Learned counsel for the appellant submits that there has been substantial question of law arising in this second appeal and as such it is a fit case for admission. He submits that both the Courts below have held that the alienation by the father of the minor, of the property which he got by settlement from his younger brother cannot be made without obtaining permission from Court as per the provisions of S. 8 of the Hindu Minority and Guardianship Act. Section 6 is relied on for this purpose by the learned counsel for the appellant. He also brought to the notice of this Court the provisions of S.12 of the said enactment in support of his contention. Section 6 reads as follows :


S.6 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 (vanaprashtha) 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.

"Section 8 of Hindu Minority and Guardianship Act reads as follows :" *


Section 8(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 realisation, 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 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 the Act within the meaning of Section 4A thereof


(b) the court shall observe the procedure and have the powers specified in subsections (2), (3) and (4) of Section 31 of that act; and


(c) 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 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."


Section 12 reads as follows :


" 12. Where a minor has an undivided interest in joint family property and the property is under the management of an adult member of the family, no guardian shall be appointed for the minor in respect of such undivided interest.


"2. A combined reading of the above three Sections shows that the alienation of the property of a minor by the natural guardian should necessarily be only with the permission of the Court, under the provisions of S.8 or 9 of the Hindu Minority and Guardianship Act. This particular provision which enables the Court to exercise its discretion judicially and give permission so far as the interest of the minor is concerned in the joint family is sought to be overthrown by certain words available in S.6 which are as follows :-


"excluding his or her undivided interest in joint family property."


These words have been elucidated by various High Courts and as such the decisions in Nathuni Mishra v. Mahesh Misra, 1963 AIR(Patna) 146. In re Krishnakant Mangalal, 1961 AIR(Guj) 68; Subramaniam v. K. Gounder. 1972 AIR(Mad) 377; Arun Kumar v. Chandrawati, 1978 AIR(All) 221; Tarni Prasad v. Basudeo, 1981 AIR(Patna) 331 and Prasad v. V. Govindaswami Mudaliar 95 Mad LW (SOC) 130 : 1982 AIR(SC) 84, 1981 (3) Scale 1867, 1982 (1) SCC 185, 1982 (2) SCR 109, 1982 UJ 326) are relied on by the learned counsel for the appellant submits that in a case of necessity, the father has got a right to alienate the property including the share of the minor son. This aspect is the subject matter of judicial gamut laid from the beginning of the commencement of the Act, namely Hindu Minority and Guardianship Act. The only Supreme Court decision that is relied on by the learned counsel for the appellant is the one reported in Prasad v. Govindaswami Mudaliar, 95 Mad LW (SOC) 130 : 1982 AIR(SC) 84, 1981 (3) Scale 1867, 1982 (1) SCC 185, 1982 (2) SCR 109, 1982 UJ 326). This Court itself feels that there is another decision of the Supreme Court which interprets S.6, S.8 as well a Ss.9 and 12 of that Act and that is the decision in Raghubanchamani Prasad Narain Singh v. Ambica Prasad Singh, 1971 AIR(SC) 776, 1970 (3) SCC 350, 1971 UJ 132. This decision is the authority for the proposition that the alienation by Manager of joint Hindu family even without legal necessity is voidable and not void. As a matter of fact even the provisions of Sections quoted above, namely Ss.6, 8, 9 and 12 say that the transaction is only voidable and not void if it has been indulged in without obtaining the permission of the Court. Merely on the ground of existence of the words in S. 6 of the Act that excluding his or her undivided interest in joint family property in the preamble portion of that Section, does not mean that under the pretence and guise, a father can alienate the property of the minor without obtaining the permission of the Court and say he is following the old Hindu Law. The old Hindu Law of course was available by way of custom and usage because they were olden days where people gave respect to the custom and usage and that is why Hindu Law was only on the custom and usage and it is Shruti, Smriti and Sadachara. We are in modern days. In these days, we always want to have the right by law. Strict letters of law can only govern the relationship of parties including the parents, sons and daughters. Daughters have been given equal shares by means of Hindu Succession Act when the father dies intestate. Under the circumstances when such an in road has been introduced into the Hindu Law of Usage and Custom, it is but necessary that we have to strictly follow the Section of course with a bearing on the Old Hindu Law in interpreting the Sections especially Ss.6, 8, 12 in the instant case before us. In this view we have to find out whether the Court below is correct in having found that the alienation by the father is bad especially when he had not obtained the permission of the Court. As already observed by this Court, it is only a voidable transaction and not a void transaction.


3. Learned counsel for the appellant has relied on the decision in Prasad v. V. Govindaswami Mudaliar, 95 Mad LW (SOC) 130 : 1982 AIR(SC) 84, 1981 (3) Scale 1867, 1982 (1) SCC 185, 1982 (2) SCR 109, 1982 UJ 326) for the proposition which occurs by way of observation at p.131 : (at P.96 of AIR)." *


Now the question crops up about the pious liability of the sons to discharge the antecedent debts of the father. The legal position under the Hindu Law is quite clear. A natural guardian of a Hindu minor has power in the management of his estate to mortgage or sell any part thereof in case of necessity or for the benefit of the estate. If the alienee does not prove any legal necessity or that he (sic) has made reasonable enquiries, the sale is invalid.


But the father in joint Hindu family may sell or mortgage the joint family property including the sons' interest therein to discharge a debt contracted by him for his own personal benefit and such alienation binds the sons provided (a) the debt was antecedent to the alienation and (b) it was not incurred for an immoral purpose. The validity of an alienation made to discharge an antecedent debt rests upon the pious duty of the son to discharge his father's debt not tainted with immorality.


"Antecedent debt" means antecedent in fact as well as in time, that is to say that the debt must be truly independent of and not part of the transaction impeached. The debt may be a debt incurred in connection with a trade started by the father. The father alone can alienate the sons' share in the case of a joint family. The privilege of alienating the whole of the joint family property for payment of an antecedent debt is the privilege only of the father, grandfather and great grandfather qua the son or grandson only. No other person has any such privilege. K.V. Purushotham had contracted the debt in connection with his new personal business and to clear all those debts he had executed the impugned sale deed. Obviously, therefore, the debt in question was antecedent debt so far as his sons were concerned and, therefore, they were under a pious obligation to pay off those debts. It was open to the father to execute a sale deed in respect of the shares of his sons also unless it was shown that the debt was tainted with immorality or was for an illegal purpose. It is not the case of the sons of Purushotham that the debt was contracted for an illegal or immoral purpose. Obviously the sale would be binding on the sons of Purushotham. But the same is not the position with regard to the sons of his brother K.V. Sriramulu who were the plaintiffs in suit No. 108 of 1958. It has been found as a fact that lungi business was the individual or private business of Purushotham. In view of the factual position it could not be said that Sriramulu had alienated the joint family property in the capacity as a father of his sons for discharging any antecedent debt incurred by him merely because he has also joined Purushotham in executing the impugned sale. The share of the sons of Sriramulu could not have been alienated by Purushotham for discharging the antecedent debt.



"4. 'Avyavaharika' debt is dealt with at page 596 of Mayne's Treatise on Hindu Law and Usage which is to the following effect :-" *


Avyavaharika - Mr. Colebrooke translates the expression 'avyavaharika' as 'any debt for a cause repugnant to good 'morals'. Mookerjee, J. following Bohtlingk and Roth, Wilson and Monier Williams, renders vyaharika as equivalent to lawful, usual or customary' (Chhakauri Mahton v. Ganga Prasad 1912 (39) ILR(Cal) 862, 868). This is in accordance with Jagannatha's explanation:


"The expression in the text of Yyasa (no vyavaharikan), is explained by Misra excluded from usual causes Consequently that debt which is contracted for some civil purpose consistent with the prescriptive usage of good men, must be paid by sons and the rest; but if it be the reverse, it need not be discharged. The interpretation of the term by V.N. Mandik and Jogendranath Bhattacharya as proper is in accordance with the opinion of Aparaka and there is no material difference between the three renderings. The last category of Avyavaharika debts is not an independent category but only a residuary one comprising debts which are ejusdem generis with those that have been enumerated In Hemraj v. Khem Chand 1943 AIR(PC) 142), the Judicial Committee has held that the translation of the term avyavaharika as given by Mr. Colebrooke makes the nearest approach to the true conception of the term as used in the smrithi text, and not that the term does not admit of a more precise definition, 1943 ILR(All) 727: 1943 AIR(PC) 142).


The term commonly used in decisions and text books to describe those debts of the father for which the son is not liable is illegal or immoral. The expression was doubtless originally meant to render 'avyavaharika' but it has come to be used as a compendious term to cover all the cases enumerated in the Smritis." *


5. The decision referred to above need not be referred to with the observation therein because they are quoted only for the purpose of upholding the contention raised on behalf of the appellant that even without obtaining the sanction of the Court, an alienation could be done. A little bit of facts that are available in the instant case before us are necessary to be stated herein at this juncture. It is the younger brother who had settled the property in question on the father of the minor who has sold it to the brother by means of a sale deed without obtaining the permission from the Court so far as the minor's interest is concerned. As a matter of fact, the contention raised on behalf of the appellant is that there is no share at all available so far as the minor is concerned. The younger brother who had purchased the property earlier had settled the same in favour of the elder brother who is the father of the minor taking into consideration the adverse circumstances in which the father of the minor has been placed, namely the elder brother of the settlor, settlee being the father of the minor. The entire transaction by which the act of alienation ahead been made which had admittedly happened subsequent to the corning to existence of the Act, namely Hindu Minority and Guardianship Act, must necessarily fall within the provisions of the said Act. One of the Sections of the said Act says that the permission of the Court is to be obtained before the sale of Minor's share. Even at the very first instance when the subject matter under litigation was alienated by the father of the minor in favour of his younger brother, the permission of the Court ought to have been obtained and evidently no permission had been obtained at that stage. Even at the stage when the younger brother settled the property once again in favour of his elder brother taking into consideration the adverse circumstances into which his elder brother was, the permission of the Court so far as the minor's share is concerned, had not been obtained. Even if it is considered that in case of settlement, the permission is not necessary, then the existence of the share of the minor ought to have been indicated as one of the terms in the settlement. As a matter of fact, the existence of a minor seems to have been completely forgotten in the above transaction that had taken place in between the brothers. Under the circumstances, both the Courts are correct in having held that the transaction of settlement and the subsequent transaction of sale however much it can be argued as one of necessity and that the sale proceeds had only been utilised in discharging the debts, is voidable since no prior permission of the Court had been obtained so far as minor's interest in the property is concerned. As a matter of fact the elucidation will become more elegant if once we take into consideration the provision of Section 12 of the Hindu Minority and Guardianship Act wherein the High Court has been given the power to protect the interest of the minor. This interest given to the High Court is over and above the filial interest of parents, natural guardians, or guardians through Court because the interest of the minor is paramount which is to be protected by the State through Court. Under these circumstances, provision of S.13 of the said Act is also relevant which is to the following effect.


"13. (1) in the appointment of declaration of any person as guardian of a Hindu minor by a Court, the welfare of the minor shall be the paramount consideration.


(2) No person shall be entitled to the guardianship by virtue of the provisions of this Act or of any law relating to guardianship in marriage among Hindus, if the Court is of opinion that his or her guardianship will not be for the welfare of the minor." *


6. Learned counsel for the appellant referred to the following passage in N.R. Raghavachariar's Hindu Law, 7th edition at page 1137.


"It is not necessary to take the previous permission of the Court when the guardian wants to transfer movable property of the minor, and the transfer by the guardian of movable property of the minor will be governed by the general test already obtaining under the Hindu Law, namely, whether the transfer is for the benefit or necessity of the minor. This Section does not deal with the interest of a minor in a joint family property or with the powers of the manager or father of family in respect of alienations of such interest of property

Venkataramanamurthy Miriyala v. Bodireddi Subbayyamma (1966) 1 Andh WR 368 by a natural guardian for the benefit of the minor Than Singh v. Barelal, 1974 AIR(MP) 24." * Learned Counsel for the appellant also referred to the passage occurring at page 1052 of Mr. H.S. Gour's Hindu Code 5th Edition, which is to the following effect :- "16. Karta needs no permission of the Court to alienate minor's undivided interest in the joint family property." * Section 8 of the Act deals with the powers of a natural guardian in relation to the minor's estate. It also prescribes certain restrictions on the powers of the natural guardian. Therefore, Section 8 of the Act does not debar a manager and Karta of a joint family from alienating joint family property without obtaining the previous permission of the Court even if the manager and karta happens to be the natural guardian in respect of the separate property of any one or more of the minor coparceners. Of course, the alienation would have to be justified under Hindu Law, but Section 8 does not require that any previous permission of the Court should be obtained before effecting such alienation. No application can, therefore, be maintained. under S.8 of the Act by a manager and Karta of a joint family for permission to mortgage or charge, for transfer by sale, gift, exchange or otherwise or lease the undivided interest of a minor coparcener in joint family property even if the manager and karta happens to be the natural guardian in respect of the person and separate property of such minor coparcener under S.6 of the Act (In re Krishnakant Maganlal, 1961 AIR(Guj) 68 at pp. 72, 73)." 7. A careful and anxious perusal of the entire judgement of the trial court as well as the Appellate Court shows that there is no question of law muchless a substantial question of law arising in this case. Hence at the admission stage itself these two second appeals are dismissed. Appeals dismissed.