Bombay High Court: The Division Bench of V.M. Deshpande and Amit Borkar, JJ., expressed that a transaction by a natural guardian of a minor with respect to his immovable properties is valid till a Court strikes it down.
It was stated that one Arvindkumar Narayandas Khandelwal had gifted property by registered gift-deed in favour of the complainant. On the date of execution of the said deed, the complainant was three years old and therefore, the gift deed was executed in favour of the complainant through a natural guardian – accused 1.
The Complainant was the absolute owner and in possession of the land given to him by the above-said gift deed. In February 2020 the complainant came to know that the accused 1 had sold out a plot to accused 4 to 6.
It was alleged that after getting knowledge of the said transaction, on enquiry by the complainant, it was revealed that the accused 1 permitted Narayandas Hiralal to seek permission for conversion of gifted property and started using the said property for his personal use without obtaining permission from the Court.
Further, accused 1 transferred the minor’s property to the society established by him without obtaining permission from the competent Court.
It was alleged that accused 1 showed that the complainant had purchased the property from the housing society with the intention to cheat the complainant. Hence, accused 1 committed a criminal breach of the complainant’s trust.
Issues for Consideration:
Whether the natural guardian having executed the sale-deed of property of a minor in favour of a third party and thereafter repurchased part of it, can be prosecuted for offences under Sections 420, 467, 468, 471 of the Penal Code, 1860 that too, after more than 35 years from the date of attaining majority by the minor and after more than 48 years from the date of execution of sale-deed?
Analysis, Law and Decision
High Court referred to the decision of the Supreme Court in Dhurandhar Prasad Singh v. Jai Prakash University, (2001) 6 SCC 534, wherein the distinction between void and voidable was explained.
Well Settled Principle of Law
Transfer of immovable property by the natural guardian of a Hindu minor far from being void or being a nullity is, in fact, one which fully binds the other party unless set aside by a competent Court. The minor can always enjoy the benefit thereof and enforce the contract after ratifying or accepting the same. Such a transaction is perfectly valid until duly avoided by the minor before a competent Court.
Bench expressed that, the transfer is by the minor as the principal through the agency of his guardian.
Coming to the facts of the present matter, an FIR was registered against the applicants who include the father, mother, sister and purchasers.
To attract Section 420 IPC, there should be deception or fraudulent inducement of a person to deliver property. As a consequence of such cheating, the accused should have dishonestly induced the person who is deceived to deliver such property to any person or to have made, altered or destroyed the whole or any part of a valuable security or anything which is signed or sealed and being capable of converted into a valuable security.
Further, to hold a person guilty of cheating under Section 415 IPC, it is necessary to show that he had the fraudulent or dishonest intention at the time of making the promise with an intention to retain the property and the inducement must be intentional.
As per the facts of the case, it was not the case of non-applicant 2 (complainant) that the applicants by fraudulent and dishonest inducement, deceived him either by making a false or misleading representation to deliver any property or to give consent to retention thereof or intentionally induced him to do or omit to do anything, which he would not do or omits, if he were not so deceived.
As the position of law on the alienation of the property of minor stands, the sale deed in favour of housing society was de jure executed by the minor (non-applicant 2) through natural guardian applicant 1.
High Court opined that it could not be transpired that by execution of sale deed and thereafter, repurchasing part in the form of individual plots by applicants 1 to 3 it cannot be said that the applicants 1 to 3 had altered or tampered with the documents nor it can be said that applicants had obtained documents by practicing deception.
No false documents were executed; hence no question of forgery arose under Section 468 IPC.
Further, the High Court referred to the decision of the Supreme Court in Mohammed Ibrahim v. State of Bihar, (2009) 8 SCC 75.
In Murugan v. Kesava Gounder (Dead), (2019) 20 SCC 633 summarised law as regards alienation of the immovable property by natural guardian holding that, disposal of immovable property of minor by his natural guardian (father) by registered sale-deeds in contradistinction of Section 8(2) are voidable under Section 8(3).
Bench found that the FIR was filed against applicants 1, 2 and 3 in order to cause pressure on them and to cause harassment.
“Criminal proceedings cannot be allowed to be used for settling, coercing or causing harassment to the accused persons.”
While concluding the matter, Court quashed and set aside the FIR registered with non-applicant 1 for the offences punishable under Sections 420, 467, 468, 471 and Section 34 of the Penal Code, 1860. [Vasantkumar v. State of Maharashtra, 2022 SCC OnLine Bom 712, decided on 28-3-2022]
Advocates before the Court:
In Cr.APL No.91/2021.
Shri S. V. Manohar, Senior Advocate assisted by Shri M.G. Sarda, Advocate for Applicants.
Shri S. M. Ghodeswar, A.P.P. for Non-applicant/State.
Shri Avinash Gupta, Senior Advocate Assisted by Shri Aakash Gupta, Advocate for Non applicant No.2.
In Cr.APL No.312/2021.
Shri H. M. Mohata and Shri S. P. Bhave, Advocates for applicants Shri S. M. Ghodeswar, A.P.P. for Non-applicant/State.
Shri S. P. Bhandarkar, Advocate for Non-applicant No.2.