IN THE HIGH COURT OF KERALA AT ERNAKULAM
AS.No. 357 of 1997()
1. P.V.MADHAVI
... Petitioner
Vs
1. P.V.BALAKRISHNAN
... Respondent
For Petitioner :SRI.KODOTH SREEDHARAN
For Respondent :SRI.S.V.BALAKRISHNA IYER (SR.)
The Hon'ble MR. Justice M.L.JOSEPH FRANCIS
Dated :10/06/2009
O R D E R
M.L. JOSEPH FRANCIS, J.
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A.S.No. 357 of 1997
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Dated this the 10th day of June, 2009
JUDGMENT
This appeal is filed by the first defendant in O.S.No.
10 of 1996 on the file of the Sub Court, Hosdurg.
Respondents 1 and 2 are the plaintiff and the second
defendant in that suit. It was a suit for setting aside the
Sale Deed executed by the guardian of a minor and for
partition.
2. The case of the plaintiff is briefly as follows.
The plaintiff’s father, late Kunhiraman Nair, was holding
properties jointly with his sister Karthiyayani. On his
death, his half right over the said properties devolved upon
the plaintiff and his mother, the second defendant, who are
his only heirs and legal representatives. Plaintiff was a
minor when his father died. Thereafter, in a suit for
partition filed by the plaintiff’s mother against
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Karthiyayani, the half share of the plaintiff and his mother was
allotted to them jointly as per a partition decree in O.S.No. 123
of 1978 of the Munsiff Court, Hosdrug. The plaintiff’s mother
was holding the said property for and on behalf of the plaintiff
also since the plaintiff was a minor.
3. The suit properties consisting of two items contain
improvement and was more than sufficient to meet the need of
the plaintiff and his mother, the 2nd defendant. The first
defendant purchased the property from the plaintiff’s mother on
29.8.1980. The plaintiff’s mother had executed the document for
herself and on behalf of the minor plaintiff. Plaintiff’s right was
purported to be transferred under the document. It was sold for a
consideration of Rs.6,000/- It is recited in the document that
Rs.4,000/- was received by her in advance, which was used for
clearing the debts of the plaintiff’s father and Rs.2,000/- received
at the time of execution of the document was paid towards
consideration for purchasing another property in the name of the
plaintiff.
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4. According to the plaintiff, the alienation by his mother
was wrongful and injurious to him and for meagre consideration.
The plaintiff’s father had no debts and there was no necessity to
sell the property. He also pleaded ignorance about the purchase
of the property in his name and also stated that he is not in
possession of the same. The alienation by the mother is void in
law and liable to be set aside and the suit was filed within 3 years
from 5.2.1992, when the plaintiff attained majority. The plaintiff
therefore prayed for setting aside the sale deed No.3527 of 1980
dt.29.8.1980 in favour of the first defendant in respect of the
plaintiff’s half right over the property and for surrender of
possession of his share which relief on 6.11.1996 was got
amended as one for partition of his share as per order in I.A.no.
645 of 1996.
5. The appellant/first defendant resisted the suit raising the
following contentions. It is admitted that the first defendant had
purchased the property from the 2nd defendant as per a registered
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Sale Deed dt.29.8.1980. But the sale deed was executed for the
then minor plaintiff’s benefit also and the consideration recited in
the document is correct and reasonable. The first defendant is a
bonafide purchaser. Out of the total consideration paid, an
extent of 1.50 acres of property with improvements in R.S.370 of
Periya Village at a place called Kannoth was purchased in the
name of the plaintiff and the plaintiff is in possession of the
same. It is incorrect to state that he has not seen the property.
The alienation is not void and was in the better interest of the
minor plaintiff. To clear of Kunhiraman Nair’s debt the sale
was necessary. Alternatively, it was also contended that the first
defendant has effected valuable improvements in the property
on the bonafide belief that she is the exclusive owner and is
entitled to the value of the same. Besides, it was also contended
that the suit is barred by limitation, since the plaintiff was aware
of the sale long back and the plaintiff has filed the suit in
collusion with the second defendant.
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6. After amendment of the plaint, an additional statement
was filed to the effect that the plaintiff’s right, if any, is barred
by averse possession and limitation. By way of an amendment
to the written statement it was also contended that in case the
court finds that the sale deed No.3527/80 is voidable and liable
to be set aside, the 1st defendant is entitled to the value of
improvements in the plaintiff’s share, since she was making
improvements on the bonafide belief and that the property
exclusively belongs to her. It was also contended that the first
defendant is entitled to the property purchased as per Deed No.
3528/80 since the sale consideration for that was paid by the
appellant and the plaintiff is liable to restore that benefit and to
compensate the appellant in the event of a decree for setting
aside the document. The first defendant therefore prayed for
dismissal of the suit. The second defendant plaintiff’s mother
remained ex parte.
7. In the Sub Court, PWs. 1 and 2 and DWs. 1 to 4 were
examined. Exts.A1 to A5 and B1 were marked. The learned
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Sub Judge, on considering the evidence, decreed the suit and a
preliminary decree for partition was passed in the following
manner.
“Ext.A1 sale is set aside as far as the
plaintiff’s half share is concerned. The plaint
schedule property will be divided into two equal
shares and the plaintiff and 1st defendant are
entitled to one such share each. The 1st defendant
has not paid court fee and if she pays court fee at
the time of final decree, she will be allotted her
share separately. The plaintiff is entitled to future
profits from the date of the plaint till delivery of
possession the quantum of which will be decided
at the time of passing final decree. The first
defendant is liable for such profits. The cost of
sharers shall come out of the estate. The plaintiff
is at liberty to move the court for passing final
decree. Addl. Issue No.6 with regard to value of
improvements is left open for consideration at the
time of passing final decree.”
Against that judgment and decree the first defendant filed this
appeal.
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8. The plaintiff filed cross objection challenging the
finding on Addl. Issue No.6 to the effect that the question of
compensation for the value of improvements made by the first
defendant will be considered at the final decree stage.
9. Heard the learned counsel for the appellant and the first
respondent.
10. The plaint schedule Item No.1 property has an extent of
2.5 acres, comprised in Re-survey 103 of Beloor Village and the
extent of plaint schedule Item No.2 property is 45 cents,
comprised in R.S. 110/1 of the same Village. The plaintiff is the
son of Kunhiraman Nair and the second defendant. The plaint
schedule properties originally belonged to Kunhiraman Nair and
his sister Karthiyayani jointly. After his death, his half share
devolved upon the plaintiff and his mother, who is the second
defendant, Narayani. As per partition decree in O.S.No.123 of
1978 on the file of the Munsiff Court, Hosdurg the plaint
schedule properties were allotted to the share of the plaintiff and
second defendant. There is no dispute that the first defendant
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purchased that property as per Sale Deed No.3527/80 of S.R.O.
Hosdurg dt.29.8.1980. The second defendant executed that Sale
Deed for herself and also as the guardian of the plaintiff, who was
then a minor, aged 7 years. Ext.A1 is the copy of that Sale Deed.
It is also an admitted fact that the second defendant sold the share
of the plaintiff over the plaint schedule properties without
obtaining previous permission of the Court.
11. The main prayer in the suit is to set aside the Sale Deed
No.3527/80 of S.R.O. Hosdurg dt. 29.8.80 in respect of the
plaintiff’s share over the plaint schedule properties. The second
prayer in the plaint is to partition the plaint schedule properties
into two equal shares and allot one such share to the plaintiff with
mesne profits. The main question to be considered is whether the
original of Ext.A1 Sale Deed is void or voidable. The Hon’ble
Supreme Court in Vishwambhar v. Laxminarayan ((2001) 6
SCC 163) held that :
” sale effected without taking permission of
the court under Section 8(2) of the Hindu Minority
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and Guardianship Act, 1956 was voidable at the
instance of the plaintiffs and the plaintiffs were
required to get the alienation set aside if they
wanted to avoid the transfer and recover the
property from the purchasers. If a prayer for
setting aside the alienation is not made, then the
suit seeking possession would not be
maintainable.”
12. In Nagappan v. Ammasai Gounder ((2004) 13 SCC
480) the Hon’ble Supreme Court held that :
“Reading Section 8 itself shows that the sale
made by the natural guardian in contravention of
sub-sections (1) and (2) is voidable at the instance
of the minor. If the requirement of law is to have
the alination set aside before making any claim in
respect of the property sold then a suit without such
a prayer would be of no avail.”
13. In view of that position of law, it is clear that the
original of Ext.A1 Sale Deed is voidable at the instance of the
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plaintiff as it was executed by the natural guardian in
contravention of sub-sections (1) and (2) of Section 8 of the
Hindu Minority and Guardianship Act, 1956.
14. Article 60 of the Limitation Act prescribes a period of
3 years for setting aside a transfer of property made by the
guardian of a ward, by the ward, who has attained majority and
the period is to be computed from the date when the ward attains
majority. In the present case, the date of birth of the plaintiff is
5.2.1974, which is evident from Ext.A4, extract of admission
register. The plaintiff attained majority on 5.2.1992. He gets
three years period to file the suit from the date of his attaining
majority, i.e. on or before 5.2.1995. The present suit was
originally filed on 5.4.1994. Therefore, the suit is not barred by
limitation.
15. The learned counsel for the appellant submitted that
even though the suit for setting aside the Sale Deed was filed on
5.4.1994, the prayer for partition was incorporated only on
6.11.1996 and therefore that prayer is barred by limitation. That
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argument cannot be accepted in view of the fact that it is only an
ancilliary relief and no specific period is prescribed in the
Limitation Act for the relief of partition by a co-owner.
16. In Ext.A1, copy of sale Deed No.3527/80 dt.29.8.80, it
is stated that the total consideration of the plaint schedule
properties is Rs.6,000/- It is stated in the document that the first
defendant purchaser already paid Rs.4,000/- to the second
defendant in order to discharge the debts of her husband,
Kunhiraman Nair and for the expenses of the minor plaintiff and
the balance of sale consideration of Rs.2,000/- was paid by the
first defendant for purchasing the property in R.S. 370 in the
name of minor plaintiff from Kuttiyan. Ext.B1 is the copy of the
Sale Deed No.3528/80 dt.29.8.80 executed by Kuttiyan in the
name of minor plaintiff in respect of 1 acre 50 cents in R.S. 370.
In that document the second defendant is shown as guardian of
minor plaintiff. In Ext.B1, the sale consideration shown is
Rs.2,000/- and it is stated in that document that the sale
consideration was received from the sale consideration of Ext.A1.
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From Exts.A1 and B1 it is evident that originals of those
documents were executed on the same day, one after the other.
The learned counsel for the appellant submitted that if the original
of Ext.A1 Sale Deed is set aside, the property covered by the
original of Ext.B1 Sale Deed has to be returned to the first
defendant.
17. Under Section 33 of the Specific Relief Act, on
adjudging the cancellation of an instrument, the court may require
the party, to whom such relief is granted, to make any
compensation to the other which justice may require. The learned
counsel for the appellant invited my attention to the decision
reported in Chacko v. Sreeja (1991 (1) KLT 191), in which it
was held:
“In cancelling the documents, the plaintiff
need only surrender benefits received as justice
may require. Such benefit required by the justice
is the actual benefit received under the impugned
transaction, which is avoided. It may not be
conducive to justice to allow the minor to have
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at the same time retaining its benefits. “Benefit”
or ‘advantage’ referred to in Ss. 64 and 65 of the
Contract Act, do not relate to profit derived from
the investment of the benefit. Sometimes the
investment may result in loss also. In a given
case, the benefit may be only the actual
consideration and its interest. But, where the
consideration for the impugned transaction itself is
the purchase of another property in the name of
the minor, that property must be taken as the
benefit derived by the minor and it must be
directed to be returned. Value of properties might
have gone up and return of the consideration in
money alone may work out injustice to the
defendant purchaser and undue gain to the minor.”
18. Therefore, the legal position is that whether the Sale
Deed is void or voidable, the minor seeking to set aside it cannot
claim interference of a Court of law without making restitution.
The law is clear that if a person sells or mortgages another’s
property having no legal or equitable right to do so and that other
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benefits by transaction the latter cannot have it set aside without
making restitution to the person whose money has been applied
for the benefit of the estate. The principle of restitution in such
cases is based on the equitable maxim “he who seeks equity must
do equity”. No person, who is entitled to avoid a transaction
ought to be allowed to do so in such a manner as to enable him to
recover the property which would be otherwise lost to him and at
the same time to keep the money or other advantages which he
has obtained under it. Therefore, if a transfer by a guardian is
set aside, as having been made without previous permission of the
Court, equity requires that the minor should restore to the
transferee any benefit he may have received under the transfer
before the minor can take the benefit of any decree in his favour.
19. In the present case, the plaintiff is not prepared to give
back the property covered by original of Ext.B1 Sale Deed,
which was purchased in his name utilising the portion of sale
consideration given by the first defendant while purchasing the
plaint schedule properties as per the original of Ext.A1 Sale
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Deed. Therefore, the plaintiff is not entitled to get a decree to set
aside the original of Ext.A1 Sale Deed and partition the
plaintiff’s half share. In view of the above aspects of the matter, I
find that the learned Sub Judge is not justified in decreeing the
suit.
20. In the result, this appeal is allowed. The judgment and
decree in O.S.No. 10 of 1996 on the file of the Sub Court,
Hosdurg is set aside and that suit is dismissed without cost. The
cross objection filed by the first respondent is also dismissed.
The parties are directed to suffer their respective cost in this
appeal.
(M.L. JOSEPH FRANCIS)
Judge
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