IN THE HIGH COURT OF KERALA AT ERNAKULAM
SA.No. 16 of 1997(B)
1. VELAYUDHAN
... Petitioner
Vs
1. RAMACHANDRAN
... Respondent
For Petitioner :SRI.N.P.SAMUEL
For Respondent :SRI.K.S.BABU
The Hon'ble MR. Justice P.BHAVADASAN
Dated :28/05/2010
O R D E R
P. BHAVADASAN, J.
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S.A. No. 16 of 1997
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Dated this the 28th day of May, 2010.
JUDGMENT
The defendant in O.S.216 of 1989 before the
Munsiff’s Court, Wadakkancherry, who suffered a decree
at the hands of the first appellate court is the appellant.
The parties and facts are hereinafter referred to as they
are available before the trial court.
2. The suit was one for partition in respect of
25 cents of property comprised in Sy. No.602/1 of
Choondal village. It is claimed that the property was
jointly owned by the plaintiff and defendants 1 to 3.
According to the plaintiff, the property was purchased in
the name of the second defendant and the father,
Narayanan Nair, as guardian of the present plaintiff and
deceased Madhavan and third defendant, who were then
minors. Madhavan died unmarried and his sole legal heir
is the first defendant mother. Father of the plaintiff was
S.A.16/1997. 2
also no more. Plaintiff claimed that he had attained
majority. He found that the fourth and sixth respondents are
in possession of certain portions of the property. They have
no manner of right over the suit property. To the notice
sent, they have sent a reply notice containing false
allegations. The plaintiff does not wish to continue the joint
possession and he seeks partition. He claims one fourth
share.
3. The first defendant filed a written statement
supporting the plaintiff. The second defendant resisted the
suit. In her written statement, it was pointed out that the
plaintiff was very sick at the time of infancy and his father
had to raise money for his treatment. The suit property was
therefore assigned by the father for valid consideration as
they had no means to raise the funds. Plaintiff is fully aware
of the same. The entire sale consideration received was
utilized for the treatment of the plaintiff. After the death of
Sethumadhavan, it is claimed that father and the plaintiff
accompanied the second defendant to Allahabad, where her
S.A.16/1997. 3
husband was employed. Pointing out that the plaintiff is not
entitled to any relief, she prayed for a dismissal of the suit.
The third defendant chose to remain ex-parte.
4. Defendants 4 and 5 also resisted the suit. They
claimed that by virtue of Ext.B1 dated 5.5.1967 they have
absolute right over the suit property. At the time when the
assignment was made, the plaintiff had no manner of right
over the suit property. The plaintiff has not mentioned the
date on which he had attained majority. His father who was
the natural guardian at the relevant time has executed the
deed on his behalf also. Sale consideration was utilized for
the benefit and interest of the plaintiff. They have also
pointed out that without having the sale deed set aside, the
plaintiff could not seek partition. In addition, they
contended that they perfected title by adverse possession
and limitation. They pointed out that a residential building
has been put up by them and they had effected
improvements in the property. In case the court found that
the plaintiff is entitled to a share, they claimed value of
S.A.16/1997. 4
improvements. Under those circumstances, they prayed for
a dismissal of the suit.
5. The trial court raised necessary issues for
consideration. The evidence consists of the testimony of
P.W.1 and the documents marked as Exts. A1 to A5 from the
side of the plaintiff. The defendants had D.Ws. 1 and 2
examined and Exts. B1 and B2 marked. Ext.C1 is the
commission report.
6. The trial court found that the plaintiff was a
minor at the time of assignment as per Ext.B1. It also
formed an opinion that on attaining majority within three
years the plaintiff had to assail the assignment deed. Since
he has not done so his claim is barred and accordingly
dismissed the suit.
7. The plaintiff carried the matter in appeal as
A.S. 219 of 1993. The appellate court concurred with the
trial court as regards the fact that the plaintiff was a minor
at the time of execution of Ext.B1. But the court was of the
opinion that the suit having been brought within 12 years of
S.A.16/1997. 5
the date of assignment, the suit is not barred by limitation.
Accordingly the judgment and decree of the trial court was
reversed and a preliminary decree was passed. The said
judgment and decree are assailed in this Second Appeal.
8. A very narrow question arises for consideration
in this Second Appeal. The issue is whether the plaintiff was
obliged to assail the sale deed, namely, Ext.B1, in favour of
defendants 4 and 5 within three years of attainment of
majority or whether he could take the aid of 12 years from
the date of assignment deed to establish his claim. The trial
court pointed out that the plaintiff had to set aside the sale
deed within three years of attaining majority and the lower
appellate court was of the opinion that he could take the aid
of Article 65 of the Limitation Act. The trial court chose to
dismiss the suit, while the appellate court decreed the suit.
9. Before going into the other circumstances, it is
useful to refer to the statutory provisions applicable to the
facts of the case. The statutory provisions applicable are
Section 8 of the Hindu Minority and Guardianship Act, 1956
S.A.16/1997. 6
(Act 32 of 1956), Sections 29 and 31 of the Guardians and
Wards Act, 1890 (Act 8 of 1890), Section 6 of the Limitation
Act and Articles 60 and 65 of the Limitation Act. The
provisions read as follows:
Section 8 of the Hindu Minority and Guardianship Act, 1956
(Act 32 of 1956) reads as follows:
“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
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.
S.A.16/1997. 7
(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 (8 of
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 Sec. 29 of the Act, and in
particular,-
(a) proceedings in connection with the
application shall be deemed to be proceedings
under that Act within the meaning of Sec.4A
thereof.
(b) the court shall observe the procedure
and have the powers specified in sub-sections (2),
(3) and (4) of Sec.31 of that Act; and
) 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)
S.A.16/1997. 8
of this section to the Court to which appeals
ordinarily lie from the decisions of that Court.
(6) In this Section, “Court” means the Civil Civil
Court or a District Court or a Court empowered
under Sec.4-A of the Guardians and Wards Act,
1890 (8 of 1890), within the local limits of whose
jurisdiction the immoveable property in respect of
which the application is made is situate, and
where the immoveable 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.”
Sections 29 and 31 of the Guardians and Wards Act, 1890
(Act 8 of 1890) read as follows:
“29. Limitation of powers of guardian of
property appointed or declared by the
Court.- Where a person other than a Collector or
than a guardian appointed by will or other
instrument, has been appointed or declared by the
Court to be guardian of the property of a ward, he
shall not without the previous permission of the
Court, –
S.A.16/1997. 9
(a) mortgage or charge or transfer by sale,
gift, exchange or otherwise, any part of the
immovable property of his ward, or
(b) lease any part of that property for a term
exceeding five years or for any term extending
more than one year beyond the date on which the
ward will cease to be a minor.
xxxxx xxxxx
31. Practice with respect to permitting
transfers under Sec. 29.- (1) Permission to the
guardian to do any of the acts mentioned in
Sec.29 shall not be granted by the Court except in
case of necessity or for an evident advantage t0o
the ward.
(2) The order granting the permission shall
recite the necessity or advantage, as the case
may be, describe the property with respect to
which the act permitted is to e done, and specify
such conditions, if any, as the Court may see fit to
attach to the permission; and it shall be recorded,
dated and signed by the Judge of the Court with
his own hand, or, when from any cause he is
prevented from recording the order with own
hand, shall be taken down in writing from his
dictation and be dated and signed by him.
S.A.16/1997. 10
(3) The Court may in its discretion attach to
the permission the following among other
conditions, namely:
(a) that a sale shall not be completed
without the sanction of the Court;
(b) that a sale shall be made to the highest
bidder by public auction before the Court or some
person specially appointed by the Court for that
purpose, at a time and place to be specified by the
Court, after such proclamation of the intended
sale as the Court subject to any rules made under
this Act by the High Court, directs;
) that a lease shall not be made in
consideration of a premium or shall be made for
such term of years and subject to such rents and
covenants as the Court directs;
(d) that the whole or any part of the
proceeds of the act permitted shall be paid into
the Court by the guardian, to be disbursed
therefrom or to be invested by the Court on
prescribed securities or to be otherwise disposed
of as the Court directs.
(4) Before granting permission to a guardian
to do an act mentioned in Sec.29, the Court may
cause notice of the application for the permission
S.A.16/1997. 11
to be given to any relative or friend of the ward
who should, in its opinion receive notice thereof,
and shall hear and record the statement of any
person who appears in opposition to the
application.”
Section 6 of the Limitation Act reads as follows:
“6. Legal disability.- (1) Where a person
entitled to institute a suit or make an application
for the execution of a decree is, at the time from
which the prescribed period is to be reckoned, a
minor or insane, or an idiot, he may institute the
suit or make the application within the same
period after the disability has ceased, as would
otherwise have been allowed from the time
specified therefor in the third column of the
Schedule.
(2) Where such person is, at the time from
which the prescribed period is to be reckoned,
affected by two such disabilities, or where, before
his disability has ceased, he is affected by another
disability, he may institute the suit or make the
application within the same period after both
disabilities have ceased, as would otherwise have
been allowed from the time so specified.
S.A.16/1997. 12
(3) Where the disability continues up to the
death of that person, his legal representative may
institute the suit or make the application within
the same period after the death, as would
otherwise have been allowed from the time so
specified.
(4) Where the legal representative referred
to in sub-section (3) is, at the date of the death of
the person whom he represents, affected by any
such disability, the rules contained in sub-sections
(1) and (2) shall apply.
(5) Where a person under disability dies
after the disability ceases but within the period
allowed to him under this section, his legal
representative may institute the suit or make the
application within the same period after the
death, as would otherwise have been available to
that person had he not died.
Explanation.- For the purposes of this
section, ‘minor’ includes a child in the womb.”
S.A.16/1997. 13
Articles 60 and 65 of the Limitation Act read as follows:
“60.To set aside a transfer of
property made by the guardian
of a ward-
(a) by the ward who has Three years When the ward attains
attained majority; majority.
(b) by the ward’s legal
representative-
(i) when the ward dies -do- When the ward attains
within three years from the date majority.
of attaining majority;
(ii) when the ward dies -do- When the ward dies.
before attaining majority.
xxxxx xxxxx
65. For possession of immovable Twelve years When the possession
property or any interest therein of the defendant
based on title. becomes adverse to
the plaintiff.
Explanation.-For the purposes
of this article-
(a)where the suit is by a
remainderman, a reversioner
(other than a landlord) or a
devisee, the possession of the
defendant shall be deemed to
become adverse only when the
estate of the remainderman,
reversioner or devisee,as the case
may be, falls into possession;
(b)where the suit is by a Hindu or
Muslim entitled to the possession
of immovable property on the death
of a Hindu or Muslim female, the
possession of the defendant shall
be deemed to become adverse
S.A.16/1997. 14
only when the female dies;
) where the suit is by a purchaser
at a sale in execution of a decree when
the judgment-debtor was out of
possession at the date of the sale,
the purchaser shall be deemed to be a
representative of the judgment-debtor
who was out of possession.
10. Section 8 of the Hindu Minority and
Guardianship Act deals with the powers of natural guardian
in respect of properties of the minor. The provisions which
are relevant for the present purpose are Sections 8(2) and
8(3). On a reading of the provisions, it can be seen that the
natural guardian shall not, without the previous sanction of
the court, assign the property belonging to the minor.
Section 8(3) says that if the above provision is violated, then
the assignment becomes voidable at the instance of the
minor. It may be noticed that Section 8 makes provision of
the Guardian and Wards Act (Act 8 of 1890) applicable to the
proceedings under Act 32 of 1956. Sections 29 and 31 of
Act 8 of 1980 gives the procedure when a guardian applies
for assignment of a minor’s property. These provisions are
S.A.16/1997. 15
not very relevant in the present context. It is not necessary
to refer it extensively.
11. Section 6 of the Limitation Act deals with a
case where the person, who is entitled to institute a suit is
under a disability. As far as the provision is applicable to the
present case, it could be said that going by Section 6 the
plaintiff has three years period, that is till 21 years of age, to
assail Ext.B1. One may remember that even going by
Section 8 of Act 32 of 1956 the assignment is only voidable
at the instance of the minor. Article 60 provides a period of
three years to a ward to set aside the transfer made by his
guardian. It is three years from the date of attainment of
majority. Article 65 provides for possession of immovable
property or any interest therein based on title. It provides
12 years period when the possession of the defendant
becomes adverse to that of the plaintiff. It is well settled
that going by Article 65, the plaintiff is able to establish title
to the suit property then the plea of adverse possession and
S.A.16/1997. 16
limitation will have to be established by the defendants
concerned.
12. The issue that arises for consideration is
whether it is obligatory on the part of the minor to have the
sale deed, ie., Ext.B1 set aside or can he simply avoid it.
13. There is a clear distinction between ‘void’ and
‘voidable’. It may be remembered that the expression ‘void’
itself has several facets. It may be ab initio void. It may be
that the procedural requirements are not followed and hence
void and such other matters. It has been held that the word
‘void’ has a relative rather than an absolute meaning.
‘Voidable’ on the other hand means that the transaction is
good as long as it is not set aside. Voidable transaction
cannot be treated as non-est. If the voidable transaction is
not avoided through the known means of law, it remains
good. One may recall that going by Section 8(3) of Act 32 of
1956 the transaction is voidable.
14. One may recollect here that Article 60
provides three years period from the date of attaining
S.A.16/1997. 17
majority to have the transaction entered into by the
guardian on his behalf set aside. Therefore, if as a matter of
fact on a combined reading of Section 6 and Article 60 of the
Limitation Act, if setting aside of the document assailed is
essential, then obviously the suit filed by the plaintiff in the
present case is barred by limitation.
15. The court below has chosen to rely on the
decision reported in Santhosh Kumar v. Varghese (1987
(2) KLT 27). It is true that in the said decision it was held as
follows:
“S.8 of the Hindu Minority and Guardianship
Act enumerates the powers of a natural guardian.
S.8(1) reads:
“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.”
Sub.s.(2) of the Act prohibits the natural guardian
from mortgaging, charging or transferring the
S.A.16/1997. 18
minor’s property without permission of the court.
S.8(3) stipulates that any disposal of immovable
property by a natural guardian, in contravention of
sub-s. (1) or sub-s.(2), is voidable at the instance
of the minor or any person claiming under him.
S.8(4) mandates the court not to grant permission
to the natural guardian to do any of the acts
mentioned in sub-s. (2) except in case of necessity
or for an evident advantage to the minor. Thus it
is manifestly clear that under S.8 of the Act
property of the minor can be alienated, mortgaged
or leased or gifted only for his evident advantage
or necessity and the court’s permission is a
condition precedent. Any transaction by a natural
guardian of the immovable property of the minors
without permission of the court will not have any
legal force and would not be binding on the
minors.”
In the decision reported in Sreedharan v. Prasanna (1996
(2) KLT 784 (SC)) it was held as follows:
“It would be obvious that sine the
mandatory requirement of sanction from the Court
for alienating the property of the minor, as
required under S.8 of the Hindu Minority and
S.A.16/1997. 19
Guardianship Act, had not been obtained, the
contract of sale to the extent of the half share of
the minor is void and it does not bind the minor.
The Courts have rightly declined to exercise
discretion on sound principle of law to protect the
estate of the minor.”
In the decision reported in Kunhiraman v. Vanaja (1997(2)
KLT 5), it was held as follows:
“We do not think that S.8(3) of the Act in any
manner whittles down the scope or operation of
S.892) of the Act. S. 8(3) of the Act only clarifies
that the person who is entitled to treat the
transaction as void is only the minor or any person
claiming under him. According to us, S. 8(3) only
indicates that the guardian who had sold his own
interest alongwith that of the minor without the
consent of the court or any other alienor who was
suir juris, would not be in a position to turn round
and contend that the sale effected by him of his
own interest or share is also void or invalid. The
object of S.8(3) of the Act, according to us, is not
to whittle down the scope of S.8(2) of the Act but
only to clarify that the right to treat the
transaction as void is available only to the minor
S.A.16/1997. 20
whose property is sold by the natural guardian
without permission of the court or to a person who
is claiming under that minor. Thus, understood,
S.8(3) cannot be relied on to hold that a
transaction in contravention of the mandate of S.8
(2) of the Act, is only voidable and not void.”
In Moidu Haji v. Kunhabdulla (1998(2) KLT 691) it was
held as follows:
“In the property exclusively belonged to a
Mohammedan minor and the same had been
alienated by a person who was not his legal
guardian, the said transaction would be void and
applying Art.65 of the Limitation Act and in the
light of Ss.6 and 8 of the Act, the suit had to be
instituted by the quondam minor within three
years of his attaining majority or within 12 years
of the transaction itself. The alienation effected
by the Mohammedan co-owners including the
defecto guardian of the minor plaintiff, has to be
considered altogether void? If it were to be
considered void altogether void, that is to say, as
not being capable of conveying even the rights of
the Mohammedan co-owners who were competent
S.A.16/1997. 21
to execute the sale deed, the position would be
the same as a case where a Mohammedan minor
is the exclusive owner of the property and an
alienation is effected on his behalf by a defacto
guardian and the alienation is treated as void. In
that case, the suit by the Mohammedan quondam
minor will have to be filed within three years of his
attaining majority or within 12 years of the
alienation itself, lest his rights become barred.”
In the decision reported in Gopalakrishnan Nair v.
Karthiyayani Nangeli Amma (2000(1) KLT 59) it was held
as follows:
“Section 8(1) of the Act while recognizing the
power of a natural guardian to do all acts which
are necessary or reasonable and proper for the
benefit of the minors or for the realisation,
protection or benefit of the minor’s estate has
made that recognition subject to the provisions of
S.8. S.8(2) provides that the natural guardian shall
not without the previous permission of the court
(emphasis supplied) mortgage or charge or
transfer by sale, gift, exchange or otherwise any
part of the immovable property of the minor. S.8
S.A.16/1997. 22
(3) indicates that any disposal of immovable
property by the natural guardian in contravention
of sub-ss.1 and 2 of S.8 is voidable at the instance
of the minor or by any person claiming under him.
When a statute provides that an act shall not be
done without the previous permission of the Court
and something is done in contravention of that,
according to us the transaction has to be treated
as invalid as a whole and this is the view taken by
this court in the decision in Santha v.Cherukutty
(1972 KLT 1051) and in Kunhiraman v. Vanaja
(1997(2) KLT 5). On the scheme of the Act, we
find no reason to differ from the view adopted in
those cases. The lower appellate court in the case
on hand was substantially in error in law in holding
that the plaintiffs were obliged to seek the setting
aside of the sale of the equity of redemption by
the father and their rights have been lost in view
of the fact that plaintiff No.1 had attained majority
three years prior to the suit and only the right
inherited by plaintiff No.2 from the mother would
be available to him for being enforced. In our view
the transaction of sale of the equity of redemption
by the father without the previous permission of
the court envisaged by S.8(2) of the Act could be
S.A.16/1997. 23
ignored by the plaintiffs and they could seek the
relief of redemption of Ext.A1 mortgage on the
basis that they continue to hold the equity of
redemption. Admittedly the suit for redemption
of the mortgage is in time and therefore the
plaintiffs would be entitled to redeem the
mortgage Ext.A1 and recover possession of the
property ignoring the sale of the equity of
redemption Ext.B1 executed by their father in
contravention of S.8(2) of the Act. In view of
Manik Chand v. Ramachandra (AIR 1981 SC 519)
the father could enter into an agreement for sale.
But, if the minor on attaining majority repudiated
the obligation undertaken under the contract, the
agreement had to be tested for its validity. A sale
of property by a guardian stands on a different
footing and S.8(2) of the Act gets squarely
attracted.”
16. Going by the above decisions, it may appear
that the lower appellate court is justified in its finding that
the plaintiff can take the aid of 12 years period to bring his
suit based on title. However the issues have been
considered in the latter decisions and a contra view appears
S.A.16/1997. 24
to have been taken. In the decision reported in Madhukar
Vishwanath Munje v. Madhao ((2001) 10 SCC 460) the
application of Article 59 and 60 of the Limitation Act with
respect to Section 8 of the Hindu Minority and Guardianship
Act was considered. The issue was whether the transaction
is void or voidable. Since the learned Judges were of the
view that it is an important question of law, the matter
seems to have been referred to a larger Bench. The issue
was considered in the decision reported in Vishwambhar v.
Laxminarayan ((2001) 6 SCC 163), wherein it was held as
follows:
“On a fair reading of the plaint, it is clear that
the main fulcrum on which the case of the
plaintiffs was balanced was that the alienations
made by their mother-guardian Laxmibai were
void and therefore, liable to be ignored since they
were not supported by legal necessity and without
permission of the competent court. On that basis,
he claim was made that the alienations did not
affect the interest of the plaintiffs in the suit
property. The prayers in the plaint were inter alia
S.A.16/1997. 25
to set aside the sale deeds dated 14.11.1967 and
24.10.1974, recover possession of the properties
from the respective purchasers, partition of the
properties carving out separate possession of the
share from the suit properties of the plaintiffs and
deliver the same to them. As noted earlier, the
trial court as well as the first appellate court
accepted the case of the plaintiffs that the
alienations in dispute were not supported by legal
necessity. They also held that no prior permission
of the court was taken for the said alienations.
The question is, in such circumstances, are the
alienations void or voidable? In Section 8(2) of the
Hindu Minority and Guardianship Act, 1956, it is
laid down, inter alia, that the natural guardian
shall not, without previous permission of the court,
transfer by sale any part of the immoveable
property of the minor. In sub-section (3) of the
said section, it is specifically provided that any
disposal of immoveable property by a natural
guardian, in contravention of sub-section (2) is
voidable at the instance of the minor or any
person claiming under him. There is, therefore,
little scope for doubt that the alienations made by
Laxmibai which are under challenge in the suit
S.A.16/1997. 26
were voidable at the instance of the plaintiffs and
the plaintiffs were required to get the alienations
set aside if they wanted to avoid the transfers and
regain the properties from the purchasers. As
noted earlier in the plaint as it stood before the
amendment the prayer for setting aside the sale
deeds was not there, such a prayer appears to
have been introduced by amendment during
hearing of the suit and the trial court considered
the amended prayer and decided the suit on that
basis. If in law the plaintiffs were required to have
the sale deeds set aside before making any claim
in respect of the properties sold, then a suit
without such a prayer was of no avail to the
plaintiffs. In all probability, realising this difficulty
the plaintiffs filed the application for amendment
of the plaint seeking to introduce the prayer for
setting aside the sale deeds. Unfortunately, the
realisation came too late. Concededly, plaintiff 2
Digamber attained majority on 5.8.1975 and
Vishwambhar, plaintiff 1 attained majority on
20.7.1978. Though the suit was filed on
30.11.1980 the prayer seeking setting aside of the
sale deeds was made in December 1985. Article
60 of the Limitation Act prescribes a period of
S.A.16/1997. 27
three years for setting aside a transfer of property
made by the guardian of a ward, by the ward who
has attained majority and the period is to be
computed from the date when the ward attains
majority. Since the limitation started running from
the dates when the plaintiffs attained majority the
prescribed period had elapsed by the date of
presentation of the plaint so far as Digamber is
concerned. Therefore, the trial court rightly
dismissed the suit filed by Digamber. The
judgment of the trial court dismissing the suit was
not challenged by him. Even assuming that as the
suit filed by one of the plaintiffs was within time
the entire suit court not be dismissed on the
ground of limitation, in the absence of challenge
against the dismissal of the suit filed by Digamber
the first appellate court could not have interfered
with that part of the decision of the trial court.
Regarding the suit filed by Vishwambhar, it was
filed within the prescribed period of limitation but
without the prayer for setting aside the sale
deeds. Since the claim for recovery of possession
of the properties alienated could not have been
made without setting aside the sale deeds the
suit as initially filed was not maintainable. By the
S.A.16/1997. 28
date the defect was rectified (December 1985) by
introducing such a prayer by amendment of the
plaint the prescribed period of limitation for
seeking such a relief had elapsed. In the
circumstances, the amendment of the plaint could
not come to the rescue of the plaintiff.
From the averments in the plaint, it cannot
be said that all the necessary averments for
setting aside the sale deeds executed by Laxmibai
were contained in the plaint and adding specific
prayer for setting aside the sale deeds was a mere
formality. As noticed earlier, the basis of the suit
as it stood before the amendment of the plaint
was that the sale transactions made by Laxmibai
as guardian of the minors were ab initio void and,
therefore, liable to be ignored. By introducing the
prayer for setting aside the sale deeds the basis of
the suit was changed to one seeking setting aside
the alienations of the property by the guardian. In
such circumstance, the suit for setting aside the
transfers could be taken to have been filed on the
date the amendment of the plaint was allowed
and not earlier than that.”
S.A.16/1997. 29
The issue was again considered in the decision reported in
Nangali Amma Bhavani Amma v. Gopalakrishnan Nair
((2004) 8 SCC 785), wherein it was held as follows:
“But the learned counsel for the appellant is
right in contending that the High Court had
misconstrued the provisions of Section 8 of the
Act. Section 8(1) empowers the natural guardian
of the Hindu minor to do all acts which are
necessary or reasonable and proper for the
benefit of a minor or for the realisation, protection
or benefit of the minor’s estate subject to two
exceptions of which we may only note the
exception carved out in sub-section (2) of Section
8. Section 8(2) provides that the natural guardian
shall not without the previous permission of the
Court, inter alia, transfer by way of a sale any part
of the immovable property of a minor. The effect
of violation of this provision has been provided for
in the section itself under sub-section (3). This
sub-section reads:
“8. (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.”
S.A.16/1997. 30
In view of the express language used, it is
clear that the transaction entered into by the
natural guardian in contravention of sub-section
(2) was not void but merely voidable at the
instance of the minor. To hold that the
transaction in violation of Section 8(2) is void
would not only be contrary to the plain words of
the statute but would also deprive the minor of
the right to affirm or ratify the transaction upon
attaining majority. This Court in Vishambhar v.
Laxminarayan has also held that such transactions
are not void but merely voidable. It was also held
that a suit must be filed by a minor in order to
avoid the transaction within the period prescribed
under Article 60 of the Limitation Act. The High
Court did not consider the issue of limitation at all
in view of its finding on the effect of a violation of
Section 8(2) of the Act. As the conclusion of the
High Court on this aspect of matter is
unsustainable, the impugned decision must be set
aside.”
This court had occasion to consider the issue in the decision
reported in Ramadas Menon v. Sreedevi (2004() K.L.T.
S.A.16/1997. 31
323 (F.B)). After referring to the various decisions, this court
noticing that going by Section 8(3), transaction is only
voidable held that it is incumbent on the part of the person
concerned to have the deed set aside. Without having the
deed set aside, he cannot seek any other relief in respect of
the property. It cannot be said that the transaction could be
simply ignored. The relevant portion reads as follows:
“It is seen that the reference was answered in
the decision reported in Madhukar Viswanath v.
Madhao & Ors. (1999) 9 SCC 4456. The Supreme
Court took the view that it was not necessary to
decide the question in the particular fats of the
case. Subsequently the Supreme Court in another
decision reported in Viswambhar & Ors. v.
Laxminarayan (2001) 6 SCC 163, considered S.8 of
the Act and held as follows:
“The question is, in such circumstances, are the
alienations void or voidable? In Section 8(2) of the
Hindu Minority and Guardianship Act, 1956, it is laid
down, inter alia, that the natural guardian shall not,
without previous permission of the court, transfer by
sale any part of the immoveable property of the minor.
In sub-section (3) of the said section, it is specifically
S.A.16/1997. 32
provided that any disposal of immoveable property by
a natural guardian, in contravention of sub-section (2)
is voidable at the instance of the minor or any person
claiming under him. There is, therefore, little scope for
doubt that the alienations made by Laxmibai which are
under challenge in the suit were voidable at the
instance of the plaintiffs and the plaintiffs were
required to get the alienations set aside if they wanted
to avoid the transfers and regain the properties from
the purchasers.”
In view of the above decision, it is now clear that
the alienations have to be challenged and without
setting aside the alienation, no relief can be
obtained.
In the above view of the matter, we hold that
there should be a prayer to set aside the
alienation effected by the natural guardian without
the court’s sanction. The plaintiff cannot merely
ignore the sale deed.”
17. In the light of latter decisions and the
authority pronounced by this court and the apex court in the
matter, the view taken by the lower appellate court cannot
be sustained.
S.A.16/1997. 33
18. There is no prayer in the plaint to have Ext.B1
sale deed set aside. Going by the decisions already referred
to, the current view is that it is absolutely necessary for the
person, who was assailing the transaction, to have it set
aside in accordance with law before he could seek further
reliefs in the matter. That having not been done, the suit
has to fail.
in the result, this appeal is allowed, the impugned
judgment and decree of the lower appellate court is set
aside and the judgment and decree of the trial court is
restored. There will be no order as to costs.
P. BHAVADASAN,
JUDGE
sb.
S.A.16/1997. 34
P. BHAVADASAN, J.
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S.A. No. 16 of 1997
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JUDGMENT
28.05.2010