BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED:
19. 07/2013 CORAM THE HONOURABLE MR.JUSTICE A.SELVAM SA(MD)No.125 of 2010 and MP(MD)Nos.1 & 2 of 2010 Jeyam .. Appellant/2nd Respondent/2nd Defendant Vs 1.Minor Rejimoon 2.Minor Athira (rep.by father Dennis) 4.Dennis .. Respondents/Appellants 1 to 4/ Plaintiffs 1 to 4 5.Rajeswari .. Respondent/1st Respondent/ 1st Defendant Second Appeal filed under section 100 of CPC against the Judgment and decree dated 06.02.2009 passed in Appeal Suit No.50 of 2006 by the Sub Court, Kuzhithurai reversing the Judgment and decree dated 24.02.2006 passed in Original Suit No.376 of 2002 by the First Additional District Munsif Court, Kuzhithurai. !For Appellant ... Mr.A.Arumugam ^For RR - 1 to 4 ... Mr.K.N.Thambi For R - 5 ... No appearance :JUDGMENT
This Second Appeal has been directed against the Judgment and decree dated 06.02.2009 passed in Appeal Suit No.50 of 2006 by the Sub Court, Kuzhithurai, wherein the Judgment and decree dated 24.02.2006 passed in Original Suit No.376 of 2002 by the First Additional District Munsif Court, Kuzhithurai are reversed.
2. The respondents 1 to 4 herein as plaintiffs have instituted Original Suit No.376 of 2002 on the file of the trial Court for the reliefs of declaration to the effect that the sale deed dated 13.06.2002 is invalid in law and also for the relief of recovery of possession as well as setting aside of the sale deed in question, wherein the fifth respondent and the present appellant have been shown as defendants 1 and 2 respectively.
3. In the plaint it is averred that the first defendant is the wife of the fourth plaintiff and the remaining plaintiffs are their children. The suit property is originally belonged to one Nesamony Nadar S/o.Kesavan Nadar and he executed a gift deed dated 23.09.1998 in favour of the plaintiffs 1 to 3. The first defendant is now residing at the house of her parents due to some ill feelings between her and fourth plaintiff. The first defendant is owning some properties in Idukki District. The fourth plaintiff has asked her to dispose of the same so as to purchase some property at Pacode Village which is the native place of the fourth plaintiff. The parents of the first defendant have denied the request made by the fourth plaintiff. The elder sister of the first defendant is one Radha and she has been given in marriage to one Kamaraj. The first defendant in collusion with the said Kamaraj and second defendant has created a fraudulent and invalid document dated 13.06.2002 and the same is nothing but void. The first defendant is not competent to represent the minor plaintiffs 1 to 3 as their natural guardian. Under the said circumstances, the present Suit has been instituted for the reliefs sought for in the plaint.
4. In the written statement filed on the side of the second defendant, it is averred that the relationship mentioned in the plaint is correct. In the settlement deed the first defendant has been shown as guardian of minors. The first defendant as natural guardian of minors has executed the sale deed in question. The plaintiffs 1 to 3 and first defendant are living together, since the fourth plaintiff has deserted them. It is false to aver that the sale deed dated 13.06.2002 is invalid in law. There is no merit in the Suit and the same deserves to be dismissed.
5. On the basis of the divergent pleadings raised on either side, the trial Court has framed necessary issues and after analysing both the oral and documentary evidence has dismissed the Suit. Against the Judgment and decree passed by the trial Court, the plaintiff as appellant has preferred Appeal Suit No.50 of 2006 on the file of the first appellate Court.
6. The first appellate Court after hearing both sides and upon reappraising the evidence available on record has allowed the Appeal and thereby set aside the Judgment and decree passed by the trial Court and ultimately decreed the suit as prayed for. Against the Judgment and decree passed by the first appellate Court, the present second appeal has been preferred at the instance of the second defendant as appellant.
7. At the time of admitting the present Second Appeal, the following substantial questions of law have been settled or consideration: (a) Whether the father is entitled to file a suit for cancellation of a sale deed executed by the mother as guardian of the minor children when the minors are in the care and custody of the mother and the sale is for legal necessity and for the benefit of the minors and whether such a sale is not bad for want of sanction under Section 8 of the Hindu Minority and Guardianship Act?. (b) Whether the bar under Section 8 of the Hindu Minority and Guardianship Act does not apply to a sale executed by mother as a guardian in respect of the properties of a minor when another property was purchased by the mother as guardian in the name of the minors further benefits?. (c) Whether the 1st appellate Court is legally wrong in allowing the Appeal and decreeing the suit without ordering the guardian of the minor, that is the 1st defendant to execute a sale deed or any other deed in favour of the second respondent in respect of the properties covered under Ex.B1 and whether the 1st appellate Court has failed to exercise its power under Order 41 Rule 33 C.P.C?.
8. The crux of the case of the plaintiff is that the suit property is originally belonged to one Nesamony Nadar S/o.Kesavan Nadar and he voluntarily executed a settlement deed dated 23.09.1998 in favour of the plaintiffs 1 to 3. The fourth plaintiff is the husband of the first defendant and the remaining plaintiffs are their children. Now the first defendant with the active assistance of her sister's husband by name Kamaraj and second defendant has falsely created the sale deed dated 13.06.2002 in favour of the second defendant and the same is invalid in law and the first defendant cannot act as natural guardian of the plaintiffs 1 to 3 by way of by-passing the fourth plaintiff, their father. Under the said circumstances, the present Suit has been instituted for the reliefs sought for in the plaint.
9. In the written statement filed on the side of the second defendant it is averred that the plaintiffs 1 to 3 and first defendant are residing in the parents house of the first defendant, since the fourth plaintiff has failed to look after their interest. Under the said circumstances, the first defendant as natural guardian of the plaintiffs 1 to 3, has executed the sale deed in question in favour of the second defendant and therefore, the sale deed which stands in the name of the second defendant is perfectly valid in law and therefore, the reliefs sought for in the plaint cannot be granted.
10. The trial Court has dismissed the Suit. But the first appellate Court has given a specific finding to the effect that the sale deed dated 13.06.2002 is nothing but void and ultimately decreed the suit by way of setting aside the Judgment and decree passed by the trial Court.
11. On the basis of the available averments made in the plaint as well as in the written statement filed by the second defendant, apart from the substantial questions of law formulated in the present Section Appeal, the following questions of law have to be decided by the Court. (a) Whether the first defendant, mother of the plaintiffs 1 to 3 can act as a natural guardian during life time of fourth plaintiff, their father?. (b) Whether the sale deed alleged to have been executed by the first defendant in favour of the second defendant on 13.06.2002 is voidable or void?.
12. The learned counsel appearing for the appellant/second defendant has laconically contended that the first defendant has been examined as DW2 and her specific evidence is that her husband viz., the fourth plaintiff is in the habit of taking drinks and he has also been convicted for a period of six months and in fact he has failed to look after the interest of minors and all the minors are living with her and therefore, the Court can very well presume that the fourth plaintiff has failed to look after the interest and welfare of minors. Under the said circumstances, the first defendant can act as natural guardian and in that capacity, she has executed the sale deed dated 13.06.2002 and even though the sale deed dated 13.06.2002 has been effected without obtaining prior permission from the competent Court, the transaction in question is nothing but voidable and further the first defendant has executed the said sale deed for the welfare of minors and the trial Court after considering the available evidence on record has rightly dismissed the Suit. But the first appellate Court even without knowing the rudimentary principles of law and also without considering the available evidence on record has erroneously decreed the Suit and therefore, the Judgment and decree passed by the first appellate Court are liable to be interfered with.
13. In order to repudiate the contentions put forth on the side of the appellant/second defendant the learned counsel appearing for the respondents 1 to 4/plaintiffs has repeatedly contended that the suit property has been settled in favour of the plaintiffs 1 to 3 by virtue of the settlement deed dated 23.09.1998 and the fourth plaintiff has been living in Kerala due to his employment and it is false to contend that he has not cared to look after the plaintiffs 1 to 3 as well as first defendant and during the life time of fourth plaintiff, the first defendant cannot act as natural guardian and therefore, the sale effected in favour of the second defendant by the first defendant is void in law and further on the side of the defendants a sale deed dated 16.07.2002 has been filed and the same has been executed by the father of the first defendant and the property mentioned therein is not the absolute property of the father of the first defendant and it belongs to the Government and therefore, the sale deed dated 13.06.2002 has not been effected for the welfare of the minors and the trial Court without considering the sinister attitude of the first defendant with the connivance of his sister's husband, has erroneously dismissed the Suit. But the first appellate Court after reappraising the evidence available on record has rightly decreed the Suit and therefore, the Judgment and decree passed by the first appellate Court are not liable to be interfered with.
14. Basing upon the divergent submissions made on either side, as culled out earlier, the Court has to look into the said legal aspects.
15. Before analysing the said legal aspects, the Court has to look into the questions of law involved in the present lis.
16. It is a settled principle of law that if a natural guardian of minor(s) has decided to sell property of minor(s), he should have obtained prior permission from the competent Court under the provisions of Section 8 of the Hindu Minority and Guardianship Act, 1956. As per sub section 3 of the said Section, if any alienation is made without getting permission from the concerned Court, the same is nothing but voidable. Further if any alienation is made by a defacto guardian of minor(s), the same is void.
17. Article 60 of the Limitation Act, 1960 reads as follows: To set aside a transfer of When the ward property made by the Three years attains majority guardian of a ward 18. From the conjoint reading of the said provisions, it is made clear that if any transfer is made by a natural guardian of minor(s) without permission of the Court, the said transfer is nothing but voidable and the only remedy which is available under law to minor(s) is to file a Suit for setting aside the said transfer within three years from the date of attainment of majority.
19. In the instant case, apart from the relief of declaration, two more reliefs have been sought for in the form of recovery of possession and also setting aside the sale deed dated 13.06.2002. Under Article 60 of the Limitation Act, 1963, power of setting aside the transfer in question is not available to a guardian of minor(s). Therefore, the third relief sought for in the plaint is not legally valid. The present case has to be decided only on the basis of the first two reliefs sought for in the plaint.
20. The specific contention put forth on the side of the respondents 1 to 4/plaintiffs is that the sale deed in question is invalid in law since the first defendant/mother of the plaintiffs 1 to 3 cannot act as their natural guardian. The settlement deed dated 23.09.1998 has been marked as Ex.A1. The sale deed dated 13.06.2002 has been marked as Ex.B1 and the sale deed dated 16.07.2002 has been marked as Ex.B2.
21. The learned counsel appearing for the appellant/second defendant has advanced his entire argument on the basis of the evidence given by the first defendant who has been examined as DW2.
22. It is an admitted fact that the first defendant has remained ex parte. But however, she has been examined as DW2. Under the said circumstances, a nice legal question arises as to whether the evidence given by DW2 (first defendant) can be relied upon even though she remained ex parte in the present suit.
23. In AIR1963Supreme Court 151 (Smt.Somawanti and others Vs. State of Punjab and others) (Full Bench), the Hon'ble Apex Court has observed as follows: ".Since evidence means and includes all statements which the court permits or requires to be made, when the law says that a particular kind of evidence would be conclusive as to the existence of a particular fact it implies that that fact can be proved either by that evidence or by some other evidence which the Court permits or requires to be advanced. Where such other evidence is adduced it would be open to the Court to consider whether, upon that evidence, the fact exists or not. Where, on the other hand, evidence which is made conclusive is adduced, the Court has no option but to hold that the fact exists. Statutes may use the expression 'conclusive proof' where the object is to make a fact non-justiciable. But the legislature may use some other expression such as 'conclusive evidence' for achieving the same result. There is thus no difference between the effect of the expression 'conclusive evidence' from that of 'conclusive proof', the aim of both being to give finality to the establishment of the existence of a fact from the proof of another.
24. Even from a mere reading of the said decision, it is made clear to the Court that if Court permits a person to depose evidence, the same can be relied upon.
25. In the instant case, the first defendant remains ex parte and even though she remains ex parte, her evidence cannot be eschewed nor jettisoned. The specific evidence of DW2 (first defendant) is that her husband is in the habit of taking drinks and he has also been convicted and now the plaintiffs 1 to 3 are under her custody and all of them are living in her parents house and even on the date of deposing evidence before the Court, the plaintiffs 1 to 3 have come to Court along with her.
26. On the basis of the evidence given by DW2 (first defendant), the Court can easily ken that the plaintiffs 1 to 3 and first defendant are living in the parents house of the first defendant and further the fourth plaintiff has not cared to look after the interest of minor plaintiffs 1 to 3 and further he is in the habit of taking drinks and he has also convicted by a competent Court. Therefore, from the evidence given by DW2 (first defendant) it is easily discernible that the first defendant is a competent person so as to act as natural guardian of the plaintiffs 1 to 3.
27. The learned counsel appearing for the appellant/second defendant has befittingly drawn the attention of the Court to the decision reported in AIR1999supreme Court 1149 (Ms.Githa Hariharan and another V. Reserve Bank of India and another), wherein the Hon'ble Apex Court has held that ".word 'after' in Section 6(a) of the Hindu Minority and Guardianship Act, 1956, means ".in the absence of father".. Further it has been observed to the effect that if father of minor(s) has failed to look after the interest of minor(s), the mother can act as natural guardian.
28. In the instant case, exponential evidence is available on the side of the appellant/second defendant for the purpose of showing that the fourth plaintiff has not cared to look after the interest of the plaintiffs 1 to 3. Under the said circumstances, as per the dictum given by the Hon'ble Apex Court, the Court can safely come to a conclusion that the first defendant can very well act as a natural guardian of the plaintiffs 1 to 3.
29. The learned counsel appearing for the appellant/second defendant has also accited the decision reported in AIR1971Kerala (Iruppakkatt Veettil Viswanathan's wife Santha V. deceased Kandan's L.Rs. Wife Cherukutty and others), wherein it has been specifically held that ".if a transfer of minor's property by its natural guardian is made without sanction of the Court, the transfer is nothing but voidable at the instance of minor"..
30. The learned counsel appearing for the respondents 1 to 3/plaintiffs has drawn the attention of the Court to the following decisions: (a) In 2002 (3) CTC607(Rajeswari V. D.Murugayya Kandiar), this Court has held that father and mother are residing under the same roof and there is no love loss betwixt them. Under the said circumstances, mother cannot act as natural guardian and therefore, the transfer made by her is nothing but void. (b) In 1980 2 MLJ296(Pattayi Padayachi (died) and others V. Subbaraya Padayachi and others), this Court has held that a joint family consisting of father and two minor sons, possessing of properties. Father passed away. Mother as guardian alienated coparcenary property of the minors and the said transfer is nothing but void.
31. In the instant case, the position of law is entirely different. It is an admitted fact that the property mentioned in the sale deed dated 13.06.2002 is the separate property of the plaintiffs 1 to 3. The main legal point involves in the present case is as to whether the first defendant can act as natural guardian during life time of the fourth plaintiff.
32. The Hon'ble Apex Court has culled out the circumstances under which a mother can act as natural guardian of minor(s) even during life time of father.
33. In the decisions relied upon by the respondents 1 to 4/plaintiffs, the said factual as well as legal situation has not arisen and therefore, it is needless to say that the decisions accited on the side of the respondents 1 to 3/plaintiffs cannot be attuned in the present case.
34. The specific contention put forth on the side of the appellant/second defendant is that the first defendant has executed Ex.B1 for the benefit of the plaintiffs 1 to 3 and the first defendant has subsequently purchased a property under Ex.B2 and she also deposited the balance of sale consideration in the name of the first plaintiff and therefore, the plaintiffs cannot say that Ex.B1 sale deed has been executed without necessity and further Ex.B1 has not been executed in active collusion with the second defendant and sister's husband of the first defendant.
35. The learned counsel appearing for the respondents 1 to 4/plaintiffs has contended that the property mentioned in the sale deed dated 16.07.2002 does not belong to vendor and the same is a Government property, wherein the alleged vendor is not having alienable right and therefore, the same has been created only for the purpose of showing that Ex.B1 sale deed is valid.
36. It has already been discussed in detail and ultimately found that the first defendant can act as natural guardian of minor plaintiffs 1 to 3 in view of the facts and circumstances prevailing in between the fourth plaintiff and first defendant.
37. The first defendant has executed Ex.B1 sale deed as natural guardian of minor plaintiffs 1 to 3 and after execution of Ex.B1, on 16.07.2002 the first defendant has purchased the property which is mentioned in Ex.B2. Of course, it is true that in Ex.B2 it has been simply stated to the effect that the property sold is originally belonged to Government. Further it is stated that the same has been enjoyed by the vendor. Therefore, from the recitals found in Ex.B2, the Court cannot come to a conclusion that Ex.B2 sale deed has been purposely created. Even assuming without conceding that the property mentioned in Ex.B2 does not belong to the vendor absolutely, since he has had enjoyed the same and since Ex.B2 has been registered, this Court is of the view that there is no ground for coming to a conclusion that Ex.B2 sale has been created only with a view to deceive the plaintiffs 1 to 3 or to support the contention put forth on the side of the second defendant. Further, the first defendant has deposited Rs.8,000/- in the name of the first plaintiff on 15.06.2002 and the deposit receipt has been marked as Ex.B4. Therefore, it is quite clear that only for the benefit of minors, Ex.B1 sale deed has come into existence. Since Ex.B1 sale deed has been executed for the benefit of minors and since the same has been executed by their natural guardian viz., the first defendant, the same is nothing but voidable at the instance of the plaintiffs 1 to 3.
38. The present suit has been instituted for three kinds of reliefs. The first and foremost relief is to declare that the sale deed dated 13.06.2002 is invalid in law. The second relief is to recover possession of the suit property and third one is to set aside the sale deed dated 13.06.2002 as voidable.
39. It has already been pointed out that as per Article 60 of the Limitation Act, 1963, only minor is entitled to set aside the same within three years from the date of attaining majority and therefore, the third relief sought for in the plaint is totally unwarranted. Further it has already been discussed in detail and ultimately found that the first defendant is the natural guardian of the plaintiffs 1 to 3 and therefore, Ex.B1 sale deed is voidable at the instance of the plaintiffs 1 to 3. Further it is a settled principle of law that voidable transaction is valid till it is set aside by a competent Court. Therefore, viewing from any angle, the contentions put forth on the side of the respondents 1 to 4/plaintiffs cannot be accepted, whereas the legal points raised on the side of the appellant/second defendant are really having subsisting force and all the substantial questions of law settled in the present Second Appeal are decided in favour of the appellant/second defendant and altogether, the present Second Appeal deserves to be allowed.
40. In fine, this Second Appeal is allowed without cost. The Judgment and decree passed in Appeal Suit No.50 of 2006 by the Sub Court, Kuzhithurai are set aside and the Judgment and decree passed in Original Suit No.376 of 2002 by the First Additional District Munsif Court, Kuzhithurai are restored. Connected Miscellaneous Petitions are closed. mj To 1.The Sub Court, Kuzhithurai 2.The First Additional District Munsif Court, Kuzhithurai