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Murugan vs Kesava Gounder (Dead) Thr Lrs And … on 25 February, 2019

REPORTABLE
IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO.1782 OF 2019
(arising out of S.L.P. (C) No. 21091 of 2010)

MURUGAN ORS. …APPELLANTS

Vs.

KESAVA GOUNDER (DEAD)
THR. LRS. AND ORS. …RESPONDENTS

J U D G M E N T

ASHOK BHUSHAN, J.

This is the plaintiff’s appeal challenging the

judgment of Madras High Court dismissing the second

appeal filed by the plaintiffs-appellants.

2. Brief facts of the case are:-

2.1 The suit property belongs to one Petha

Gounder. Petha Gounder had two sons namely

Kannan and Balaraman and three daughters.

Signature Not Verified Sengani Ammal was wife of Petha Gounder. On
Digitally signed by
ARJUN BISHT
Date: 2019.02.25
11:57:52 IST
Reason: 17.05.1971 Petha Gounder executed a Will

bequeathing life interest to his sons Kannan

and Balaraman and thereafter to the two male
1
heirs of his both the sons, who were to take

the property absolutely. Will further

stipulated that in event, there is no male

heir to one of his sons, the male heirs of

other son will take the property. Petha

Gounder died on 28.11.1971 leaving behind his

wife, two sons Balaraman and Kannan and three

daughters. Petha Gounder’s wife Sengani

Ammal died on 02.02.1982. Balaraman had one

son namely Palanivel.

2.2 Balaraman on his behalf as well as on behalf

of his minor son had sold Item Nos.1 to 3 of

the suit properties by registered Sale Deed

dated 15.12.1981. Balaraman also sold Item

No.6 and a portion of Item No.7 by two Sale

Deeds dated 30.03.1981 and 31.03.1981 in

favour of the first defendant. Balaraman had

sold Item No. 6 in favour of the second

defendant by registered Sale Deed dated

29.03.1982. Balaraman died in 1983 and

Kannan died on 02.12.1984. Balaraman’s wife

was Lakshmi. The plaintiffs are sons of

Kannan. Palanivel, the son of Balaraman died

2
on 11.02.1986 while still a minor.

Palanivel’s mother Lakshmi Ammal executed a

registered Release Deed dated 24.03.1986 in

favour of the plaintiffs for a consideration.

The plaintiffs filed suit No.229 of 1992

praying for following reliefs:-
“VI. The plaintiffs therefore pray
that the Hon’ble Court may be pleased
to:-

(a) Declare that the plaintiffs are
entitled to the suit properties;

(b) Direct the Defendants to deliver
possession of the suit
properties failing which order
delivery of possession through
process of court;

(c) Direct the Defendants to pay the
cost of the suit and

(d) Grant such other reliefs as the
Hon’ble Court may deem fit in
the circumstances of the case.”

2.3 The plaintiffs’ case in the plaint was that

Balaraman had no authority to execute Sale

Deed on behalf of his minor son Palanivel and

the Sale Deeds executed by Balaraman were

void. The plaintiffs being sons of Kannan

are entitled for declaration and possession

of the properties from the defendants. It
3
was further pleaded that validity of the Will

dated 17.05.1971 has been upheld by the

Subordinate Judges Court, Cuddalore in O.S.

No. 447 of 1973.

2.4 The defendant filed written statement. The

defendant’s case was that Balaraman, in order

to discharge his debts and for family

necessity executed sale deed for himself and

on behalf of his minor son on 15.12.1981.

The sale deed binds the minor Palanivel. The

release deed executed by Lakshmi Ammal on

24.03.1986 will confer no right to the

plaintiffs. The suit is barred by limitation

since the suit has not been filed within 03

years from the date of death of Palanivel

i.e. 11.02.1986. The suit as framed is not

maintainable. The defendants are not in

illegal possession. The defendants are

bonafide purchasers for value. The

plaintiffs cannot file suit for declaration

without praying for setting aside the sale

deeds.

4
2.5 The trial court framed ten issues. Issue

No.7 was “Whether the suit is barred by

limitation?”. Issue No.8 was “Whether the

plaintiffs are entitled to seek for

declaration of title in respect of suit

properties?”. Issue No.9 was “Whether the

plaintiffs are entitled to seek for recovery

of possession?”. The trial court while

deciding Issue No.7 held that suit is not

barred by limitation. Trial court held that

plaintiff having filed the suit as

reversioner, Article 65 of the Limitation Act

will apply. As per Article 65, period for

limitation is 12 years, hence suit was within

time. The Will dated 17.05.1971 was held to

be a valid Will. The sale deeds executed by

Balaraman are voidable. On release deed, the

trial court held that Lakshmi Ammal had no

right in the suit properties, as such the

plaintiffs do not derive any new right from

the release deed. Trial court held that it

is not necessary to decide the truth and

validity of the release deed dated

5
24.03.1986. The trial court further held that

there was no necessity to file the suit

seeking a prayer to set aside the sale deeds

separately since those sale deeds are

voidable and they can be ignored. It was

held that plaintiffs are competent to recover

possession from the defendants. Trial court

vide its judgment and decree dated 13.08.1997

decreed the suit.

2.6 The defendants aggrieved by the judgment of

the trial court filed appeal. The Principal

District Judge vide its judgment dated

31.08.1999 allowed the appeal dismissing the

suit. Appellate Court held that since

Palanivel died on 11.02.1986, the suit should

have been filed to set aside the sale deeds

and for possession within 03 years from his

death. The suit filed in 1992 was barred by

limitation. The Appellate Court relied on

Article 60 of the Limitation Act. Aggrieved

against the judgment of the First Appellate

Court, the plaintiffs filed second appeal in

the High Court. High Court vide its judgment

6
dated 21.04.2010 dismissed the second appeal.

High Court had framed following substantial

questions of law for consideration:-

“i) Whether the Learned First Appellate

Judge is correct in holding that the

release deed Ex.A-15 dated 24.03.1986, is

not avoiding the transfers by sales under

Exs. A-9B-9, A-10B-7, A-11B-2 and A-

12B-9, executed by the natural guardian

late Balaraman, of the properties belong

to the deceased minor Palanivel?

ii) Whether the sale deeds executed by late

Balaraman, the natural guardian of minor

Palanivel, of the properties of the minor

are valid in law when the said sale deeds

were executed in gross violation of

Section 8(2)(a) of the Hindu Minority and

Guardianship Act, especially when the

mother, who claimed under the minor

avoided the sale immediately on the

demise of the minor?

iii)Whether first appellate Judge is correct

in holding that the suit is not

7
maintainable, since the suit was not

filed to set aside the sales within three

years from the date of demise of minor

Palanivel?

2.7 The High Court held that alienations made by

Balaraman can be construed only as a voidable

alienations and not void alienations. High

Court held that plaintiffs suit ought to have

been filed within 03 years as per Article 60

of the Limitation Act. All substantial

questions of law were decided in favour of

the defendants-respondents. High Court

dismissed the second appeal. Aggrieved

against the judgment, this appeal has been

filed.

3. Shri V. Prabhakar, learned counsel for the

appellants in support of the appeal contends that

Article 60 of the Limitation Act shall not apply and

the suit was rightly held to be governed by Article

65 by the trial court, which was well within time.

It is submitted that the option to repudiate the

action on behalf of the minor having been exercised

8
by mother of the minor, the sale deed executed by

Balaraman become void from its inception. Sale deeds

executed by Balaraman were without permission of the

Court and were without legal necessity, hence was

rightly repudiated by his mother Lakshmi Ammal. On

the strength of repudiation of the alienation by

Lakshmi Ammal, the sale deeds become void and there

was no necessity for praying for setting aside the

sale deeds and suit for declaration and possession

was fully maintainable. Article 60 would have been

applicable only if the suit was filed for setting

aside the sale deeds.

4. Ms. V. Mohana, learned senior counsel appearing

for the respondents refuting the submissions of the

counsel for the appellants contends that suit was

clearly barred by time, it having been not filed

within 03 years from the date of death of the minor.

It is further submitted that release deed dated

24.03.1986 cannot be accepted as repudiation of the

sale deeds. It is submitted that without praying for

setting aside the sale deeds, the decree of

possession could not have been claimed by the

9
plaintiffs. Limitation was governed by Article 60 of

the Limitation Act.

5. Learned counsel for the parties have relied on

various judgments, which shall be referred to and

considered while considering the submissions in

detail.

6. From the submissions of the learned counsel for

the parties and pleadings on record, following are

the issues, which arise for consideration in this

appeal:-

(i) Whether the suit filed by the plaintiffs-

appellants was barred by limitation?

(ii) Whether without praying for setting aside
the sale deeds executed by Balaraman, the
suit for declaration and possession was
maintainable?

(iii) Whether the plaintiffs can successfully
contend that by execution of release deed
dated 24.03.1986 by Lakshmi Ammal, sale
deeds executed by Balaraman were
successfully repudiated?

10
Issue No. 1

7. The trial court has held that suit has been filed

within time relying on Article 65 whereas the

Appellate Court as well as the High Court relied on

Article 60 and held that suit was barred by time.

Part IV of the Limitation Act, which deals with suits

relating to “Decrees and instruments” contains

Articles 59 and 60. Article 60 is as follows:-

“_
Description of suit Period of Time from which
Limitation period begins to run
_

60 To set aside a
transfer of property
made by the guardian
of a ward-

(a)by the ward who Three years When the ward attains majority.

has attained
majority.

(b)by the ward’s
legal representative-
i) When the ward dies Three years When the ward attains majority.
within three years
from the date of
attaining majority.
ii) When the ward Three years When the ward dies.
dies before
attaining majority.”

8. Article 65 is contained in Part V (suits relating

to immovable properties), which is as follows:-

“65. For possession of immovable Twelve Years When the possession of
property or any interest therein the defendant becomes
based on title. adverse to the plaintiff.
Explanation.- For the purposes
of this article-

11

(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 only when the
female dies;

(c) 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.”

9. Article 60(b)(ii) refers to a suit when a ward

dies before attaining majority. The present is a

case where Palanivel died on 11.02.1986 before

attaining majority, his date of birth being

16.07.1978, the limitation to avoid instrument made

12
by guardian of the ward is 03 years from the death of

ward when he dies before attaining majority. This

Court had occasion to consider Articles 60 and 65 of

the Limitation Act in reference to alienation made by

a de-facto guardian of a minor. In the case of

Madhukar Vishwanath Vs. Madahav and Others, (1999) 9

SCC 446, the maternal uncle of the appellant has

executed a sale deed. The appellant after becoming

major on 22.08.1966 filed a suit on 07.02.1973

praying that transferors be required to deliver the

possession of the property. On behalf of appellant,

Article 65 was relied for the purposes of limitation.

This Court held that it is Article 60 and not Article

65, which is applicable. Paragraph No. 4 and 5 of

the judgment are relevant, which are quoted as

below:-

“4. XXXXXXXXX

That the defendant, Baburao Madhorao
Puranik, was the appellant’s de facto
guardian had been established and,
therefore, the disposal by him of the said
property was void. Being void, it was open
to the appellant to file the suit for
possession of the said property and the
period for limitation for such suit was
prescribed by Article 65.

13

5. ……………………Even if the suit was entertained
as pleaded, no decree for possession could
have been passed without first finding that
the alienation was not for legal necessity
and was, therefore, bad in law. To such a
suit the provisions of Article 60 apply.
Article 60 relates to a suit to set aside a
transfer of property made by the guardian
of a ward by the ward who has attained
majority and the period prescribed is three
years commencing on the date on which the
ward attains majority………………………”

10. This Court in Narayan Vs. Babasaheb and Others,

(2016) 6 SCC 725 again had occasion to consider

Article 60 of the Limitation Act. In the above case,

this Court held that a suit by minor for setting

aside the sale of his property by his guardian is

governed by Article 60 of the Limitation Act. In

Paragraph Nos. 25 and 26, following was laid down:-

“25. A close analysis of the language of
Article 60 would indicate that it applies
to suits by a minor who has attained
majority and further by his legal
representatives when he dies after
attaining majority or from the death of the
minor. The broad spectrum of the nature of
the suit is for setting aside the transfer
of immovable property made by the guardian
and consequently, a suit for possession by
avoiding the transfer by the guardian in
violation of Section 8(2) of the 1956 Act.
In essence, it is nothing more than seeking
to set aside the transfer and grant
consequential relief of possession.

14

26. There cannot be any doubt that a suit
by quondam minor to set aside the
alienation of his property by his guardian
is governed by Article 60. To impeach the
transfer of immovable property by the
guardian, the minor must file the suit
within the prescribed period of three years
after attaining majority.”

11. Now, coming to Article 65, on which reliance has

been placed by learned counsel for the appellants.

The said period of limitation is available when suit

is filed for possession of immovable property on any

interest therein based on title. The present is a

case where by registered sale deeds the property was

conveyed by the father of the minor was eonominee

party. Thus, when sale deed was executed by Balaraman

he purported to convey the right of the minor also.

The sale deeds being voidable and not void,

plaintiffs cannot rely on Article 65. We, thus, are

of the view that first Appellate Court and the High

Court has rightly held that limitation for suit was

governed by Article 60 and the suit was clearly

barred by time.

12. It is important to find from the sale deed what

was conveyed. This we say, as appellant has a case

15
that the father of the minor was given a life estate

and after his death alone the minor was to get a

right. In this regard we may notice the distinction

between a vested right and a contingent right. Vested

right is the subject matter of Section 19 of the

Transfer of Property Act whereas a contingent

interest is dealt with Section 21 of the Transfer of

Property Act. Since the life estate followed by an

absolute right is created by a will, the relevant

provision is Section 119 of the Indian Succession

Act, 1925. Section 119 reads as follows:

“119. Date of vesting of legacy when
payment or possession postponed.—Where by
the terms of a bequest the legatee is not
entitled to immediate possession of the
thing bequeathed, a right to receive it at
the proper time shall, unless a contrary
intention appears by the Will, become
vested in the legatee on the testator’s
death, and shall pass to the legatee’s
representatives if he dies before that time
and without having received the legacy, and
in such cases the legacy is from the
testator’s death said to be vested in
interest.

Explanation.—An intention that a legacy
to any person shall not become vested in
interest in him is not to be inferred
merely from a provision whereby the payment
or possession of the thing bequeathed is
postponed, or whereby a prior interest
therein is bequeathed to some other person,
or whereby the income arising from the fund

16
bequeathed is directed to be accumulated
until the time of payment arrives, or from
a provision that, if a particular event
shall happen, the legacy shall go over to
another person.”

It is relevant that we notice illustration No.(iii)

which reads as follows:

“(iii) A fund is bequeathed to A for life,
and after his death to B. On the testator’s
death the legacy to B becomes vested in
interest in B.”
Therefore, the absolute right bequeathed in favour of

Palanivel became vested in him upon the death of

Petha Gounder.

Issue No.2

13. In the present case, there is no dispute that

sale deeds executed by Balaraman on behalf of himself

and his minor son Palanivel were executed without

obtaining permission of the Court. Section 8 of the

Hindu Minority Guardianship Act, 1956, which is

relevant is 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
estate; but the guardian can in no case
bind the minor by a personal covenant.

17

(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
subsection (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 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 section
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 section 4A thereof.

(b) the court shall observe the
procedure and have the powers
specified in sub-sections (2), (3)
and (4) of section 31 of that Act;

and

18

(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 Guardians
and Wards 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.”

14. This Court time and again has considered the

cases of alienation by natural guardian in

contravention of Section 8 and Section 8(2) of the

1956 Act. This Court held that sale deed in

violation of Section 8(1) and 8(2) is a voidable sale

deed. Voidable has been defined in Black’s Law

Dictionary, Tenth Edition as under:-

“Valid until annulled; esp., (of a
contract) capable of being affirmed or
rejected at the option of one of the
parties. This term describes a valid act
that may be voided rather than an invalid
act that may be ratified.”

19

15. Salmonds on Jurisprudence, Twelfth Edition has

noticed the distinction between Valid, Void and

Voidable in following passage:-

“… A valid agreement is one which is
fully operative in accordance with
the intent of the parties. A void
agreement is one which entirely fails
to receive legal recognition or
sanction, the declared will of the
parties being wholly destitute of
legal efficacy. A voidable agreement
stands midway between these two
cases. It is not a nullity, but its
operation is conditional and not
absolute. By reason of some defect in
its origin it is liable to be
destroyed or cancelled at the option
of one of the parties to it. On the
exercise of this power the agreement
not only ceases to have any efficacy,
but is deemed to have been void ab
initio. The avoidance of it relates
back to the making of it. The
hypothetical or contingent efficacy
which has hitherto been attributed to
it wholly disappears, as if it had
never existed. In other words, a
voidable agreement is one which is
void or valid at the election of one
of the parties to it.”

16. This Court in Dhurandhar Prasad Singh Vs. Jai

Prakash University and Others, (2001) 6 SCC 534 had

noted the distinction between Void and Voidable. In

Paragraph No. 22, following has been laid down:-

“22. Thus the expressions “void and
voidable” have been the subject-matter of

20
consideration on innumerable occasions by
courts. The expression “void” has several
facets. One type of void acts,
transactions, decrees are those which are
wholly without jurisdiction, ab initio void
and for avoiding the same no declaration is
necessary, law does not take any notice of
the same and it can be disregarded in
collateral proceeding or otherwise. The
other type of void act, e.g., may be
transaction against a minor without being
represented by a next friend. Such a
transaction is a good transaction against
the whole world. So far as the minor is
concerned, if he decides to avoid the same
and succeeds in avoiding it by taking
recourse to appropriate proceeding the
transaction becomes void from the very
beginning. Another type of void act may be
which is not a nullity but for avoiding the
same a declaration has to be made. Voidable
act is that which is a good act unless
avoided, e.g., if a suit is filed for a
declaration that a document is fraudulent
and/or forged and fabricated, it is
voidable as the apparent state of affairs
is the real state of affairs and a party
who alleges otherwise is obliged to prove
it. If it is proved that the document is
forged and fabricated and a declaration to
that effect is given, a transaction becomes
void from the very beginning. There may be
a voidable transaction which is required to
be set aside and the same is avoided from
the day it is so set aside and not any day
prior to it. In cases where legal effect of
a document cannot be taken away without
setting aside the same, it cannot be
treated to be void but would be obviously
voidable.”

17. In Vishwambhar and Others Vs. Laxminarayan (Dead)

Through LRs. and Another, (2001) 6 SCC 163, which was

21
a case of challenge to alienation without Court’s

sanction and without legal necessity, this Court

held that the alienation by natural guardian was

voidable. In the above case, the mother, natural

guardian of two minors has executed the sale deed

before they attained majority. Minors after

attaining majority had filed suit pleading that sale

deeds are not binding and operative on the legal

rights of plaintiff, and prayed that the said sale

deeds be set aside to the extent of their share and

the suit for possession of the land be decreed. In

the above case, after considering Section 8 this

Court held that sale deeds were voidable at the

instance of the plaintiff. This Court further held

that if the plaintiffs were required to have the sale

deeds set aside before making any claim in respect of

suit properties sold then a suit without such a

prayer was of no avail to the plaintiffs. Following

was held in Paragraph No.9:-

“9. …………………………………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
22
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 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 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

23
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 could 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 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.”

18. To the same effect is the judgment of this Court

in Madhegowda (dead) by LRs. Vs. Ankegowda (dead) by

LRs. and Others, (2002) 1 SCC 178, where in Paragraph

No. 25, following has been held:-

“25.……………………The minor, on attaining
majority, can repudiate the transfer in any
manner as and when occasion for it arises.

24

After attaining majority if he/she
transfers his/her interest in the property
in a lawful manner asserting his/her title
to the same that is sufficient to show that
the minor has repudiated the transfer made
by the “de facto guardian/manager”.

19. This Court further held in Nangali Amma Bhavani

Amma Vs. Gopalkrishnan Nair and Others, (2004) 8 SCC

785 that the alienation made in violation of Section

8(2) is voidable, holding it to be 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. Following was held in Paragraph No.8:-

“8. 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…………………………….”

20. The alienations, which were voidable, at the

instance of minor or on his behalf were required to

be set aside before relief for possession can be

claimed by the plaintiffs. Suit filed on behalf of
25
the plaintiffs without seeking prayer for setting

aside the sale deeds was, thus, not properly framed

and could not have been decreed.

Issue No.3

21. The question is as to whether by execution of the

release deed dated 24.03.1986 in favour of the

plaintiffs, there was repudiation of the alienation

made by Balaraman. The release deed has been brought

on the record as Annexure P-1. A perusal of the

release deed does not indicate that there is any

reference of alienation made by Balaraman in favour

of the defendants. There being no reference of the

alienation made by Balaraman on behalf of minor,

there is no occasion to read release deed as

repudiation of the claim on behalf of the minor.

Section 8(3) gives a right to the minor or any person

claiming under him, the relevant words in Section

8(3) are “at the instance of the minor or any person

claiming under him.” Thus, alienation made on behalf

of the minor can be avoided by minor or any person

claiming under him. In event, minor dies before

26
attaining majority, obviously, his legal heirs will

have right to avoid the alienation.

22. The submission raised by the learned counsel for

the respondents is that for avoiding sale of

immovable property of a minor as contemplated under

sub-section (3) of Section 8, the minor or any person

claiming under him has to bring an action i.e. to

file a suit within the limitation prescribed.

23. Learned counsel for the appellants has refuted

the submission and contended that the avoidance of a

sale of immovable property by a minor can be in any

manner. It is submitted that it is not necessary for

minor or the person claiming on his behalf to bring a

suit for avoiding a sale deed.

24. We have noticed above that sub-section (3) of

Section 8 refers to a disposal of immovable property

by a natural guardian in contravention of sub-section

(1) or sub-section (2) as voidable. When a registered

sale deed is voidable, it is valid till it is avoided

in accordance with law. The rights conferred by a

registered sale deed are good enough against the

whole world and the sale can be avoided in case the

27
property sold is of a minor by a natural guardian at

the instance of the minor or any person claiming

under him. A document which is voidable has to be

actually set aside before taking its legal effect.

This Court in Gorakh Nath Dube vs. Hari Narain Singh

and others, (1973) 2 SCC 535, while making

distinction between void and voidable document held:

“5………We think that a distinction can be made
between cases where a document is wholly or
partially invalid so that it can be
disregarded by any court or authority and one
where it has to be actually set aside before
it can cease to have legal effect. An
alienation made in excess of power to
transfer would be, to the extent of the
excess of power, invalid. An adjudication on
the effect of such a purported alienation
would be necessarily implied in the decision
of a dispute involving conflicting claims to
rights or interests in land which are the
subject-matter of consolidation
proceedings……”

25. In Amirtham Kudumbah vs. Sarnam Kudumban, (1991)

3 SCC 20, this Court had occasion to consider the

provisions of Section 8(3) of the Hindu Minority and

Guardianship Act, 1956. The facts of the case have

been noticed in paragraph 5 which is to the following

effect:

28
“5. The relevant facts are that the suit
property belonged to one Veerammal. She had
a daughter by name Kaliammal. Veerammal
died shortly after she purchased the
property in 1948. She left behind her
husband Kandayya and their daughter
Kaliammal. Subsequently, Kandayya married a
second time when his daughter Kaliammal was
a minor. She thereupon left her father’s
house and resided with her maternal
grandfather who protected and maintained
her. During her minority, Kandayya sold the
property on October 29, 1959 to
Jainulavudeen. On April 25, 1966,
Jainulavudeen in turn sold the property to
the defendant-appellant. Subsequently, on
May 26, 1966 the plaintiff obtained a deed
of sale of the suit property in his favour
from Kaliammal who had by then attained
majority. The plaintiff thereafter
instituted the present suit (O.S. No. 491
of 1968) against the appellant to set aside
the transfer of property made by Kandayya
and for recovery of its possession.”

26. One of the questions which came for consideration

in the above case was that “whether a transferee from

a minor after he attained majority, can file a suit

to set aside the alienation made by the minor’s

guardian or the said right is one to be exercised

only by the minor? A person entitled to avoid such a

sale is either the minor or any person claiming under

him. This Court held that either the minor, or his

legal representative in the event of his death, or

his successor-in-interest claiming under him by

29
reason of transfer inter vivos, must bring action

within the period prescribed for such a suit, i.e.

three years. Following is laid down in paragraph 9:

“9. The effect of this sub-section is
that any disposal of immovable property by a
natural guardian otherwise than for the
benefit of the minor or without obtaining
the previous permission of the court is
voidable. A person entitled to avoid such a
sale is either the minor or any person
claiming under him. This means that either
the minor, or his legal representative in
the event of his death, or his successor-in-
interest claiming under him by reason of
transfer inter vivos, must bring action
within the period prescribed for such a
suit, i.e. three years from the date on
which the minor died or attained majority,
as the case may be. In the present case, the
suit was brought, as found by the courts
below, within three years after the minor
attained majority.”

27. In Vishwambhar and others vs. Laxminarayan(Dead)

through LRs. and another (supra) this Court has

observed that 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.

28. This Court time and again held that setting aside

of a sale which is voidable under Section 8(3) is
30
necessary for avoiding a registered sale deed. We

may, however, not to be understood that we are

holding that in all cases where minor has to avoid

disposal of immovable property, it is necessary to

bring a suit. There may be creation of charge or

lease of immovable property which may not be by

registered document. It may depend on facts of each

case as to whether it is necessary to bring a suit

for avoiding disposal of the immovable property or it

can be done in any other manner. We in the present

case are concerned with disposal of immovable

property by natural guardian of minor by a registered

sale deed, hence, we are confining our consideration

and discussion only with respect to transfer of

immovable property by a registered deed by a natural

guardian of minor.

29. The Limitation Act, 1963 has been enacted by the

Parliament after the enactment of Hindu Minority and

Guardianship Act, 1956. Article 60 of the Limitation

Act, 1963 which provides for limitation “suits

relating to decrees and instruments”. The Limitation

Act contemplates suit to set aside a transfer of

property made by the guardian of a ward for which
31
limitation is contemplated as three years. Article 60

of the Limitation Act although provides for a

limitation of a suit but also clearly indicates that

to set aside a transfer of property made by the

guardian of a ward a suit is contemplated.

30. We may notice a judgment of this Court reported

in Madhegowda (Dead) by LRs. vs. Ankegowda (Dead) by

LRs. and others, (2002) 1 SCC 178. This Court in the

above case had occasion to consider Section 11 of the

Hindu Minority and Guardianship Act, 1956. In the

above case sister of a minor acting as guardian sold

immovable property by registered sale deed. In the

above reference this Court had made following

observations:

“25………Undoubtedly Smt Madamma, sister of
the minor, is not a “guardian” as defined in
Section 4(b) of the Act. Therefore, she can
only be taken to be a “de facto guardian” or
more appropriately “de facto manager”. To a
transfer in such a case Section 11 of the
Act squarely applies. Therefore, there is
little scope for doubt that the transfer of
the minor’s interest by a de facto
guardian/manager having been made in
violation of the express bar provided under
the section is per se invalid. The existence
or otherwise of legal necessity is not
relevant in the case of such invalid
transfer. A transferee of such an alienation
32
does not acquire any interest in the
property. Such an invalid transaction is not
required to be set aside by filing a suit or
judicial proceeding. The minor, on attaining
majority, can repudiate the transfer in any
manner as and when occasion for it arises.
After attaining majority if he/she transfers
his/her interest in the property in a lawful
manner asserting his/her title to the same
that is sufficient to show that the minor
has repudiated the transfer made by the “de
facto guardian/manager”.”

31. The above observations were made by this Court in

the context of Section 11 of the Act, 1956. Section

11 of the Act contains a statutory prohibition on “de

facto guardian” of the minor from disposing of the

property of the minor. The transfer made by de facto

guardian is, thus, void and can be repudiated in any

manner. It is well settled that it is not necessary

for a minor or any person claiming under him to file

a suit for setting aside a void deed. A void deed can

be ignored. The above observations cannot be held to

be applicable to transfer made by a natural guardian

under Section 8(3) of the Act.

32. We may notice one more judgment of this Court

relied on by the learned counsel for the appellants

that is G. Annamalai Pillai vs. District Revenue

33
Officer and others, (1993) 2 SCC 402. The question

which arose for consideration in the said case has

been noticed in paragraph 1 of the judgment in

following words:

“1. The short question for consideration in
this appeal is whether lease deed in dispute, which
was voidable in terms of Section 8(3) of the Hindu
Minority and Guardianship Act, 1956 (the Act) when
validly avoided, was effective from the date of the
lease deed so as to make the transaction void and
unenforceable from the very inception.”

33. The land in dispute was owned by one Janarthanan.

His father, Purushothaman executed a registered lease

deed in favour of appellant on 12.12.1971 on which

date the owner was minor. The appellant filed

application before Tehsildar to be registered as a

tenant which was contested by Janarthanan.

Janarthanan contended that his father has no right or

title to deal with land and lease by his father is in

contravention of Section 8 of Hindu Minority and

Guardianship Act, 1956. Tehsildar held that there was

no valid lease which order was confirmed by the High

Court against which judgment appeal was filed. In

paragraphs 5 and 6 following has been laid down:

34
“5. We have heard learned counsel for the
parties. We have been taken through the
orders of the Revenue authorities, judgment
of the learned Single Judge and of the
Division Bench of the High Court in writ
appeal. The Division Bench of the High
Court, in a lucid judgment, answered the
question — posed by us in the beginning —
in the affirmative and against the
appellant-Annamalai Pillai on the following
reasoning:

“We have already seen that clause (3) of
Section 8 of the Hindu Minority and
Guardianship Act, 1956, specifically makes
the transaction voidable. The lease
executed by the guardian in this case is
prohibited and in that sense it was
without any authority. On the legal
efficacy and the distinction between
valid, void and voidable agreements, we
find the following passage in Salmond on
Jurisprudence, Twelfth Edition at page
341:

‘… A valid agreement is one which is
fully operative in accordance with the
intent of the parties. A void agreement
is one which entirely fails to receive
legal recognition or sanction, the
declared will of the parties being
wholly destitute of legal efficacy. A
voidable agreement stands midway
between these two cases. It is not a
nullity, but its operation is
conditional and not absolute. By reason
of some defect in its origin it is
liable to be destroyed or cancelled at
the option of one of the parties to it.
On the exercise of this power the
agreement not only ceases to have any
efficacy, but is deemed to have been
void ab initio. The avoidance of it
relates back to the making of it. The
hypothetical or contingent efficacy
35
which has hitherto been attributed to
it wholly disappears, as if it had
never existed. In other words, a
voidable agreement is one which is void
or valid at the election of one of the
parties to it.’

This distinction has also been
judicially noticed in the Privy Council
judgment reported in Satgur Prasad v.
Harnarain Das and in the Division Bench
judgment in S.N.R. Sundara Rao and Sons,
Madurai v. CIT. The Division Bench held,
following the said Privy Council judgment as
follows:

‘When a person, who is entitled to
dissent from the alienation, does so, his
dissent is in relation to the transaction
as such and not merely to the possession
of the alienee on the date of such
dissent.

The effect of the evidence is,
therefore, to get rid of the transaction
with the result that in law it is as if
the transaction had never taken place.’

We have, therefore, no doubt that when the
fifth respondent avoided the lease executed
by his father, the fourth respondent, the
lease became void from its inception and no
statutory rights, could, therefore, accrue
in favour of the appellant herein.”

6. We agree with the reasoning and the
conclusions reached by the Division Bench
of the High Court and as such this appeal
has to be dismissed.”

34. Learned counsel for the appellants relying on the

above decision contends that sale by Balaraman when

has been avoided by release deed it became void from

36
the very beginning. There can be no quarrel to the

proposition laid down in G. Annamalai Pillai vs.

District Revenue Officer and others(supra). In the

present case there having been no repudiation of sale

deed on behalf of minor, the question of voidable

sale deed becoming void does not arise.

35. We are, thus, of the considered opinion that in

the present case it was necessary for the person

claiming through minor to bring an action within a

period of three years from the date of the death of

the minor to get sale deed executed by Balaraman set

aside. We, thus, conclude that the sale deeds

executed by Balaraman were not repudiated or avoided

within the period of limitation as prescribed by law.

Issue No.3 is answered accordingly.

36. In view of the foregoing discussions, we do not

find any merit in this appeal. The appeal is

dismissed accordingly.

………………….J.

( ASHOK BHUSHAN )

………………….J.

( K.M. JOSEPH )
New Delhi,
February 25, 2019.

37

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