IN THE HIGH COURT OF JUDICATURE AT MADRAS
Dated: 27/01/2006
Coram
The Hon'ble Mr.Justice N.PAUL VASANTHAKUMAR
Second Appeal No.278 of 1993
1. Thiruvenkada Gounder (died)
2. Rajambal
3. T.Dharman
4. Unnamalai ... Appellants
(Appellants 2 to 4 brought on record
as LRs of the deceased sole appellant
vide orders of the Court dated 25.8.2005
in C.M.P.Nos.16946 to 16948 of 2004)
-Vs-
1. Ammaiappan @ Kothandaraman
2. Minor Balakrishnan
(through Guardian mother and
next friend Krishnaveni Ammal)
3. Sundaram
4. Elumalai ... Respondents
This second appeal has been filed under Section 100 of Code of Civil
Procedure against the judgment and decree dated 7.1.1992 in A.S.No.5 5 of 1990
on the file of the Sub Court, Tindivanam, reversing the judgment and decree
dated 9.8.1990 in O.S.No.646 of 1985 on the file of the Additional District
Munsif Court, Tindivanam.
!For Appellants : Mr.R.Ashokan
^For Respondents 1&2 : Mr.T.Dhanasekaran
for Mr.N.Maninarayanan
For 3rd Respondent : Mr.J.Sivaganesh
:J U D G M E N T
First defendant in O.S.No.646 of 1985 on the file of the Additional
District Munsif Court, Tindivanam, aggrieved by the judgment and decree of the
learned Subordinate Judge, Tindivanam in A.S.No.55 of 1990 dated 7.1.1992,
filed the present second appeal. During pendency of the second appeal, the
first defendant died and hence his legal representatives were impleaded as
appellants 2 to 4 vide orders of this Court dated 25.8.2005 in C.M.P.Nos.16946
to 16948 of 2004. Plaintiffs 1 and 2 and defendants 2 and 3 in the original
suit are respondents herein.
2. The facts that are necessary for the disposal of the second
appeal, as could be seen from the plaint and written statement, are as
follows.
(a) The suit properties originally belonged to the joint family
consisted of one Hariputhiri Gounder, the grandfather of the plaintiffs, and
his sons Munusamy Gounder and Elumalai Gounder, the third defendant in this
suit. In an oral partition, the western half of item No.1 of the suit
property was allotted to the elder brother Munusamy Gounder and the eastern
half was allotted to the third defendant Elumalai Gounder and they were
enjoying their respective properties by paying kist, etc., separately. The
suit second item is a well which was being enjoyed in common. The said
Munusamy Gounder, by registered sale deed dated 27.7.1972, sold his share of
western half of item No.1 in favour of one Dharmasivam, son of the first
defendant. Subsequently, by the registered exchange deed dated 29.8.1972,
first defendant on behalf of his minor son, and the third defendant on his
behalf and on behalf of his minor son Kothandaraman, the first plaintiff
herein, exchanged their respective shares in item No.1 of the suit property.
From that date onwards, according to the pla intiffs, the entire extent of
item No.1 was in the enjoyment of the joint family consisting of the third
defendant Elumalai Gounder and his sons, the plaintiffs herein. Elumalai
Gounder had also erected a cattle shed spending Rs.2,000/- in that property.
The second defend ant is the Uncle’s son of Krishnaveni Ammal, the mother of
the plaintiffs and he is close to the third defendant Elumalai Gounder, father
of the plaintiffs. He, taking advantage of the weaknesses of the third
defendant and with ulterior motive, got a sale deed registered in his favour
on 28.11.1984 in respect of the suit properties. Subsequently, the second
respondent secretly and in a hurried manner, created another sale deed dated
4.12.1984 to appear as if the suit properties were sold to the first
respondent. As the documents were created behind the back of the plaintiffs
and against the welfare of the joint family of the plaintiffs, the same will
not bind the plaintiffs. It is the further alleged in the plaint that taking
advantage of the alleged sale deed dated 4.1 2.1984, the first defendant on
12.3.1985 entered into the suit property and attempted to heap the hayricks
and tie his cattles in the cattleshed, which was prevented by the plaintiffs.
The first defendant, using his money and muscle power, prevented even the
plaintiffs to tie their cattles in the cattleshed. As the third defendant
acted against the interest of the plaintiffs, they filed the suit for
partition to divide the suit property into three equal shares and to allot
2/3rd share to them and also claiming Rs.30/- per months towards loss of rent
in respect of their 2/3rd share from the date of suit till payment.
(b) In the written statement filed by the first defendant, he
admitted that there was an oral partition between the third defendant and his
elder brother Munusamy Gounder with regard to suit item No.1; that the
Munusamy Gounder sold his share of the property to the first defendant; that
the first and third defendants exchanged their respective share of the
properties; and that, in view of the said exchange, the third defendant became
entitled to the entire extent of suit item No.1. But the allegations in the
plaint that the third defendant against the welfare of the joint family of the
plaintiffs, without any necessity and misdirected by the second defendant,
sold the suit properties to the second defendant and later the second
defendant secretly and hurriedly created a forged sale deed on 4.12.1984, are
categorically denied. According to the first defendant, neither the
plaintiffs nor the third defendant could claim any right over the suit
properties. The case of the first defendant is that during November, 1984,
for the joint family necessity and to purchase oil engine, the third defendant
required funds and for the said purpose, he requested the first defendant to
purchase the suit properties for valid consideration, for which the first
defendant gave his consent. To that effect, third defendant on his own behalf
and on behalf of his minor sons, entered into an oral agreement with the first
defendant on 24.11.1984 for a total consideration of Rs.5,250/- and obtained
Rs.2,550/- as advance and delivered possession of the suit properties on that
day itself. From that date onwards the first defendant is in possession and
enjoyment of the suit properties. Two days later, the balance amount of
Rs.2700/- was also obtained by the third defendant, with an undertaking to
execute the sale deed at a later date. But contrary to the said oral
agreement, the third defendant colluding with the second defendant, forged a
sale deed dated 28.11.1984 to appear as if the suit properties were sold to
the second defendant. On coming to know this, first defendant enquired into
the matter and the second defendant executed a sale deed dated 4.12.1984 in
favour of the first defendant in respect of the suit properties. The further
case of the first defendant is that the third defendant without acting upon
the agreement dated 24.11.1984, with a view to cheat the first defendant, in
the name of his minor sons, the plaintiffs herein, filed the present suit.
The mother of the plaintiffs Krishnaveni Ammal knows about the agreement
between the first and third defendants and hence she cannot sustain the case
on behalf of her minor sons, the plaintiffs herein. The first defendant also
denied any incident on 12.3.1985 as alleged in the plaint. In fact, in the
suit item No.1, there is no cattle shed but there is only a thatched hut,
wherein one Annammal, the wife of the Munusamy Gounder is residing from
6.12.1984 by paying monthly rent of Rs.5/- to the first defendant. The said
Annammal is a necessary party to this suit and as she was not impleaded, the
suit is bad for non-joinder of necessary party. There is no cause of action
for the suit and the cause of action alleged in the plaint is an imaginary
one. Neither the plaintiffs, nor the third defendant have any manner of right
over the suit properties, and consequently the plaintiffs cannot sustain the
suit for the reliefs asked for.
3. During trial, the mother of the minor Plaintiffs Krishnaveni
Ammal was examined as PW-1 and one Krishnan was examined as PW-2. On behalf
of the plaintiffs, Exs.A-1 to A-5 were marked. The first defendant examined
himself as DW-1 and one Ramachandra Gounder and Subbaraya Mudaliar were
examined as DWs.2 and 3. Through them, Exs.B-1 to B-6 were marked. After
considering the entire case in the light of the evidence placed before it, the
Trial Court by its judgment dated 9.8.1990, came to the conclusion that the
plaintiffs were not entitled to get any relief as claimed in the plaint and
consequently dismissed the suit.
4. Aggrieved by judgment and decree of the Trial Court, the
plaintiffs preferred A.S.No.55 of 1990 on the file of the Sub Court,
Tindivanam. The learned Sub Judge, after reassessing the entire case and the
materials available on record, by his Judgment dated 7.1.1992 allowed the
appeal and set aside the decree and judgment of the trial Court.
5. The first defendant, not satisfied with the reversal of the
judgment and decree of the Trial Court by the first appellate Court, filed the
present second appeal. The second appeal was admitted on the following
substantial questions of law,
“1. Whether the lower appellate Court is right in allowing the
suit for partial partition by minor-plaintiff, when there is no evidence that
the partition is for the benefits of minor or for his interest ?
2. Whether the lower appellate Court is right in decreeing the
suit, when the sale is for the legal necessity and for the benefit of the
estate of the joint family ?”
6. Mr.R.Asokan, learned counsel appearing for the appellants/
defendants contended that the third defendant, only for the benefit of his
minor sons, on his own behalf and on behalf of the minors, entered into oral
agreement on 24.11.1984 with the first defendant agreeing to sell the suit
lands for a total consideration of Rs.5,250/- and obtained Rs.2,550/- as
advance and delivered possession of the suit properties on that day itself and
from the said date, the first defendant is in possession and enjoyment of the
suit properties. He also argued that the balance amount was paid within two
days thereafter with an undertaking to execute the sale deed at a later date.
The learned counsel for the appellants/first defendant further submitted that
the third defendant, without acting upon the oral agreement dated 24.11.198 4,
with a view to cheat the first defendant filed the present suit, in the name
of his minor sons.
7. The learned counsel for the respondents/plaintiffs on the
other hand contended that the first defendant has no right whatsoever to enter
into the agreement with the third defendant as he is not owner of the property
and his case that on behalf of the minors he had entered into an oral
agreement, will not hold good in view of the fact that he had not obtained
permission from the Court as required under Section 8(2) of the Hindu Minority
and Guardianship Act, 1956 and in the absence of any such permission, the
alleged agreement for sale cannot be sustained and the suit is to be decreed
as prayed for and consequently the second appeal is liable to be dismissed.
8. I have considered the rival submissions made by the learned
counsel for the appellants as well as the respondents. The point for
consideration is as to whether the third defendant is entitled to enter into
an agreement for sale in respect of his minor sons’ share in view of the
specific bar contained in section 8(2) of the Hindu Minority and Guardianship
Act, 1956.
9. Section 8 of the Hindu Minority and guardianship Act, 1956
deals with the powers of the natural guardian. Sub-section (2) to section 8
reads as under,
“8(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.”
Admittedly, the third defendant had not obtained any permission from the Court
as required under Section 8(2) of the Act. The only contention raised by the
first defendant is that the sale agreement was entered into for raising funds
for the legal necessity of the joint family and for the benefit of minor
plaintiffs. On the contrary, the contention of the learned counsel for the
respondents/plaintiffs is that the third defendant was a drunkard, leading
immoral life and the sale agreement to the first defendant and the sale deed
to the second defendant were executed by him, while he was under intoxication
and no consideration was passed thereon. The character of the third defendant
viz., the father of the plaintiffs, as found by the lower appellate Court is
that he was a drunkard and was leading immoral way of life. As rightly
contended by the learned counsel for the respondents 1 and 2, the third
defendant, having not obtained permission from the Court to sell the property
of his minor sons viz., Plaintiffs as required under section 8(2) of the Act,
the same is voidable and consequently the suit filed by the mother on behalf
of the minor plaintiffs is clearly maintainable.
10. The Honourable Supreme Court in the decision reported in 2002
(4 ) Law Weekly 330 (Madhegowda (D) by Lrs. v. Ankegowda (D) by Lrs &
Others) in paragraphs 10, 11 and 12 held as under,
“10. … In Sub-section (1) of Section 8 it is declared that the
natural guardian of a Hindu minor has power, subject to the provisions of the
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 in no case can bind the minor by a personal
covenant.
11. In Sub-section (2) of Section 8 it is laid down that 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.
12. In sub-section (3) in which the consequences of contravention
of sub-section (1) or sub-section (2) are provided it is laid down that “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”.”
11. In the case on hand, it is not the case of the third
defendant, that he had obtained prior permission from the Court to deal with
the properties of the minor sons. Further it is not proved that the minors’
property was dealt with for the benefit of the minors themselves. Hence this
Court is of the view that the judgment of the lower appellate Court is correct
and the dismissal of the suit by the trial Court is unsustainable.
12. In the result, the second appeal is dismissed and the judgment
and decree of the lower appellate Court is confirmed. No costs.
vr
To
1. The Subordinate Judge, Tindivanam.
2. The Additional District Munsif, Tindivanam.