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Judgment
Mohan, J.—Two important questions arise for consideration in this civil revision petition. They are : (1) whether a minor can be a holder of a permit under the Motor Vehicles Act, and (2) whether during the lifetime of the father, mother can represent a minor. The facts in this revision lie in a narrow compass. The revision petitioner applied for the grant of a stage carriage permit on the route Kuninjipadi to ponnanthittu, via, Adur Agaram, Bothavacheri, Bhavanagiri, Chidambaram and Killai. The length of the route is 45.3 kilometres, which is in motor parlance called a minimum route. A proposal was published under S. 57 (2) of the Motor Vehicles Act inviting applications. In response to this there were five applicants. The petitioner was applicant No. 1, while the respondent was applicant No. 5. The Regional Transport Authority at the hearing, dated 25th February, 1978 granted the permit in favour of the petitioner who secured ten marks since the respondent obtained only eight marks. Aggrieved by this grant, the matter was taken up in appeal to the Appellate Tribunal. The Tribunal reversed the orders of the Regional Transport Authority mainly on two grounds, they being that the award of eight marks in favour of the respondent was wrong and it should be increased to ten marks. On this basis, it proceeded to compare the claims of the revision petitioner as well as the claims of the respondent. It was of the view that the revision petitioner did not have his residence at Chidambaram while it was not so in the case of the respondent. The transfer alleged against the respondent was quite legal and the same would not bear the grant of permit. Ultimately it concluded in the following words� I find that the lower authority erred in granting the permit to the respondent who is only a minor prosecuting his studies in the college at Chidambaram with permanent residence at Tirukoilur and that the grant of the permit to him will not be in the interest of travelling public.
It is to revise this order, the present civil revision has been preferred.
Mr. G. Ramaswami, learned counsel for the petitioner draws my attention to the legislative practice under the Motor Vehicles Act by which the age limit is sought to be prescribed. For instance, S. 21-C (1) of the Act which deals with the grant of conductor''s licence has specified the age. While S. 42 speaks of the operation of the transport vehicle on a public road, it has not prescribed any age limit. Permit is property, is a settled proposition as seen from the decision in K.M. Viswanathan Pillai Vs. K.M. Shanmugam Pillai, and the term ''owner'' occurring in S. 2 (19) has been defined to include a minor as well. In the case of issue of a permit, no acceptance of the conditions is necessary application for permit. According to it also, if the applicant is a minor, the guardian can very well represent him. In Peterson''s Licensing Act, infancy per se has not been made a disqualification (Page 782). Therefore, whatever the conditions stated under the permit are sought to be enforced it can be done only as against the permit and not against the person. In so far as S. 2 (19) includes a minor as well for purpose of ownership, there cannot be any legal objection.
The learned Advocate-General in opposition states that S. 11 of the Contract Act talks of the capacity of a minor to contract. Guardian steps in on behalf of the minor. The guardian can act only in two cases, either on the ground of legal necessity or for the benefit of the minor. In the case of trading contracts like this, it is impossible to represent, because they have been held to be not beneficial to the minor (1937-III All Eng. Rep. 13). For instance, contract to purchase a lorry on a hire purchase system was held to be not a necessity. Under S. 47(1)(c), the interest of the public will have to be taken note of. In any event it is submitted that in the instant case the father alone should have applied for the permit on behalf of the minor but not the mother so long as the father is alive. This is because of the unambiguous language occurring in S. 11 of the Hindu Minority and Guardianship Act. S. 11 postulates that a de facto guardian like the mother cannot deal with property. Therefore, the application itself is incompetent and there is no need for this Court, to go into the merits.
In reply to this last of the submissions about the competency to maintain the application of the minor represented by the mother and guardian, Mr. M.N. Rangachari appearing for the petitioner along with Mr. G. Ramaswami states that S. 2 of the Hindu Minority and Guardianship Act is only complementary to the existing provisions. S. 4 (c) of the Hindu Minority and Guardianship Act defines the natural guardian including all the guardians under S. 6 of the said Act. S. 13 speaks of the welfare of the minor. Therefore, having regard to these provisions in the light of the decision in Jijabai v. Pathamkhan, AIR 1971 S.C. 325 it cannot be contended that the mother can never be the guardian at all. S. 4 (c) states that natural guardian means any of the guardians mentioned in S. 6. Unless and until the mother is included, it will mean that S. 4(c) is redundant. Therefore in the instant case, where there was a partition the minor was represented by the mother. Further even in respect of the sales effected in favour of the minor, the mother alone represented the minor. She has been looking after the affairs of the minor from 1975 onwards. Therefore, it is impossible to say that the application is not maintainable.
On the first question, whether a minor can be a permit holder, I have to refer, firstly to the meaning of the term ''owner'' occurring in S. 2 (19) of the Motor Vehicles Act, which is as follows:
2 (19) ''owner'' means, where the person in possession of a motor vehicle is a minor, the guardian of such minor, and in relation to a motor vehicle which is the subject of a hire purchase agreement, the person in possession of the vehicle under that agreement.
That clearly postulates a minor being a owner of the vehicle. The definition of ''permit'' is contained in S. 2 (2) which is as follows�
''permit'' means the document issued by (the Commissioner) a State or Regional Transport authority authorising the use of a transport vehicle as a contract carriage, or State carriage or authorising the owner as a private carrier or public carrier to use such vehicle.
Therefore, the permit is a document which enables owner of a vehicle to ply it. The necessity for permit is underscored under S. 42. That may be extracted and which is extracted as under�
No owner of a transport vehicle shall use or permit the use of the vehicle in any public place (whether or not such vehicle is actually carrying any passenger or goods) save in accordance with the conditions of a permit granted or countersigned by a Regional or State Transport Authority (or) the Commissioner authorising the use of the vehicle in that place in the manner in which the vehicle is being used.
That does not prescribe any age limit. S. 4 of the Motor Vehicles Act, in contradistinction, talks of age limit for driving a motor vehicle, prescribing 21 years. Likewise grant of a conductor''s licence is dealt with under S. 21 (C) (i) which states "No person under the age of eighteen years shall hold, or be granted, a conductor''s licence". If in considering the grant of the stage carriage permit S. 47 lays down the criteria for consideration and even by implication does not prohibit a minor being a permit holder, I am unable to see as to why a minor cannot be a permit holder. In fact, R.156 prescribes the application for permit stating that in respect of stage carriage the Form is SPCA. By G.O. Ms. No. 2179 (Home), dated 29th November, 1975 (Column c) has been introduced. It says that if the applicant is a minor, full name and address of the guardian should be given. Therefore, all these provisions do take within I them a minor being an applicant and if therefore, a minor could well be granted a permit it cannot be said that a minor has no capacity to contract under S. 11 of the Contract Act, and therefore, he is incompetent to apply for a permit. I am unable to accept the argument of the learned Advocate General that because this is a trading contract and not beneficial to the minor, he cannot be a permit holder. He cited Mercantile Union Guarantee Corporation Ltd v. Ball 1937-3 All. Eng. Rep. 1. It dealt with the case of a contract to purchase a lorry on a hire purchase system which related to the legal necessity of the minor which is not the case here. As correctly contended by Mr. G. Ramaswami, under the legislative practice for holding the permit if no age limit is prescribed, this Court cannot so interpret it as to bring in other considerations of legal necessity or benefit to the minor. In all statutes wherever a minor was sought to be excluded from holding the licence, it has specifically done so. Take for, instance, S. 6 of the Cinemas Regulation Act or the Arms Act. Therefore, I hold that a minor could be a permit holder. However, he can act only through a guardian.
One of the extreme cases that was cited before me is B. Bheemeswar Rao Vs. The State of Andhra Pradesh and Another, wherein it was held that because the provision of the CPC would not apply, an application for the grant of a motor vehicles signed by a minor could be treated to be a valid application. With great respect the decision does not appear to lay down the correct law. Whatever it is, from the amendment introduced to the Form prescribed under rule 138, it is clear that only a guardian can act on behalf of the minor. In Peterson''s Licensing Act at page 782 it is stated that infancy per se has not been made a disqualification. Therefore, the conditions attached to a permit which can be validly imposed in the case of stage carriage under S. 48 (3) can be enforced as against the permit. In other words, it is the permit that suffers the punishment under S. 60 of the Act. It has nothing to do with the ownership of the vehicle in law. This is because the consequence of cancellation or suspension of permit would disable the operator from plying the vehicle. S. 42 is emphatic in its terms when it says that no owner of a transport vehicle shall use or permit the use of the vehicle in any public place without a valid permit. Even with regard to the penal provisions, the enforcement can be as against the guardian. Ss. 78, 80, 88 and 94 of the Act are some of the sections which have a bearing on this aspect. It is S. 112 which provides for punishment for offences. That punishment can be enforced against the guardian. Therefore, there is no difficulty in holding that the minor can be a permit holder.
The next question is whether, in the instant case, during the lifetime of the father, mother could be the guardian. This necessitates me to refer to some of the important provisions of the Hindu Minority and Guardianship Act. S. 2 reads as follows�
The provisions of this Act shall be in addition to and not, save as hereinafter expressly provided, in derogation of the Guardian and Wards Act, 1890.
S. 4 (c) is as under�
natural guardian means any of the guardian mentioned in S.6
S. 6 (a) is as follows:
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; (the rest is omitted as unnecessary).
Therefore, by a reading of this provision it is clear that during the lifetime of a father, mother cannot be the guardian because of the words ''and after him'' occurring in Cl. (a) of S. 6. There is an added reason for holding so, because this right of guardianship is a valuable right and the Hindu father, under S. 9 of the Act, who is entitled to act as natural guardian for minor, may by will appoint a guardian in respect of minor''s person or property or in respect of both. An appointment made under sub-S. (1) of S. 9 shall have no effect if the father predeceases the mother, but shall revive if the mother dies without appointing by will any person as guardian. As regards the right of a de facto guardian, S. 11 says as under :
After the commencement of this Act, no person shall be entitled to dispose of or deal with, the property of a Hindu minor merely on the ground of his or her being the de facto guardian of the minor.
I am unable to accept the argument of Mr. M.N. Rangachari, because S. 4 (c) states that ''natural guardian'' means any of the guardians mentioned in S. 6, Mother also will get included as otherwise S. 4 (c) must be held to be redundant. The simple meaning of S. 4 (c) is that it refers to all the guardians as are referred to in S. 6 in the stated situation. There is no redundancy whatever.
One of the cases that is relied on is Jijibai v. Pathan Khan AIR 1971 S.C. 316 But that is a peculiar case and I do not think that that ruling ever intended to say that even during the lifetime of the father, mother could be the guardian, In that case, the father and the mother had fallen out for more than 20 years, and the father was not taking are of the minor''s interest and it was the mother who alone was acting as guardian throughout. Therefore, a finding was rendered by the Revenue Court that the mother may be construed to be the natural guardian which finding was accepted by the High Court and met with its approval at the hands of the Supreme Court, at the end of paragraph 11 of its judgment which is as follows� The position in the Hindu Law before this enactment was also the same. That is why we have stated that normally when the father is alive he is the natural guardian and it is only after him that the mother becomes the natural guardian. But on the facts found above the mother was rightly treated by the High Court as the natural guardian.
Even here what requires to be noted is normally when the father is alive he is the natural guardian in the decision of the Supreme Court. But in the peculiar circumstances of the case, the mother was considered to be the guardian. Therefore, this decision does not assist the petitioner in any way. In the partition that took place between the parties obviously as against the father, mother alone could represent the minor. The fact that a few sales wherein the minor was a purchaser were transacted by the mother on behalf of the minor, cannot deprive the father of his right. There is no evidence on this aspect that the father was unwilling to act nor again was he acting adverse to the interests of the minor. It is somewhat surprising to note that the Tribunal had just slurred over this argument by stating in paragraph 8 as follows :
Now we are only left with the respondent and first appellant which have scored equal number of marks The learned counsel appearing for the first appellant contended before me that when the minor respondent''s father is alive, he could not be represented by his mother as guardian under the Hindu law. I see no force in this contention, for, the appellant has no locus standi to question either the mother or father acting as guardian for their minor son. The Hindu Law does not prohibit the mother acting as guardian for a minor son even though the father is alive.
To say that because there is no prohibition the mother could act as guardian seems to be overstating the law without looking into the relevant provision of S. 6 of the Hindu Minority and Guardianship Act which, as I said, gives the right to the mother only after the father. Therefore, I uphold the argument of the learned Advocate General that the application on behalf of the minor represented by the mother and guardian in the facts and circumstances of the case is incompetent. This is not to be understood as though I hold that the mother cannot be the guardian. It is one thing to say that the mother could be guardian under certain circumstances. For instance, it would not be in the welfare of the minor to appoint the father as the guardian for several reasons, namely, where he is acting against the interests of the minor or where he is not fit to be the guardian, etc. I must also state that by agreement between the parties this right of guardianship cannot be taken away from the father since the statute gives him an indefeasible entitlement under normal circumstances. I make it clear that I am only deciding the question of competency of the application and not the right of the mother to represent the minor.
In view of my finding that the application is incompetent, I do not think that there is any necessity on my part to go into the merits of the case. Accordingly the civil revision petition will stand dismissed. No costs.