{"id":211258,"date":"2008-12-02T00:00:00","date_gmt":"2008-12-01T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/chellan-alias-velayutham-vs-sasidharan-on-2-december-2008"},"modified":"2015-09-09T21:15:53","modified_gmt":"2015-09-09T15:45:53","slug":"chellan-alias-velayutham-vs-sasidharan-on-2-december-2008","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/chellan-alias-velayutham-vs-sasidharan-on-2-december-2008","title":{"rendered":"Chellan Alias Velayutham vs Sasidharan on 2 December, 2008"},"content":{"rendered":"
Madras High Court<\/div>\n
Chellan Alias Velayutham vs Sasidharan on 2 December, 2008<\/div>\n
       \n\n  \n\n  \n\n \n \n BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT\n\nDated: 02\/12\/2008\n\nCoram\nThe HONOURABLE MR.JUSTICE A.SELVAM\n\nS.A.Nos.1247 to 1249 of 1994\nand\nS.A(MD)No.224 of 2006 and CMP(MD)No.1664\/06\n\nChellan alias Velayutham  \t.. Appellant\/2nd Defendant\t\t\t\t\t\n\t\t\t\t\tin SA.No.1247\/94\n\n\t\t\t        .. Appellant\/Defendant\n\t\t\t\t\tin SA.No.1248\/94\n\n\t\t\t        .. Appellant\/Plaintiff\n\t\t\t\t\tin SA.No.1249\/94\n\n1.Jesintha Mary (died)          .. Appellant\/Plaintiff\n\t\t\t\t\tin SA.No.224\/06\n2.Chellan @ Velayuthan\n3.Amutha\n4.Amirtharaj\n5.Anandraj\n   (Appellants 2 to 5, LRs of 1st\n     appellant brought on record by\n     an order dated 13.03.08)  .. Appellants in\n\t\t\t\t    SA.No.224\/06\n\nVs.\n\n1.Sasidharan\t\t.. Respondent\/plaintiff in<\/pre>\n
\t\t\t\t          SA.No.1247\/94<\/p>\n
2.Murugappan\t\t.. Respondent\/1st defendant in
\n\t\t\t\t          SA.No.1247\/94<\/p>\n
Murugappan\t\t.. Respondent\/Plaintiff in
\n\t\t\t\t          SA.No.1248\/94<\/p>\n
Murugappan\t\t.. Respondent\/Defendant in
\n\t\t\t\t          SA.No.1249\/94\n<\/p>\n
1.Sasidharan<\/p>\n
2.Murugan\t\t.. Respondents\/Defendants in
\n\t\t\t\t\t   SA.No.224\/06<\/p>\n
\tSecond Appeals filed under Section 100 of C.P.C, against the Judgments and
\ndecrees dated 29.03.1994 and 07.02.2005 passed in Appeal Suit Nos.52, 31, 67 of
\n1992 and 47 of 2007 by the Subordinate Court, Kuzhithurai confirming the
\nJudgments and decrees dated 12.03.1992 and 25.04.2003 passed in Original Suit
\nNos.293 of 1983, 272 of 1986, 477 of 1991 and 328 of 1997 by the Principal
\nDistrict Munsif Court, Kuzhithurai.\n<\/p>\n
!For Appellant   … Mr.K.Sreekumaran Nair
\n\t\t\t(all the appeals)
\n^For R – 1\t … Mrs.J.Anandhavalli
\n\t\t        (SA.No.1247\/94)
\nFor R – 2\t … Mr.P.Ananthakrishnan Nair
\n\t\t\t(SA.No.1247\/94)
\nFor Respondent   … Mr.P.Ananthakrishnan Nair
\n\t\t     (SA.Nos.1248 & 1249\/94)
\nFor Respondents  … Mrs.J.Anandhavalli
\n\t             (SA.No.224\/06)\t\t<\/p>\n
:COMMON JUDGMENT<\/p>\n
\tThese second appeals have been preferred against the concurrent Judgments
\npassed in Original Suit Nos.293 of 1983, 272 of 1986, 477 of 1991 and 328 of
\n1997 by the Principal District Munsif Court, Kuzhithurai and in Appeal Suit
\nNos.52 of 1992, 31 of 1992, 67 of 1992 and 47 of 2003 by the Sub Court,
\nKuzhithurai.\n<\/p>\n
2. Second Appeal No.1247 of 1994<\/p>\n
\tThe first respondent herein as plaintiff has instituted Original Suit
\nNo.293 of 1983 on the file of the trial Court for the relief of redemption of
\nthe suit property, wherein the present appellant has been shown as second
\ndefendant.\n<\/p>\n
\tii) It is averred in the plaint that the suit property is originally
\nbelonged to Swami Pillai S\/o Kumarasamy Pillai. On 04.10.1973 he executed a
\nmortgage deed in favour of Lakshmi Pillai and the said Lakshmi Pillai has
\nenjoyed the suit property as a mortgagee.  On 17.05.1980, the said Lakshmi
\nPillai has made over the mortgage in favour of the first defendant. In the suit
\nproperty there is one building. The second defendant is enjoying the suit
\nproperty as the tenant of the first defendant. On 04.02.1981 the original owner
\nof the suit property by name Swami Pillai has sold the same to one Renjitham and
\nthe said Renjitham has purchased the suit property for her minor daughter by
\nname Simtha. On 01.03.1982, the said Renjitham has sold the suit property in
\nfavour of the plaintiff. Since the mortgagee has enjoyed the suit property for
\nmore than ten years, the plaintiff is entitled to get the relief under Debt
\nRelief Act, 40 of 1979. Under the said circumstances, the present suit has been
\ninstituted for the relief sought for in the plaint.\n<\/p>\n
\t(iii) In the written statement filed on the side of the first defendant,
\nit is stated that the plaintiff is not entitled to get the relief under Debt
\nRelief Act and therefore, the present suit deserves dismissal.\n<\/p>\n
\t(iv) It is stated in the written statement filed by the second defendant
\nthat it is false to say that the plaintiff has purchased the suit property under
\na registered sale deed dated 01.03.1982. The sale deed dated 01.03.1982 has been
\ncreated fraudulently and the same is void and there is no merit in the suit and
\nthe same deserves dismissal.\n<\/p>\n
\t(v) In the additional written statement filed on the side of the second
\ndefendant, it is stated that the second defendant has purchased the suit
\nproperty from its rightful owner and in pursuance of the sale deed which stands
\nin the name of the second defendant, he has instituted Original Suit No.477 of
\n1991 and therefore, the plaintiff is not entitled to get the relief sought for
\nin the plaint.\n<\/p>\n
\t(vi) In the reply statement filed on the side of the plaintiff, the
\naverments made in the written statement filed by the second defendant have been
\ndenied and further it is stated that in GWOP.No.130 of 1989 the mother of the
\nminor by name Simtha has been appointed as her guardian. Therefore, the sale
\ndeed alleged to have been executed by the father of minor in favour of the
\nsecond defendant is not valid.\n<\/p>\n
3. Second Appeal No.1248 of 1994:\n<\/p>\n
\tThe respondent herein as plaintiff has instituted Original Suit No.272 of
\n1986 on the file of the trial Court for the relief of recovery of possession,
\nwherein the present appellant has been shown as sole defendant.\n<\/p>\n
\t(ii) It is averred in the plaint that the suit property is originally
\nbelonged to one Swami Pillai. On 04.10.1973 he executed a mortgage deed in
\nfavour of Lakshmi Pillai. On 17.05.1980, the said Lakshmi Pillai has made over
\nthe mortgage in favour of the plaintiff and since then the plaintiff is in
\npossession and enjoyment of the same. As per made over dated 17.05.1980, the
\nplaintiff is entitled to enjoy the suit property. But the defendant has
\ntrespassed into the same. Under the said circumstances, the present suit has
\nbeen filed for the relief sought for in the plaint.\n<\/p>\n
\t(iii) It is stated in the written statement filed on the side of the
\ndefendant that the plaintiff is not entitled to get the relief in pursuance of
\nthe alleged made over dated 17.05.1980 and the defendant has purchased the suit
\nproperty from the father of the minor by name Simtha and there is no merit in
\nthe suit and the same deserves dismissal.\n<\/p>\n
\t(iv) In the reply statement filed on the side of the plaintiff, all the
\naverments made in the written statement filed by the defendant are specifically
\ndenied.\n<\/p>\n
4. Second Appeal No.1249 of 1994:\n<\/p>\n
\tThe appellant herein as plaintiff has instituted Original Suit No.477 of
\n1991 on the file of the trial Court for the relief of extinguishment of
\nmortgage, wherein the present respondent has been shown as sole defendant.\n<\/p>\n
\t(ii) The averments made in the plaint are that the suit property is
\noriginally belonged to one Swami Pillai and he executed a mortgage deed dated
\n04.10.1973 in favour of Lakshmi Pillai and the said Lakshmi Pillai has made over
\nthe mortgage in favour of the defendant. But the defendant has not been given
\npossession of the suit property. The plaintiff has purchased suit property from
\nthe father of the minor by name Simtha and therefore, the plaintiff is entitled
\nto get the relief sought for in the plaint. Under the said circumstances, the
\npresent suit has been instituted.\n<\/p>\n
\t(iii) It is stated in the written statement filed by the defendant that
\nthe defendant has obtained made over the mortgage dated 04.10.1973. It is false
\nto say that the plaintiff has purchased the suit property from the father of the
\nminor by name Sankaran. There is no merit in the suit and the same deserves
\ndismissal.\n<\/p>\n
\t(iv) On the side of the plaintiff, a reply statement has been filed,
\nwherein all the averments made in the written statement are specifically denied.\n<\/p>\n
5. Second Appeal No.224 of 2006:\n<\/p>\n
\t The deceased appellant as plaintiff has instituted Original Suit No.328
\nof 1997 on the file of the trial Court for the reliefs of declaration,
\npossession and permanent injunction, wherein the present respondents have been
\nshown as defendants.\n<\/p>\n
\t(ii) It is averred in the plaint that the suit property is originally
\nbelonged to one Velayudhan Nadar and he executed a sale deed in favour of the
\nplaintiff on 17.11.1982 in respect of the suit property and since then the
\nplaintiff is in possession and enjoyment of the same. The defendants are not
\nhaving any manner of right, interest over the suit property and now they are
\nmaking arrangements to disturb the peaceful possession and enjoyment of the
\nplaintiff by way of denying her title. Under the said circumstances, the present
\nsuit has been instituted for the reliefs sought for in the plaint.\n<\/p>\n
\t(iii) In the written statement filed by the first defendant, it is stated
\nthat the alleged original owner of the suit property has had no right over the
\nsame. The members of Nalamparavilagathu Veedu have effected partition and in the
\nsaid partition 32 cents have been allotted to Raman Pillai. The said Raman
\nPillai has executed a sale deed in favour of Perumal Nadar in respect of 32
\ncents. After the death of Perumal Nadar, his son Velayudhan Nadar has sold 10
\ncents to one Muthayyan Nadar and he sold 22 cents to one Swami Pillai. The said
\nSwami Pillai has sold 22 cents in favour of Simtha with a direction to redeem
\nmortgage. The mother of Simtha has sold 22 cents to the first defendant on
\n01.03.1982 and there is no suit property on ground and therefore, the present
\nsuit deserves dismissal.\n<\/p>\n
\t(iv) In the written statement  filed on the side of the second defendant,
\nit is prayed to dismiss the suit.\n<\/p>\n
\t6. On the basis of the rival pleadings raised on either side, the trial
\nCourt has framed necessary issues in all the suits and after contemplating both
\nthe oral and documentary evidence adduced on either side, has decreed Original
\nSuit Nos.293 of 1983 and 272 of 1986 and dismissed Original Suit Nos.477 of 1991
\nand 328 of 1997. Against the common Judgment passed in Original Suit Nos.293 of
\n1983, 272 of 1986 and 477 of 1991, Appeal Suit Nos.52 of 1992, 31 of 1992 and 67
\nof 1992 have been filed and against the Judgment and decree passed in Original
\nSuit No.328 of 1997, Appeal Suit No.47 of 2003 has been filed. The first
\nappellate Court after hearing both sides and upon reappraising all the evidence
\navailable on record, has dismissed all the appeals. Against the concurrent
\nJudgments passed in Original Suit Nos.293 of 1983, 272 of 1986, 477 of 1991 and
\n328 of 1997 and in Appeal Suit Nos.52 of 1992, 31 of 1992, 67 of 1992 and 47 of
\n2003, the present second appeals have been filed.\n<\/p>\n
\t7. In Second Appeal Nos.1247 to 1249 of 1994, the following common
\nquestion of law has been formulated:\n<\/p>\n
\t“When father is the natural guardian of the minor daughter, Simtha,
\nwhether sale deed Ex.A4, executed by the mother in favour of Sasidharan is
\nvalid?”\n<\/p>\n
\t8. In Second Appeal No.224 of 2006, the following substantial questions of
\nlaw have been formulated for consideration:\n<\/p>\n
\t“i) Whether the finding of the Courts below that plaintiff did not get
\ntitle  under Ex.A1 is correct when there is a clear finding in para 22 of Ex.A7
\nJudgment to which the defendants were also parties that plaintiff got title to
\n10 cents of land under Ex.A1?\n<\/p>\n
\tii) Whether the finding of the lower Court that Velayuthan Nadar, the
\npredecessor of plaintiff had title for 32 cents and not 42 cents is correct?\n<\/p>\n
\tiii) Are not the defendants bound by the finding in Exs.A7 and A8
\nJudgments that the plaintiff was entitled to claim 10 cents of land which was
\nconveyed by Velayuthan Nadar to the plaintiff herein under Ex.A1?”\n<\/p>\n
\t9. Since common questions of law and facts are  involved in all the second
\nappeals, common Judgment is pronounced.\n<\/p>\n
\t10. Before considering the rival submissions made by either counsel, it
\nwould be more useful to perorate the following admitted facts.\n<\/p>\n
\t11. It is an admitted fact that the suit property involved in Original
\nSuit Nos.293 of 1983, 272 of 1986 and 477 of 1991 is originally belonged to one
\nVelayuthan Nadar and he sold the suit property to one Swami Pillai and the said
\nSwami Pillai has executed an usufructuary mortgage deed in favour of one Lakshmi
\nPillai on 04.10.1973 and the said Lakshmi Pillai has made over the mortgage deed
\ndated 04.10.1973 in favour of Murugappan, who is none other than the plaintiff
\nfound in Original suit No.272 of 1986. The said Swami Pillai has sold the suit
\nproperty to one minor by name Simtha under a registered sale deed dated
\n04.02.1981 and her mother sold the suit property on 01.03.1982 to one Sasidharan
\nwho is none other than the plaintiff found in Original Suit No.293 of 1983. The
\nplaintiff found in Original Suit No.477 of 1991 has purchased the suit property
\nunder a registered sale deed dated 06.08.1991.\n<\/p>\n
\t12. The sale deed which stands in the name of Swami Pillai has been marked
\nas Ex.A1 and the mortgage deed executed by Lakshmi Pillai in favour of
\nMurugappan has been marked as Ex.A2. The sale deed which stands in the name of
\nminor Simtha has been marked as Ex.A3 and the sale deed which stands in the name
\nof the plaintiff found in Original Suit No.293 of 1983 has been marked as Ex.A4.
\nThe sale deed which stands in the name of the plaintiff found in Original Suit
\nNo.477 of 1991 has been marked as Ex.B7.\n<\/p>\n
\t13. The trial Court has conducted joint trial in Original Suit Nos.293 of
\n1983, 272 of 1986 and 477 of 1991 and the evidence taken in Original suit No.293
\nof 1983 has also been treated as evidence in Original Suit Nos.272 of 1986 and
\n477 of 1991. As adverted to earlier, the trial Court has decreed Original Suit
\nNos.293 of 1983 and 272 of 1986 and dismissed Original Suit No.477 of 1991.
\nAgainst the common Judgment and decree passed in the said Suits, Appeal Suit
\nNos.57, 31 and 67 of 1992 have been preferred on the file of the first appellate
\ncourt and the first appellate Court has dismissed all the appeals, whereby and
\nwhereunder confirmed the Judgment and decree passed in Original Suit Nos.293 of
\n1983, 272 of 1986 and 477 of 1991.\n<\/p>\n
\t14. In Second Appeal Nos.1247 to 1249 of 1994, Exs.A3, A4, A13 and B7 are
\nvery much essential.\n<\/p>\n
\t15. The learned counsel appearing for the appellant in Second Appeal
\nNos.1247 to 1249 of 1994 has repeatedly contended that the suit property has
\nbeen purchased in the name of minor Simtha under Ex.A3 on 04.02.1981 and the
\nfather of minor by name Sankaran is very much alive, but the mother of the minor
\nby name Renjitham has executed Ex.A4 on 01.03.1982 in favour of the plaintiff
\nfound in Original Suit No.293 of 1983 and as per Section 6 of the Hindu Minority
\nGuardianship Act, 1956, the mother cannot act as natural guardian, while father
\nis alive and therefore as per Section 8 of the said act, only father is entitled
\nto sell the property of minor and that too with the permission of Court and
\nfurther, as per section 11 of the said Act, any transaction made by defacto
\nguardian is void and under the said legal circumstances, Ex.A4 is a void
\ndocument under which, the plaintiff found in Original Suit No.293 of 1983 has
\nnot derived any valid title to the suit property and the second defendant found
\nin Original suit No.293 of 1983 has purchased the suit property from the father
\nof the minor viz., Sankaran under Ex.B7 on 06.08.1991 and the same has given
\nvalid title to the second defendant, but the trial Court without considering the
\ncorrect legal position, has erroneously decreed Original Suit No.293 of 1983 and
\ndismissed Original Suit No.477 of 1991 and the first appellate Court has also
\nerroneously dismissed the appeals filed by the appellant in all the second
\nappeals and therefore, the concurrent Judgments passed by the Courts below are
\nliable to be set aside and the suit filed by the appellant in Original Suit
\nNo.477 of 1991 is liable to be decreed as prayed for.\n<\/p>\n
\t16. In support of his contention, he has drawn the attention of the Court
\nto the decision reported in AIR 2002 SC 215 (Madhegowda (D) by LRs Vs. Ankegowda
\n(D) by LRs and others), wherein the Honourable Apex Court has held that a sale
\nmade by a defacto guardian is in contravention of Section 11 of the Hindu
\nMinority and Guardianship Act, (32 of 1956) and the same is per se invalid.\n<\/p>\n
\t17. In order to repudiate the argument advanced by the learned counsel
\nappearing for the appellant, the learned counsel appearing for the first
\nrespondent in Second Appeal No.1247 of 1994 has also equally contended that the
\nsuit property has been purchased in the name of minor under Ex.A3 by her mother
\nby name Renjitham and the said Renjitham has sold the suit property in favour of
\nthe first respondent\/plaintiff in Original Suit No.293 of 1983 under Ex.A4 and
\non 31.01.1990 the said Renjitham has been appointed as the guardian of the minor
\nas per the order passed in GWOP.No.130 of 1989 and even though the father of the
\nminor by name Sankaran is very much alive, he has not evinced any interest upon
\nthe minor and therefore, the mother of the minor has acted as natural guardian.
\nUnder the said circumstances, Ex.A4, the sale deed which stands in the name of
\nthe first respondent\/plaintiff found in Original Suit No.293 of 1983 is nothing
\nbut voidable and the same has not been questioned by the minor and therefore,
\nthe entire argument advanced by the learned counsel appearing for the appellant
\nis not correct and the same is liable to be rejected.\n<\/p>\n
\t18. As stated earlier, the only substantial question of law framed in all
\nthese second appeals is as to whether Ex.A4, sale deed which stands in the name
\nof the plaintiff found in Original Suit No.293 of 1983 is valid in law, since
\nthe same has been executed by the mother of the minor viz., Simtha, while her
\nfather is alive.\n<\/p>\n
\t19. Section 6 of the Hindu Minority and Guardianship Act, 1956 reads as
\nfollows:\n<\/p>\n
\t“6. Natural guardians of a Hindu minor:- The natural guardians of a Hindu
\nminor, in respect of the minor’s person as well as in respect of the minor’s
\nproperty (excluding his or her undivided interest in joint family property) are-\n<\/p>\n
\t(a) in the case of a boy or an unmarried girl – the father, and after him,
\nthe mother; provided that the custody of a minor who has not completed the  age
\nof five years shall ordinarily be with the mother;\n<\/p>\n
\tb) in the case of an illegitimate boy or an illegitimate unmarried girl –
\nthe mother, and after her, the father;\n<\/p>\n
\t(c) in the case of a married girl – the husband;\n<\/p>\n
\tProvided that no person shall be entitled to act as the natural guardian
\nof a minor under the provisions of this section-\n<\/p>\n
\t(a) if he has ceased to be a Hindu, or\n<\/p>\n
\t(b) if he has completely and finally renounced the world becoming a hermit
\n(vanaprasatha) or an ascetic (yati or sanyasi)”\n<\/p>\n
\t20. Section 8 of the said Act, reads as follows:\n<\/p>\n
\t“8.Powers of natural guardian.-(1) The natural guardian of a Hindu minor
\nhas power, subject to the provisions of this section, to do all acts which are
\nnecessary or reasonable and proper for the benefit of the minor or for the
\nrealization, protection or benefit of the minor’s estate; but the guardian can
\nin no case bind the minor by a personal covenant.\n<\/p>\n
\t(2) The natural guardian shall not, without the previous permission of the
\nCourt,-\n<\/p>\n
\t(a) mortgage or charge, or transfer by sale, gift, exchange or otherwise,
\nany part of the immovable property of the minor; or\n<\/p>\n
\t(b) lease any part of such property for a term exceeding  five years or
\nfor a term extending more than one year beyond the date on which the minor will
\nattain majority.\n<\/p>\n
\t(3) Any disposal of immovable property by a natural guardian, in
\ncontravention of sub-section (1) or sub-section (2), is voidable at the instance
\nof the minor or any person claiming under him.\n<\/p>\n
\t(4) No Court shall grant permission to the natural guardian to do any of
\nthe acts mentioned in sub-section (2) except in case of necessity or for an
\nevident advantage to the minor.\n<\/p>\n
\t(5) The Guardians and Wards Act, 1890, shall apply to and in respect of an
\napplication for obtaining the permission of the Court under sub-section (2) in
\nall respects as if it were an application for obtaining the permission of the
\nCourt under section 29 of that Act, and in particular-\n<\/p>\n
\t(a)Proceedings in connection with the application shall be deemed to be
\nproceedings under that Act within the meaning of section 4-A thereof;\n<\/p>\n
\t(b) the Court shall observe the procedure and have the powers specified in
\nsub-sections (2), (3) and (4) of section 31 of that Act; and<\/p>\n
\t(c) an appeal shall lie from an order of the Court refusing permission to
\nthe natural guardian to do any of the acts mentioned in sub-section (2) of this
\nsection to the Court to which appeals ordinarily lie from the decisions of that
\nCourt.\n<\/p>\n
\t(6) In this section, “Court” means the City Civil Court or a District
\nCourt or a Court empowered under section 4-A of the Guardians and Wards Act,
\n1890, within the local limits of whose jurisdiction the immovable property in
\nrespect of which the application is made is situate, and where the immovable
\nproperty is situate within the jurisdiction of more than one such Court, means
\nthe Court within the local limits of whose jurisdiction any portion of the
\nproperty is situate.”\n<\/p>\n
\t21. Section 11 of the Said Act says that after the commencement of this
\nAct, no person shall be entitled to dispose of, or deal with, the property of a
\nHindu minor merely on the ground of his or her being the de facto guardian of
\nthe minor.\n<\/p>\n
\t22. From the conjoint reading of the said sections, the Court can easily
\ndiscern that natural guardian of a minor is his or her father and only after
\nhim, his or her mother can act as natural guardian and natural guardian is
\nempowered to deal with the property of minor with the previous permission of the
\nconcerned Court. If no such permission is obtained, the transaction made by
\nnatural guardian is only voidable at the instance of minor or any other person
\nclaiming under him or her and further, if any transaction is made by a defacto
\nguardian is per se invalid, or in other words it is void.\n<\/p>\n
\t23. With these legal backdrops, the Court has to perpend the validity of
\nExs.A4 and B7. Ex.A4, as stated earlier, is the sale deed which stands in the
\nname of the plaintiff found in Original Suit No.293 of 1983 executed by the
\nmother of minor Simtha on 01.03.1982. Ex.B7 is the sale deed dated 06.08.1991
\nwhich stands in the name of the second defendant executed by the father of the
\nminor viz., Sankaran.  It is an admitted fact that the mother of the minor by
\nname Renjitham has purchased the suit property from Swami Pillai for minor under
\nEx.A3 on 04.02.1981. It is also equally an admitted fact that the mother of the
\nminor has filed GWOP.No.130 of 1989 so as to declare her as the guardian of
\nminor and the same has been allowed and the order passed in GWOP.No.130 of 1989
\nhas been marked as Ex.A13. Since the sale under Ex.A3 has been purchased by the
\nmother of the minor and since she has been appointed as guardian in GWOP.No.130
\nof 1989, the Court can very well infer that from inception, the father of the
\nminor by name Sankaran has not evinced any interest upon the minor. At this
\njuncture, a nice legal question arises as to whether during the life time of a
\nfather of a minor, his or her mother can act as a natural guardian.\n<\/p>\n
\t24. In order to clinch the present issue, the Court has to rely upon the
\nfollowing decisions:\n<\/p>\n
\t(a) In AIR 1971 SC 315 (V 58 C 75) (Jijabai Vithalrao Gajre Vs.
\nPathankhan), the Honourable Apex Court has held as follows:\n<\/p>\n
\t“The position in the Hindu Law as well as under Section 6 of the Act is
\nthat normally when the father is alive he is the natural guardian and it is only
\nafter him that the mother becomes the natural guardian. Where the father was
\nalive but had fallen out with the mother of the minor daughter and was living
\nseparately for several years without taking any  interest in the affairs of the
\nminor who was in the keeping and care of the mother it was held that in the
\npeculiar circumstances, the father should be treated as if non-existent and
\ntherefore the mother could be considered as the natural guardian of the minor’s
\nperson as well as property and had power to bind the minor by granting lease of
\nher land in proper course of management of the property.”\n<\/p>\n
\t(b) In 81 LW 406 (Mayilswami Chettiar V. Kaliammal and others<\/a>), this Court
\nhas held that the position of the defacto guardian under Hindu law is well
\nestablished. Even where there is a father for the minors alive, the mothers can,
\nacting as the defacto guardian of the minors, alienate their property for
\nnecessity. It is amply clear that even when there is a legal guardian in
\nexistence, any alienation of minor’s property by a defacto guardian would be
\nvalid if it is for necessity.\n<\/p>\n
\t25. From the conjoint reading of the decisions referred to supra, it is
\nmade clear that if father has not shown any interest in the affairs of minor, he
\ncan be treated as non existent and mother of minor can be considered as natural
\nguardian of minor’s person as well as property and she is also having power to
\nbind the minor concerned and further it is made clear that the mother even
\nthough defacto guardian, can alienate minor’s property for necessity and the
\nsame is valid.\n<\/p>\n
\t26. In the instant second appeals, the plaintiff found in Original Suit
\nNo.293 of 1983 has purchased the suit property under Ex.A4 on 01.03.1982. On
\n31.01.1990 the mother of minor by name Renjitham has been appointed as guardian
\nof the minor under Ex.A13. On 06.08.1991 the second defendant found in Original
\nSuit No.293 of 1983 has purchased the suit property under Ex.B7. Since the
\nfather of the minor has not evinced any interest in the affairs of the minor and
\nsince the suit property has been purchased under Ex.A3 on 04.02.1981 by the
\nmother of the minor, as per the dictum of the Supreme Court, the Court can
\nunflinchingly come to a conclusion that in the instant case, the mother of the
\nminor could very well act as natural guardian of the minor and her father can be
\ntreated as non existent. Since the mother of the minor can be treated as natural
\nguardian, the sale deed executed by her in favour of the plaintiff found in
\nOriginal Suit No.293 of 1983, which has been marked as Ex.A4 is legally valid.
\nThe second defendant found in Original Suit No.293 of 1983 has obtained Ex.B7 on
\n06.08.1991 from the father of the minor and that too after appointment of mother
\nof the minor as guardian to her under Ex.A13. Therefore, it goes without saying
\nthat Ex.B7 is nothing but a void document and the first defendant has not
\nderived anything from Ex.B7.\n<\/p>\n
\t27. In the light of the foregoing enunciation of both the factual and
\nlegal premise, it is very clear that the argument advanced by the learned
\ncounsel appearing for the appellant in all the appeals is not having effective
\nforce and whereas, the argument advanced by the learned counsel appearing for
\nthe first respondent in Second appeal No.1247 of 1994 is really having
\nsubsisting force and further the common substantial question of law framed in
\nall these appeals is decided against the appellant and altogether second appeal
\nNos.1247 to 1249 of 1994 are liable to be dismissed.\n<\/p>\n
\t28. Now the Court has to expound the point involves in Second Appeal
\nNo.224 of 2006. The only point which involves in Second appeal No.224 of 2006 is
\nas to whether the deceased appellant has derived title to the suit property by
\nvirtue of the sale deed dated 17.11.1982, which has been marked as Ex.A1.\n<\/p>\n
\t29. The contention of the plaintiff is that the suit property is
\noriginally belonged to Velayudhan Nadar and he sold the same on 17.11.1982 in
\nfavour of the plaintiff and since then the plaintiff is in peaceful possession
\nand enjoyment of the same and the defendants found in Original Suit No.328 of
\n1997 are not having any semblance of right over the suit property. Under the
\nsaid circumstances, Original Suit No.328 of 1997 has been filed for the reliefs
\nof declaration of title, possession and perpetual  injunction.\n<\/p>\n
\t30. The first defendant viz., Sasidharan has filed a detailed written
\nstatement, wherein he has specifically stated that the alleged predecessor in
\ntitle of the plaintiff has had no interest to sell the suit property to the
\nplaintiff on 17.11.1982 under Ex.A.1.\n<\/p>\n
\t31. The Courts below have concurrently found that the vendor of the
\nplaintiff by name Velayudhan Nadar has had no interest to convey the alleged
\nsuit property in favour of the plaintiff under Ex.A1.\n<\/p>\n
\t32. The father of the said Velayudhan Nadar by name Perumal Nadar has
\npurchased 32 cents in the suit Survey number from one Raman Pillai under Ex.B7
\nand its Tamil translation has been marked as Ex.B8.  After the demise of Perumal
\nNadar, his son Velayudhan Nadar has sold 10 cents to one Muthayyan Nadar and the
\nconcerned sale deed has been marked as Ex.B9 and its Tamil translation has been
\nmarked as Ex.B10. After execution of Ex.B9, the said Velayudhan Nadar has had
\ntitle only in respect of the remaining extent of 22 cents and he sold the same
\nin favour of one Swami Pillai S\/o Kumarasamy Pillai under Ex.B11 and its Tamil
\ntranslation has been marked as Ex.B12.  Therefore, after execution of Ex.B9 and
\n11, the alleged vendor of the plaintiff by name Velayudhan Nadar has had no
\ninterest in the suit survey number. But he executed a sale deed in favour of the
\nplaintiff on 17.11.1982 which has been marked as Ex.A1.\n<\/p>\n
\t33. The learned counsel appearing for the appellant\/plaintiff has
\nstrenuously contended that the plaintiff has purchased 10 cents under Ex.A1 on
\n17.11.1982 and in Original Suit No.293 of 1983, an Advocate Commissioner has
\nbeen appointed and he inspected the present suit property and its surrounding
\nproperties and he filed his reports and plans, which have been marked as Exs.C1
\nto C4 and in Ex.C4 it has been clearly mentioned that in suit survey number an
\nextent of 44.500 cents is available and therefore, the Court can easily come to
\na conclusion that Ex.A1 is a valid document and the appellant\/plaintiff has
\nderived valid title to the suit property.\n<\/p>\n
\t34. The learned counsel appearing for the first respondent has also
\nequally contended that the first respondent has purchased the property found in
\nOriginal Suit No.293 of 1983 under Ex.B15 wherein it has been erroneously
\nmentioned as 22 cents and the erstwhile minor after attaining majority, has
\nexecuted a release deed in favour of the first respondent on 17.06.1998, wherein
\nit has been clearly mentioned as 32 cents and therefore, the first respondent is
\nalone having title to 32 cents. Under the said circumstances, the claim made by
\nthe appellant\/plaintiff is not legally valid and the Courts below have
\nconcurrently found that the plaintiff is not entitled to get the relief sought
\nfor in the plaint and therefore, the concurrent Judgments passed by the Courts
\nbelow are not liable to be interfered with.\n<\/p>\n
\t35. It has already been discussed in detail, that the father of the
\npredecessor in title of the plaintiff by name Perumal Nadar has purchased only
\n32 cents under Ex.B7 and his son Velayudhan Nadar has sold 10 cents to Muthayyan
\nNadar under Ex.B9 and the remaining 22 cents to Swami Pillai under Ex.B11.
\nTherefore, the said Velayudhan Nadar has had no right to execute sale deed in
\nrespect of suit survey number after exhibits B9 and B11 and the plaintiff is not
\nhaving title to the alleged suit property under Ex.A1.\n<\/p>\n
\t36. The release deed alleged to have been executed by erstwhile minor by
\nname Simtha in favour of the first defendant herein has been marked as Ex.B20.
\nThe predecessor in title of the said erstwhile minor by name Swami Pillai has
\npurchased only 22 cents under Ex.B11 and the mother of the minor has purchased
\nonly 22 cents under Ex.B13.  But the erstwhile minor has stated in Ex.B20 as 32
\ncents.  The first defendant has also purchased only 22 cents under Ex.B15.
\nTherefore, it is quite clear that in the suit survey number only 32 cents are
\navailable and the same have already been sold by the said Velayudhan Nadar in
\nfavour of Muthayyan Nadar and Swami Pillai and the predecessor in title of the
\nfirst defendant has purchased only 22 cents and he purchased the same under
\nEx.B15 and therefore, the claim of the plaintiff as well as the first defendant
\ncannot be accepted and further merely on the basis of the aspects mentioned in
\nthe commissioner’s plan, the Court cannot come to a conclusion that the
\nplaintiff is having title to the alleged suit property by virtue of Ex.A1.
\nTherefore, the plaintiff is not entitled to get the reliefs sought for in the
\nplaint.\n<\/p>\n
\t37. In view of the discussion made earlier, the argument advanced by the
\nlearned counsel appearing for the appellant as well as the first respondent are
\nnot having merits and altogether the present second appeal deserves dismissal
\nand further all the substantial questions of law framed in the second appeal are
\ndecided against the appellant.\n<\/p>\n
\t38. In fine, these second appeals deserve dismissal and accordingly are
\ndismissed with cost. The Judgments and decrees passed in Original Suit Nos.293
\nof 1983, 272 of 1986, 477 of 1991 and 328 of 1997 by the trial Court, upheld in
\nAppeal Suit Nos.52, 31, 67 of 1992 and 47 of 2003 by the first appellate Court
\nare confirmed. Connected CMP.No.1664 of 2006 is also dismissed.\n<\/p>\n
mj<\/p>\n
To<\/p>\n
1.The Subordinate Court, Kuzhithurai<\/p>\n
2.The Principal District Munsif Court,
\n   Kuzhithurai.<\/p>\n","protected":false},"excerpt":{"rendered":"
Madras High Court Chellan Alias Velayutham vs Sasidharan on 2 December, 2008 BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT Dated: 02\/12\/2008 Coram The HONOURABLE MR.JUSTICE A.SELVAM S.A.Nos.1247 to 1249 of 1994 and S.A(MD)No.224 of 2006 and CMP(MD)No.1664\/06 Chellan alias Velayutham .. Appellant\/2nd Defendant in SA.No.1247\/94 .. Appellant\/Defendant in SA.No.1248\/94 .. Appellant\/Plaintiff in SA.No.1249\/94 1.Jesintha […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[8,13],"tags":[],"class_list":["post-211258","post","type-post","status-publish","format-standard","hentry","category-high-court","category-madras-high-court"],"yoast_head":"\nChellan Alias Velayutham vs Sasidharan on 2 December, 2008 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/chellan-alias-velayutham-vs-sasidharan-on-2-december-2008\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Chellan Alias Velayutham vs Sasidharan on 2 December, 2008 - 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