IN THE HIGH COURT OF KERALA AT ERNAKULAM
SA.No. 267 of 1998(F)
1. PARAMESWARAN PILLAI GOPINATHAN NAIR
... Petitioner
Vs
1. MATHAMMAL KRISHNAMMAL
... Respondent
For Petitioner :SRI.GOPAKUMAR R.THALIYAL
For Respondent :SRI.M.R.ANANDAKUTTAN
The Hon'ble MR. Justice HARUN-UL-RASHID
Dated :09/06/2010
O R D E R
HARUN-UL-RASHID, J.
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S.A.No.267 Of 1998
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Dated this the 9th day of June, 2010.
J U D G M E N T
The defendant in O.S.No.205 of 1989 on the file of the
Principal Munsiff Court, Nedumangad is the appellant. The suit
was filed for declaration and partition. The trial court passed a
preliminary decree declaring plaintiff’s right to partition 1/5 share
by metes and bounds over suit property on paying proportionate
redemption price and declaring that the plaintiff is entitled to
mesne profits from the date of possession. The appeal preferred
by the appellant/defendant is dismissed confirming the judgment
and decree passed by the trial court. Parties are hereinafter
referred to as the plaintiff and defendant as arrayed in the suit.
2. Admittedly, the plaintiff’s father executed a sale deed
for and on behalf of the plaintiff to the first defendant as per
document No.576/36/67 in the year 1967 marked as Ext.B2. At
the time of execution of Ext.B2 sale deed the plaintiff was a
minor. It is contended by the plaintiff that the sale deed is not
binding on the plaintiff and it is not supported by consideration to
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the extent of the share of the plaintiff. It is contended that the
sale deed executed in favour of the plaintiff is void and that he is
entitled to partition and separate possession of his 1/5 share
ignoring the sale deed. The suit was filed to declare Exts.A1 & B2
sale deeds as void ab-initio and for partition and separate
possession of 1/5 share. The defendant resisted the suit and
prayed for dismissal of the suit. The appellant/defendant inter
alia contended that the suit is barred by limitation; the sale deed
was executed by the guardian of the plaintiff for valid
consideration and therefore the plaintiff is not entitled to any
share and therefore the plaintiff is not entitled to relief for setting
aside the sale deed and claim 1/5 share.
3. The trial court held that Ext.B2 sale deed executed on
behalf of the plaintiff is void and the court further held that since
the sale deed is a void document, Article 60 of the Limitation Act
will not apply. In that premise a decree was passed by the trial
court. The appellate court confirmed the findings of the trial
court and dismissed the appeal. There is no discussion by the
trial court nor any finding recorded that Exts.A1 & B2 sale deeds
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are void. Learned counsel for the appellant brought to the notice
of this Court Section 8(3) of the Hindu Minority and Guardianship
Act, 1956. Section 8(3) reads follows:
“8. Powers of natural guardian.-
(1) The natural guardian of 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 realisation, 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
by any person claiming under him.”
S.A.No.267 Of 1998
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Article 60 of the Limitation Act mandates that a suit to set aside
a transfer of property made by the guardian of a ward shall be
filed by the ward who has attained majority within three years of
his attaining majority. Admittedly, the suit was filed beyond
three years and at the time of filing the suit the plaintiff was aged
27 years. Since the plaintiff did not approach the court of law
within the time limit prescribed under the Limitation Act the suit
is barred by limitation. Learned counsel for the appellant also
brought to the notice of this Court the decisions reported in
Ramadas Menon v. Sreedevi (2004(1) KLT 323),
Vishwambhar and Others v. Laxminarayan and Another
(2001(6) SCC 163) and M.C.Mehta v. Union of India and
Others (2004(8) SCC 784).
4. The suit was filed when the plaintiff attained the age of
27, more than 9 years after attaining majority. Therefore, the
suit is barred by limitation. Since the suit is barred by limitation
the other contentions of the plaintiff ought not have been
considered by the trial court and the suit ought to have dismissed
as barred by limitation. In the light of the provisions quoted
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above and the decisions reported above, the suit itself is barred
by limitation. In the circumstances, the plaintiff is not entitled to
any reliefs claimed in the plaint.
In the result, the appeal is allowed. The judgment and
decree passed by the court below is set aside and the suit stands
dismissed. There will be no order as to costs.
HARUN-UL-RASHID,
Judge.
bkn/-