardian of minor by a registered sale deed, hence, we are confining our consideration and discussion only with respect to transfer of immovable property by a registered deed by a natural guardian of minor.

32. We may notice one more judgment of this Court relied on by the learned counsel for the appellants that is G. Annamalai Pillai vs. District Revenue 33 Officer and others, (1993) 2 SCC 402. The question which arose for consideration in the said case has been noticed in paragraph 1 of the judgment in following words:

33. The land in dispute was owned by one Janarthanan. His father, Purushothaman executed a registered lease deed in favour of appellant on 12.12.1971 on which date the owner was minor. The appellant filed application before Tehsildar to be registered as a tenant which was contested by Janarthanan. Janarthanan contended that his father has no right or title to deal with land and lease by his father is in contravention of Section 8 of Hindu Minority and Guardianship Act, 1956. Tehsildar held that there was no valid lease which order was confirmed by the High Court against which judgment appeal was filed. In paragraphs 5 and 6 following has been laid down:

6. We agree with the reasoning and the conclusions reached by the Division Bench of the High Court and as such this appeal has to be dismissed."

15. Nangali Amma Bhavani Amma V. Gopalkrishnan Nair and Ors, reported in (2004) 8 SCC 785, wherein 8 reads as under:

16. Vishwambhai & Ors. v. Laxminarayan (dead) through Lrs. And Anr., reported in (2001) 6 SCC 163, paras-9 and 10 read as under:

Ordinarily the law does not envisage a natural guardian of the undivided interest of a Hindu minor in joint family property. The natural guardian of the property of a Hindu minor, other than the undivided interest in joint family property, is alone contemplated under Section 8 , whereunder his powers and duties are defined. Section 12 carves out an exception to the rule that should there be no adult member of the joint family in management of the joint family property, in which the minor has an undivided interest, a guardian may be appointed; but ordinarily no guardian shall be appointed for such undivided interest of the minor. The adult member of the family in the management of the Joint Hindu Family property may be a male or a female, not necessarily the Karta. The power of the High Court otherwise to appoint a guardian, in situations justifying, has been preserved. This is the legislative scheme on the subject. 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 to 12 of the Act, the previous permission of the Court under Section 8 of 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 Page 57 of 87 Downloaded on : Thu Jun 16 21:17:56 IST 2022 C/AO/6/2021 JUDGMENT DATED: 15/06/2022 Karta involving an undivided interest of the minor in the said joint Hindu family property. The question posed at the outset therefore is so answered.

6. In the instant case the finding recorded by the courts below is that Jagabandhu, the eldest male member in the family acted as a Karta in executing the sale and had joined with him the two widows for themselves and as guardians of the minor members of joint Hindu family, as supporting executants. That act by itself is not indicative of the minors having a divided interest in the joint Hindu family property commencing before or at the time of the sale. In this view of the matter, section 8 of the Act can be of no avail to the appellant's claim to nullify the sale.

(2) In re Krishnakant Maganlal, reported in AIR 1961 Gujarat 68, paras-5 and 8 read as under:

( 3) Vijay A. Mittal v. Kulwant Rai(Dead ) through Legal Representatives, reported in (2019) 3 SCC 520, Paras- 3 to 34 read as under;

31. Keeping in view the aforementioned principle of law and applying the same to the facts of the case at hand, we are of the considered opinion that the Courts below were justified in holding that the agreement dated 12.6.1979 was binding on the legal heirs of Amar Nath for the following reasons: First, no issue was framed on the question of "legal necessity". In our opinion, it should have been framed; Second, yet the First Appellate Court while allowing the plaintiffs' appeal recorded a categorical Page 61 of 87 Downloaded on : Thu Jun 16 21:17:56 IST 2022 C/AO/6/2021 JUDGMENT DATED: 15/06/2022 finding that one son of Amar Nath had signed the agreement in question and, therefore, it was a case where legal representatives of Late Amar Nath were aware of the existence of the agreement and also had given their consent; and Third, this finding was upheld by the High Court while dismissing the defendants' appeal.

32. One cannot dispute the power of a Karta to sell the Joint Hindu Family property. It is, indeed, inherent in him. However, it is subject to certain restrictions, namely, the sale should be for the legal necessity and for the benefit of the family.

33. It is clear that Amar Nath had obtained the consent of the legal heirs before entering into an agreement for sale of the suit property to the plaintiffs. The very fact that one son of Amar Nath was a signatory to the agreement was sufficient to draw a presumption that the agreement to sell was made by Amar Nath with the consent of other coparceners. It is also for the reason because none of the coparceners had raised any objection till the filing of written statement in the suit. The very fact that Amar Nath sold the suit property to defendant Nos. 2 and 3 and which was not objected to by his legal heirs showed that the plea regarding legal necessity had no factual basis to sustain.

34. It is for all these reasons, we are of the view that the appellants (defendants) have failed to make out any case so as to call for any interference in the impugned judgment".

( 4) The Commissioner of Gift Tax, Madras v. N.S. Getty Chettiar , reported in (1971) 2 SCC 741, paras-8 and 19 read as under:

Therefore it is not correct to assume that a coparcener in Hindu joint family has any definite share in the family property, before its division. Having stated that much, let us now proceed to consider the relevant provisions of the Act.

19. This leaves us with cl. (d) of S. 2 (xxiv) which speaks of a transaction entered into by any person with intent thereby to diminish directly or indirectly the value of his own property and to increase the value of the property of another person. A member of H.U.F. who, as mentioned earlier, has no definite share in the family property before division, cannot be said to diminish directly or indirectly the value of his property or to increase the value of the property of any other coparcener by agreeing to take a share lesser than what he would have got if he had gone to court to enforce his claim. Till partition, his share in the family property is indeterminate. He becomes entitled to a share in the family property only after the partition. Therefore there is no question of his either diminishing directly or indirectly the value of his own property or of increasing the value of the property of anyone else. The Page 63 of 87 Downloaded on : Thu Jun 16 21:17:56 IST 2022 C/AO/6/2021 JUDGMENT DATED: 15/06/2022 "transaction" referred to in cl. (d) of s. 2 (xxiv) takes its colour from the main clause viz., it must be a transfer of property in some way. This conclusion of ours gets support from sub-clause (a) to (c) of clause (xxiv) of s. 2 , each of which deals with one or the other mode of transfer. If the parliament intended to bring within the scope of that provision partitions of the type with which we are concerned, nothing was easier than to say 2. In interpreting tax laws, courts merely look at the works of the section. If a case clearly comes within the section, the subject is taxed and not otherwise. For these reasons, we agree with the view taken by the High Court of Madras,, the' Tribunal and the Assistant Appellate Commissioner that the assessee made no "gift" under the partition deed in question.

(5) Man Singh (Dead) by Lrs. V. Ram Kala (Dead) by Lrs., reported in (2010) 14 SCC 350, "14. Till disruption of joint family status takes place, neither coparcener nor the other heirs entitled to share in the joint family property can claim with certainty the exact share in that property. In the case of Appovier Alias Seetaramier v. Rama Subba Aiyan & Ors.1, Lord Westbury speaking for the Judicial Committee (Privy Council) observed, `According to the true notion of an undivided family in Hindoo law, no individual member of that family, whilst it remains undivided, can predicate of the joint and undivided property, that he, that particular member, has a certain definite share."

( 6) Saroj v. Sunder Singh & Ors , reported in (2013) 15 SCC Page 64 of 87 Downloaded on : Thu Jun 16 21:17:56 IST 2022 C/AO/6/2021 JUDGMENT DATED: 15/06/2022 727, para- 14 reads as under:

( 7) Vasantrao Gulabrao Thakre v. Sudhakar Wamanrao Hingankar & Ors , repoted in 2018 (5) Mh. L.J. 121, para-13 reads as under:

( 8) M.R. Vinoda v. M.S. Susheelamma (D) by Lrs . & Ors, passed in Civil Appeal No. 2567 of 2017 "12. The position in Hindu Law is well settled. In Sri Narayan Bal and Others v. Sridhar Sutar and Others,3 this Court interpreting Sections 6 and 8 of the Hindu Minority and Guardianship Act, 1956 (" HMG Act ", for short), has held that these two Sections are not to be viewed in isolation, albeit in harmony and conjunction, and when read together the intent is manifest that HMG Act does not envisage a natural guardian of an undivided interest Page 66 of 87 Downloaded on : Thu Jun 16 21:17:56 IST 2022 C/AO/6/2021 JUDGMENT DATED: 15/06/2022 of a Hindu minor in a joint Hindu family property. A natural guardian of a Hindu minor in respect of the individual property alone is contemplated under Section 8 , whereunder the powers and duties of a natural guardian are defined. The provisions of the HMG Act with the object of saving the minor's separate individual interest from being misappropriated require a natural guardian to seek permission from the Court before alienating any part of the minor's estate, do not affect the right of the Karta or the head of the branch to manage and from dealing with the joint Hindu family property. In terms of Section 12 6 , ordinarily no guardian shall be appointed for minor's interest in joint Hindu family. Only when there is no adult member in the management of the joint family property in which the minor has an undivided interest - and then alone - a guardian may be appointed. Further, the adult family member in the management of the joint family property may be a male or female, not necessarily the Karta. Therefore, Section 8 of the HMG Act that requires a guardian of a Hindu minor to seek the permission of the Court before he disposes of any immovable property of the minor will have no application when a Karta or adult head of the family alienates joint Hindu property even if one or more coparceners are minor. The reason is that Section 8 , in view of the express terms of Sections 6 and 12 , would not apply where a joint Hindu family property is sold/disposed of by the Karta or head of the family even when a minor has an undivided interest in the said joint Hindu family property. Sri Narayan Bal (supra) observes:

(9) Somiben @Chimiben D/o. Naranbhai Kalabhai & Anr.

v. Ukabhai Naranbhai Patel & Ors., reported in 2009 SCC Online Guj 10931, Paras 26 & 28 read as under:

He was one of those whose claims to the family property, or to shares in it, induced G against her own interests and those of her Page 68 of 87 Downloaded on : Thu Jun 16 21:17:56 IST 2022 C/AO/6/2021 JUDGMENT DATED: 15/06/2022 daughter, and greatly to her own detriment to alter her position by agreeing to the compromise and under that compromise, K obtained a substantial benefit which he had all along enjoyed and he was, therefore, bound by it and cannot claim as a revisioner.

(b) In Smt. P. N. Wankudre V/s. C.C. Wankudre and others, AIR 2002 BOMBAY 129, informal family arrangement was arrived at whereby various members of family were put in possession and enjoyment of different property. All members of family were signatories to the said arrangement. Partition so arrived at was acted upon by parties and also derived benefits there from. No objection raised in it for number of years.

Inspite of such circumstances, even assuming that documents were required to be registered, conduct of members would operate as an estoppel preventing them from resiling from said arrangements. One member cannot seek injunction or restrained order in respect of property partitioned and mutated in favour of another member.

(c) In Kale and others V/s. Deputy Director of Consolidation and others, 1976 (3) SCC 119, it is held that by virtue of a family settlement or arrangement members of a family descending from a common ancestor or a near relation seek to sink their differences and disputes settled and resolved their conflicting claims or disputed titles once for all in order to buy peace of Page 69 of 87 Downloaded on : Thu Jun 16 21:17:56 IST 2022 C/AO/6/2021 JUDGMENT DATED: 15/06/2022 mind and bring about complete harmony and goodwill in the family. Family arrangements are covered by a special equity peculiar to themselves and will be enforced if honestly made. Although they have not been meant as a compromise, but have proceeded from an error of all parties originating in mistake or ignorance of fact as to what their rights actually are, or of the points on which their rights actually depend. The object of arrangement is to protect the family from long drawn litigation or perpetual strifes which mar the unity and solidarity of the family and create hatred and bad blood between the various members of the family. It promotes social justice through wider distribution of wealth. Family therefore has to be construed widely. It is not confined only to people having legal title to the property.

(d) In Ranganayakamma & Anr. Vs. K.S.Prakash (D) by L.Rs. & Ors. , 2008 AIR SCW 6476 the Apex Court held that, family settlement is necessary for achieving peace and harmony for family. Partition by metes and bound is not always possible and hence preservation of family property can form ground or consideration for foregoing substantial part of its share by a party to make settlement binding on it. It is not permissible for the Court to reopen a compromise decree passed on the basis of settlement except when fraud on party or Court is pleaded and established. The Court Page 70 of 87 Downloaded on : Thu Jun 16 21:17:56 IST 2022 C/AO/6/2021 JUDGMENT DATED: 15/06/2022 cannot go into the question as to whether contents of settlement are correct or not or as to whether properties were joint or self- acquired.

The Court further held that the document relating to release of shares by sisters in favour of their brothers is not per se void for want of consideration. Renunciation may be for consideration or may not be for consideration. Release by an heir other than coparcener does not need any consideration Release is valid without consideration. Love and affection is also a consideration within meaning of Sections 122 , 123 of Transfer of Property Act.

(ii) That they have not challenged the document dated 23.12.1990 for 18 years. Even if the Suit filed by the appellants is treated as filed within limitation they are not entitled to any interim relief. In support of this submission, he relied on the decision of this Court in the case of Veetrag Holding Company Limited V/s. Gujarat State Textile Corporation Limited, 37 (3) GLR 536, wherein this Court has held that in as much as this Contract was terminated on 6.12.1993, it was expected of the appellant to move for specific performance at the earliest, if they were serious about the same. The appellant certainly cannot be nonsuited on the ground of limitation in as much as their suit is within time. However, when it comes to grant of equitable relief, when the suit is filed after such a lapse of time, it cannot be said that the remedy of interim injunction was the necessary remedy and there was no other remedy available to the party concerned in this behalf.

(iii) That the Will is not under challenge in the Page 71 of 87 Downloaded on : Thu Jun 16 21:17:56 IST 2022 C/AO/6/2021 JUDGMENT DATED: 15/06/2022 present suit. The respondent No.4 is bonafide purchaser and he has spent huge amount by putting up the construction and he has also sold flats constructed on the said land and the third party rights have already been created and the majority of the construction work is already over as per the sanctioned plan and the photographs are also produced to show the construction. Therefore, irreparable loss will be caused to the present respondent No.4 if the injunction is granted.

(iv) That third party rights are already created and innocent people will suffer if the interim relief is granted.

(v) That the plaintiffs have filed suit to squeeze more money from respondent No.4. There is no reason to disbelieve the above finding of facts which requires any interference by this Court.

28. Mr.Sanjanwala further submitted that the Special Civil Suit No.181 of 2008 is filed by the appellants only with a view to extract more money from the respondent No.4. The appellants have not stated the correct facts even in the notice of motion filed before the trial Court and the trial Court has observed that many important facts have been suppressed. The said facts are also suppressed in the present Appeal From Order and the Civil Application, inspite of the fact that in the earlier Appeal From Order No.206 of 2008 filed by the respondent No.4, correct facts were stated and all the documents were produced. Even thereafter, while filing the present Appeal From Order and the Civil Application the appellants have suppressed those facts from this Court and hence this Appeal as well as Civil Application suffer from suppretio vary and suggestio falsy and since the appellants have not come Page 72 of 87 Downloaded on : Thu Jun 16 21:17:56 IST 2022 C/AO/6/2021 JUDGMENT DATED: 15/06/2022 with clean hands before this Court they are not entitled to claim any equitable interim relief".

( 10) Kishorsinh Ratansinh Jadeja v. Maruti Corporation & Ors , reported in (2009) 11 SCC 229, paras 39 to 41 read as under:

20. The defendant no.2, in addition to the dues of the Income Tax department as aforesaid, made further payments to the defendant of Rs.25,44,57,769/ by 16.01.2019 aggregating to a total payment of Rs.45,84,71,869/. The defendants had also proceeded to utilize a sum of Rs.36.20 crores also and had therefore Page 75 of 87 Downloaded on : Thu Jun 16 21:17:56 IST 2022 C/AO/6/2021 JUDGMENT DATED: 15/06/2022 materially altered their position evidently by the inaction of the plaintiff to institute the suit in time and having allowed third party rights to accrue by making substantial investments. In Madamsetty (supra) it was observed :

23. Wander Ltd. (supra) prescribes a rule of prudence only. Much will depend on the facts of a case. It fell for consideration again in Gujarat Bottling Co. Ltd. vs. Coca Cola Co. , (1995) 5 SCC 545, observing as follows :

24. The aforesaid discussion leaves us satisfied to conclude that in the facts and circumstances of the present case, the grant of injunction to the plaintiff is unsustainable. Resultantly the orders of injunction are set aside. Nothing in the present order shall be deemed or construed as any expression of opinion or observation by us at the final hearing of the suit which naturally will have to be decided on its own merits. The High Court has already given directions to expedite the hearing of the suit and we reiterate the same.

(12) Newsclick In Publisher of Article through Prabir Purkayasthr v. Adani Power Rajasthan Ltd., judgment dated 1.4.2022 passed in AO No. 172 of 2021, paras- 16 and 18 read as under:

18. In the facts and circumstances of the case, the view taken by the trial Court is reasonable one. This Court, being an Appellate Court exercising the limited jurisdiction, cannot interfere with it only on the basis that second view of the matter is possible. The observation of the trial Court cannot be said to be perverse one or Page 79 of 87 Downloaded on : Thu Jun 16 21:17:56 IST 2022 C/AO/6/2021 JUDGMENT DATED: 15/06/2022 arbitrary one

7. The learned advocates for the respective parties have also relied upon the following decisions, however, since they are on the same line, which have already been referred to hereinabove, the same are not discussed:

Ranadhir Chandra Dey, reported in 2011 (0) AIJ-AS 611750;

4. Venubai Wd/o. Natthu @ Devidas Mankar & Anr. v.

Vimlabai wd/o. Kesharao Thakare & Ors, reported in 2013 (3) Mh. L.J. 895;

5. Shriram Niwrutti Mahalle v. Pannalal Totala & Ors, reported in AIR 2008 Bom 194;

6. Sudhakar Wamanrao Hingankar & Ors. v. Vasantrao Thakre & Ors , Order dated 4.2.2019 passed in CA No. 76 of 2019 in Misc. Civil Application (Review) No. 17754 of 2018

7. Sudhakar Wamanrao Hingankar & Ors. v. Vasantrao Gulabrao Thakre , passed in Special Leave to Appeal (Civil) No. 3273 of 2020

8. Pramukhkrupa Enterprise & Anr. v. Kunverben Chaturdad Patel & Ors , reported in 2014 SCC Onlie Guj 2594, Page 80 of 87 Downloaded on : Thu Jun 16 21:17:56 IST 2022 C/AO/6/2021 JUDGMENT DATED: 15/06/2022

8. In rejoinder, Mr. Unwala, learned Senior Counsel with Mr. Jigar Gadhvi, learned advocate has vehemently submitted that in the present case, as different cheques of different amount has been issued in favour of individual person, including the minor, it show that actually the property has been divided and partition took place amongst the members of the Hindu family. He has submitted that there is no need of any actual partition of property by Metes and bounds as money has been paid in the proportion of the share of each member of the Hindu Joint Family. Mr. Unwala has also submitted that there was recital in agreement to sell in obtaining prior permission of the Civil Court and without obtaining such prior permission, registered sale deed has been executed, the same would be hit by provisions of Section 8(2) of the Guardianship Act. He has submitted that it is a principle that equity follows the law and not law follows the equity. He has submitted that there is no equity in favour of the defendant No.1 as during the pendency of suit-appeal, he has erected Multi- storeyed building on the land and thereby changed the nature of the land. According to him, wrong is done by the defendant No.1, though he was well aware that the suit is pending, may not be tolerated and atleast he may be restrained from transferring or creating any third party interest in the building erected till the final disposal of the suit. He has prayed to allow the present appeal from order and to grant relief as prayed for by the plaintiff.

9. Having considering the submission made on behalf of both Page 81 of 87 Downloaded on : Thu Jun 16 21:17:56 IST 2022 C/AO/6/2021 JUDGMENT DATED: 15/06/2022 the sides coupled with the material placed on record and the various decisions cited at bar, as referred to hereinabove, it reveals that land in question was of ancestral joint family property. It reveals from the record that minor's father has already died and the natural guardian is mother who is also alive and residing at the same address where the minor is residing. It also reveals that the mother being a natural guardian has not come forward to file a suit and instead of that some third party posing himself as a maternal uncle of minor's mother has filed the suit, that too without obtaining permission from the Court to act as guardian of the minor. Be that as it may be. Now, the entire controversy is rested upon the power of natural guardian as provided under Section 8 of the Guardianship Act. Section 8 of the said Act reads as under:

C/AO/6/2021 JUDGMENT DATED: 15/06/2022 (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 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 shall 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".

C/AO/6/2021 JUDGMENT DATED: 15/06/2022

10. Thus, the natural guardian has power to do all acts which are necessary or reasonable and proper for the bonafide of the minor or for realisation, protection for benefit of minor estate. However, as per subsection (2) of Section 8 , the natural guardian cannot mortgage or charge or transfer by sale, gift, exchange or otherwise, any part of the immovable property of the minor or lease any part of such property for a term exceeding5 years or a term extending more than 1 year beyond the date on which the minor will attain majority without the previous permission of the Court. Thus, by virtue of sub-section (2) of Section 8 , restriction over the exercise of powers by the natural guardian in respect to the property of the minor is made. At the same time, as per sub-section (3) thereof, if any such action is done by the natural guardian, regarding the immovable property, such transaction is voidable at the instance of the minor or any person claiming under him. Thus, any such transaction entered into by the natural guardian in respect of the share of the property of the minor, without prior permission of the Court does not ipso- facto void. Such transaction is only voidable at the instance of the minor or any person claiming under him. At the same time, as per sub-section (4) of Section 8 in two case i.e. one of necessity or for evident advantage to the minor, no Court shall grant permission to the natural guardian to do any of the acts mentioned in sub-section (2).

11. Now, considering the material placed on record, it clearly reveals that in the agreement to sell, there is a recital of Page 84 of 87 Downloaded on : Thu Jun 16 21:17:56 IST 2022 C/AO/6/2021 JUDGMENT DATED: 15/06/2022 obtaining of necessary permission from the concerned Court by the natural guardian. It reveals from the sale deed that while selling the share of the minor in the joint family property, there is a clear cut recital that it has been sold for the benefit of the minor and the entire amount for which separate cheque has been issued, be deposited in Fixed Deposit by the guardian and she will not be entitled to encash it and on the minor attaining majority, would be entitled to do so. It is pertinent to note that in the present case, entire share transaction has been received by the entire family members. Of course, separate cheques have been issued by the purchaser to the seller as per the demand of the seller wherein specified amount is shown as per the proportionate share in the property. It is also admitted fact that natural guardian of the plaintiff minor is his mother. The right of claim of filing any suit would be with the natural guardian. Now, admittedly in the present case, the person who has posed himself as guardian and next friend of minor, is a distant relative of the minor on the maternal side of the minor's mother. Not only that, there is no order of the Court permitting the said person to file a suit for the benefit of the minor. It appears that some third party has challenged the said transaction posing himself as guardian of the minor. When, the natural guardian of the minor is residing with the minor, any suit filed by the third party may reflect the intention of such third party in filing such Suit. Considering the material placed on record, it clearly transpires that in the present case, prima-facie the land has been sold for the purpose of Page 85 of 87 Downloaded on : Thu Jun 16 21:17:56 IST 2022 C/AO/6/2021 JUDGMENT DATED: 15/06/2022 necessity and for benefit of the minor. Further, considering the meagre portion of the share available to the minor and the fact that his natural guardian mother has sold the property for his benefit, he can be compensated in terms of money in future.

12. Now, it is also well settled law that the Appellate Court may not interfere with the exercise of discretion of the Court of first instance and substitute its own discretion except where the discretion has been shown to have been exercised arbitrarily, or capriciously or perversely or where the Court had ignored the settled principles of law regulating grant or refusal of interlocutory injunctions. An appeal against exercise of discretion is said to be an appeal on principle. The Appellate Court will not reassess the material and seek to reach a conclusion different from the one reached by the Court below if the one reached by the court was reasonably possible on the material. The appellate Court would normally not be justified in interfering with the exercise of discretion under appeal solely on the ground that if it had considered the matter at the trial stage it would have come to a contrary conclusion.

13. In view of this settled proposition of law, on perusal of the impugned order of the trial Court, it appears that view taken by the trial Court, under the peculiar facts and circumstance of this case is plausible one. Therefore, having limited power to interfere with discretionary power of the trial Court and under facts and circumstances of this case, Page 86 of 87 Downloaded on : Thu Jun 16 21:17:56 IST 2022 C/AO/6/2021 JUDGMENT DATED: 15/06/2022 this Court does not find it proper to interfere with such order.

14. In view of the above, the present Appeal from Order deserves to be dismissed. Accordingly, it is dismissed. Considering the limited issued involved in the matter, the trial Court is hereby directed to expedite the hearing of Special Civil Suit No. 120 of 2020 and try to dispose it of as early as possible, preferably within a period of 6 months from the date of this order.

No order as to costs.

In view of the above, Civil Application also stands disposed of accordingly.

(DR. A. P. THAKER, J) SAJ GEORGE Page 87 of 87 Downloaded on : Thu Jun 16 21:17:56 IST 2022