IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 02.02.2010 CORAM: THE HONOURABLE MS.JUSTICE R.MALA S.A.No.215 of 2003 Natarajan .. Appellant Vs. Paramasivam .. Respondent Second Appeal against the judgment and decree dated 8.11.2002 in A.S.No.3 of 2002 on the file of the Principal District Judge at Villupuram, against the judgment and decree dated 30.11.2001 in O.S.No.65 of 1999 on the file of the Principal District Munsif Court at Villupuram. For appellant : Mr.V.Raghavachari For respondent : Mr.N.Suresh JUDGMENT
The Second Appeal is filed by the plaintiff against the judgment and decree dated 8.11.2002 in A.S.No.3 of 2002 on the file of the Principal District Judge at Villupuram, reversing the judgment and decree dated 30.11.2001 in O.S.No.65 of 1999 on the file of the Principal District Munsif Court at Villupuram. 2. The averments in the plaint are as follows:
The suit property originally belongs to the joint family of one Thirunavukkarasu, son of Subburayal Naidu and his three brothers, namely Sathiya Babu, Govindaraju and Nagaraju, in which the said Thirunavukkarasu, as the eldest member of the family, was the Manager. They have sold the suit property to the plaintiff for Rs.2,500/- on 22.9.1986 and he is in possession and enjoyment of the same. The said Thirunavukkarau executed the sale deed for himself and as eo-nominee for the then minor brothers, namely Govindaraju and Nagaraju. The minors, after attaining the majority, have not protested before the time prescribed for the same. The plaintiff also prescribed title by adverse possession as having been in open, continuous, hostile and uninterrupted possession and enjoyment of the same for more than the statutory period of 12 years. Patta also stands in his name. Since it is vacant site, no tax has been levied. The defendant has no right, title or interest in the suit property, but as hostile neighbour, has began to threaten the plaintiff’s peaceful possession and enjoyment. Hence, the plaintiff was constrained to file suit for declaration of title to the suit property and for permanent injunction and prayed for a decree.
3. The gist and essence of the written statement filed by the defendants are as follows:
The property belongs to one Thirunavukkarasu, Sathiya Babu, Govindaraju and Nagaraju. The said Thirunavukkarasu was in fact not the Manager as alleged by the plaintiff. The sale deed in favour of the plaintiff cannot be valid in law. At that time, Govindaraju and Nagaraju were not minors and so, Thirunavukkarasu cannot act on their behalf. The plaintiff is not in possession and enjoyment of the suit property. He has not prescribed title by adverse possession. Govindaraju and Nagaraju conveyed their interest in the property in favour of the defendant on 9.2.1999 for valuable consideration by means of a registered sale deed. The defendant is entitled to the property on the basis of conveyance and as such, it is not correct to state that the plaintiff is entitled to the property. The plaintiff is not in possession of the property. The Court fee paid is not correct. He prayed for dismissal of the suit.
4. The trial Court, after considering the averments both in the plaint and in the written statement, has framed three issues, and considering the oral evidence of P.Ws.1 and 2 and D.Ws.1 and 2 and Exs.A-1 to A-8 and Exs.B-1 to B-4, decreed the suit as prayed for in the plaint. Against that, the defendant preferred appeal. The first appellate Court, after considering the arguments of both counsel, had framed three points for determination and allowed the appeal and set aside the judgment and decree of the trial Court. Against that, the plaintiff has preferred this Second Appeal.
5. At the time of admission of the Second Appeal, the following substantial questions of law were framed for consideration:
“(i) Whether the lower appellate Court was right in dismissing the suit on the basis of Ex.B-3 and Ex.B-4, when the same remain unsubstantiated?
(ii) Whether the lower appellate Court was right in presuming that the birth extracts under Ex.B-3 and Ex.B-4 relate to the vendors of the defendant?
(iii) Whether the lower appellate Court was right in dismissing the suit when more than 12 years had lapsed from the date of sale to the date of filing of the suit?
(iv) Whether the lower appellate Court was right in relying upon Section 8 of the Hindu Minority and Guardianship Act, when the property is a joint family property?
(v) Whether the lower appellate Court was right in dismissing the suit when more than three years had lapsed from the date of majority of the vendors of the defendant?”
6. The appellant as plaintiff filed the suit for declaration of title and injunction stating that the suit property originally belonged to the joint family of one Thirunavukkarasu, son of Subbarayal Naidu and Subbarayal Naidu is having four sons. The eldest son is Thirunavukkarasu and he is the “kartha” of the family, from whom the appellant-plaintiff purchased the suit property on 22.9.1986 and from that date onwards, he is in possession and enjoyment. The respondent-defendant attempted to interfere with his possession. Hence, he prayed for declaration of title and injunction.
7. Resisting the suit, the respondent-defendant filed written statement stating that on the date of Ex.A-1, dated 22.9.1986, Govindaraju and Nagaraju are not minors and Thirunavukkarasu is not the “kartha” of the family and he has no right to execute the sale on behalf of the other co-owners. Per contra, he purchased the property from the said Govindaraju and Nagaraju on 9.2.1999 and from that date onwards, the respondent-defendant is in possession and enjoyment of the property. Hence, he prayed for dismissal of the suit.
8. The trial Court, after framing necessary issues, decreed the suit as prayed for in the plaint. Against that, the respondent-defendant preferred appeal. The first appellate Court set aside the judgment and decree of the trial Court and allowed the appeal. Against that, the present Second Appeal has been filed by the plaintiff.
9. Learned counsel for the appellant-plaintiff would contend that the suit property was originally owned by the joint family of Thirunavukkarau, son of Subbarayal Naidu and the said Thirunavukkarau as “kartha” of the family, was in possession and enjoyment of the same. The said Thirunavukkarasu executed the sale deed in favour of the plaintiff, as per Ex.A-1. From that date onwards, the appellant-plaintiff is in possession. Patta has been changed. House tax receipts stand in the name of the appellant-plaintiff. He is in possession and enjoyment of the property. All of a sudden, in 1999, the respondent-defendant attempted to interfere in plaintiff’s possession. The respondent-defendant claims title under Ex.B-1, dated 9.2.1999, which came into existence after 12 years from the date of Ex.A-1, dated 22.9.1986. The appellant-plaintiff has prescribed title by adverse possession. The right of the appellant-plaintiff’s predecessor-in-title has been extinguished as per Section 27 of the Limitation Act.
10. Learned counsel for the appellant-plaintiff relied upon the decision of this Court reported in 2002 (3) CTC 211 = MANU/TN/1084/2002 (C.Anthonysamy Vs. V.Rajagopal Padayachi and another), stating that the suit is barred by limitation. As soon as the minor attained majority, the suit ought to have been filed within three years from the date of the minor attaining the majority or 12 years from the date of sale, whichever is earlier. Learned counsel for the appellant-plaintiff also relied upon the decision of the Supreme Court reported in 2006 (5) SCC 353 (Prem Singh Vs. Birbal) to show that the document which is void, is liable to be set aside. Learned counsel for the appellant-plaintiff also relied upon the decision of the Supreme Court reported in 2009 (6) SCC 194 = MANU/SC/0238/2009 (Sneh Gupta Vs. Devi Sarup and others) to show that when once the deed is void, the decree based on compromise is required to be set aside, if compromise resulted in grant of decree. Since the plaintiff in the present case, has not filed any suit for cancellation of Ex.A-1, he has not filed the suit for recovery of possession and hence, the respondent-defendant is not entitled to get right over the property. Learned counsel for the appellant-plaintiff prayed for allowing the Second Appeal.
11. Per contra, learned counsel for the respondent-defendant would contend that as per Section 4 of the Hindu. and Minority and Guradianship Act, the brother is neither the natural guardian, nor de-jure guardian and so, he is not entitled to execute the sale deed on behalf of the minor without permission of the Court. He also relied upon the decision of the Supreme Court reported in 2002 (1) MLJ 169 (SC) (Madhegowda Vs. Ankegowda) and argued that if the document is void, it need not be set aside and not barred by limitation. Learned counsel further urged that the appellant-plaintiff has not prescribed title by adverse possession, since he is claiming title only on the basis of Ex.A-1 and his possession is only on the basis of Ex.A-1 and he is not enjoying the property adverse to the interest of the true owner. Hence, the appellant-plaintiff has not prescribed title by adverse possession. Learned counsel for the respondent-defendant also relied upon the decision of this Court reported in 2008 (7) M.L.J. 275 (Veerasekaran Vs. Devarasu) and the decision of the Supreme Court reported in 2008 (15) SCC 673 (Ranganayakamma Vs. K.S.Prakash) and prayed for dismissal of the Second Appeal.
Substantial questions of law (i), (ii) and (iv):
12. The suit property originally belongs to Dharmasivam Naidu, S/o Kuppusamy Naidu. He had two daughters, by name Valli Ammal and Saroja Ammal. He executed a settlement deed in favour of his daughters Valli Ammal and Saroja Ammal under Ex.B-2, dated 7.6.1952. Thirunavukkarasu, Sathiya Babu, Govindaraju and Nagaraju are the children of Valliammal and Subburayal Naidu. Thirunavukkarau, on behalf of his minor brothers, Govindaraju and Nagaraju and the other brother Sathiya Babu, executed a sale deed in favour of the appellant-plaintiff under Ex.A-1. On the basis of Ex.A-1 only, the appellant-plaintiff has come forward with the suit for declaration of title and injunction.
13. It is pertinent to note that the suit property is not a joint family property. It is a separate property, since the vendor of the appellant-plaintiff and the vendor of the respondent-defendant succeeded to the property on the maternal side. Any property derived or inherited from the female line or through the maternal grandparents are collateral and cannot be termed as the character of joint family. So, the suit property is not joint family property. Moreover, there is no evidence to show that the suit property, an extent of 353 Sq.M. = 5 cents in Re-Survey No.74/6 comprised in house-site patta No.67, situated in Arasalpuram Village in Villupuram Taluk, has been joint family property. As already stated, as per Ex.B-2, the suit property has been settled in favour of Valliammal. So, the suit property is only a separate property of Valliammal and so, the four brothers, as heirs, inherited the property from their mother and so, it is not the joint family property. The burden is upon the appellant-plaintiff to prove that the property is joint family property, but he has not let in any oral evidence, except the ipse-dixit of the appellant-plaintiff and the vendor has not been examined before this Court. So, I am of the opinion that the suit property is a separate property of the vendor of both the appellant-plaintiff and the respondent-defendant.
14. The said Thirunavukkarasu, as guardian, executed Ex.A-1 in favour of the appellant-plaintiff on behalf of his minor brothers. In this connection, it is appropriate to consider the relevant provisions of the Hindu Minority and Guardianship Act, which reads as follows:
“Section 4 : Definitions.–In this Act,–
(a) “minor” means a person who has not completed the age of eighteen years;
(b) “guardian” means a person having the care of the person of a minor or of his property or of both his person and property, and includes–
(i) a natural guardian,
(ii) a guardian appointed by the Will of the minor’s father or mother,
(iii) a guardian appointed or declared by a Court, and
(iv) a person empowered to act as such by or under any enactment relating to any Court of Wards;
(c) “natural guardian” means any of the guardians mentioned in section 6.”
“Section 6: Natural guardians of a Hindu minor.– 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;
(b) in the case of an illegitimate boy or an illegitimate unmarried girl–the mother, and after her, the father;
(c) in the case of a married girl–the husband:
Provided that no person shall be entitled to act as the natural guardian of a minor under the provisions of this section–
(a) if he has ceased to be a Hindu, or
(b) if he has completely and finally renounced the world becoming a hermit (vanaprastha) or an ascetic (yati or sanyasi).
Explanation.–In this section, the expressions “father” and “mother” do not include a step-father and step-mother.”
“Section 8: Powers of natural guardian.–(1) The natural guardian of a Hindu minor has power, subject to the provisions of this section, to do all acts which are necessary or reasonable and proper for the benefit of the minor or for the realization, protection or benefit of the minor’s estate; but the guardian can in no case bind the minor by a personal covenant.
(2) The natural guardian shall not, without the previous permission of the Court,–
(a) mortgage or charge, or transfer by sale, gift, exchange or otherwise, any part of the immovable property of the minor; or
(b) lease any part of such property for a term exceeding five years or for a term extending more than one year beyond the date on which the minor will attain majority.
(3) 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.
(4) No Court shall grant permission to the natural guardian to do any of the acts mentioned in sub-section (2) except in case of necessity or for an evident advantage to the minor.
(5) The Guardians and Wards Act, 1890, shall apply to and in respect of an application for obtaining the permission of the Court under sub-section (2) in all respects as if it were an application for obtaining the permission of the Court under section 29 of that Act, and in particular–
(a) proceedings in connection with the application shall be deemed to be proceedings under that Act within the meaning of section 4-A thereof;
(b) the Court shall observe the procedure and have the powers specified in sub-sections (2), (3) and (4) of section 31 of that Act; and
(c) an appeal shall lie from an order of the Court refusing permission to the natural guardian to do any of the acts mentioned in sub-section (2) of this section to the Court to which appeals ordinarily lie from the decisions of that Court.
(6) In this section, “Court” means the City Civil Court or a District Court or a Court empowered under section 4-A of the Guardians and Wards Act, 1890, within the local limits of whose jurisdiction the immovable property in respect of which the application is made is situate, and where the immovable property is situate within the jurisdiction of more than one such Court, means the Court within the local limits of whose jurisdiction any portion of the property is situate.”
15. As per Section 6 read along with Section 8 of the Hindu Minority and Guardianship Act, I am of the opinion that the brother Thirunavukkarasu is not a natural guardian for his minor brothers. Moreover, as per Section 8(2) of the Hindu Minority and Guardianship Ship, the natural guardian shall not, without the previous permission of the Court, mortgage or charge, or transfer by sale, gift, exchange or otherwise, any part of the immovable property of the minor. In the present case, the vendor the appellant-plaintiff, namely Thirunavukkarasu, is not the natural guardian. Without permission from the Court, he is not entitled to sell the property to anybody. So, the first appellate Court in its judgment, dealt with the same elaborately and came to the conclusion that as per Sections 4 and 6 of the Hindu Minority and Guardianship Act, the brother Thirunavukkarasu is not the natural guardian. As per Section 8 of the Hindu Minority and Guardianship Act, the said Thirunavukkarasu is not empowered to alienate the property without the permission of the Court.
16. Section 11 of the Hindu Minority and Guardianship Act deals with “de-facto guardian not to deal with minor’s property”, which reads as follows:
“Section 11: De facto guardian not to deal with the minor’s property.–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.”
17. Thirunavukkarasu, the brother of Govindaraju and Nagaraju, is neither the natural guardian, nor de-jure guardian, or guardian appointed by a Court of law. So, he is only a de-facto guardian. But as per Section 11 of the Hindu Minority and Guardianship Act, he is not entitled to dispose of or deal with the property of a Hindu minor, merely on the ground of himself being the de-facto guardian of the minor. The de-facto guardian can neither be guardian appointed by a Court of law, nor the testamentary guardian. So, as per Section 11 of the Hindu Minority and Guardianship Act, Thirunavukkarasu is not a competent person to execute the sale on behalf of the minor brothers Govindaraju and Nagaraju.
18. Substantial questions of law (i) and (ii) have been raised in respect of Exs.B-3 and B-4 that the birth certificates of Govindaraju and Nagaraju. As per Exs.B-3 and B-4, on the date of execution of Ex.A-1, they are major. But in Ex.A-1, they were described as minors. If they are major as per Exs.B-3 and B-4, the other co-owners are not competent to deal with the property in respect of the share of the other major co-owners. If Exs.B-3 and B-4 are not genuine documents, then as per Ex.A-1, they are minors and in such circumstances, as per Sections 4, 6 and 11 of the Hindu Minority and Guardianship Act, the said Thirunavukkarasu is only de-facto guardian and is not having any right to alienate the property of the minor brothers without proper permission from the Court of law. Admittedly, no permission has been obtained by Thirunavukkarasu, the vendor of the appellant-plaintiff before execution of Ex.A-1 for alienation of the property.
19. This Court has to decide as to whether Exs.B-3 and B-4 are true and genuine documents. It is true that the names of the male children have not been mentioned in Exs.B-3 and B-4, but the parents’ name and address had been given. The first appellate Court, in its jugment, in paragraph 11, has come to the correct conclusion that Exs.B-3 and B-4 relate to the brothers of Thirunavukkarasu, who are the children of Subburayal Naidu and Valliammal. There is no evidence on this point. So, Exs.B-3 and B-4 only relate to Govindaraju and Nagaraju. Ex.A-1 sale deed has been executed on 22.9.1986 and on the date of Ex.A-1, the vendors of Ex.B-1 are major. Hence, Exs.B-3 and B-4 relate to Govindaraju and Nagaraju, who are the vendors under Ex.B-1, i.e. the vendors of the respondent-defendant. The substantial questions of law (i), (ii) and (iv) are answered accordingly.
Substantial questions of law (3) and (5): 20. Learned counsel for the appellant-plaintiff would contend that if the Court comes to the conclusion that Ex.A-1 sale deed is void, it ought to have been set aside. But without setting aside Ex.A-1 sale deed, it was executed and so, no right is conferred on the respondent-defendant. To substantiate the same, learned counsel for the appellant-plaintiff relied on the decision of the Supreme Court reported in 2009 (6) SCC 194 (cited supra) and a decision of this Court reported in 2002 (3) C.T.C. 211 (cited supra).
21. The second limb of argument in this aspect is that Ex.A-1 sale deed was executed on 22.9.1986 and that as per Ex.B-1, Govindaraju and Nagaraju executed the sale deed in favour of the respondent-defendant only on 9.2.1999, i.e. after 12 years of Ex.A-1 and so, the suit is barred by limitation. To substantiate the same, the decision reported in 2002 (3) C.T.C. 211 (cited supra) was relied on and the learned counsel for the appellant-plaintiff submitted that the respondent-defendant ought to have filed the suit for setting aside the sale deed within the period of limitation. Learned counsel for the appellant-plaintiff further urged that the claim of the respondent-defendant is barred by limitation, since the vendors of the respondent-defendant ought to have filed the suit within three years from the date the minor attained majority or within 12 years from the date of execution of Ex.A-1, whichever is earlier. To substantiate the same, the decision of the Supreme Court reported in 2006 (5) SCC 353 (Prem singh Vs. Birbal) was relied on and the relevant portion of 2006 (5) SCC 353 (cited supra) is as follows:
“13. Article 59 of the Limitation Act applies specially when a relief is claimed on the ground of fraud or mistake. It only encompasses within its fold fraudulent transactions which are voidable transactions.”
“15. Section 31 of the Specific Relief Act, 1963 thus, refers to both void and voidable documents. It provides for a discretionary relief.”
“16. When a document is valid, no question arises of its cancellation. When a document is void ab initio, a decree for setting aside the same would not be necessary as the same is non est in the eye of law, as it would be a nullity.” (emphasis supplied)
“18. Article 59 would be attracted when coercion, undue influence, misappropriation or fraud which the plaintiff asserts is required to be proved. Article 59 would apply to the case of such instruments. It would, therefore, apply where a document is prima facie valid. It would not apply only to instruments which are presumptively invalid. (See Unni v. Kunchi Amma (ILR (1891) 14 Mad 26) and Sheo Shankar Gir v. Ram Shewak Chowdhri (ILR (1897) 24 Cal 77).”
22. Learned counsel for the respondent-defendant would further contend that as per Sections 4,6,8 and 11 of the Hindu Minority and Guardianship Act, since the property is inherited from the maternal side and it is a separate property, the brother Thirunavukkarasu is neither the natural guardian, nor de-jure guardian and he is only de-facto guardian as per Section 11 of the Hindu Minority and Guardianship Act and hence, he is not entitled to alienate the property. So, Ex.A-1 is void document and need not be set aside.
23. Learned counsel for the respondent-defendant would contend that even if the Court comes to the conclusion that Exs.B-3 and B-4 are not true, since the property is inherited from the maternal side, it is separate property and the brother, namely Thirunavukkarasu, is not the guardian for the minor brothers. As per Section 11 of the Hindu Minority and Guardianship Act, the de-facto complainant has no right to alienate the property without the permission of the Court. In such circumstances, Ex.A-1 sale deed is void. Learned counsel for the respondent-defendant relied upon the decision of the Supreme Court reported in 2002 (1) M.L.J. 169 (SC) (cited supra) and 2008 (15) SCC 673 (cited supra), which are quoted hereunder:
2002(1)M.L.J.169(SC)(Madhegowda Vs. Ankegodwa):
“20. A Division Bench of the Madras High Court in the case of Dhanasekaran v. Manoranjithammal and others, A.I.R. 1992 Mad. 214, construing Sec.11 of the Act, held, inter alia, that the property of a Hindu minor referred to in Sec.11 will include all his properties; including his undivided interest in the joint family property and consequently that the sale by the de facto guardian of the minor’s interest in the joint family property was void ab initio. The Division Bench approved the decision of the single Judge in this regard. However, the Division Bench did not agree with the view taken by the single Judge that the sale by a de facto guardian of the minor’s interest in the joint family is void and held, “Sec.11 renders the sale voidable only.”
21. We have carefully considered the principals laid down in the aforementioned decisions so far as relevant for the purpose of adjudication of the issue arising in the present case. It is to be kept in mind that this is not a case of alienation of minor’s interest in a ‘joint family property’. As noted earlier, Ninge Gowda died leaving his two daughters, namely Smt.Sakamma and Smt.Madamma. It is not the case of any of the parties that the suit property was a joint family property in the hands of Ninge Gowda or that the alienation by Smt.Madamma, who is the sister of minor, was a transfer of the minor’s interest in the ‘joint family property’. Therefore the question whether the provision in Sec.11 is applicable in the case of transfer of minor’s interest in a joint family does not arise for consideration here. Sec.11 includes all types of properties of a minor. No exception is provided in the Section. Undoubtedly Smt.Madamma, sister of the minor, is not a guardian as defined in Sec.4(b) of the Act. Therefore, she can only be taken to be a ‘de facto guardian’ or more appropriately ‘de facto manager’. To a transfer in such a case Sec.11 of the Act squarely applies. Therefore, there is little scope for doubt that the transfer of the minor’s interest by a de facto guardian/manager having been made in violation of the express bar provided under the Section is per se invalid. The existence or otherwise of legal necessity is not relevant in the case of such invalid transfer. A transferee of such an alienation does not acquire any interest in the property. Such an invalid transaction is not required to be set aside by filing a suit or judicial proceeding. The minor, on attaining majority, can repudiate the transfer in any manner as and when occasion for it arises. After attaining majority if he/she transfers his/her interest in the property in a lawful manner asserting his/her title to the same that is sufficient to show that the minor has repudiated the transfer made by the ‘de facto guardian’/’manager’.”
2008(15) SCC 673 (Ranganayakamma Vs.K.S.Prakash):
“37. The aforementioned findings have a direct bearing on the question as to whether the deed of partition as also the powers of attorney were vitiated by reason of any fraud or mistake on the part of Respondents 1 and 2 herein. It is a well-settled principle of law that a void document is not required to be avoided whereas a voidable document must be. It is not necessary for us to advert to a large number of decisions of this Court and other High Courts on this issue as more or less it is concluded by a decision of this Court in Prem Singh v. Birbal (2006 (5) SCC 353) wherein this Court held: (SCC p.368, para 16):
“16. When a document is valid, no question arises of its cancellation. When a document is void ab initio, a decree for setting aside the same would not be necessary as the same is non est in the eye of law, as it would be a nullity.” ”
24. Now, this Court has to decide as to whether Ex.A-1 is a void document or voidable document. If Exs.B-3 and B-4 are considered to be true and genuine, the brother Thirunavukkarasu has no right to execute Ex.A-1 sale deed in favour of the appellant-plaintiff and in respect of the other two minor brothers-Govindaraju and Nagaraju. Ex.A-1 sale deed shall not bind the share of Govindaraju and Nagaraju. Even if the Court comes to the conclusion that Exs.B-3 and B-4 are not true and genuine, on the date of Ex.A-1, Govindaraju and Nagaraju were minors, and the sale deed executed by Thirunavukkarasu on behalf of his minor brothers, is void, as per Sections 4, 6, 8 and 11 of the Hindu Minority and Guardianship Act. So, I am of the opinion that Ex.A-1 is a void document, since the suit property is not a joint family property and the eldest brother is only a de-facto guardian/de-facto manager and is not having power to alienate the property.
25. At this juncture, it is appropriate to consider the decisions relied upon by the learned counsel for the appellant-plaintiff reported in 2009 (6) SCC 194 (cited supra) and 2002 (3) CTC 211 (cited supra), which are as follows:
2009 (6) SCC 194 = MANU/SC/0238/2009:(Sneh Gupta Vs. Devi Sarup and others):
“42. There cannot be any doubt that even if an order is void or voidable, the same must be set aside, as has been held by this Court in M.Meenakshi v. Metadin Agarwal MANU/SC/8453/2006 : (2006) 7 SCC 470 and Sultan Sadik v. Sanjay Raj Subba MANU/SC/0004/2004 : AIR 2004 SC 1377.”
…..
The limitation, however, in a case of this nature would not begin to run from the date of knowledge.
In State of Punjab and Ors. v. Gurdev Singh MANU/SC/0612/1991 : (1992) I LLJ 283 SC, this Court held:
“10. It will be clear from these principles the party aggrieved by the invalidity of the order has to approach the court for relief of declaration that the order against him is inoperative and not binding upon him. He must approach the court within the prescribed period of limitation. If the statutory time limit expires the court cannot give the declaration sought for.”
….
“45. It the compromise has been accepted in absence of all the parties, the same would be void. But if the same having resulted in grant of a decree, the decree based on compromise was required to be set aside. The compromise may be void or voidable but it is required to be set aside by filing a suit within the period of limitation. (See Mohd. Noorul Hoda v. Bibi Raifunnisa and Ors. MANU/SC/1414/1996 : (1996) 7 SCC 767). Limitation is a statute of repose. If a suit is not filed within the period of limitation, the remedy would be barred. As appellant had appeared in the appeal, as indicated hereinbefore, the first part shall apply. The suit was filed on 28.2.2002, i.e., after a gap of four years. There is no reason as to why the factum in regard to passing of the decree could not have been known in July or soon thereafter.”
…..
“48. …. The compromise decree, as indicated hereinabove, even if void was required to be set aside. A consent decree, as is well known, is as good as a contested decree. Such a decree must be set aside if it has been passed in violation of law. For the said purpose, the provisions contained in the Limitation Act, 1963 would be applicable. It is not the law that where the decree is void, no period of limitation shall be attracted at all.
In State of Rajasthan v. D.R.Laxmi MANU/SC/2073/1996: 1996 (6) SCC 445, this Court held:
“10. The order or action, if ultra vires the power, becomes void and it does not confer any right. But the action need not necessarily be set at naught in all events. Though the order may be void, if the party does not approach the Court within reasonable time, which is always a question of fact and have the order invalidated or acquiesced or waived, the discretion of the Court has to be exercised in a reasonable manner. When the discretion has been conferred on the Court, the Court may in appropriate case decline to grant the relief, even if it holds that the order was void. The net result is that extraordinary jurisdiction of the Court may not be exercised in such circumstances. It is seen that the acquisition has become final and not only possession had already been taken but reference was also sought for; the award of the Court under Section 26 enhancing the compensation was also accepted. The order of the appellate court had also become final. Under those circumstances, the acquisition proceedings having become final and the compensation determined also having become final, the High Court was highly unjustified in interfering with and in quashing the notification under Section 4(1) and declaration under Section 6.”
Yet again, in M.Meenakshi v. Metadin Agarwal MANU/SC/8453/2006 : (2006) 7 SCC 470, this Court held:
“18. It is a well-settled principle of law that even a void order is required to be set aside by a competent court of law inasmuch as an order may be void in respect of one person but may be valid in respect of another. A void order is necessarily not non est. An order cannot be declared to be void in a collateral proceeding and that too in the absence of the authorities who were the authors thereof. The orders passed by the authorities were not found to be wholly without jurisdiction. They were not, thus, nullities.”
Yet again, in Sultan Sadik v. Sanjay Raj Subba MANU/SC/0004/2004 : AIR 2004 SC 1377, this Court held:
“39. An order may be void for one and voidable for the other. An invalid order necessarily need not be non est; in a given situation it has to be declared as such. In an election petition, the High Court was not concerned with the said issue.” ”
2002 (3) CTC 211=MANU/TN/1084/2002:(C.Anthonysamy Vs. V.Rajagopal Padayachi and another)
“23. Recently also, the Apex Court in the decision in Vishwambhar v. Laxminarayana, MANU/SC/0374/2001 had an occasion to consider the scope of Section 8 of the Act 1956 and found that the mother as a natural guardian cannot sell the property of the minors’ share in the joint family property without permission of the court. If it is so sold, it could be avoided by the minors by filing a suit to set aside the sale executed by the mother within the period contemplated under Article 60 of the Limitation Act, that is, within three years from the date when they attained majority.
24. But, Mr.Ragavachari, learned counsel for the respondents, submitted that the mother cannot act as a guardian, and the mother cannot also claim as a natural guardian. In support of his submission, he relied on the judgment of Ratnam,J., as he then was, in the decision in Pattayi Pasdayachi v. Subbaraya Padayachi 1980 (93) L.W. 369. No doubt, in the said decision, the learned Judge has held that even in the absence of father, mother cannot be the natural guardian and so the alienation of the minors’ interest in the joint family property has to be held as void, and so the suit can be sustained within 12 years from the date of such alienation as contemplated under Article 65 of the Limitation Act.
25. But the learned counsel failed to bring to my notice that such decision was held as not a good law, by the Division Bench of this Court in the decision in Dhanasekaran v. Manoranjithammal, MANU/TN/0041/1992. In the said case, a suit was filed by the son to set aside the sale effected by his mother when he was a minor insofar as his undivided share in the joint family property. He also prayed for partition and separate possession of his share. The question raised in that case was whether the said sale was hit by Section 8 of the Act 1956, as no permission was obtained by the mother from the court. While deciding the said issue and appreciating Sections 8, 11 and 12 of the Act, 1956, it was held that Section 8 of the Act 1956 also covers such a case. The said Division Bench held that Section 11 of the Act 1956 is not attracted in the case of minor’s interest in the joint family property. While considering the judgment of Ratnam,J., as he then was, in Pattayi Pasdayachi v. Subbaraya Padayachi 1980 (93) L.W. 369 the said Division Bench of this Court held that the said decision of the learned Judge holding that the term “adult member” contemplates only the case of the male members of a family is not correct, and ultimately held that the view taken by the learned Judge in the decision in Pattayi Pasdayachi v. Subbaraya Padayachi 1980 (93) L.W. 369 is not correct. So the submission of the learned counsel that Kuzhanthaimmal has no right to execute the sale deed as guardian of the minors and so such a sale under Ex.A-2 is void, cannot be countenanced.
26. From the above said decisions it is clear that mother can act not only as a guardian but also such a transfer of interest of minors in the joint family property will come under Section 8 of the Act 1956 and so such a sale without permission of the court is voidable.”
26. Relying on the said decisions in 2009 (6) SCC 194 (cited supra) and 2002 (3) CTC 211 (cited supra), learned counsel for the appellant-plaintiff submitted that a voidable document ought to have been set aside. But the above citations are not relevant, because, in the decision reported in 2009 (6) SCC 194, a compromise decree has been passed in the absence of party to the proceedings and hence, it is void and it ought to have been set aside. But, in the present case, without the knowledge of the minor brothers, Ex.A-1 came into existence and as per law, the brother Thirunavukkarasu is neither the natural guardian, nor the de-jure guardian or the guardian appointed by Court of law. Furthermore, the property is not a joint family property and the property has been acquired only through the maternal side and so, it is separate property of four brothers. So, the eldest brother Thirunavukkarasu has no right to alienate the share of the other two minor brothers. Hence, Ex.A-1 sale deed is void and not voidable document. Void document need not be set aside. Voidable document alone has to be set aside, as per the decisions reported in 2008 (15) SCC 673 and 2002 (1) M.L.J. 169 (SC).
27. Learned counsel for the respondent-defendant has mainly focussed his argument in respect of limitation. As per law, the sale has to be set aside within three years from the date of the minor attaining majority or 12 years from the date of Ex.A-1 sale deed. Ex.A-1 sale deed is dated 22.9.1986. The minor brothers executed Ex.B-1 sale deed on 9.2.1999, which is after 12 years, and so, the suit is barred by limitation and that the appellant-plaintiff has prescribed title by adverse possession. It is the duty of the purchaser before his purchase to verify the title to the property and so, the principles of “caveat emptor” and the legal maxim “qui ignorare non debuit quod jus alienum emit”, which mean “let a purchaser beware; who ought not to be ignorant that he is purchasing the rights of another”, apply. Therefore, the above argument does not hold good, because, Ex.A-1 is a void document and the document need not be set aside. In such circumstances, the argument advanced by learned counsel for the respondent-defendant that the claim is barred by limitation, does not merit acceptance.
28. Learned counsel for the respondent-defendant would also rely upon the decision of this Court reported in 2008 (7) M.L.J. 275 (Veerasekaran Vs. Devarasu) and submitted that the appellant-plaintiff is not entitled to the relief and mere long possession is not adverse possession. Relevant portion of 2008 (7) M.L.J. 275 (cited supra) reads as follows:
“A person who claims title to the property by adverse possession must definitely allege and prove (a) how and when adverse possession commenced, (b) what was the nature of his possession and (c) whether the fact of his adverse possession was known to the real owner.”
“Question of adverse possession is a question of fact. Thus a person who claims title on the basis of adverse possession must establish the same by unequivocal evidence.”
29. The appellant-plaintiff has been in possession of the property only on the basis of Ex.A-1 sale deed. So, he is not in possession of the property adverse to the interest of the true owner and so, the appellant-plaintiff has not prescribed title by adverse possession.
30. As already discussed, Ex.A-1 is a void document. It need not be set aside. Govindaraju and Nagaraju, the brothers of Thirunavukkarasu, have every right to deal with the property. Hence, I am of the opinion that the first appellate Court has considered this aspect and came to the correct conclusion that the appellant-plaintiff has not derived any title under Ex.A-1 in respect of the share of Govindaraju and Nagaraju. Substantial questions of law (iii) and (v) are answered accordingly.
31. In view of the answer given to the substantial questions of law, I am of the opinion that the first appellate Court has considered all the aspects in proper perspective and came to the correct conclusion that Ex.A-1 is a void document in respect of the share of Govindaraju and Nagaraju and it need not be set aside. Since Govindaraju and Nagaraju executed Ex.B-1 sale deed in favour of the respondent-defendant, in respect of their share, the appellant-plaintiff is not entitled to any declaration and injunction as prayed for in the plaint. I am forced to concur with the findings of the first appellate Court. Hence, the judgment and decree of the first appellate Court are liable to be confirmed.
32. In fine,
(a) The Second Appeal is dismissed.
(b) The judgment and decree of the first appellate Court are confirmed.
(c) No costs.
cs
To
1. The Principal District Judge, Villupuram.
2. The Principal District Munsif, Villupuram.
3. The Record Keeper, V.R.Section, High Court,
Madras
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