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G.Rajendran vs Ayyanar @ Velu Ayyanar on 30 September, 2019

S.A.No.852 of 2019

IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED: 30.09.2019

CORAM:

THE HON’BLE MR.JUSTICE R.SUBRAMANIAN

S.A.No.852 of 2019
and
C.M.P.No.17535 of 2019

1.G.Rajendran
2.G.Venkatesan
3.Kokila
4.Amutha
..Appellants
Vs.

Ayyanar @ Velu Ayyanar
..Respondent

PRAYER: Second Appeal filed under Section 100 of C.P.C., to set aside the
judgment and decree of the I Additional Sub-Judge, Villupuram made in
A.S.No.22 of 2009 dated 30.10.2018 and also reversing the judgment and
decree passed by the Principal District Munsif Court, Tirukoilur in O.S.No.177
of 2006 dated 16.12.2008.

For Appellants : Mr.K.Harikrishnan

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S.A.No.852 of 2019

JUDGMENT

The plaintiffs in O.S.No.177 of 2006 are the appellants. The suit

was filed seeking declaration of title of the plaintiffs and for recovery of

possession.

2. According to the plaintiffs, the suit property originally

belonged to Pulugammal W/o. Sanjeevi Chettiar, she having purchased the

same on 07.05.1940. The said Pulugammal W/o. Sanjeevi Chettiar sold the

property to one Puluvan Chettiar S/o. Chinnaiya Chettiar. The said Puluvan

Chettiar settled the property along with other properties on his son

Govindarajalu Chettiar on 12.12.1967.

3. As per the said settlement deed, Govindarajalu Chettiar was

given a life estate and on his death the property was to go to his legal heirs

and in the absence of any legal heirs to Govindarajalu Chettiar, the property

was to revert back to the heirs of the settlor viz., Puluvan Chettiar.

Govindarajalu Chettiar was enjoying the property. By a sale deed dated

09.09.1981, he sold the property to one Munusamy Gounder S/o. Thoppala

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Gounder. The said Munusamy Gounder and his other legal heirs had sold the

property to the defendant, who is the daughter-in-law of Munusamy Gounder

on 20.01.2000.

4. According to the plaintiffs, the sale by Govindarajalu Chettiar

dated 09.09.1981 is invalid and will not bind their interest in the property.

Govindarajalu Chettiar eventually died on 03.09.2005. The plaintiffs claiming

that they would become the owners of the property on the death of

Govindarajalu Chettiar had come forward with the above suit seeking

declaration of title and recovery of possession.

5. The suit was resisted by the defendant contending that the

suit as framed is not maintainable. It is also claimed that the sale was

effected for the Education, Nourishment and medical expenses of the plaintiffs

by the father Govindarajalu Chettiar and in order to discharge various loans

borrowed by him. It is also claimed that the defendant has perfected title on

adverse possession.

6. Upon consideration of the evidence on record, the learned trial

Judge held that the sale deed dated 09.09.1981 will not bind the plaintiffs

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since Govindarajalu Chettiar had only a life estate in the property and he could

not have conveyed the entire property. On the said finding, the learned trial

Judge decreed the suit as prayed for. Aggrieved the defendant had filed an

appeal in A.S.No.22 of 2009.

7. Before the lower appellate court, a question of law regarding

maintainability of the suit in the absence of prayer seeking to set aside the

sale deed dated 09.09.1981 was framed, since the said sale deed was executed

by Govindarajalu Chettiar for himself and on behalf of the minor children.

Considering the said legal issue, the learned Additional Sub Judge, Villupuram

came to a conclusion that the suit as framed is not maintainable.

8. The learned Subordinate Judge found that the sale deed dated

09.09.1981 viz., Ex.B3 has been executed by Govindarajalu Chettiar for himself

and on behalf of the minor children. The minor children being co-nominee

parties to the sale deed are bound to seek to set aside the document in a

manner known to law. The lower appellate court also took note of Section 8 of

the Hindu Minority and SectionGuardianship Act which declares that the sale of the

property of the minor by the natural guardian without permission of the court

is voidable at the instance of the minor and not void. On the aforesaid

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conclusion, the learned subordinate Judge allowed the appeal and dismissed

the suit. Aggrieved the plaintiffs are on appeal.

9. I have heard Mr.K.Harikrishnan, learned counsel appearing for

the appellants.

10. Mr.K.Harikrishnan, learned counsel appearing for the

appellants would vehemently contend that the lower appellate court was not

right in concluding that the suit itself is not maintainable in the absence of

prayer for setting aside the sale deed dated 09.09.1981. According to him,

Govindarajalu Chettiar had only life estate and the plaintiffs are the

reversioners. Since Govindarajalu Chettiar was alive, the plaintiffs did not get

right over the property. Therefore, the fact that the plaintiffs are included as

co-nominee parties to the sale deed dated 09.09.1981 will not affect their

claim for possession or declaration of title after the death of the life estate

holder. He would submit that the lower appellate court was not right in

dismissing the suit on the ground that the plaintiffs have not sought for the

relief of setting aside the sale deed dated 09.09.1981.

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11. I have considered the submissions of the counsel. Admittedly,

by the settlement deed dated 12.12.1967 Govindarajalu Chettiar had life

estate and after him, the property was to devolve on his legal heirs in the

absence of any legal heirs to Govindarajalu Chettiar, the property will devolve

on the male heirs of Puluvan Chettiar. The second contingency does not arise

since the plaintiffs are the legal heirs of Govindarajalu Chettiar.

12. A perusal of the sale deed dated 09.09.1981 shows that

Govindarajalu Chettiar dealt with the property for himself and on behalf of the

minors. Whatever right, title and interest the minors had on the date of sale

i.e., 09.09.1981 had been alienated by Govindarajalu Chettiar as the guardian

of the minor children. Of course the said sale has been made without

permission of the court. It is the settled law that the transfer by natural

guardian of the Hindu minor property is not per se invalid. Section 8 of the

Hindu Minority and SectionGuardianship Act 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
realisation, protection or benefit of the minor’s

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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.
(4) No court shall grant permission to the natural
guardian to do any of the acts mentioned in sub-
section (2) except in the case of necessity or for an
evident advantage to the minor.

(5) The Guardians and SectionWards Act, 1890 (8 of 1890),
shall apply to and in respect of an application for
obtaining 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 Sectionsection
29 of that Act, and in particular—

(a) proceedings in connection with the application
shall be deemed to be proceedings under that Act
within the meaning of Sectionsection 4A thereof;

(b) the court shall observe the procedure and have

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S.A.No.852 of 2019

the powers specified in sub-sections (2), (3) and (4)
of section 31 of that Act; and

(c) an appeal shall lie from an order of the court
refusing permission to the natural guardian to do
any of the acts mentioned in sub-section (2) of this
section to the court to which appeals ordinarily lie
from the decisions of that court.

(6) In this section “court” means the city civil court
or a district court or a court empowered under
section 4A of the Guardian and SectionWards Act, 1890 (8 of
1890), within the local limits of whose jurisdiction
the immovable property in respect of which the
application is made is situate, and where the
immovable property is situate within the
jurisdiction of more than one such court, means the
court within the local limits of whose jurisdiction
any portion of the property is situate. State
Amendments Assam: For modified application of
Sectionsection 8 of the Hindu Minority and SectionGuardianship
Act, 1956, see SectionAssam Act 7 of 1977, sec. 8 (w.e.f. 15-
6-1978). Punjab: For modified application of Sectionsection
8 of the Hindu Minority and SectionGuardianship Act, 1956,
see SectionPunjab Act 5 of 1979, sec. 22 (w.e.f. 18-6-1979).
West Bengal: For the purposes of West Bengal
Agricultural Credit Operations Act, 1973 (34 of 1973)
any reference to court in Sectionsection 8 of the Hindu
Minority and SectionGuardianship Act, 1956, shall be

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construed as reference to the collector and the
appeal against the order of the collector shall lie to
the Commissioner. [Vide West Bengal Act 34 of 1973,
sec. 8 (w.e.f. 15-11-1973).]

13. A perusal of Section 8(3) makes it clear that the sale by a

guardian of the interest of the minor is not per se invalid or void ab initio. It is

made voidable at the option of the minor. The Hon’ble Supreme Court in

Nagappan Vs. Ammasi Gounder reported in 2004 (13) SCC 480 has held that the

minors who impugnes the alienation by the guardian on the ground that it is in

violation of the Section 8 of Hindu Minority and SectionGuardianship Act should seek

to set aside the sale deed.

14. Therefore, it is clear that the suit by a erstwhile minor

seeking declaration of title without seeking to set aside alienation made by the

father is not maintainable. Thus, it could be seen that the lower appellate

court was perfectly in order in dismissing the suit on the ground of want of

prayer for setting aside the alienation made by the father.

15. I therefore, do not find any question of law much less a

substantial question of law in order to enable me to entertain this appeal.

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S.A.No.852 of 2019

This Second Appeal is therefore dismissed. No costs. Consequently, the

connected miscellaneous petition is also closed.

30.09.2019
dsa
Index : No
Internet : Yes
Speaking order

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S.A.No.852 of 2019

To
1. The learned I Additional Sub-Judge,
Villupuram.

2. The learned Principal District Munsif Court,
Tirukoilur.

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S.A.No.852 of 2019

R.SUBRAMANIAN, J.

dsa

S.A.No.852 of 2019

30.09.2019

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