SANKARAN POULU and others v SUNDARI VIJAYAMMA and ENOSE JEEVANAYAKOM

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR.JUSTICE N.K.BALAKRISHNAN** ## **THURSDAY, THE 20TH DAY OF JUNE 2013/30TH JYAISHTA 1935** ## **SA.No. 78 of 1996 (A)** **----------------------** **AGAINST THE JUDGMENT IN AS 20/1994 of SUB COURT,NEYYATTINKARA DATED 24-02-1995** **AGAINST THE JUDGMENT IN OS 42/1985 of ADDL.MUNSIFF COURT-II, NEYYATTINKARA DATED 25.07.1986** ## **APPELLANTS/RESPONDENTS 1 TO 3/DEFENDANTS 1 TO 3:** **------------------------------------------------------------------------------------** **1. SANKARAN POULU, AGED 52 YEARS, KALLUMALA PERINGOTTU KONATHU PUTHEN VEEDU, VADACODE DESOM, NEYYATTINKARA VILLAGE, NEYYATTINKARA TALUK (DIED)** **2. SULOCHANA, W/O. 1ST APPELLANT, AGED 44 YEARS, - DO - - DO -** **3. DAVEEDU JOSEPH, AGED 55 YEARS, KALLUVETTAMKUZHI D.J. BUNGLOW, MALAYINKIL DESOM, MARUKIL VILLAGE** - **ADDITIONAL APPELLANTS** **4. LAL KUIMAR S/O. LATE SANKARAN POULU, RESIDING AT PERINGOTTUKONAM ROADARIKATHU VEEDU VADAKODU, PERUMPAZHUTHOOR P.O., THIRUVANANTHAPURAM.** **5. SACHU, D/O. SULOCHANA, RESIDING AT PERINGOTTUKONAM ROADARIKATHU VEEDU, VADAKODU, PERUMPAZHUTHOOR P.O., THIRUVANANTHAPURAM.** **6. JAYASREE, D/O. SULOCHANA, RESIDING AT PERINGOTTUKONAM ROADARIKATHU VEEDU VADAKODU, PERUMPAZHUTHOOR P.O., THIRUVANANTHAPURAM.** **ADDL. APPELLANTS 4 TO 6 ARE IMPLEADED AS THE LEGAL HEIRS OF DECEASED 1ST APPELLANT AS PER THE ORDER DATED 30.9.2010 IN I.A. NO.2502/2010** - **BY ADVS.SRI.G.S.REGHUNATH SRI.M.RAMASWAMY** **...2** **-2-** ## **SA.No. 78 of 1996 (A)** ## **RESPONDENTS/APPELLANT/PLAINTIFF AND 4TH RESPONDENT/4TH RESPONDENT:** - **------------------------------------------------------------------------------------------------------------------------** **1. SUNDARI VIJAYAMMA, AGED 37 YEARS, PLANKOTTU KIZHAKKUMKARA PUTHEN VEEDU, KUNNANADU DESOM, OTTASEKHARAMANGALAM VILLAGE NEYYATTINKARA TALUK** **2. ENOSE JEEVANAYAKOM, AGED ABOUT 59 YEARS, CHAMAVILA PUTHEN VEEDU, EDAKKODE DESOM, NEYYATTINKARA VILLAGE R1 BY ADV. SRI.P.R.VENKATESH** **THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 20-06-2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **N.K. BALAKRISHNAN, J.** ------------------------------------------ S.A. No. 78 of 1996 -----------------------------------------Dated this the 20[th] day of June, 2013 ## **J U D G M E N T** Defendants 1 to 3 in a suit for recovery of possession are the appellants. During the pendency of the appeal the first appellant died. His legal representatives were impleaded as supplemental appellants. The suit was for declaration of title and for recovery of possession. 2. The plaint schedule property measures 43 cents. It is comprised in Sy.No. 493/4 of Neyyattinkara Village. Originally it belonged to Bhagavathi Pillai and Govinda Pillai. They mortgaged the property to one Subramaniyan Nadar and Kunjan Nadar as per Ext. A1 mortgage deed of 1113 M.E. (corresponding to 1938). On the other hand the appellants would contend that Bhagavathi Pillai and Govinda Pillai had earlier executed a lease deed in respect of the plaint schedule property and other properties in ## **S.A. No. 78/1996** **-2-** favour of one Raman Nadar and Kochappy Nadar in 1107 as per Ext. B1 who assigned that right to Nelson Nadar in 1972 as per document No.1629/1972. It is their further case that Nalson Nadar mentioned above assigned his lease hold right to Jeevanayakam in 1972 as evidenced by Ext.B2. The learned counsel or the plaintiffs would submit that Ext. B1 lease deed has nothing to do with the plaint schedule property since the survey number mentioned therein is totally different. But the learned counsel for the appellants would submit that in Ext.A1 itself there is a recital regarding the earlier lease in favour of Raman Nadar. It is further contended that since the lease was not determined there were litigations between the parties and ultimately in order to avoid the litigations, the father and mother of the plaintiffs sold the property in 1974 to defendants 3 and 4 on their own behalf and on behalf of the plaintiff, she being represented by her mother as guardian. Ext. B5 is that ## **S.A. No. 78/1996** **-3-** sale deed dated 19-8-1974. According to the plaintiff, her father and mother were in direct possession of the property on the strength of Ext. A2 – the assignment deed of 1942 and it was because they were in possession of the property they executed Ext.A5 gift deed to the plaintiff and Thankappan Nadar, her 'would be husband' on 2-7-1973. 3. PWs 1 and 2 were examined and Exhibits A1 to A9 were marked. DW1 was examined on the side of the defendant and Exhibits B1 to B9 were marked. The suit was dismissed by the trial court, but the lower appellate granted a decree as sought for. The learned counsel for the appellants has assailed the finding of the lower appellate court on various grounds. 4. The following substantial questions of law have been re-framed: i. Was the gift deed executed by the plaintiff's father, in favour of the plaintiff and Thankappan Nadar, accepted and acted upon? ## **S.A. No. 78/1996** **-4-** - ii. Did the lower appellate court go wrong in holding that the gift, so far as it relates to Thankappan Nadar, was also accepted when he himself repudiated the gift? - iii. Did the lower appellate court go wrong in holding that the release deed executed by Thankappan Nadar would itself prove acceptance of the gift without properly interpreting the terms of the document and bearing in mind the context in which the said document was executed? - iv. Did the lower appellate court go wrong in not properly interpreting Section 125 of the Transfer of Property Act? - v. Is not the sale deed executed by the plaintiff's father and mother valid, even though the mother acts as the guardian of the minor plaintiff, but the father was also one of the two executants of that document? 5. The learned counsel for the appellants would submit that Ext. A5 gift deed was executed in favour of the plaintiff and her 'would be husband'. It was a 'Sthridhana ## **S.A. No. 78/1996** **-5-** property'. Admittedly, their marriage did not take place. Since it was only a conditional gift and since the condition was not fulfilled (as the marriage did not take place) the gift was not acted upon and that was why Thankappan Nadar released his right as per Ext.A6 dated 11-10-1973. The learned counsel for the plaintiff/respondent would submit that the contention that the gift deed was not acted upon nor was it accepted by the donees mentioned therein cannot be accepted at all since even in the release deed executed by Thankappan Nadar, it was specifically mentioned that the properties were jointly possessed by Thankappan Nadar and the plaintiff who was then a minor. The further fact that Thankappan Nadar did not release the property in favour of the donors mentioned in Ext. A5 would also make it clear that the gift was accepted by the plaintiff who was then a minor and if, as a matter of fact, the gift was not accepted or acted upon then certainly Thankappan Nadar would have ## **S.A. No. 78/1996** **-6-** released the right obtained under Ext.A5 in favour of the donors and not in favour of the minor plaintiff, it is further contended by the respondent. That is one of the grounds which has been projected by the learned counsel for the respondent to contend that Ext.A5 gift was accepted and acted upon by the donees mentioned therein. By virtue of the release deed executed by Thankappan Nadar in favour of the plaintiff/respondent, she became the owner of the property but as she was a minor the property was managed and look after by her father. 6. It is trite law that there can be a gift in favour of a minor and the minor himself/herself can also accept the gift especially a non-onerous gift, and even if the minor was not accepting the gift, his/her parents can accept the gift on behalf of the minor. If the donor himself is the parent of the minor, the possession of the property by the parent on behalf of the minor would be sufficient to hold that the gift **-7-** ## **S.A. No. 78/1996** was accepted. Admittedly, it is not an onerous gift and as such the contention that the gift was not accepted by the donee, cannot be accepted. It is further submitted by the learned counsel for the plaintiff/respondent that in view of the fact that the plaintiff's father and mother executed the impugned sale deed ignoring the fact that the plaintiff was in possession of the property on the strength of the gift deed and since the sale deed was executed by the mother as the guardian of the plaintiff, the sale deed is void and so the necessity to set aside the document or to declare the sale deed as null and void does not arise. 7. The learned counsel for the appellants has relied upon Ext. B1 lease deed to contend that the lease deed takes in the entire property measuring 31 acres 71 cents in Sy.No. 492/1B, 3 and 4. The descriptions of the property shown therein have been referred to by the learned counsel in support of that submission. The learned counsel for the ## **S.A. No. 78/1996** **-8-** plaintiff would submit that it is not necessary to dwell much on those aspects since the sole question that now arises for consideration is whether the sale deed executed by the mother as the guardian of the minor plaintiff is void or voidable. But in this connection, the learned counsel for the appellants would submit that the very reason for execution of the sale deed stated in the document would make it clear that it was because of the pendency of so many litigations between the parties they (the parents of the plaintiff) wanted to get rid of the property by selling the same to others. Some of the recitals in the documents were referred to in support of that contention. Those circumstances seem to have prompted the father and mother to execute the document. Whether that would be sufficient to hold the document void, is the pertinent question that falls for consideration. If Ext.B5 the sale deed executed by the father and mother in favour of ## **S.A. No. 78/1996** **-9-** defendants 3 and 4 are held to be valid then subsequent assignments should also be treated as valid. If on the other hand it is found that the aforesaid sale deed dated 19-8-1974, (Ext. B5) is void then the subsequent assignees will not get any right from defendants 3 and 4. 8. The decision of the Supreme Court in **K. Balakrishnan v. K. Kamalam and others – (2004) 1 SCC 581** has been relied upon in this connection to contend that the gift in favour of the plaintiff who was then a minor was accepted. A perusal of the gift deed would show that the donor had transferred to the donne the ownership and title in respect of the properties. It was open to the donor to transfer the title and ownership of the property by way of gift and at the same time to reserve its possession and enjoyment to himself during his life time. It was held by the Apex Court that there is no prohibition in law that ownership in a property cannot be gifted without ## **S.A. No. 78/1996** **-10-** its possession and right of enjoyment under Sec. 6 of the T.P. Act, "property of any kind may be transferred", except those mentioned in Sec. 6 (a) to Sec. 6(i). 9. It is also pointed out that the last part of Section 127 of the T.P.Act clearly indicates that though a minor donee is incompetent to enter into a contract under Sec. 11 of the Contract Act, he is competent to accept an onerous gift. Where a gift is made in favour of the child of the donor, the acceptance of gift can be presumed to have been made by him or on his behalf without any overt act signifying acceptance by the minor. Knowledge of gift deed to both the parents as natural guardian of the donee is sufficient to indicate acceptance of gift by the minor himself or on his behalf by the parents. Bearing in mind the principles of law expostulated by the Supreme Court in the decisions cited supra and other decisions on the point there can be no doubt that the minor can accept the gift and that ## **S.A. No. 78/1996** **-11-** the donor of the minor child can also accept the gift on behalf of the minor. The gift in question is not an onerous gift and as such it has to be presumed that the donee had accepted the gift. The contention that there was no acceptance of the gift, is thus found to be devoid of any merit, in so far as it relates to the gift in favour of the plaintiff. 10. It is argued by the learned counsel for the respondent that it was ignoring Ext. B3 gift deed and Ext. B4 - release deed executed by Thankappan Nadar, Ext. B5 the sale deed was executed by the father and mother of the plaintiff. It is further argued that no petition was filed before the District Court seeking permission of the Court to sell the property nor was the sale effected on account of any necessity. According to the respondent, the mother of the plaintiff was not competent to represent her (plaintiff) since under the Travancore Christian Guardianship Act, 1116 **-12-** ## **S.A. No. 78/1996** when the father is alive, father is the natural guardian as stated in Sec. 3 of the Act . 11. Section 3 reads: **"Persons who shall be the legal guardians** - The following persons, in the order named, shall be the legal guardians of minors in respect of their person and properties, namely, the father, mother, paternal grand-father, full brothers in the order of seniority, half-brothers by the same father in the order of seniority, and maternal grand father, paternal uncles in the order of seniority and maternal uncles in the order of seniority: Provided that the husband shall be the legal guardian of his minor wife in respect of her person and property". Therefore, when the father was alive, the mother cannot act as the guardian. But it is submitted by the learned counsel for the appellants/ defendants that here Ext.B5 the sale deed was actually executed by the father ## **S.A. No. 78/1996** **-13-** and mother of the plaintiff who was then a minor aged 17 years. Therefore, according to the appellants it is not a void document but only a voidable document since unlike in a case where the father happened to be a witness to the document, here, the father himself is one of the executants though mistakenly the mother was stated as the guardian of the minor. 12. When father and mother executed the document, father approves, agrees and recognises the fact that the minor was properly represented by the guardian though it was recited that the mother acted as the guardian, since the father was also one of the executants of the document, it is argued on behalf of the appellants. Since both father and mother executed the document it cannot be said that the sale deed executed by the father and mother is void so as to avoid setting aside of that document within three years from the date of attainment of the majority, the ## **S.A. No. 78/1996** **-14-** learned counsel for the appellants submits. Ext. B5 states about the transactions which were had in respect of the property covered thereunder and also about the cases including criminal cases pending between the parties who claimed possession of the property by virtue of the assignment deeds executed earlier. It is seen further stated that since such cases were pending, in order to have a quietus to those litigations, and to leave that place, the registered sale deed Ext. B5 happened to be executed. It is in evidence that there were so many litigations pending between the two groups claiming title and asserting possession in respect of the said property. Therefore, the recitals in Ext. B5, as to the circumstances under which Ext. B5 happened to be executed, may appear to be true. But the recital therein that by virtue of Ext. B1 lease deed of 1107 the executants, namely the father and mother of the plaintiff were in possession of the property may not be ## **S.A. No. 78/1996** **-15-** acceptable as such. The further recital in Ext. B5 is that though Ext. B3 gift deed was executed in favour of the plaintiff and her 'would be' husband Thankappan Nadar, since the marriage did not take place, Ext.B3 gift deed was not acted upon and that it was executed only as a condition for the marriage and so Thankappan Nadar happened to execute the release deed. In other words, Ext.B3 was executed only as a 'sthreedhanam' property and since admittedly the marriage did not take place the gift deed also did not come into force. But the plaintiff contends that as the appellants/defendants could claim right based only on Ext.B5 sale deed executed by the plaintiff's mother, the appellants cannot dispute the plaintiff's right over the property. Now the pertinent question is whether the plaintiff had absolute right or whether she was having only half share in the property. Since the gift in favour of Thankappan Nadar was not acted upon, then to that extent **-16-** ## **S.A. No. 78/1996** it should be treated as void, the appellants contend. 13. Section 125 of the Transfer of Property Act reads: “A gift of a thing to two or more donees, of whom one does not accept it, is void as to the interest which he would have taken had he accepted.” This section applies when a gift is to two or more donees. The refusal of one of the donees will not prevent the gift taking effect as regards the other donee. Section 125 indicates a severance and postulates that the donees take it as tenants in common. It is vehemently argued by the learned counsel for the respondent that the appellants cannot contend that the gift was not accepted by Thankappan Nadar, one of the donees, because he himself had executed a release deed in favour of the plaintiff. 14. The argument that has been advanced is that if the gift was not accepted and acted upon, there was no necessity of executing such a document in favour of the ## **S.A. No. 78/1996** **-17-** plaintiff. But when the recitals in Ext.B4 itself would make it indubitable clear that the gift was not accepted, for the reasons stated therein, Ext.B4 can only be treated as a document evidencing the non acceptance of Ext.B3 gift. If Ext.B3 gift, to the extent of the gift in favour of Thankappan Nadar, had not taken place or acted upon, then to the extent of his moiety, it is void. If it is void to that extent then Thankappan Nadar, the executant of Ext.B4- release deed, had no right to confer title to the plaintiff in respect of the remaining undivided share in the property covered by Ext.B3 gift. If so, the plaintiff could get no right over the said undivided share on the strength of Ext.B4-release deed executed by Thankappan Nadar. When Ext.B3 gift is void to the extent of the gift in favour of Thankappan Nadar, then it would certainly revert back to the donor. As such, despite the fact that Thankappan Nadar had executed a release deed in favour of the plaintiff/respondent in respect of the ## **S.A. No. 78/1996** **-18-** undivided half share in the said property, no right could accrue in favour of the plaintiff in respect of that half share. Since the gift in favour of Thankappan Nadar is void, the release deed executed by him in favour of the plaintiff is invalid, inoperative and inconsequential and could confer no title to the plaintiff in respect of that half share. Ext.B4 - the release deed can only be used to prove the non acceptance of Ext.B3 gift by Thankappan Nadar. But the contention that the sale deed executed by the father and mother in favour of the appellants is valid in its entirety, cannot be accepted since, in fact the sale deed was executed by the mother of the plaintiff when the father was alive and available. Though he is also one of the executants of that sale deed, he did not act as the guardian of the plaintiff who was then a minor aged 17 years. 15. The plaintiff's father who is otherwise a legal guardian had also joined in the execution of the document. ## **S.A. No. 78/1996** **-19-** He was not a mere witness to the document and as such it cannot be said that the plaintiff's father had no knowledge or that he did not recognize or approve the mother of the plaintiff as the guardian for the purpose of executing the document, it is argued. Therefore, the contention that the document is void ab initio cannot be accepted, the learned counsel for the appellant submits. 16. If it is found that Ext. B5 was executed by the natural guardian then it would be only a voidable document. It is submitted by the learned counsel for the appellants that unlike in the Hindu Minority and Guardianship Act, there is no provision in The Travancore Christian Guardianship Act, 1116, as to the necessity of obtaining permission from the Court, for transferring the property of the minor. 17. It was stated by the plaintiff that the defendants trespassed into the property on 10-1-1975. It was also ## **S.A. No. 78/1996** **-20-** admitted that she was residing with her uncle in her uncle's house at Aryancode, about 20 kms. away from the plaint schedule property. This has been pointed out by the learned counsel for the appellants to contend that Ext. B5 was necessitated in order to avoid getting themselves involved in other criminal cases and civil cases and it was in order to escape from that place the document was executed and that was why the plaintiff started residing about 20 kms. away from the plaint schedule property. 18. The suit was filed in the year 1986, after 11 years of the alleged trespass. The contention that the plaintiff came to know about the execution of the documents only when the written statement was filed, cannot thus be believed at all. It was admitted by the plaintiff (P.W.1) that the old house in the plaint schedule property was reconstructed. It was also admitted by P.W.1 that the first defendant had constructed a house in ## **S.A. No. 78/1996** **-21-** that property and he is residing in that house. She pretends ignorance as to the value of the said building. She also says that the said house was constructed after the first defendant was alleged to have trespassed into the property in 1975. Relying on the admission made by P.W.1 it is argued by the learned counsel for the appellants that the plaintiff was well aware of the fact that from 1975 onwards the first defendant had been in possession of the property and he constructed a house in that property but the suit was filed only after 11 years just before completing 12 years from the date of the alleged trespass. 19. The decision in **Paily Joseph v. Union of India - 1988 (2) KLT 867** has been relied upon by the learned counsel for the respondent in support of his submission that the provisions of the Christian Guardianship Act (Act 11 of 1116 of Travancore) are applicable to the parties as admittedly they are Christians of Travancore area. In ## **S.A. No. 78/1996** **-22-** **Paily Joseph** 's case (cited supra) the paternal grandfather was held to be the legal guardian of the minor in the absence of the father and mother of the minor. The learned counsel for the respondent has relied upon the Full Bench decision in **Oommen Punnoose and others v. Korathu Korathu and others - 1951 KLT 623** in support of his submission that alienation of minor's property by an unauthorized person is absolutely void and the alienee if put in possession would be only a trespasser. It was held therein that however good may be the reason for the alienation, even if it be for discharging debts unquestionably binding on the estate of the minor, the alienation would still be void if the person granting it has not the competency to convey. The question as to the character and adequacy of the consideration would arise only in a case where the transaction is entered into by a person having authority. Therefore, relying on the aforesaid ## **S.A. No. 78/1996** **-23-** decision, it is argued by the learned counsel for the respondent that even if the recitals in Ext.B5 as to the reasons which compelled the parents to execute the sale deed are correct still if they are incompetent to convey the property then the document would be void. But so far as the case on hand is concerned, the father of the minor is also one of the executants of the sale deed, the appellants point out. 20. The decision in **P.T.Chathuchettiar v. Kariyattu Kunnjummal Kanaran - AIR 1984 Kerala 118** also has been relied upon. That was a case where Sections 6,8 and 11 of the Hindu Minority and Guardianship Act, 1956 came up for consideration. There the property was jointly owned by the father and minor sons. Father of the minor sons was alive and he was not disqualified to act as a guardian but the alienation was effected by the mother and so it was held that the alienation by the mother is void. It **-24-** ## **S.A. No. 78/1996** is pointed out that the provisions contained in Secs. 8 (2) and 8(3) of that Act require that the natural guardian, before disposing the minor's property, should obtain permission of the Court and that even if it is considered that the father of the minors has joined in the alienation, still it is difficult to accept the contention that the alienation is only voidable and that minors should have taken proceedings to cancel or set aside the document. But the learned counsel for the appellants has taken exception to the other part of the decision in **P.T. Chathuchettiar** 's case (cited supra) since the ratio of the subsequent decisions on the point is that if the alienation is by the natural guardian then it is only voidable and not void _ab initio_ . 21. The decision in **Madhegowda v. Ankegowda - 2002 (1) SCC 178** has also been relied upon by the learned counsel for the respondents. There also Section 11 ## **S.A. No. 78/1996** **-25-** of the Hindu Minority and Guardianship Act, 1956 was the point for consideration. There, it was held that the alienation of the minors property by de facto manager/guardian is _perse_ invalid and void _ab initio_ . In such a case, legal necessity is not at all a relevant factor to be considered and that the alienee would not acquire any title to the property. 22. The decision in **Jija Bai v. Mithal Rao's case – AIR 1971 SC 315** and **Pannilal's case – 1993 (4) SCC 38** were relied upon by the apex court in **Githa Hariharan v. Reserve Bank of India – AIR 1999 SC 1149** . In **Githa Hariharan** 's case, while interpreting the provisions of Hindu Marriage and Guardianship Act (Act 32) of 1956 it was held by the apex court: “The word 'guardian and the meaning attributed to it by the legislature under section 4(b) of the Act cannot be said to be restrictive in any way and thus the same **-26-** ## **S.A. No. 78/1996** would mean and include both the father and the mother and this is more so by reason of the meaning attributed to the word as “a person having the care of the person of a minor or his property or of both his person and property ....” it is an axiomatic truth that both the mother and the father of a minor child are duty bound to take due care of the person and the property of their child and thus having due regard to the meaning attributed to the word 'guardian' both the parents ought to be treated as guardians of the minor. As a matter of fact the same was the situation as regards the law prior to the codification by the Act of 1956. The law therefore recognized that a minor has to be in the custody of the person who can subserve his welfare in the best possible way – the interest of the child being paramount consideration.” It was also held that the expression 'natural guardian' is defined in Section 4(c) to mean any of the guardians as ## **S.A. No. 78/1996** **-27-** mentioned in section 6 of the aforesaid Act. It was held that the father and mother are natural guardians in terms of the provisions of section 6 r/w section 4 (c). 23. In **Jijabai Vithalrao Gajre v. Pathankhan and Others - AIR 1971 SC 315** it was held that the position in Hindu Law was that when the father is alive he is the natural guardian and it is only after him that the mother becomes the natural guardian. Where the father was alive but had fallen out with the mother of the minor child and was living separately for several years without taking any interest in the affairs of the minor, who was in the keeping and care of the mother, the father should be treated, as if non-existent. Considering the peculiar circumstances of that case it was held that the mother could be considered as the natural guardian of the minor's person as well as property having power to bind the minor by dealing with her immovable property. **Panni Lal v. Rajinder Singh** ## **S.A. No. 78/1996** **-28-** **and Another - (1993) 4 SCC 38** was a case where the property belonging to the respondents therein was sold when they were minors by their mother acting as their guardian to the appellant therein under a registered sale deed. Upon attaining majority the respondents sued the appellant for possession of the land on the ground that the sale was made without the permission of the Court and so it was void. The fact that the sale deed was attested by the father of the respondents was relied on by the appellant and contended that it should be deemed to be a sale validly made by the legal guardian of the respondent. But it was held that the document is void since it could not be held to be a sale by the father and natural guardian, satisfying the requirement of Sec. 8 of the Hindu Guardian and Wards Act. 24. The learned counsel for the respondents would submit that though the father of the minor had also joined ## **S.A. No. 78/1996** **-29-** in the execution of the document he did not act as the guardian of the minor whereas it was the mother who was shown as the guardian. Admittedly, the father was alive and very much present and he was even shown as one of the executants of the document, but it cannot be said that the father had acted as the guardian. If the sale was not brought about by the natural guardian then certainly the sale should be treated as void. It is pointed out that the father happened to be one of the executants in the sale deed because the property was in the possession of the father and that was why he also joined in the execution of the document. It is further contended that it is not a case where the father was absent or that he was totally unconcerned with the welfare of the minor or that the mother was, throughout, looking after the welfare of the minor and that the father was not available to act as the natural guardian of the minor in which case only the word ## **S.A. No. 78/1996** **-30-** "after" occurring in Sec. 6 (a) of the Hindu Minority and Guardianship Act can be interpreted to mean "in the absence of father" to make the section consistent with the constitutional safeguard of gender equality. 25. Section 19 (b) of Guardian and Wards Act also has to be considered in the same manner in which Sec. 6 (a) of the Hindu Minority and Guardianship Act is to be construed. But here it is not a case where the father was totally absent. He was very much present. It was only the mother who acted as the natural guardian. She was not competent to act as the guardian of the minor. There was no incapacity for the father nor was there anything to contend that the father was acting against the interest of the minor. In such circumstances, it is not possible to hold that though the father was present the mother acted as the guardian . It is not a case where the words "in the absence of father" occurring in Sec. 6 (a) can be interpreted **-31-** ## **S.A. No. 78/1996** in the facts and circumstances of this case to hold that the father was totally absent so as to contend that the alienation made by the mother acting as the guardian of the minor is only a voidable act. Since the alienation has to be treated as void and since the suit was filed within 12 years from the date of alienation, the contention that the suit was barred by limitation cannot be sustained. 26. The fact that the plaintiff's father had title to 43 cents of land before the execution of the gift deed in favour of the plaintiff and Thankappan Nadar is not in dispute. The release deed executed by the Thankappan Nadar in favour of the plaintiff would show that by virtue of the gift deed and the release deed executed by Thankappan Nadar, he obtained right over 43 cents of the property which is the plaint schedule. 27. As has been stated earlier, if a gift is complete the same cannot be revoked. The subsequent conduct of a ## **S.A. No. 78/1996** **-32-** donee cannot be a ground for rescission of a valid gift. But so far as the case on hand is concerned, the gift in favour of the plaintiff to the extent of her moiety alone is valid. The gift in favour of Thankappan Nadar having been not accepted by him was impliedly revoked and so it is not valid. 28. The contention advanced by the appellant is that the gift in favour of the minor could have been accepted only by the parents and since the father repudiated that gift by executing the sale deed, it should be presumed that the gift did not take place even in respect of the half share of the plaintiff. That plea cannot be sustained. The gift can be accepted by the minor herself or on her behalf by the father or mother. Here, the fact remains that gift in her favour was accepted. Therefore, the sale deed executed by her mother in respect of the plaintiff's share should be treated as void. The consequence of non acceptance of gift by **-33-** ## **S.A. No. 78/1996** Thankappan Nadar in the context of Section 125 of T.P. Act has already been adverted to. It follows that by virtue of the sale deed, vendees thereunder could obtain the undivided half share in the said property (covered by Ext.B4) and to that extent the sale deed is valid. But so far as it relates to the undivided half share of the plaintiff is concerned, since the plaintiff's mother was not the legal guardian competent to execute the sale deed, it is null and void and so the question of setting aside that document does not arise. The plaintiff can ignore that document. Therefore, the vendee under Ext.B5 cannot get any right over the undivided half share of the plaintiff in the said property. 29. In the light of the aforesaid finding, the plaintiff is not entitled to get a decree for declaration and injunction in entirety. Since, the plaintiff has to be treated as a co-owner along with the vendees under Ext.B5, the proper remedy **-34-** ## **S.A. No. 78/1996** would be to seek for partition of the entire property covered by the sale deed. For that purpose, the plaintiff may have to seek amendment of the plaint. As such, the suit has to be remanded to the trial court for fresh disposal affording an opportunity to the plaintiff to seek amendment of the plaint for partition of the property covered by Ext.B5 sale deed. In the result this Second Appeal is allowed in part. The decree and judgment passed by the courts below in favour of the plaintiff/respondent are set aside and the suit is remanded to the trial court for fresh disposal. The plaintiff is given opportunity to seek amendment of the plaint and to seek further relief in the matter. The parties are directed to appear before the trial court on **18.07.2013** . The trial court will dispose of the suit at the earliest. Sd/- N.K. BALAKRISHNAN, JUDGE //True Copy// P.A. to Judge ani/jjj