PETITIONER:
AMIRTHAM KUDUMBAH
Vs.
RESPONDENT:
SARNAM KUMDUMBAN
DATE OF JUDGMENT16/04/1991
BENCH:
THOMMEN, T.K. (J)
BENCH:
THOMMEN, T.K. (J)
SAHAI, R.M. (J)
CITATION:
1991 AIR 1256 1991 SCR (2) 389
1991 SCC (3) 20 JT 1991 (2) 428
1991 SCALE (1)757
ACT:
Hindu Minority and Guardianship Act, 1956-Section
8(3) and Section 6 of T.P. Act-Harmonious construction--
Legislative intention of.
Hindu Minority and Guardianship Act, 1956--Sections
5(b), 8(3) and Section 6 of T.P. Act--Harmonious
construction--Legislative intention of.
Hindu Minority and Guardianship Act, 1956--Sections
5(b), 8(3) and Section 6 of T.P. Act--Alienation of minor's
property by guardian without Court's permission and without
legal necessity-Suit for setting aside by tronsferee within
three years of minor's attaining majority-Maintainability
of.
HEADNOTE:
The appellant purchased the suit property of the minor
from a person, to whom the same was sold by the father, the
natural guardian, whereas the respondent purchased the suit-
property from the minor within three years on his attaining
majority.
The respondent-plaintiff instituted a suit against the
appellant defendant, to set aside the transfer of property
made by the natural guardian and for recovery of possession
of property.
The suit was decreed and the decree was confirmed by
the appellate Court as well as by the High Court.
Dismissing the second appeal, the High Court held that
the suit instituted bythe respondent as a transferee from
the ex-minor within three years after the minor attained
majority was not hit by section 6(e) of the Transfer of
Property Act, 1882, against which the present appeal
preferred by the appellant-defendant.
The appellant contended that the suit was hit by
section 6(e) of the Transfer of Property Act, as all that
the ex-minor was in a position to transfer was the mere
right to sue to set aside the sale and recover possession of
the property transferred by the natural guardian; and
390
that a person claiming under a minor, referred to in section
8(3) of the Hindu Minority and Guardianship Act, 1956 can
only be a legal representative of a deceased minor and not a
person succeeding to the interest of the minor by reason of
transfer inter vivos.
The contentions of the respondent were that the ex-
minor was competent to bring a suit to set aside the sale
within a period of three years of his attaining majority and
any person claiming under the minor was equally competent to
institute action for the same purpose; that the suit to set
aside a sale was not for the enforcement of any personal
right, but a right in property and the suit was not hit by
Section 6(e) of the T.P.Act; and that the provisions
contained in Section 6 of the T.P. Act and Section 8 of the
Guardianship Act were to be read together.
On the question, whether the respondent in his capacity
as a transferee from the ex-minor was competent to bring a
suit to set aside the sale effected by the minor's guardian,
who had sold the property without obtaining the permission
of the Court as required under Section 8 of the Hindu
Minority and Guardianship Act 1956 and without any legal
necessity.
Dismissing the appeal of the appellant-defendant this
Court,
HELD: 1. In the instant case, on the facts found, the
transfer of the property made by the guardian was a voidable
transaction and it was, therefore, open to the minor to
challenge it and seek recovery of possession. Such a right
of the minor is a right or interest in property which he
himself or "any person claiming under him" may enforce by
instituting a suit (Section 8(3) of the Guardianship Act).
"Any person claiming under him" must necessarily include a
purchaser. [396G-397A]
2. Section 8(3) confers a right of suit in the special
circumstances postulated therein. The object of the Act
being the protection of the minor, the legislature has
though it fit to confer a right of suit in certain
circumstances not only on the minor, but also on a person to
whom the minor has transferred his rights.[397A-B]
3. The right transferred is an interest in property
which is capable of enforcement at the instance of the
transferee as it was at the instance of the ex-minor prior
to the transfer. Such a provision intended specially for the
protection of the interests of the minor, must be read in
harmony and consistently with the general provisions con-
391
tained in section 6 of the T.P. Act. [397B-C].
4. A construction which is unduly restrictive of the
statory provisions intended for the protections of the
interests of the minor must be avoided. [397F-G]
5. The transfer made by the father during his son's
minority was voidable at the instance of his son who was the
real owner, and any person purchasing such property from the
natural guardian obtained only a defeasible title. The minor
retained a right in the property to defeat existing adverse
claims, and such right is an assignable right. [397D-E]
The J.K.Cotton Spinning & Weaving Mills Co.Ltd. v. The
State of Uttar Pradesh & Ors., [1961] 3 S.C.R.185, 194 and
Ashoka Marketing Ltd. & Anr. v. Punjab National Bank & Ors.,
[1990] 3JT SC 417, 439, followed.
Palaniappa Goundan v. Nallappa Goundan & Ors., AIR 1951
Madras 817 and P.Kamaraju v. C.Gunnayya & Ors., AIR 1924
Madras 322, approved.
Jhaverbhai Hathibhai Patel v. Kabhai Bechar Patel &
Ors., AIR 1933 Bom.42; Mon Mohan Battacharjee & Ors. v.
Bidhu Bhusan Dutta & Ors., AIR 1939 Cal. 460: and Palani
Goundan & Anr. v. Vanjiakkal & Anr., [1956] I.L.R. Mad.1062,
over-ruled.
Preprakash Surajmal v. Maharashtra Revenue Tribunal.
Nagpur &Ors., A.I.R. 1969 Bom.361; and Ghanshyam Dass v.
Dr.Shiva Shankar Lal & Ors., [1980] All Law Journal 130,
referred to.
JUDGMENT:
CIVIL APPELLATE JURISDICTION: Civil Appeal No.951 of
1977.
From the Judgment and Order dated 29.7.1976 of the
Madras High Court in S.A. No.89 of 1972.
A.T.M. Sampath and P.N.Ramalingam for the Appellant.
S.Balakrishnan and S.Prasad for the Respondent.
The Judgment of the Court was delivered by
THOMMEN, J. The appellant is the defendant in a suit
insti-
392
tuted by the respondent to set aside a transfer of property
made by the guardian of a minor and for recovery of
possession of the property. The suit was decreed, and the
decree was confirmed by the first appellate court as well as
by the High Court.
The plaintiff-respondent purchased the suit property
from an ex-minor within three years after the minor attained
majority. During his minority, the property was sold by his
father as his natural guardian to a person from whom the
present appellant purchased the property. All the courts
found that the guardian had not obtained the permission of
the Court for the sale of the property, as required by
section 8 of the Hindu Minority & Guardianship Act, 1956
(“the Guardianship Act“) and that the sale of the property
was not for legal necessity.
Dismissing the second appeal, the High Court held that
the suit was rightly instituted by the respondent as a
transferee from the ex-minor within three years after the
minor attained majority and that the contention of the
defendant that the suit by a transferee from the ex-minor
was hit by section 6(e) of the Transfer of Property Act,
1882 was unsustainable.
The only question which arises in the present appeal,
as it did before the High Court, is (to quote the words of
the High Court)
“Whether a transferee from a minor after he
attained majority, can file a suit to set aside the
alienation made by the minor’s guardian or the said
right is one to be exercised only by the minor?”.
The relevant facts are that the suit property belonged
to one Veerammal. She had a daughter by name Kaliammal.
Veerammal died shortly after she purchased the property in
1948. She left behind her husband Kandayya and their
duaghter Kaliammal. Subsequently, Kandayya married a second
time when his daughter Kaliammal was a minor. She thereupon
left her father’s house and resided with her maternal grand-
father who protected and maintained her. During her
minority, Kandayya sold the property on 29.10.1959 to
Jainulavudeen. On 25.4.1966, Jainulavudeen in turn sold the
property to the defendant-appellant. Subsequently, on
26.5.1966 the plaintiff obtained a deed of sale of the suit
property in his favour from Kaliammal who had by then
attained majority. The Plaintiff thereafter instituted the
present suit (O.S. No. 491 of 1968) against the appellant to
set aside the transfer of property made by Kandayya and for
recovery of its possession.
393
The question is whether the respondent in his capacity
as a transferee from the ex-minor was competent to bring a
suit to set aside the sale effected by the minor’s guardian.
It is no longer disputed that the suit was brought within
three years after the minor attained majority. Nor is it
any longer contended that the father of the minor, as her
natural guardian, had obtained the permission of the Court
or that the sale effected by him was one for legal
necessity. These two vital points have been concurrently
found against the appellant. The only contention which Mr.
Sampath, appearing for the appellant, is in a position to
urge is as regards the question whether the suit is hit by
section 6(e) of the T.P. Act. Counsel says that all that the
ex-minor was in a position to transfer, was her mere right
to sue to set aside the sale and recover possession of the
property transferred by her father as her natural guardian.
The property itself had been transferred by the father prior
to its sale by the ex-minor. The minor had, therefore, no
property to sell, except a right to set aside the sale.
Accordingly, whatever transfer that was effected by the
minor in favour of the plaintiff was nothing more than a
mere right to sue and such transfer was invalid by reason of
section 6(e) of the T.P. Act.
Mr. Balakrishnan, appearing for the respondent-
plaintiff, contends that the ex-minor was fully competent to
bring a suit to set aside the sale within a period of three
years after attaining majority and any person claiming under
her is equally competent to institute action for the same
purpose. He refers to the provisions of section 8(3) of the
Guardianship Act. He contends that a suit to set aside a
sale is not for the enforcement of any personal right, but a
right in property, and is, therefore, not hit by section
6(e) of the T.P. Act. In any view, counsel says, section
8(3) of the Guardianship Act sepcifically allows such a suit
to be brought by a person claiming under a minor and,
therefore, such a statutory right specially granted by an
enactment dealing with the protection of the minor cannot be
defeated by the general provisions of an earlier enactment.
The two provisions, counsel says, can be read harmoniously
so as to avoid an artificial conflict. What the
Guardianship Act intends to protect is the right of a person
claiming under a minor to sue for setting aside the sale of
property sold otherwise than as permitted by section 8 of
the Act. On the other hand, the T.P. Act only prohibits
suits in the the nature of champerty and maintenance based
on bare or naked right of litigation. The general provision
contained in section 6(e) of the T.P. Act does not derogate
from the special protection of the minor’s interest and the
interest of a person claiming under him, as afforded by the
Guardianship Act, which is addressed to a specific problem,
In any view, counsel says a sale by the guardian
394
otherwise than as permitted by section 8 is void and is,
therefore, incapable of passing a title. For all these
reasons, Mr. Balakrishna submits that the suit was competent
and was rightly decreed on the facts found and the appeal
by the defendant has no merits.
As concurrently found by the courts below, the sale
effected by the guardian during the minority of his daughter
was not in compliance with the provisions of section 18(i)
of the Guardianship Act. The property was transferred by
him without obtaining the previous permission of the Court
and the transfer was not for the benefit of the minor. Such
a sale by the minor’s father who is his natural guardian is,
unlike in the case of transfer by a de facto guardian
(Section 11), not a void sale, but only a voidable sale.
Such a sale until set aside is sufficiently effective to
pass title, but being a voidable sale, what the buyer has
obtained is a defeasible title which is liable to be set
aside at the instance of the person entitled to impeach it.
Section 8(3) of the Guardianship Act says:
“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.”
(emphasis supplied)
The effect of this sub-section is that any disposal of
immovable property by a natural guardian otherwise than for
the benefit of the minor or without obtaining the previous
permission of the Court is voidable. A person entitled to
avoid such a sale is either the minor or any person claiming
under him. This means that either the minor, or his legal
representative in the event of his death, or his successor-
in-interest claiming under him by reason of transfer inter
vivos, must bring action within the period prescribed for
such a suit, i.e., three years from the date on which the
minor died or attained majority, as the case may be. In the
present case, the suit was brought, as found by the courts
below, within three years after the minor attained majority.
Mr. Sampath, however, contends that a person claiming
under a minor, referred to in section 8(3), can only be a
legal representative of a deceased minor and not a person
succeeding to the interests of the minor by reason of
transfer inter vivos. He refers to the decisions in
Jhaverbhai Hathibhai Patel v. Kabhai Bechar Patel & Ors, AIR
1933 Bom. 42; Mon Mohan Bhattacharjee & Ors. v. Bidhu Bhusan
Dutta & Ors., AIR 1939 Cal 460; Palani Goundan & Anr. v.
Vanjiakkal &
395
Anr., [1956] I.L.R. Mad. 1062; Premprakash Surajmal v.
Maharashtra Revenue Tribunal, Nagpur & Ors., AIR 1969
Bom.361 and Ghanshyam Dass v. Dr. Shiva Shankar Lal & Ors.,
[1980] All. Law Journal 130 and other cases in which certain
High Courts have taken the view that the right of the minor
is a personal right and it cannot be transferred otherwise
than by inheritence. The “person claiming under him”
mentioned under section 8(3) of the Guardianship Act,
counsel says, can only be a representative and not a
purchaser or transferee inter vivos. He refers to Article
60 of the Limitation Act, 1963 and submits that the
provision refers only to a legal representative and not any
other successor.
In Jhaverbhai Hathibhai Patel v. Kabhai Bechar Patel &
Ors., AIR 1933 Bom. 42, it was held:
“what was assigned by the minor to the plaintiff in
that suit was not the property in question but his
right to sue for it, and if he could establish his
allegation, to have the sale avoided, this I think
was no more than a right of suit, and if I am
correct such a transfer is forbidden by S. 6, Cl.
(e), T.P. Act.”
Similar reasoning was adopted in the other decisions cited
by Mr. Sampath on the point. The rationale of these
decisions is that the right to impeach a sale effected by
the guradian is a personal right vested in the minor and it
is not transferable inter vivos. The expression “person
claiming under him”, according to this line of reasoning,
must, therefore, be understood as a legal representative and
not an assignee.
On the other hand, a Division Bench of the Madras High
Court in P. Kamaraju v. C. Gunnayya & Ors., AIR 1924 Madras
322 held that the right of the minor was not a bare right to
sue and it was an assignable right. The High Court held:
“. . . . .By selling the property to the plaintiff
on the footing that the sale by the mother was not
binding on him he has chosen to avoid it, and the
result of it is that from his point of view he has
got a complete title. The title no doubt will only
be effective if the Court ultimately finds that the
sale by the mother is not binding on him. But
contingent on that event he has got a complete
title and this title is not a bare right to sue and
is, therfore, assignable. . . . . . . . ..”
396
In Palaniappa Goundan v. Nallappa Goundan & Ors., AIR 1951
Madras 817, Viswanatha Sastri, J. observed:
“Where an ex-minor transfers property
unauthorisedly sold by his guardian during his
minority he transfers not a mere right to use but
his interest in the property, though a suit may be
necessary to avoid the transfer by the guardian &
recover possession of the property from his
alienee. Conversely, the liability of the
transferee from the guardian is not a liability to
pay damages for the unauthorised act of the
guardian, but is a liability to restore the
property to the rightful owner or his transferee”.
Similar view was expressed in Karnam Nagabhushana Rao v.
Karnam Gowramma & Ors., [1968] 2 Andhra Weekly Reporter 57.
These decisions on which reliance was placed by the Madras
High Court in the impugned judgment are to the effect that
the right of the minor is not a bare or naked right to sue
but a right in property which is assignable.
In Halsbury’s Laws of England, 4th edn., Vol. 6,
paragraphs 86-87 at pages 49-50, this is what is stated
“A bare right of litigation, such as a mere right
to damages for a wrongful act, is not assignable,
on the principle that the law will not recognise
any transaction savouring of maintenance or
champerty.
By way of exception to the rule stated in the
previous paragraph there is nothing unlawful in
the purchase of property which the purchaser can
only enjoy by defeating existing adverse claims, or
in the assignment (for example by mortgage) of
property, being the fruits of litigation. In every
case it is a question whether the purchaser’s real
object was to acquire an interest in the property,
or merely to acquire a right to bring an action,
either alone or jointly with the vendor . . . .”.
In the instant case, on the facts found, the transfer
of the property made by the guardian was a voidable
transaction and it was, therefore, open to the minor to
challenge it and seek recovery of possession. Such a right
of the minor is a right or interest in property
397
which he himself or “any person claiming under him” may
enforce by instituting a suit [Section 8(3) of the
Guardianship Act]. “Any person claiming under him” must
necessarily include a purchaser.
Section 8(3) confers a right of suit in the special
circumstances postulated in that provision. The object of
the Act being the protection of the minor, the legislature
has thought it fit to confer a right of suit in certain
circumstances not only on the minor, but also on a person to
whom the minor has transferred his rights. The right
transferred is an interest in property which is capable of
enforcement at the instance of the transferee as it was at
the instance of the ex-minor prior to the transfer. Such a
provision, indeed specially for the protection of the
interests of the minor, must be read in harmony and
consistently with the general provisions contained in
section 6 of the T.P. Act. [See The J.K. Cotton Spinning &
Weaving Mills Co. Ltd. v. The State of Uttar Pradesh & Ors.,
[1961] 3 S.C.R. 185, 194 and Ashoka Marketing Ltd. & Anr. v.
Punjab National Bank & Ors., [1990] 3 JT SC 417, 439].
The transfer made by the father during his son’s
minority was voidable at the instance of his son who was the
real owner, and any person purchasing such property from the
natural guardian obtained only a defeasible title. The
minor retained a right in the property to defeat existing
adverse claims, and such right is an assignable right. We
are in complete agreement with what has been stated on the
point in Palaniappa Goundan v. Nallappa Goundan & Ors., AIR
1951 Madras 817 and in P. Kamaraju v. C. Gunnayya & Ors.,
AIR 1924 Madras 322. We do not agree with the contrary view
expressed on the point in Jhaverbhai Hathibhai Patel v.
Kabhai Bechar Patel & Ors., AIR 1933 Bom. 42; Mon Mohan
Battacharjee & Ors. v. Bidhu Bhushan Dutta & Ors., AIR 1939
Cal. 460 and Palani Goundan & Anr. v. Vanjiakkal & Anr.,
[1956] I.L.R. Mad. 1062.
A construction which is unduly restrictive of the
statutory provisions intended for the protection of the
interest of the minor must be avoided. This is all the more
so in view of section 5(b) of the Guardianship Act which
says.
“5. Save as otherwise expressly provided in this
Act
(a) …………………………………………
(b) any other law in force immediately before the
com-
398
mencement of this Act shall cease to have effect in
so far as it is inconsistent with any of the
provisions contained in this Act.”
For the reasons stated by us, we see no merit in the
challenge against the judgment under appeal. The appeal is
accordingly dismissed. We do no, however, make any order as
to costs.
V.P.R. Appeal dismissed.
399
