JUDGMENT
D.P. Mohapatra, J.
1. This is a plaintiffs second appeal against the decision of the lower appellate court dismissing the suit on reversing that of the trial court.
2. The appellant filed Title Suit No. 8 of 1974 in the court of the Munsif, Patnagarh against the respondents for declaration of title over the suit land, for recovery of possession of the same from the defendants, in the alternative for recovery of the sum of Rs. 500/-, the consideration money under the sale deed in question. The respondents 1 to 8 were impleaded as defendants in the suit. The plaintiff’s case in brief was that the suit land belonged to defendants 2, 3 and 4 who got it by gift from their mother, defendant 5. Defendant 1 father of defendants 2 to 4 as the guardian of his minor sons sold the suit property to the plaintiff by registered sale deed dt./- 27-12-66 (Ext. 1). According to the plaintiff, after defendants 2 and 3 attained majority, defendants 6 to 8 in collusion with defendant I got a sale deed executedon 16-3-71 (Ext. A) by defendants 2 and 3 and defendant 5 as the mother guardian of defendant 4, in their favour. Armed with the said sale deed defendants 6 to 8 created disturbance in peaceful possession of the plaintiff for which a proceeding under Section 145 Cr. P.C. was started. The said proceeding having terminated in favour of defendants 6 to 8 the plaintiff filed the suit for the reliefs noticed earlier.
3. Defendants 6 to 8 contested the suit mainly on the grounds that” the sale deed executed by defendant No. 1 in favour of the plaintiff conveyed no title since it was not backed by legal necessity or benefits of the minors; that no prior permission of the District Judge was taken before executing the sale deed; and that the sale being a voidable one, defendants 2 and 3 on attaining majority avoided it by executing the subsequent sale deed. According to the defendants possession of the property was not delivered to the plaintiff.
4. The trial court, as noticed earlier, decreed the plaintiff’s suit holding that the plaintiff had acquired title over the suit property on the basis of the said deed dt. 27-12-66 (Ext. 1) and the said sale deed having not been avoided by the minors within three years from the date of attaining majority by defendant 2 title of the plaintiff over the land became perfect and none of the minors could avoid the sale subsequently by selling the same land to defendants 6 to 8, under the sale deed dt. 16-3-71(Ext. A).
5. On appeal by defendants 6 to 8, the lower appellate court reversed the decision of the trial court holding inter alia, that the prescribed period of limitation, that is, three years from the date of attainment of majority, by defendant No. 2 had not elapsed by 16-3-71 when the sale deed in favour of defendants 6 to 8 was executed. Referring to Section 8 (2) and (3) of the Hindu Minority and Guardianship Act, 1956 the court held that since prior permission of the District Judge was admittedly not taken before the sale deed (Ext. 1) was executed, the transaction was voidable one and the minors could avoid it on attaining majority by executing the sale deed which they did in this case. Therefore, the plaintiff could not be said to have perfected his title on the basis of the document (Ext. 1) since the two minors had avoided it by executing the sale deed (Ext. A) and the third minor, defendant No. 4, had not yet come to the stage of exercising his option. On these findings the lower appellate court dismissed the plaintiffs suit.
6. This second appeal was admitted by this Court by order dt. 30-10-79 to examine the substantial question of law whether a voidable transaction can be avoided by another voidable transaction.
7. The main thrust of the argument of the learned counsel for the appellant is that the lower appellate court erred in dismissing the suit since the minors on attaining majority could avoid the transfer made by their guardian only by filing a suit for the purpose. The contention of the leaned counsel for the respondents on the other hand is that it was not compulsory for the minors to file a suit to set aside the sale; and they could avoid the transaction by their unilateral conduct like transferring the very same property in favour of others as they did in the present case.
8. From the facts of the case and the contention raised on behalf of the parties discussed earlier, the moot question that arises for consideration is whether it is compulsory for the minors to file a suit to set aside the sale by their father guardian or they could do so without filing a suit by their unequivocal conduct like transferring the property to others. The point, as it appears, was not free from difficulties and was riddled with conflicting decisions of different courts.
There is no controversy in this case on the following points :
(i) That defendant 1, father of defendants 2 to 4 as their natural guardian executed the sale deed as per Ext. 1 without taking prior permission of the Court.
(ii) This transaction was hit by Section 8(2) of the Hindu Minority and Guardianship Act, 1956 and, therefore, was voidable at the instance of the minors or any person claiming under them as provided under Section 8(3).
(iii) Defendants 2 and 3 on attaining majority, did not file any suit to set aside the sale under Ext, 1, but sold the same property in favour of defendants 6 to 8 by executing the sale deed as per Ext. A.
(iv) It has been found by the lower appellate court, the final court of fact, that Ext. A was executed within three years from the date the defendant 2, the eldest amongst the minors, attained majority.
On the aforesaid admitted positions, the point formulated earlier is to be considered, A number of decisions have been relled upon by the learned counsel for both parties. The consensus that emerges on persual of these decisions, as it appears to me, is that a transfer of property of the minor by natural guardian without permission of court is voidable at the instance of the minor. It is not voidable in the sense that it is binding on him until set aside, but it means that although not binding on him the transfer may be ratified by the minor on attaining majority. It is open to the minor to void the transaction either by filing a suit to set aside the sale or by unilateral conduct. One such conduct may be to sell the very same property to another person ignoring the sale by the guardian. There may be situations in which the erstwhile minor may have to file a suit to establish his title to the property and in such a suit he has to seek the relief of setting aside the sale deed and has to pay court-fee on that basis. Such situation may arise where the minor is out of possession of the property and wants to recover possession from the purchaser. A suit by a minor to set aside the sale has to be filed within three years from the date of his attaining majority as prescribed under Article 60 of the Limitation Act 1963. If the minor fails to file the suit to set aside the transfer within the prescribed period his right to the property is not extinguished; the only consequence is that he is debarred from recovering possession of the property if he has been dispossessed therefrom. I may notice here a few decisions laying down the aforementioned principles.
A Division Bench of the Patna High Court in the case of Jagdamba Prasad Laila v. Anadi Nath Roy, AIR 1938 Pat 337 observed as follows : —
“…..In the present case, the minor admittedly within three years of attaining majority executed a deed of assignment in favour of the plaintiff by which he completely ignored the deed of release supposed to have been executed on his behalf by the certificated guardian without the sanction of the District Judge. The minor is a party defendant in this action and in the written statement he takes up the same position…..Travallyan in his well-known book on Minors, Edn. 5, at P. 202 states :
A transaction which is voidable at the instance of the minor may be repudiated by any act or omission of the late minor, by which he intends to communicate the repudiation, or which has the effect of repudiating it, for instance, a transfer of land by him avoids a transfer of the same land made by his guardian before he attained the age of majority. It is not necessary that he should bring a suit; but a suit to set aside the acts of his guardian during his minority amounts of course to an express repudition.
In (1912) 16 Cal WN 715 Jenkins C. J. in approving the decision in (1906) 3 Cal LJ 260 observed that :
It is not necessary for a person in the position of the defendant to bring an action to set aside the transaction and it is sufficient if he declares his will to rescind by way of defence when an action is brought to enforce the mortgage against him.
…..Richards, J. in (1906) ILR 28 All 30 observed that it was not necessary that a suit should be instituted to set aside the lease which was executed by the guardian of the minor. The case in ILR 38 Mad 867 : (AIR
1915 Mad 2%) is also an authority for the proposition that a party who is entitled to avoid may do so by an unequivocal act repudiating the transaction or by getting a decree of a Court to set it aside…..”
In my opinion this is the correct view of the law and 1 hold that in the present case the minor had avoided the deed.”
A similar view was taken by the Allahabad High Court in the case of Jai Narain Lal Tandon v. Lala Bachoo Lal, AIR 1938 All 369 wherein the Division Bench observed that it is not necessary that a minor on attaining majority should institute a suit to set aside a transfer effected by the guardian; it is sufficient if he declares his will to rescind the transaction by way of defence when an action is brought to enforce the transfer against him.
A Division Bench of the Madras High Court in the case of Sivanmalai Goundan v. Arunachala Goundan, AIR 1938 Mad 822 also held that it is far from correct to say that a minor who has attained majority cannot repudiate transfer made by guardian without filing a suit under Article 44 of the Limitation Act (old Act).
The Calcutta High Court in the case of Panchu v. Hrishikesh Ghose, AIR 1960 Cal 446 taking a similar view observed that a sale by a de facto guardian of a minor which is not made for legal necessity or for the benefit of the minor Ls not binding on him. In order to avoid such a sale it is not necessary for the minor to do so by a suit and by obtaining a judicial rescission of the sale. It may be done by an expression of the minor’s intention not to honour, respect or abide by the alienations made by the de facto guardian. An expression of such an intention would certainly be by retaining possession of the alienated property or by dispossessing the transferee. The Court further observed that under Article 44 of the Limitation Act (old Act) if a minor desires to set aside a transfer of property by his guardian, he must bring a suit within three years of his attaining majority. A minor would be compelled to bring such a suit where the transfer was made by his lawful or de jure guardian without legal necessity or against the minor’s interest. A minor would also be required to bring a suit to have a sale by his guardian, whether de jure or de facto, set aside when a minor is out of possession and cannot, except through the aid of the court, recover possession of the property. But where the minor is in possession of the alienated property the alienation notwithstanding, it is not necessary for the minor to resort to a court of law and obtain a formal declaration that the alienation by the guardian was bad and should be set aside. The Court further held that the expression ‘voidable’ does not imply that the transfer is binding on the minor until set aside. It only means that although not binding on the minor the transfer may be ratified by the minor on his attaining majority.
A similar view was taken by the Full Bench of the Kerala High Court in the case of Chacko Mathew v. Ayyappan Kutty, AIR 1962 Ker 164 wherein it was observed that a member of the tarwad, who wants to avoid an alienation by the Karnavan not in conformity with Section 21 can treat the invalid alienation of his tarwad property as void, ignore it and sue to recover the property and no suit for its rescission as such is needed. Where in such a case an alienation is not followed by possession, it is open to the tarwad to urge the invalidity of the transaction in defence to a suit for its enforcement by the alienee. As limitation applies only to institution of suits, such a plea in defence will not be barred by any lapse of time. However, if possession passed with the alienation, the tarwad has necessarily to institute a suit for recovery of the property within the time allowed by law. in such cases, the sun cannot be for possession merely. The suit must be to set aside the alienation itself with a prayer for possession as a consequential or accessory relief. If possession accompanied the alienation and continued unchallenged with the alienee for a period of twelve years, he gets an indefeasible right to the property.
In a subsequent decision of the same Court, in the case of Santha v. Cherukutty, reported in AIR 1972 Ker 71, V.R. Kishna Iyer, J. (as he then was) discussing the provision of Section 8 (2) and (3) of the Hindu Minority and Guardianship Act, 1956 observed as follows : —
“In the present case, however, we are concerned with a specific statute, namely.
Section 8 of Hindu Minority and Guardianship Act, 1956. It is in disputable that no sanction of the court was taken for the alienation in the present case by the mother acting as the guardian of the minor and, therefore, there is a plain violation of Section 8(2) of the Act. Consequently, Section 8(3) is attracted and the disposal of the property, even though by a natural guardian, becomes voidable at the instance of the minor. Should this process of avoidance be effected by a suit to set aside the alienation, or is it enough if the minor repudiates the transaction by his own act ? I have considered this question in an unreported decision in S. A. No. 683 of 1969 (Ker) and the view (1971 Ker LT (SN) 32) expressed by me there, which, after all the arguments on both sides, I am not inclined to change, is that when a minor is entitled to avoid a transfer effected by his guardian on the ground of absence of permission of the Court, it becomes a nullity on his unilateral act. He can merely avoid it by his conduct and there is no need to file a suit for avoiding the transfer……
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From the language of this provision, read in the light of 1962 Ker LJ177 : AIR 1962 Ker 164 it follows that the alienation in question is voidable at the minor’s instance; rather he can treat it as void without the assistance of the Court.
Once the obligation to institute a suit to set aside the transfer is not there, the decree can be executed by the minor and so, in the present case, the view taken by the courts below that the execution proceedings cannot be instituted by the minor without first getting the sale set aside is untenable. In a sense, the larger question which I have dealt with in the earlier stages of this judgment may not even be necessary to dispose of the short point that arises in this case, covered as it is by the statute, namely, Section 8 of the Hindu Minority and Guardianship Act. I agree that while an alienation by a de facto guardian may be treated by the minor as a nullity the legal position may be different if the alienation is by a legal guardian — going by Madras precedents, particularly although had it been res integra, I might have equated the position with a Kartha’s or Hindu widow’s alienation.
The cases which take the view that a natural guardian’s alienation is good until set aside by court have not considered the impact of Section 8 of the Hindu Minority and Guardianship Act. That statutory provision enables the minor to affirm or disaffirm the transaction without suit…..”
The scope of Article 44 of the Limitation Act, 1908 vis-a-vis Section 28 of that Act is in pari materia with Article 60 and Section 27 respectively of the Limitation Act, 1963. The Calcutta High Court in the case of Lalit Kumar Das Choudhury v. Nagendra Lal Das AIR 1940 Cal 589 held that Article 44 has nothing whatever to do with suits for possession. The only thing which becomes barred at the expiry of the period prescribed by Article 44 is the ward’s right to set aside a transfer. The failure to sue within the time prescribed does not extinguish the right to the property under the provisions of Section 28. In that case it was held that Article 44 applies only where transfer is binding unless set aside by suit.
Recently a Division Bench of this Court took a similar view in O.J.C. No 1035 of 1980 (Prasanna Kumar Pradhan v. Gopal Ch. Sahoo) disposed of on 1st Sept., 1987, Agrawal, C.J. speaking for the court agreed with the view expressed in AIR 1938 Pat 337, AIR 1938 All 369, AIR 1940 Cal 589 and AIR 1972 Ker 71 and differed from the view expressed by him earlier in the case of R.B. Mishra v. State of Bihar, AIR 1983 Pat 250.
The learned counsel for the respondents laid great stress on the observations of the Full Bench of the Punjab and Haryana High Court in the case of Surta Singh v. Pritam Singh, AIR 1983 Punj & Har 114 to the effect that to impeach a transfer of immovable property by the certificated guardian without the permission of a court, the minor must sue within the prescribed period of three years after attaining majority. Once that is so a fortiori it follows that the position of a Hindu minor assailing a similar transaction of his natural guardian is no different and identical considerations would be applicable to the case under Section 8(3) of the 1956 Act. A transfer of immoveable 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. The minor can always avail the benefit thereof and after rectifying or accepting the same enforce the contract. Such a transaction is perfectly valid until duly avoided by the minor. Not only that precedent is unanimous that he can avoid the same only by restoration of any benefits received under such a transfer and if he does not choose to do so, the court would refuse To avoid such a transfer. The principles laid down in this decision are in no way in conflict with those laid down in the various decisions discussed above. The case before the Punjab and Haryana High Court was a suit filed by the minors themselves to recover possession of the property in question. In such a suit, as noticed earlier) the plaintiffs had to pray for setting aside the sale by their certificated guardian. There is no controversy regarding the position that such a suit is governed under Article 6.0 of the Limitation Act, 1963. The decision is not an authority for the proposition that the only way open to the minor to avoid a transfer by his guardian on attaining majority is to file a suit to set aside the transfer,
8.A From the discussions in the foregoing para, the position is manifest that in the present case it was open to the defendants 2 and 3 on attaining majority to avoid the transfer by their father, defendant No. 1, as per Ext. 1 by executing the sale deed as per Ext. A. As noticed earlier, the lower appellate court, the final court of fact, found that Ext. A was executed within three years from the date of attaining majority by defendant 2, the eldest amongst the three minors. The lower appellate court was, therefore, right in holding that the plaintiff could not seek declaration of title on the basis of the sale deed (Ext. 1) which stood repudiated by the aforementioned conduct by defendants 2 and 3. Thus the judgment and decree passed by the lower appellate court are unassailable.
9. The second appeal is, therefore, dismissed, but in the circumstances of the case without any order for costs.