Velayudhan P.R. v. Ramachandran and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT :** **THE HONOURABLE MR. JUSTICE P.BHAVADASAN** **FRIDAY, THE 28TH MAY 2010 / 7TH JYAISHTA 1932** **SA.No. 16 of 1997(B)** **------------------------------** **AS.219/1993 of DIST. COURT (ENQUIRY COMMR.& SPL.JUDGE), THRISSUR OS.216/1989 of MUNSIFF COURT, VADAKKANCHERRY** **....................** ## **APPELLANT/4TH RESPONDENT/4TH DEFENDANT:** **--------------------------------------------------------------------------** ## **VELAYUDHAN P.R., S/O.ASARI RAMAN, CHOONDAL DESOM, THALAPPILLY TALUK, THRISSUR.** **BY ADV. SRI.N.P.SAMUEL** **RESPONDENTS/APPELLANT & RESPONDENTS/PLAINTIFF AND DEFENDANTS 1 TO 3 & 5:** **--------------------------------------------------------------------------------------** **1. RAMACHANDRAN, S/O.POOLOTH KIZHAKKETHIL, NARAYANI AMMA, PELAKKATTU PAYYUR DESOM, CHOONDAL VILLAGE, TALAPPILLY TALUK, THRISSUR DIST.** **2. NARAYANI AMMA, D/O.POOLOTH KIZHAKKETHIL AMMINI AMMA, CHOONDAL DESOM & VILLAGE, TALAPPILLY TALUK, THRISSUR DIST.** **3. VIJAYALEKSHMY AMMA, D/O.POOLOTH KIZHAKKETHIL NARAYANI AMMA, CHOONDAL DESOM, TALAPPILLY TALUK, THRISSUR DIST.** **4. RUGMANI AMMA, D/O.POOLOTH KIZHAKKETHIL NARAYANI AMMA, PRESENT ADDRESS RUGMANI AMMA, C/O.UNNI, AYYAPPATH HOUSE, VELLITHIRUTHI, MARATHOMKODE P.O., VIA. KUNNAMKULAM, THRISSUR DIST.** **SA.No. 16 of 1997(B)** **5. LALITHA, D/O.ASARI APPUKUTTAN & W/O.VELAYUDHAN, CHOONDAL DESOM & VILLAGE, THALAPPILLY TALUK, THRISSUR DIST.** **R1 & R2 BY ADV. SRI.K.S.BABU, SMT.N.SUDHA.** **R5 BY ADV. SRI.P.J.AYPPACHAN.** **THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 21/05/2010,THE COURT ON 28/05/2010 DELIVERED THE FOLLOWING:** ## **SA.No. 16 of 1997(B)** **ORDER ON C.M.P. NO.30/1997 IN S.A. NO.16/1997** ## **DISMISSED** **28/05/2010.** **SD/- P.BHAVADASAN, JUDGE** **//TRUE COPY//** **P.S. TO JUDGE** **rs.** ## **P. BHAVADASAN, J.** - - - - - - - - - - - - - - - - - - - - - - - - - - - S.A. No. 16 of 1997 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 28th day of May, 2010. ## **JUDGMENT** The defendant in O.S.216 of 1989 before the Munsiff's Court, Wadakkancherry, who suffered a decree at the hands of the first appellate court is the appellant. The parties and facts are hereinafter referred to as they are available before the trial court. 2. The suit was one for partition in respect of 25 cents of property comprised in Sy. No.602/1 of Choondal village. It is claimed that the property was jointly owned by the plaintiff and defendants 1 to 3. According to the plaintiff, the property was purchased in the name of the second defendant and the father, Narayanan Nair, as guardian of the present plaintiff and deceased Madhavan and third defendant, who were then minors. Madhavan died unmarried and his sole legal heir is the first defendant mother. Father of the plaintiff was S.A.16/1997. 2 also no more. Plaintiff claimed that he had attained majority. He found that the fourth and sixth respondents are in possession of certain portions of the property. They have no manner of right over the suit property. To the notice sent, they have sent a reply notice containing false allegations. The plaintiff does not wish to continue the joint possession and he seeks partition. He claims one fourth share. 3. The first defendant filed a written statement supporting the plaintiff. The second defendant resisted the suit. In her written statement, it was pointed out that the plaintiff was very sick at the time of infancy and his father had to raise money for his treatment. The suit property was therefore assigned by the father for valid consideration as they had no means to raise the funds. Plaintiff is fully aware of the same. The entire sale consideration received was utilized for the treatment of the plaintiff. After the death of Sethumadhavan, it is claimed that father and the plaintiff accompanied the second defendant to Allahabad, where her S.A.16/1997. 3 husband was employed. Pointing out that the plaintiff is not entitled to any relief, she prayed for a dismissal of the suit. The third defendant chose to remain ex-parte. 4. Defendants 4 and 5 also resisted the suit. They claimed that by virtue of Ext.B1 dated 5.5.1967 they have absolute right over the suit property. At the time when the assignment was made, the plaintiff had no manner of right over the suit property. The plaintiff has not mentioned the date on which he had attained majority. His father who was the natural guardian at the relevant time has executed the deed on his behalf also. Sale consideration was utilized for the benefit and interest of the plaintiff. They have also pointed out that without having the sale deed set aside, the plaintiff could not seek partition. In addition, they contended that they perfected title by adverse possession and limitation. They pointed out that a residential building has been put up by them and they had effected improvements in the property. In case the court found that the plaintiff is entitled to a share, they claimed value of S.A.16/1997. 4 improvements. Under those circumstances, they prayed for a dismissal of the suit. 5. The trial court raised necessary issues for consideration. The evidence consists of the testimony of P.W.1 and the documents marked as Exts. A1 to A5 from the side of the plaintiff. The defendants had D.Ws. 1 and 2 examined and Exts. B1 and B2 marked. Ext.C1 is the commission report. 6. The trial court found that the plaintiff was a minor at the time of assignment as per Ext.B1. It also formed an opinion that on attaining majority within three years the plaintiff had to assail the assignment deed. Since he has not done so his claim is barred and accordingly dismissed the suit. 7. The plaintiff carried the matter in appeal as A.S. 219 of 1993. The appellate court concurred with the trial court as regards the fact that the plaintiff was a minor at the time of execution of Ext.B1. But the court was of the opinion that the suit having been brought within 12 years of S.A.16/1997. 5 the date of assignment, the suit is not barred by limitation. Accordingly the judgment and decree of the trial court was reversed and a preliminary decree was passed. The said judgment and decree are assailed in this Second Appeal. 8. A very narrow question arises for consideration in this Second Appeal. The issue is whether the plaintiff was obliged to assail the sale deed, namely, Ext.B1, in favour of defendants 4 and 5 within three years of attainment of majority or whether he could take the aid of 12 years from the date of assignment deed to establish his claim. The trial court pointed out that the plaintiff had to set aside the sale deed within three years of attaining majority and the lower appellate court was of the opinion that he could take the aid of Article 65 of the Limitation Act. The trial court chose to dismiss the suit, while the appellate court decreed the suit. 9. Before going into the other circumstances, it is useful to refer to the statutory provisions applicable to the facts of the case. The statutory provisions applicable are Section 8 of the Hindu Minority and Guardianship Act, 1956 S.A.16/1997. 6 (Act 32 of 1956), Sections 29 and 31 of the Guardians and Wards Act, 1890 (Act 8 of 1890), Section 6 of the Limitation Act and Articles 60 and 65 of the Limitation Act. The provisions read as follows: Section 8 of the Hindu Minority and Guardianship Act, 1956 (Act 32 of 1956) reads as follows: _“_ _**8. Powers of Natural guardian.-** (1) The natural guardian of a Hindu minor has power, subject to the provisions of this section, to do all acts which are necessary or reasonable, and proper for the benefit of the minor or for the 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 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._ 7 _(3) Any disposal of immovable property by a natural guardian, in contravention of sub-section (1) or sub-section(2), is voidable at the instance of the minor or any person claiming under him._ _(4) No court shall grant permission to the natural guardian to do any of the acts mentioned in subsection (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 the 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 Sec. 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 Sec.4A thereof._ _(b) the court shall observe the procedure and have the powers specified in sub-sections (2), (3) and (4) of Sec.31 of that Act; and_ _© 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)_ S.A.16/1997. 8 _of this section to the Court to which appeals ordinarily lie from the decisions of that Court._ _(6) In this Section, “Court” means the Civil Civil Court or a District Court or a Court empowered under Sec.4-A of the Guardians and Wards Act, 1890 (8 of 1890), within the local limits of whose jurisdiction the immoveable property in respect of which the application is made is situate, and where the immoveable 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.”_ Sections 29 and 31 of the Guardians and Wards Act, 1890 (Act 8 of 1890) read as follows: “ _**29. Limitation of powers of guardian of property appointed or declared by the**_ _**Court**_ .- _Where a person other than a Collector or than a guardian appointed by will or other instrument, has been appointed or declared by the Court to be guardian of the property of a ward, he shall not without the previous permission of the Court, -_ S.A.16/1997. 9 _(a) mortgage or charge or transfer by sale, gift, exchange or otherwise, any part of the immovable property of his ward, or_ _(b) lease any part of that property for a term exceeding five years or for any term extending more than one year beyond the date on which the ward will cease to be a minor._ _xxxxx xxxxx_ _**31. Practice with respect to permitting transfers under Sec. 29** .- (1) Permission to the guardian to do any of the acts mentioned in Sec.29 shall not be granted by the Court except in case of necessity or for an evident advantage t0o the ward._ _(2) The order granting the permission shall recite the necessity or advantage, as the case may be, describe the property with respect to which the act permitted is to e done, and specify such conditions, if any, as the Court may see fit to attach to the permission; and it shall be recorded, dated and signed by the Judge of the Court with his own hand, or, when from any cause he is prevented from recording the order with own hand, shall be taken down in writing from his dictation and be dated and signed by him._ 10 _(3) The Court may in its discretion attach to the permission the following among other conditions, namely:_ _(a) that a sale shall not be completed without the sanction of the Court;_ _(b) that a sale shall be made to the highest bidder by public auction before the Court or some person specially appointed by the Court for that purpose, at a time and place to be specified by the Court, after such proclamation of the intended sale as the Court subject to any rules made under this Act by the High Court, directs;_ _© that a lease shall not be made in consideration of a premium or shall be made for such term of years and subject to such rents and covenants as the Court directs;_ _(d) that the whole or any part of the proceeds of the act permitted shall be paid into the Court by the guardian, to be disbursed therefrom or to be invested by the Court on prescribed securities or to be otherwise disposed of as the Court directs._ _(4) Before granting permission to a guardian to do an act mentioned in Sec.29, the Court may cause notice of the application for the permission_ 11 _to be given to any relative or friend of the ward who should, in its opinion receive notice thereof, and shall hear and record the statement of any person who appears in opposition to the application.”_ Section 6 of the Limitation Act reads as follows: “ _**6. Legal disability**_ .- _(1) Where a person entitled to institute a suit or make an application for the execution of a decree is, at the time from which the prescribed period is to be reckoned, a minor or insane, or an idiot, he may institute the suit or make the application within the same period after the disability has ceased, as would otherwise have been allowed from the time specified therefor in the third column of the Schedule._ _(2) Where such person is, at the time from which the prescribed period is to be reckoned, affected by two such disabilities, or where, before his disability has ceased, he is affected by another disability, he may institute the suit or make the application within the same period after both disabilities have ceased, as would otherwise have been allowed from the time so specified._ S.A.16/1997. 12 _(3) Where the disability continues up to the death of that person, his legal representative may institute the suit or make the application within the same period after the death, as would otherwise have been allowed from the time so specified._ _(4) Where the legal representative referred to in sub-section (3) is, at the date of the death of the person whom he represents, affected by any such disability, the rules contained in sub-sections (1) and (2) shall apply._ _(5) Where a person under disability dies after the disability ceases but within the period allowed to him under this section, his legal representative may institute the suit or make the application within the same period after the death, as would otherwise have been available to that person had he not died._ _Explanation.- For the purposes of this section, 'minor' includes a child in the womb.”_ S.A.16/1997. 13 ## Articles 60 and 65 of the Limitation Act read as follows: _“60.To set aside a transfer of property made by the guardian of a ward-_ _(a) by the ward who has Three years attained majority;_ _When the ward attains majority._ _(b) by the ward's legal representative-_ _(i) when the ward dies -doWhen the ward attains within three years from the date majority. of attaining majority; (ii) when the ward dies -doWhen the ward dies. before attaining majority._ _When the ward attains majority._ _xxxxx_ ## _xxxxx_ _65. For possession of immovable Twelve years property or any interest therein based on title._ _When the possession of the defendant becomes adverse to the plaintiff._ _Explanation.-For the purposes of this article(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_ 14 S.A.16/1997. _only when the female dies; © 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._ 10. Section 8 of the Hindu Minority and Guardianship Act deals with the powers of natural guardian in respect of properties of the minor. The provisions which are relevant for the present purpose are Sections 8(2) and 8(3). On a reading of the provisions, it can be seen that the natural guardian shall not, without the previous sanction of the court, assign the property belonging to the minor. Section 8(3) says that if the above provision is violated, then the assignment becomes voidable at the instance of the minor. It may be noticed that Section 8 makes provision of the Guardian and Wards Act (Act 8 of 1890) applicable to the proceedings under Act 32 of 1956. Sections 29 and 31 of Act 8 of 1980 gives the procedure when a guardian applies for assignment of a minor's property. These provisions are S.A.16/1997. 15 not very relevant in the present context. It is not necessary to refer it extensively. 11. Section 6 of the Limitation Act deals with a case where the person, who is entitled to institute a suit is under a disability. As far as the provision is applicable to the present case, it could be said that going by Section 6 the plaintiff has three years period, that is till 21 years of age, to assail Ext.B1. One may remember that even going by Section 8 of Act 32 of 1956 the assignment is only voidable at the instance of the minor. Article 60 provides a period of three years to a ward to set aside the transfer made by his guardian. It is three years from the date of attainment of majority. Article 65 provides for possession of immovable property or any interest therein based on title. It provides 12 years period when the possession of the defendant becomes adverse to that of the plaintiff. It is well settled that going by Article 65, the plaintiff is able to establish title to the suit property then the plea of adverse possession and S.A.16/1997. 16 limitation will have to be established by the defendants concerned. 12. The issue that arises for consideration is whether it is obligatory on the part of the minor to have the sale deed, ie., Ext.B1 set aside or can he simply avoid it. 13. There is a clear distinction between 'void' and 'voidable'. It may be remembered that the expression 'void' itself has several facets. It may be ab initio void. It may be that the procedural requirements are not followed and hence void and such other matters. It has been held that the word 'void' has a relative rather than an absolute meaning. 'Voidable' on the other hand means that the transaction is good as long as it is not set aside. Voidable transaction cannot be treated as non-est. If the voidable transaction is not avoided through the known means of law, it remains good. One may recall that going by Section 8(3) of Act 32 of 1956 the transaction is voidable. 14. One may recollect here that Article 60 provides three years period from the date of attaining 17 S.A.16/1997. majority to have the transaction entered into by the guardian on his behalf set aside. Therefore, if as a matter of fact on a combined reading of Section 6 and Article 60 of the Limitation Act, if setting aside of the document assailed is essential, then obviously the suit filed by the plaintiff in the present case is barred by limitation. 15. The court below has chosen to rely on the decision reported in **Santhosh Kumar v. Varghese** (1987 (2) KLT 27). It is true that in the said decision it was held as follows: _“S.8 of the Hindu Minority and Guardianship Act enumerates the powers of a natural guardian. S.8(1) reads:_ _“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 realization, protection or benefit of the minor's estate; but the guardian can in no case bind the minor by a personal covenant.”_ _Sub.s.(2) of the Act prohibits the natural guardian from mortgaging, charging or transferring the_ S.A.16/1997. 18 _minor's property without permission of the court. S.8(3) stipulates that any disposal of immovable property by a natural guardian, in contravention of sub-s. (1) or sub-s.(2), is voidable at the instance of the minor or any person claiming under him. S.8(4) mandates the court not to grant permission to the natural guardian to do any of the acts mentioned in sub-s. (2) except in case of necessity or for an evident advantage to the minor. Thus it is manifestly clear that under S.8 of the Act property of the minor can be alienated, mortgaged or leased or gifted only for his evident advantage or necessity and the court's permission is a condition precedent. Any transaction by a natural guardian of the immovable property of the minors without permission of the court will not have any legal force and would not be binding on the minors.”_ In the decision reported in **Sreedharan v. Prasanna** (1996 (2) KLT 784 (SC)) it was held as follows: _“It would be obvious that sine the mandatory requirement of sanction from the Court for alienating the property of the minor, as required under S.8 of the Hindu Minority and_ S.A.16/1997. 19 _Guardianship Act, had not been obtained, the contract of sale to the extent of the half share of the minor is void and it does not bind the minor. The Courts have rightly declined to exercise discretion on sound principle of law to protect the estate of the minor.”_ ## In the decision reported in **Kunhiraman v. Vanaja** (1997(2) KLT 5), it was held as follows: _“We do not think that S.8(3) of the Act in any manner whittles down the scope or operation of S.892) of the Act. S. 8(3) of the Act only clarifies that the person who is entitled to treat the transaction as void is only the minor or any person claiming under him. According to us, S. 8(3) only indicates that the guardian who had sold his own interest alongwith that of the minor without the consent of the court or any other alienor who was suir juris, would not be in a position to turn round and contend that the sale effected by him of his own interest or share is also void or invalid. The object of S.8(3) of the Act, according to us, is not to whittle down the scope of S.8(2) of the Act but only to clarify that the right to treat the transaction as void is available only to the minor_ S.A.16/1997. 20 _whose property is sold by the natural guardian without permission of the court or to a person who is claiming under that minor. Thus, understood, S.8(3) cannot be relied on to hold that a transaction in contravention of the mandate of S.8 (2) of the Act, is only voidable and not void.”_ ## In **Moidu Haji v. Kunhabdulla** (1998(2) KLT 691) it was held as follows: _“In the property exclusively belonged to a Mohammedan minor and the same had been alienated by a person who was not his legal guardian, the said transaction would be void and applying Art.65 of the Limitation Act and in the light of Ss.6 and 8 of the Act, the suit had to be instituted by the quondam minor within three years of his attaining majority or within 12 years of the transaction itself. The alienation effected by the Mohammedan co-owners including the defecto guardian of the minor plaintiff, has to be considered altogether void? If it were to be considered void altogether void, that is to say, as not being capable of conveying even the rights of the Mohammedan co-owners who were competent_ S.A.16/1997. 21 _to execute the sale deed, the position would be the same as a case where a Mohammedan minor is the exclusive owner of the property and an alienation is effected on his behalf by a defacto guardian and the alienation is treated as void. In that case, the suit by the Mohammedan quondam minor will have to be filed within three years of his attaining majority or within 12 years of the alienation itself, lest his rights become barred.”_ ## In the decision reported in **Gopalakrishnan Nair v. Karthiyayani Nangeli Amma** (2000(1) KLT 59) it was held as follows: _“Section 8(1) of the Act while recognizing the power of a natural guardian to do all acts which are necessary or reasonable and proper for the benefit of the minors or for the realisation, protection or benefit of the minor's estate has made that recognition subject to the provisions of S.8. S.8(2) provides that the natural guardian shall not without the previous permission of the court (emphasis supplied) mortgage or charge or transfer by sale, gift, exchange or otherwise any part of the immovable property of the minor. S.8_ S.A.16/1997. 22 _(3) indicates that any disposal of immovable property by the natural guardian in contravention of sub-ss.1 and 2 of S.8 is voidable at the instance of the minor or by any person claiming under him. When a statute provides that an act shall not be done without the previous permission of the Court and something is done in contravention of that, according to us the transaction has to be treated as invalid as a whole and this is the view taken by this court in the decision in Santha v.Cherukutty (1972 KLT 1051) and in Kunhiraman v. Vanaja (1997(2) KLT 5). On the scheme of the Act, we find no reason to differ from the view adopted in those cases. The lower appellate court in the case on hand was substantially in error in law in holding that the plaintiffs were obliged to seek the setting aside of the sale of the equity of redemption by the father and their rights have been lost in view of the fact that plaintiff No.1 had attained majority three years prior to the suit and only the right inherited by plaintiff No.2 from the mother would be available to him for being enforced. In our view the transaction of sale of the equity of redemption by the father without the previous permission of the court envisaged by S.8(2) of the Act could be_ S.A.16/1997. 23 _ignored by the plaintiffs and they could seek the relief of redemption of Ext.A1 mortgage on the basis that they continue to hold the equity of redemption. Admittedly the suit for redemption of the mortgage is in time and therefore the plaintiffs would be entitled to redeem the mortgage Ext.A1 and recover possession of the property ignoring the sale of the equity of redemption Ext.B1 executed by their father in contravention of S.8(2) of the Act. In view of Manik Chand v. Ramachandra (AIR 1981 SC 519) the father could enter into an agreement for sale. But, if the minor on attaining majority repudiated the obligation undertaken under the contract, the agreement had to be tested for its validity. A sale of property by a guardian stands on a different footing and S.8(2) of the Act gets squarely attracted.”_ 16. Going by the above decisions, it may appear that the lower appellate court is justified in its finding that the plaintiff can take the aid of 12 years period to bring his suit based on title. However the issues have been considered in the latter decisions and a contra view appears S.A.16/1997. 24 to have been taken. In the decision reported in **Madhukar Vishwanath Munje v. Madhao** ((2001) 10 SCC 460) the application of Article 59 and 60 of the Limitation Act with respect to Section 8 of the Hindu Minority and Guardianship Act was considered. The issue was whether the transaction is void or voidable. Since the learned Judges were of the view that it is an important question of law, the matter seems to have been referred to a larger Bench. The issue was considered in the decision reported in **Vishwambhar v. Laxminarayan** ((2001) 6 SCC 163), wherein it was held as follows: _“On a fair reading of the plaint, it is clear that the main fulcrum on which the case of the plaintiffs was balanced was that the alienations made by their mother-guardian Laxmibai were void and therefore, liable to be ignored since they were not supported by legal necessity and without permission of the competent court. On that basis, he claim was made that the alienations did not affect the interest of the plaintiffs in the suit property. The prayers in the plaint were inter alia_ S.A.16/1997. 25 _to set aside the sale deeds dated 14.11.1967 and 24.10.1974, recover possession of the properties from the respective purchasers, partition of the properties carving out separate possession of the share from the suit properties of the plaintiffs and deliver the same to them. As noted earlier, the trial court as well as the first appellate court accepted the case of the plaintiffs that the alienations in dispute were not supported by legal necessity. They also held that no prior permission of the court was taken for the said alienations. 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 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_ S.A.16/1997. 26 _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_ S.A.16/1997. 27 _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 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 court 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_ S.A.16/1997. 28 _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._ _From the averments in the plaint, it cannot be said that all the necessary averments for setting aside the sale deeds executed by Laxmibai were contained in the plaint and adding specific prayer for setting aside the sale deeds was a mere formality. As noticed earlier, the basis of the suit as it stood before the amendment of the plaint was that the sale transactions made by Laxmibai as guardian of the minors were ab initio void and, therefore, liable to be ignored. By introducing the prayer for setting aside the sale deeds the basis of the suit was changed to one seeking setting aside the alienations of the property by the guardian. In such circumstance, the suit for setting aside the transfers could be taken to have been filed on the date the amendment of the plaint was allowed and not earlier than that.”_ 29 ## The issue was again considered in the decision reported in **Nangali Amma Bhavani Amma v. Gopalakrishnan Nair** ((2004) 8 SCC 785), wherein it was held as follows: _“But the learned counsel for the appellant is right in contending that the High Court had misconstrued the provisions of Section 8 of the Act. Section 8(1) empowers the natural guardian of the Hindu minor to do all acts which are necessary or reasonable and proper for the benefit of a minor or for the realisation, protection or benefit of the minor's estate subject to two exceptions of which we may only note the exception carved out in sub-section (2) of Section 8. Section 8(2) provides that the natural guardian shall not without the previous permission of the Court, inter alia, transfer by way of a sale any part of the immovable property of a minor. The effect of violation of this provision has been provided for in the section itself under sub-section (3). This sub-section reads:_ _“8. (3) Any disposal of immovable property by a natural guardian, in contravention of sub-section(1) or sub-section(2), is voidable at the instance of the minor or any person claiming under him.”_ 30 _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. This Court in Vishambhar v. Laxminarayan has also held that such transactions are not void but merely voidable. It was also held that a suit must be filed by a minor in order to avoid the transaction within the period prescribed under Article 60 of the Limitation Act. The High Court did not consider the issue of limitation at all in view of its finding on the effect of a violation of Section 8(2) of the Act. As the conclusion of the High Court on this aspect of matter is unsustainable, the impugned decision must be set aside.”_ This court had occasion to consider the issue in the decision reported in **Ramadas Menon v. Sreedevi** (2004() K.L.T. S.A.16/1997. 31 323 (F.B)). After referring to the various decisions, this court noticing that going by Section 8(3), transaction is only voidable held that it is incumbent on the part of the person concerned to have the deed set aside. Without having the deed set aside, he cannot seek any other relief in respect of the property. It cannot be said that the transaction could be simply ignored. The relevant portion reads as follows: _“It is seen that the reference was answered in the decision reported in Madhukar Viswanath v. Madhao & Ors. (1999) 9 SCC 4456. The Supreme Court took the view that it was not necessary to decide the question in the particular fats of the case. Subsequently the Supreme Court in another decision reported in Viswambhar & Ors. v. Laxminarayan (2001) 6 SCC 163, considered S.8 of the Act and held as follows:_ _“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 any part of the immoveable property of the minor. In sub-section (3) of the said section, it is specifically_ S.A.16/1997. 32 _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.”_ _In view of the above decision, it is now clear that the alienations have to be challenged and without setting aside the alienation, no relief can be obtained._ _In the above view of the matter, we hold that there should be a prayer to set aside the alienation effected by the natural guardian without the court's sanction. The plaintiff cannot merely ignore the sale deed.”_ 17. In the light of latter decisions and the authority pronounced by this court and the apex court in the matter, the view taken by the lower appellate court cannot be sustained. S.A.16/1997. 33 18. There is no prayer in the plaint to have Ext.B1 sale deed set aside. Going by the decisions already referred to, the current view is that it is absolutely necessary for the person, who was assailing the transaction, to have it set aside in accordance with law before he could seek further reliefs in the matter. That having not been done, the suit has to fail. in the result, this appeal is allowed, the impugned judgment and decree of the lower appellate court is set aside and the judgment and decree of the trial court is restored. There will be no order as to costs. **P. BHAVADASAN, JUDGE** sb. S.A.16/1997. 34 ## **P. BHAVADASAN, J.** - - - - - - - - - - - - - - - - - - - - - - - - - - - S.A. No. 16 of 1997 - - - - - - - - - - - - - - - - - - - - - - - - - - - ## **JUDGMENT** **28.05.2010**