TEHLKA !!

TARUN TEJPAL ARRESTED AND TAKEN TO THE HOSPITAL FOR MEDICAL CHECK UP !!!

MINORS PROPERTY/SHARE CANNOT BE SOLD BY THE NATURAL GUARDIANS - SUPREME COURT - ORDER - A CASE STUDY

SALE of minors’ share in property without court permission by guardian is invalid: SC

In the present case, though it is stated that the property has been sold for the proper benefit of the minors, their protection, education and marriage, there is nothing on record to suggest that previous permission of the Court was obtained by the natural guardian before transfer by sale in question.

Where the father dies leaving behind only minor daughters and their mother as natural guardian, the share of the daughters became definite; the question of family partition retaining the character of joint Hindu Family property does not exist. In the present case, after the death of the father, the property has been shared amongst each member of the family and recorded in the mutation register having 1/4th share each. In such circumstances, the provision of sub­section (3) of Section 8 shall attract as the mother sold the property without previous permission of the Court. Hence,both the sale deeds executed by the second respondent in favour of the first respondent shall become voidable at the instance of the minor i.e. the appellant and the Proforma­ respondent nos.4&5.

SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTIONCIVIL

APPEAL NO. 10582 OF 2013

(arising out of SLP(C)No.27949 of 2012)

SAROJ

VERSUS

SUNDER SINGH & ORS.

JUDGMENT

SUDHANSU JYOTI MUKHOPADHAYA, J.

Leave granted. This appeal has been preferred by the appellant against the judgment and order dated 14th December, 2011 passed by the High Court of Judicature for Rajasthan, Jaipur Bench, Jaipur in S.B. Civil First Appeal No. 313 of 2009. The Appellate Court by the impugned judgment held that there is no illegality or perversity in the findings recorded by the trial court and affirmed the order of the trial court which dismissed the suit preferred by the appellant­original plaintiff seeking cancellation of sale deeds executed by the second respondent in favour of the first respondent.

2. The brief facts giving rise to the present appeal are as follows:

The appellant along with her two sisters (original plaintiffs) happened to be the daughters of respondent No.2(original defendant No.2). According to the appellant, she and her two sisters were minors when their father Khilluram expired. Thereafter, their mother i.e. second respondent, of course the guardian, sold out the suit property which belonged to their father by executing a sale deed on 9th December, 1988. According to the appellant, since the suit property belonged to their father the daughters had shares in the property, the mother could not have sold the suit property to the first respondent. The appellant, therefore, with two other sisters (proforma respondent Nos.4 and 5 herein) preferred Civil Suit No.6 of 2007 for declarationofthe sale deed dated 9th December, 1988 as null and void in respect of the suit land. The appellant pleaded that the second respondent as the mother of the appellant and two other sisters has no right or authority to sell the suit land, as their shares are part of it. The sale of minors’ property cannot be done without obtaining the prior permission of the Court.

3. The second respondent in her written statement stated that the appellant and two others were her minor daughters. She is the wife of Khilluram and the equal shares of the disputed land are registered in the name of the appellant and two daughters. She had sold the entire disputed land including the shares of the daughters vide sale deed dated 1st December, 1988 which was registered on 9th December, 1988. The consideration amount received out of the said sale was spent to fulfill the requirements of the daughters­ i.e. appellant and proforma respondent Nos.4 and 5 herein.

4. In a separate written statement the first respondent accepted that the disputed land situated in village Ujjaili, Tehsil­ Kot Kasim is the ancestral property of Khilluram. After the death of suit land was devolved on appellant, two other sisters and the second respondent jointly in equal shares. The appellantand the two other daughters were minor and theirmother i.e. second respondent herein was the natural guardian. The agricultural work was donejointly by the appellant, two other daughters andthe second respondent. It is stated that the suitland was sold for proper maintenance of the minor daughters.

5. On behalf of the plaintiffs­ appellant herein and two other sisters, Saroj (PW­1), Chandra Kanat (PW­2) and Pop Singh (PW­3) were examined. They placed on record the documents duly exhibited as Exh.1 to 19. The respondents examined Sunder Singh (DW­1), Ramphal (DW­2) and Ramotar (DW­3) and placed on record documents duly exhibited as A­1 to A­ 10.

6. Learned Additional District Judge framed 8 issues. The issue Nos.1 to 3, 5 and 6 were decided in favour of the plaintiff ­appellant herein:

Issue No.7 reads as follows:

“7. Whether the registered sale ­deeds of the land Survey No.5 and 6 made by the Defendant No.2 to different parties has been done with the motive to cause harm and usurp this land of plaintiffs No.1 to 3, ownership and rights which is wrong and contrary to the established provisions of law, and the plaintiffs No.1 to 3 are entitled to challenge these two sale ­deeds against their interests and rights.”

The said issue was decided against the plaintiffs and in favour of the defendants. The 8th issue relating to plaintiffs’ entitlement to get relief against the defendant Nos.1 and 2 was thereby decided against the plaintiffs.

7. By the impugned judgment dated 14th December, 2011 the First Appellate Court also dismissed the appeal filed against the above order passed by the trial court on the ground that there is no illegality or perversity in the findings recorded by the trial court.

8. Learned counsel for the appellant submitted that in view of the sub­section (2) of Section 8 of the Hindu Minority and Guardianship Act, 1956 it was not open for the second respondent to mortgage or charge, or transfer by sale, gift of the minor’s property without previous permission of the court. 9. Per contra, according to the respondents, for taking care of the minor daughters and for their livelihood the respondent was competent to sell the property. It was submitted that the appellant’s marriage was performed by the second respondent; the mother bought ahouse atDaruhera in the year 1995. There was no partition amongst the appellant other minor daughters and mother with respect to the subject agricultural land which was looked after by the mother jointly. Therefore, it was for all purposes the joint property and not the property of minors. Significantly, Ramphal who is the real brother of Khilluram in his evidence stated that ever since the death of Khilluram the minors were being taken care of by the second  respondent­ mother for the maintenance, education, etc. and the second respondent performed their marriage. It is further contended that the second respondent sold the subject land for their necessity, maintenance, etc. Likewise, the second respondent in her counter claim admitted that the money received from the sale of the subject land was spent on the minors’ genuine requirements and she prayed for dismissal of the suit.

10. The trial court while deciding the 7th issue noticed evidence of other witnesses. It further noticed that the property was devolved on the wife, Smt. Rishal and Saroj, Manoj and Sanoj in equal share of 1/4th each. According to the entries in the revenue record they were in possession of 1/4th share of the land. The total amount of both the sale deeds executed comes to Rs.66,000/­. In the sale deeds it is mentionedthatshe is the birth mother of Saroj, Manoj and Sanoj, and is their natural guardian. For their maintenance, sustenance, education, etc., the suit land being unproductive and being in parts, was sold by two registered sale­deeds marked as Exh. A­1 and A­2. It was stated that the plaintiffs’ share was in joint account. The mother i.e. second respondent is the head of the family and she sold this land to the defendant for the sustenance, maintenance, education and marriage of her daughters. In view of such evidence, the trial court decided the issue against the plaintiffs and in favour of the defendants which was affirmed by the First Appellate Court.

11.Section 8 of the Hindu Minority and Guardianship Act, 1956 deals with the powers of natural guardian of a Hindu minor and the said section mandates that the natural guardian has power to do all acts which are necessary or reasonable and proper for the benefit of the minor or for the realisation, protection or benefit of the minor’s estate, etc. The provision reads as follows:

“8 . Powers of natural guardian.­ (1) The natural guardian of a Hindu minor has power, 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 sub­section (1) or sub­section (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 sub­section (2) except in case of necessity or for an evident advantage to the minor.

xxx xxx xxx xxx

xxx xxx xxx xxx”

As per clause (a) of sub­section (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 theCourt.Undersub­section (3) of Section 8 disposal of such an immovable property by a natural guardian, in contravention of sub¬section (1) or sub­section (2) of Section 8, is voidable at the instance of the minor or any person claiming under him.

12. In the present case, though it is stated that the property has been sold for the proper benefit of the minors, their protection,  education and marriage,there is nothing on record to suggest that previous permission of the Court was obtained by the natural guardian before transfer by sale in question.

13. Where the father dies leaving behind only minor daughters and their mother as natural guardian, the share of the daughters became definite; the question of family partition retaining the character of joint Hindu Family property does not exist. In the present case, after the death of the father, the property has been shared amongst each member of the family and recorded in the mutation register having 1/4th share each. In such circumstances, the provision of sub­section (3) of Section 8 shall attract as the mother sold the property without previous permission of the Court. Hence,both the sale deeds executed by the second respondent in favour of the first respondent shall become voidable at the instance of the minor i.e. the appellant and the Proforma­ respondent nos.4&5.

14. In view of the finding recorded above, we set aside the judgments and orders passed by the trial court, First Appellate Court and  Second Appellate Court. Accordingly, the suit stands decreed in favour of the appellant and proforma respondent Nos.4 and 5. The appeal is allowed with no costs.

Charges Levied by Banks for Sending SMS Alerts -RBI GUIDELINES

RBI/2013-14/381
DBOD. No. Dir. BC. 67/13.10.00/2013-14

November 26, 2013

All Scheduled Commercial Banks
(Excluding RRBs)

Dear Sir/ Madam

Charges Levied by Banks for Sending SMS Alerts

Please refer to paragraph 37 of the Second Quarter Review of Monetary Policy Statement 2013-14 announced on October 29, 2013 (extract enclosed) on ‘Customer Service- Charges Levied by Banks for Sending SMS Alerts’.

2. In this connection, a reference is also invited to our circular DBOD. No. Dir. BC. 56/ 13.03.00/ 2006-2007 dated February 2, 2007 on ‘Report of the Working Group to Formulate a Scheme for Ensuring Reasonableness of Bank Charges’ whereby banks were advised to identify basic banking services on the basis of broad parameters indicated by the Working Group constituted by Reserve Bank of India for the purpose and the principles to be adopted/ followed by them for ensuring reasonableness in fixing and communicating the service charges for the basic banking services.

3. Banks are required to put in place a system of online alerts for all types of transactions irrespective of the amounts involving usage of cards at various channels in terms of circular RBI/ DPSS No. 1501/ 02.14.003/ 2008-2009 dated February 18, 2009 and DPSS. CO. PD. 2224/ 02.14.003/2010-2011 dated March 29, 2011. Banks have accordingly put in place a system of SMS alerts so as to help customers in fraud mitigation and have been levying uniform service charges to various categories of customers.

4. Considering the technology available with banks and the telecom service providers, it should be possible for banks to charge customers based on actual usage of SMS alerts. Accordingly, with a view to ensuring reasonableness and equity in the charges levied by banks for sending SMS alerts to customers, banks are advised to leverage the technology available with them and the telecom service providers to ensure that such charges are levied on all customers on actual usage basis.

Yours faithfully,

(Rajesh Verma)
Chief General Manager

Encl: As above

---

Extract from Second Quarter Review of Monetary Policy 2013-14

Customer Service – Charges Levied by Banks for Sending SMS Alerts

37. With a view to ensuring reasonableness and equity in the charges levied by banks for sending SMS alerts to customers, banks are advised to leverage the technology available with them and the telecom service providers to ensure that such charges are levied on all customers on actual usage basis.

ILLEGAL CONSTRUCTION AND ENCROACHMENT AT BANGALORE - A MINI CAMPA COLA STYLE OF OPERATION AT BLORE

THE HIGH COURT HAS DIRECTED THE BBMP TO REMOVE THE ENCROACHMENT BY AN APARTMENT AT BANGALORE FOR ENCROACHING THE FOOTPATH AND THE ROAD. A MINI CAMPA COLA OPERATION HAS BEGUN AT BANGALORE TOOO!!!

Supreme Court Order on CAMPA COLA RESIDENTIAL APARTMENT - ILLEGAL APARTMENTS - A WARNING TO ALL ILLEGAL AND UNAUTHORISED APARTMENTS ACROSS THE COUNRTY

S U P R E M E C O U R T O F I N D I A

Petition(s) for Special Leave to Appeal (Civil) No(s).31536/2013

(From the judgement and order dated 26/09/2013 in WP No.2465/2013 of The HIGH COURT OF BOMBAY)

CAMPA COLA RESIDENTS ASSO. & ANR Petitioner(s)

VERSUS

STATE OF MAHARASHTRA & ORS Respondent(s)

Date: 13/11/2013 This Petition was called on for hearing today.

CORAM :

HON'BLE MR. JUSTICE G.S. SINGHVI

HON'BLE MR. JUSTICE V.GOPALA GOWDA

For Petitioner(s) Mr.F.S.Nariman, Sr.Adv.

Mr.Mukul Rohatgi, Sr.Adv.

Mrs.Nandini Gore, Adv.

Mrs.Manik Karanjawala, Adv.

Ms.Tahira Karanjawala, Adv.

Ms.Devina Sehgal, Adv.

For Respondent(s) Mr.Goolam E.Vahanvati, Attorney General

Mr.Pallav Shishodia, Sr.Adv.

Mr.S.Sukumaran, Adv.

Mr.Anand Sukumar, Adv.

Mr.Bhupesh Kumar Pathak, Adv.

Ms. Meera Mathur, Adv.

UPON hearing counsel the Court made the following

O R D E R

By detailed order dated 27.2.2013, this Court dismissed

Civil Appeal Nos.7934-38 of 2012 Esha Ekta Apartments Co-operative Housing Society Limited and others v. Municipal Corporation of Mumbai and others filed against the order of the learned Single Judge of the Bombay High Court, who declined to interfere with the discretion exercised by the trial Court not to restrain the Municipal Corporation of Greater Mumbai from demolishing unauthorized and illegal constructions made on the buildings in Campa Cola compound. Simultaneously, Transferred Case (Civil) No.55 of 2012 Campa Cola Residents Association and another v. State of Maharashtra filed for regularization of the unauthorized and illegal construction was also dismissed. After about two months, Rajesh S.Parekh and others filed Writ Petition No.1076/2013 before the High Court for issue of a direction to the Corporation not to demolish the unauthorized and illegal construction on the ground that the action taken by the Corporation was ultra vires the provision contained in Section 53(3) of the Maharashtra Regional and Town Planning Act, 1966 (for short, ‘the 1966 Act’). The same was dismissed by the High Court vide order dated 29.4.2013. SLP(C)No.17002/2013 filed against that order was dismissed by this Court on 2.5.2013. However, five months time was granted to the petitioners and other occupants of illegal portions of the buildings to vacate the same. This is evident from the following portions of order dated 2.5.2013:

“The special leave petition is accordingly dismissed. However, keeping in view the fact that the occupants of the illegally constructed flats may not have got sufficient time to vacate the same, we allow five months time to the petitioners and other occupiers of illegal portions of the buildings to vacate the same. This would be subject to the following conditions:

i) Within four weeks from today they shall file

affidavits in this Court and give unequivocal

undertaking that at the end of five months

period all of them will voluntarily vacate

the disputed portions of the buildings and

will not cause any hindrance in the action

which may be taken by the Corporation in the

light of the observations made by this Court

in judgment dated 27.2.2013 in Civil Appeal

No.7934/2012 and connected matters.

ii) During the period of five months, the

petitioners and other occupiers shall not

induct any other person in the disputed

premises. They shall also not file litigation

of any kind in the Bombay High Court or the

Courts subordinate to the High Court for

frustrating the action already taken by the

Corporation or which may be taken

hereinafter.”

Just before expiry of five months period, Rajesh S.

Parekh and three others filed IA No.2 of 2013 in

SLP(C)No.17002/2013 for issue of a direction to the Corporation to carry out demolition work as per order dated 4.6.2010 of the State Government. That application was withdrawn on 11.9.2013 with liberty to approach the concerned authorities. Thereafter, application dated 16.9.2013 was submitted to the Executive Engineer of the Corporation for approval of the amended plans under Section 53(3) of the 1966 Act read with Section 342 of the Mumbai Municipal

Corporation Act, 1888 (for short, ‘the 1888 Act’). The Corporation held that in view of the orders passed by this Court, the prayer made in the application cannot be entertained. Writ Petition No.2465/2013 filed against the decision of the Corporation was dismissed by the Division Bench of the High Court by observing that the application filed by the petitioners was nothing but an abuse of the process of the Court.

Campa Cola Residents Association and another again

unsuccessfully sought intervention of the Bombay High Court for protecting the unauthorized and illegal constructions and then approached this Court by means of SLP(C)No.31536 of 2013. The same was dismissed by this Court on 01.10.2013.

While dismissing the last mentioned special leave petition, the Court took cognizance of the statement made by Shri Mukul Rohatgi, learned senior counsel appearing for the petitioners

that 75% members of the house building societies have vacated the illegally constructed portions of the buildings and extended the time specified in the earlier orders upto 11.11.2013.

In the early morning today, we read reports in the newspaper `The Hindu' about the proposed demolition of the unauthorized and illegal constructions in the Campa Cola compounds

and found that majority of the members of the house building

societies have so far not vacated the disputed constructions. Some of them could not vacate the disputed constructions on account of non-availability of alternative place. By cognizance of the report, we requested Shri F.S.Nariman, learned senior counsel, who had appeared on behalf of the petitioners in SLP(C)No.17002 of 2013 and Shri Pallav Shishodia, learned senior counsel, who had appeared in most of the cases on behalf of the Corporation and indicated that we would like to stay the demolition and extend the time specified

in the orders passed by the Court till 31.05.2014 so as to enable the residents to find alternative accommodation. Accordingly, an oral order was passed in the pre-lunch session that the Corporation shall not carry out demolition.

At our request, Shri F.S.Nariman and Shri Mukul Rohatgi,

learned senior counsel, who appeared for the petitioners in

SLP(C)No.31536 of 2013 and Shri Goolam E.Vahanvati, learned

Attorney General and Shri Pallav Shishodia, learned senior counsel appeared in the post-lunch session.

Learned Attorney General made some suggestions for

finding a permanent solution to the problem faced by the residents of the co-operative housing societies. He gave out that a specific proposal would be submitted to the Court.

List the case on 19.11.2013. To be taken up at 3.00 P.M.

Till further orders, the Corporation shall not carry out

demolition in furtherance of the action initiated by notices issued under Section 351 of the Mumbai Municipal Corporation Act, 1888. While adjourning the case, we deem it necessary to record our deep appreciation for the assistance provided by the learned Attorney General, Shri F.S.Nariman, Shri Pallav Shishodia and Shri Mukul Rohatgi, learned senior counsel.

(Satish K.Yadav) (Phoolan Wati Arora)

Court Master Court Master