Thankamonni Amma Padmakumari Amma Kariyamthottam Sangeeth Bhavan v. Ganapathi Suresh and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE P.SOMARAJAN** **MONDAY ,THE 25TH DAY OF FEBRUARY 2019 / 6TH PHALGUNA, 1940** ## **RSA.No. 1042 of 2007 (G)** **AGAINST THE DECREE AND JUDGMENT DATED 4/10/2006 IN AS 70/2000 of SUB COURT,NEYYATTINKARA** **AGAINST THE DECREE AND JUDGMENT DATED 13/12/1999 IN OS 1238/1997 of I ADDITIONAL MUNSIFF'S COURT,NEYYATTINKARA** ## **APPELLANTS/APPELLANTS/DEFENDANTS 2 AND 3:** - **1 THANKAMONI AMMA PADMAKUMARI AMMA KARIYAMTHOTTAM SANGEETH BHAVAN, MARUTHATHOOR, DESOM, NEYYATTINKARA PAKUTHY.** - **2 KRISHNANKUTTY SHAJI FROM ENTHIYARATHALAVILAKATHU VEEDU, KEEZHKOLLA DESOM, CHENKAL PAKUTHI AND RESIDING AT NARUNIYARATHALA VEEDU, NANCHAMKUZHI, PRESENT HOUSE NO.370/XXVII, (OLD NO.369/XXII).** - **BY ADVS. SRI.G.P.SHINOD SRI.MANU V. SRI.RAM MOHAN.G.** ## **RESPONDENTS/RESPONDENTS/PLAINTIFF AND DEFENDANTS 1 AND LR'S DEFENDANT 4:** - **1 GANAPATHI SURESH, SELLOOR, ANCHAMATHU THERUVU POLICE COMPOUND, AYYANARKOVIL, MADHURA CORPORATION, MADHURAI DISTRICT.** - **2 GANAPATHY ARUMUGHAM OF DO. DO.** - **3 LALITHAMMA SATHYA KUMARI DO. DO.** - 4 **PERMAL PILLAI GANAPATHI, NARUNIYARATHALA VILAKATHU VEEDU, KEEZHAKOLLA DESOM CHENKAL PAKUTHY** - **5 P.ASHA DEVI, D/O S.G.PREMNADH, 87 WEST PONNAGARAM, 7TH STREET, MADHUARI-10 BY ADV. SRI.G.S.REGHUNATH** **THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 25.02.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** R.S.A.No.1042/2007 2 **CR** ## **JUDGMENT** A suit for partition was decreed by the trial court and the first appellate court by granting a preliminary decree for partition against which the second and third defendants came up with this appeal. 2. The suit is one for partition and for fixation of boundary. The 4[th] defendant is the father of the plaintiffs. The mother obtained the property in the year 1953 under a partition. The father sold the property to the first defendant after the death of the mother. At that time the plaintiffs were minors. The third plaintiff attained majority in the year 1982. She has filed an earlier suit in O.S.No.239 of 1983 for herself and as next friend of her two minor siblings, the second and the first plaintiff. The suit was ended in dismissal for default. Ext.B8 is the judgment. It is thereafter, the present suit was instituted in the year 1997 for partition and fixation of R.S.A.No.1042/2007 3 boundary. Both the trial court and the first appellate court granted a decree for partition by passing a preliminary decree. Aggrieved by the said decree and judgment, the defendant Nos.2 and 3 came up with this appeal. 3. The questions came up for consideration are: i) Whether a document of transfer executed by the guardian for and on behalf of minors would be void at its very inception or voidable at the option of minors ? ii) Whether the trial court and the first appellate court justified in their conclusion that Ext.A2 sale deed is void at its very inception ? iii) Whether the trial court and the first appellate court are justified in passing a preliminary decree without a prayer for setting aside the document of alienation executed by the natural guardian of the minors ? **==> picture [291 x 13] intentionally omitted <==** R.S.A.No.1042/2007 4 impact of dismissal of the earlier suit for default, on a subsequent suit for the very same relief ? v) What is the period of limitation available to exercise option under Section 8 of Hindu Minority and Guardianship Act by the minor ? vi) Whether the trial court and the first appellate court failed in applying the legal position regarding the limitation in the exercise of option available to a minor, to challenge a document of alienation ? 4. Ext. A2 sale deed relates back to the year 1978, more specifically on 29.11.1979 executed by the father of minors, representing the three minor children, after the death of their mother. Section 8 of the Hindu Minority and Guardianship Act, 1956 extracted below for reference: (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 R.S.A.No.1042/2007 5 benefit of the minor or for the realization, protection or benefit of the minor’s estate; but the guardian can in no case bind the minor by a personal covenant. (2) The natural guardian shall not, without 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 to 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 subsection (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 R.S.A.No.1042/2007 6 respects as if it were an application for obtaining the permission of the court under section 29 of the Act, and in particular- (a) proceedings in connection with the application shall be deemed to be proceedings under that Act within the meaning of 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 ( 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 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. R.S.A.No.1042/2007 7 5. Sub section 3 to Section 8 of the Hindu Minority and Guardianship Act, 1956 ( for short the Act) deals with contravention of mandate under subsections 1 and 2 of Section 8 of the Act and the consequences thereof. The legal consequences of violation of mandate under sub section 1 and 2 to Section 8 of the Act is that the disposal of immovable property would be voidable at the instance of the minor or any person claiming under him. No period of limitation made mention anywhere in the Act, so as to exercise the option available to the minor under Section 8 (3) of the Act. **The question whether the document would stand as void at its very inception or it would be voidable at the instance of minor can be answered by the mere perusal of Section 8(3) of the Act. The wording used in Section 8(3) of the Act is so specific and clear as to what is intended by the legislature. It is only voidable at the instance of minor and not void at its very inception. The section itself is very much crystal clear that the** R.S.A.No.1042/2007 8 **document will not stand as void at its very inception, but would be voidable at the instance of the minor or any person claiming under him.** The legal position was very much settled by the Apex Court in _**Vishwambhar And Others v. Laxhminarayan (Dead) Through Lrs. And Another (2001 KHC 1131)**_ that the alienation not void _ab initio_ but voidable at the instance of minor or the person litigating under him. It was followed by a Full Bench of this court by referring the above said decision in _**Ramadas Menon v. Sreedevi(2004 KHC 55).**_ In a subsequent decision, the Apex Court, has reiterated the legal position in _**Nangali Amma Bhavani**_ _**Amma v. Gopalakrishnan Nair and Others (2004 KHC**_ _**1648)**_ that the transaction entered into by the natural guardian in contravention of Section 8(2) was not void, but merely voidable at the instance of minor. 6. **At the option of minor or the person claiming under him as envisaged under sub section 3 of Section 8 of the Act stands for challenge by the** R.S.A.No.1042/2007 9 **minor through any person litigating under him during the period of minority or after attaining majority either by the minor or by any person litigating under him. But in the later case, it should be and must be within a period of three years from the date of attaining majority and the time began to run from the date of attaining** **majority.** The learned counsel for the plaintiff submitted that there is no necessity for setting aside the document of alienation and once it was challenged in a suit for declaration of tile or partition or for possession and it amounts to exercise of option available to the minor and the document thereafter would stand as void at the instance of minor who attained majority, necessarily, the period of limitation would be 12 years and took support from a decision of a Division Bench of this Court in **Kunhiraman v. Vanaja ( 1997 (2) KLT 5)** wherein it was held that there is no necessity for seeking a relief of setting aside the transaction. But later on, the R.S.A.No.1042/2007 10 question was referred to the Full Bench of this Court in **Ramadas Menon v.Sreedevi ( 2004 KHC 55)** , wherein the Full Bench relying on the decision rendered by the Apex Court in **Viswambhar and** **Others. v. Lakshminarayan ( 2001 (6) SCC 163)** answered the reference by quoting the relevant paragraph of the decision of the Apex Court which reads as follows : “ The question is, in such circumstances, are the alienations void or voidable ? In S.8(2) of the Hindu Minority and Guardianship Act, 1956, it is laid down, inter alia, that the natural guardian shall not, without previous permission of the court, transfer by sale any part of the immovable property of the minor. In sub-s.(3) of the said section, it is specifically provided that any disposal of immovable property by a natural guardian, in contravention of sub-s.(2) is voidable at the instance of the minor or any person claiming under him. There is, therefore, little scope for doubt that the R.S.A.No.1042/2007 11 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.” 7. **The legal position can be summarised that** **it is necessary to seek for a relief of setting aside the document to exercise option by a minor to avoid a disposal of immovable property by natural guardian. If the minor, after attaining majority wants to avoid the transaction, by exercising the option under Section 8(3) of the Act, he should file a suit to set aside the document of transfer.** In the instant suit, no relief of setting aside the document incorporated and hence the suit itself as framed is not maintainable. Further, the suit was filed after seven years on attaining majority. **Without seeking a relief of setting aside a document of alienation made either by the natural** R.S.A.No.1042/2007 12 **guardian or by any other person representing the minor, if it was without the sanction of the court, no suit can be maintained for the exercise of option under Section 8(3) of the Act. A suit filed without seeking a relief to set aside the document of alienation cannot be entertained. The relief to set aside the transaction forms an integral part of option available under Section 8 (3) of the Act, to be exercised either by the minor or by any person litigating under him. Since the relief of setting aside the document of alienation, cannot be avoided in a suit exercising the option under Section 8(3) of the Act, challenging the disposal of immovable property, the period of limitation would be the one available for setting aside a document of transfer under the Limitation Act, but a separate provision is made under Article 60 of the Limitation Act to set aside a transfer of property made by the guardian of a ward as three years from the date of attainment of majority. The maximum time available to institute a suit for** R.S.A.No.1042/2007 13 **exercising the option under Section 8(3) of the Act is only three years from the date of attainment of majority and not twelve years** and hence the suit is hopelessly barred by limitation. The suit as framed is only for partition and injunction without a prayer for setting aside the document of alienation. Ext.A2 sale deed executed by the father, natural guardian representing the minor though in contravention of the requirement under sub-sections 1 and 2 of Section 8, by virtue of sub- section 3 and in the absence of exercise of option, the document would stand as valid and effective. The present suit filed by the plaintiffs in the year 1997 without a prayer for setting aside Ext.A2 document of transfer, hence not maintainable. The plaintiff cannot maintain a partition suit simplicitor without setting aside the document of alienation done by the natural guardian. Both the trial court and the first appellate court went wrong in appreciating the legal position in its correct perspective and that 14 R.S.A.No.1042/2007 has resulted in miscarriage of justice. 8. Yet another ground is also available to non-suit the plaintiffs. Earlier the third plaintiff on attaining majority, for herself and as next friend of the other two minors instituted a suit for setting aside Ext.A2 transfer. It was not proceeded with, but ended in dismissal for default. Then the bar under Order 9 Rule 9 CPC would come into play in bringing a fresh suit in respect of the same relief. The earlier suit was filed for setting aside the document, but the instant suit was filed for partition without a prayer for setting aside the document. The relief of partition cannot be granted without setting aside the document and hence the bar under Order IX Rule 9 C.P.C., would come into play. 9. It is submitted that the property was sold for an amount Rs. 4,100/- by the first defendant and only an amount of Rs.100/- alone was received and balance amount of Rs.4,000/- retained. Based on this it is argued that there is no valid R.S.A.No.1042/2007 15 consideration for the alleged sale. Section 54 of the Transfer of Property Act mandates only registration of a deed of sale regarding immovable property if its value exceeds Rs.100/- and it should be for a consideration paid or promised or partly paid or partly promised. Payment of a part of consideration would be sufficient to constitute a complete sale. If any balance sale consideration is due, the remedy is to sue for getting back the balance sale consideration within the period of limitation. Hence the decree and the judgment of the trial court and the first appellate court are liable to be set aside. I do so by allowing this appeal. The appeal is allowed. The decree and judgment of the trial court and the first appellate court are hereby set aside. The suit is dismissed. Parties are directed to suffer their respective costs of appeal. Sd/- pm/sv P.SOMARAJAN JUDGE