(Prayer:Second Appeal filed under Section 100 of the Code of Civil Procedure, to set aside the Judgement and Decree dated 28.02.2012 made in A.S.No.91 of 2008 on the file of the Subordinate Judge, Srivilliputhur, confirming the Judgment and Decree in O.S.No.137 of 2005 dated 27.06.2008 on the file of the Additional District Munsif, Srivilliputhur.)
1. The defendant in the suit in O.S.No.137 of 2005 on the file of the Additional District Munsif Court, Srivilliputhur, is the appellant in this second appeal.
2. The respondent herein as plaintiff filed a suit for declaration that the suit properties belongs to the plaintiff and for recovery of possession.
3. The case of the respondent/plaintiff as culled out from the plaint, are as follows:
3.1. The suit properties belonged to the grandfather and grandmother of the plaintiff. The grandparents of the plaintiff had three sons and one daughter. Till 1977, the suit properties were enjoyed in common. By a registered partition, all the family properties were divided among the heirs on 09.06.1979. The plaintiff's father one Nagarajan was allotted the suit properties and other properties. After the partition, the properties were allotted to the individual shares and they are in the enjoyment of the respective sharers.
3.2. The plaintiff was born on 30.05.1982. However, the plaintiff's mother died on 18.04.1984 and the plaintiff's father died on 01.05.1985. Since the plaintiff was a minor then, a petition was filed before the District Court, Srivilliputhur in G.W.O.P.No.2 of 1993 to appoint a guardian for the person and the properties of the plaintiff/minor. In that proceedings, the plaintiff's paternal uncle, one Kadiresan was appointed as Guardian of minor properties by order dated 22.06.1993. However, without any legal necessity, the plaintiff's paternal uncle Kadireasan executed a sale deed in favour of the defendant in respect of all the properties of the plaintiff under the sale deed dated 14.06.1999 and that the properties conveyed under the sale deed were all allotted to the plaintiff's father in the family partition dated 09.06.1979. Though the sale deed was executed by the Guardian appointed by the Court, there was no prior permission from the Court before the sale deed was executed. Hence, the sale deed executed by the Court Guardian is invalid and void. Since the plaintiff was a minor at the time of sale and the plaintiff was not a party to the sale deed dated 14.06.1999, the sale deed will not bind the plaintiff and the sale deed was also liable to be set aside. The sale deed executed by the paternal uncle of the plaintiff in favour of the defendant came to his knowledge only when the plaintiff saw the certified copy of the sale deed on 19.08.2004. Hence, the suit is filed immediately thereafter.
3.3. The suit was contested by the defendant mainly on the ground that the sale deed was executed with the knowledge of the plaintiff and that the plaintiff who is also eo nominee party in the sale deed is bound by the sale deed. It is the specific case of the defendant that the suit without seeking to set aside the alienation, is not maintainable as the sale deed is only voidable. The other averments made in the written statement is not important, having regard to the scope of the second appeal.
3.4. The trial Court decreed the suit holding that it is not proved by the defendant that the sale deed was executed only for the legal necessity of the plaintiff. The trial Court also considered the issue whether the suit is maintainable without the prayer to set aside the alienation.
3.5. The trial Court after finding that the Guardian in this case was appointed by the Court, held that such a person has no right to alienate the property without permission of the Court. Since the alienation itself is illegal. The trial Court further held that the suit for declaration and recovery of possession is maintainable and decreed the suit. One of the issues that was raised by the defendant is that the suit is also barred by limitation. Strangely though the Indian Majority Act, was amended and as per the amendment, a person will be a minor only till he attains the age of 18 years, without taking into consideration the amendment to the Indian Majority Act, 1875 found that the age of majority for the purpose of Guardians and Wards Act, will be 21. Hence, the suit was decreed by the trial Court as prayed for.
3.6. Aggrieved by the same, the defendant preferred an appeal in A.S.No.91 of 2008 on the file of the Subordinate Court, Srivilliputhur. The lower appellate Court also fell in line with the trial Court and found all the issues in favour of the plaintiff and dismissed the appeal. The lower appellate Court went further to hold that the question whether the alienation was for the legal necessity of minor need not be gone into once it is admitted that the alienation is by a guardian appointed by Court without obtaining permission from Court.
4. The defendant in the suit has preferred the above Second Appeal, aggrieved by the findings of the Courts below. The learned Counsel for the appellant raised the following questions of law:
a) Whether the Courts below are right in concluding that a person is said to have attained majority according the Majority Act, 1875 on his completing the age of 21, when the relevant provision of the said Act is otherwise?
b)Whether the Courts below are right in coming to a conclusion that the suit is well within time?
c) Is it not that the suit filed by the plaintiff, barred by the provisions of Indian Limitation act with particular reference to Article 58, 59 and 60 of the said Act?
d) Without there being a relief for cancellation of the sale deed Ex.A6 whether the suit by the plaintiff maintainable?
e) Whether an adoptive father has got a right to deal with the property of his minor adopted son and if so to challenge the said transaction whether the provisions of the Hindu Minority and Guardianship Act, should be made applicable?
f) Whether the first appellate Judge is right in dismissing the petition under Order 41 Rule 27 and whether the reasons adduced for dismissing the petition is sustainable?"
5. In support of the questions of law that was raised, the learned Counsel for the appellant submits that a person is said to have attained majority according to the Indian Majority Act, 1875 on completion of his 18 years and hence the findings of the lower appellate Court on the question of limitation is un-sustainable.
6. The alienation by a Guardian of minor is only voidable. Unless the specific prayer is sought for to set aside the alienation, the suit for declaration of title and for recovery of possession is not maintainable. It is not in dispute that the Indian Majority Act, as amended would clearly show that minority of the person continues only such time he attains the age of 18. It is not in dispute that the plaintiff was a minor and attained majority on 13.05.2000 and the present suit is filed on 23.03.2005. However, only if the prayer to set aside alienation is mandatory before filing the suit, question of limitation will arise.
7. Secondly, the learned Counsel for the appellant relied upon the oral evidence of the plaintiff who has examined himself as PW.1. PW.1 has categorically admitted as follows:-
TAMIL
8. When the plaintiff himself has specifically admitted that he knew about the alienation even earlier, the plea of the plaintiff that he came to know about the alienation only on 19.08.2004, cannot be believed. Hence, the suit for setting aside alienation has to be filed within three years from the date of knowledge.
9. The important question is whether the suit for declaration of title and recovery of possession is maintainable without a prayer to set aside the alienation.
10. It is relevant to extract hereunder Sections 29 and 30 of Guardian and Wards Act:
"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,-
(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.
30. Voidability of transfers made in contravention in Section 28 or Section 29,- A disposal of immovable property by a guardian in contravention of either of the two last foregoing sections is voidable at the instance of any other person affected thereby."
11. Hence, as per Section 30 of the Act, the possession of immovable property of Guardian in contravention of the provisions of Guardian and Wards Act, is only voidable at the instance of minor. These provisions namely Sections 29 and 30 of the Guardian and Wards Act are in parimateria with Section 8 of the Hindu Minority and Guardianship Act, 1956. The Honourable Supreme Court and this Court had repeatedly held that when minor is an eo nominee a party to the sale deed/alienation, he is required to file a suit to set aside the same within a period of three years from the date of alienation. Unless the alienation is set aside and the Court held that the alienation is void, the plaintiff cannot get his title declared and the consequential relief. Hence, the suit filed for declaration and consequential relief for recovery of possession in the absence of a prayer to set aside the alienation, is not maintainable.
12. In this case, the sale deed executed by the guardian in favour of the defendant clearly shows that the guardian has executed the sale deed only by representing the plaintiff minor. Since the plaintiff is eo nominee a party to the sale deed, the legal consequences follow in that he cannot ignore the sale deed and treat the same as a void transaction. This position in supported by many judgements.
1. A Full Bench of this Court in Sankaranarayana Pillai and another -vs- Kandasamia Pillai reported in 1956 (II) MLJ 411, after referring to various precedents has held as follows:-
"There is no doubt whatever that a transaction entered into by a guardian relating to the minor's properties is not void and if the minor does not sue to set it aside within three years of his attaining majority it becomes valid under Article 44 of the Limitation Act. In such a case the minor is deemed to be a party to the transaction. But where the document is executed by a manager of the family and it is not binding on the family, the minor or any other member can ignore the transaction and recover possession of property. To such a case Section 7(v) of the Court-fees Act will apply. We are here not concerned with decrees to which the minor is eo nomine a party. Our answer to the first question is that if the minor is eo nominee a party to a sale-deed or other document of alienations, he must sue for the cancellation of the document under Section 7(iv-A) of the Court-fees Act and it is not enough if he applies for possession under section 7(v) of the Act; and to the second question our answer is that there can be no distinction whether the father as guardian of the minor and not as the manager of the joint family executes the deed. Even in that case also the document has to be set aside."
2. A Division Bench of this Court has considered the issue in P.R. Ramjee and two others -vs- P.B. Lakshmanaswamy Naidu and ten others reported in 1996 (I) CTC 661, and has followed the Full Bench decision of this Court and held as follows:-
"18. On the other hand the subsequent Full Bench judgment in Sankaranarayana Pillai -vs- Kandsamipillai, 1956 (2) MLJ 411: A.I.R. 1956 Mad.670, has placed the matter beyond doubt by answering two questions referred to them in the following manner.
"Our answer to the first question is that if the minor is eo nominee a party to a sale deed or other document of alienations, he must sue for the cancellation of the document under section 7(iv-A) of the Court-Fees Act and it is not enough if he applies for possession under Section 7(v) of the Act, and to the second question our answer is that there can be no distinction whether the father as guardian of the minor and not as the manager of the joint family execute the deed. Even in that case also the document has to be set aside".
There is no doubt whatever that the Full Bench has decided against the propositions now contended for by learned counsel for the appellant on the strength of the judgment inV.Nataraja Iyer and Others -vs- Arunachalam and others 1976(2) M.L.J 326.
19. A Division Bench of this Court, in which one of our was a party, had recently an occasion to consider the question in Sridharan and others -Vs- Arumugham and others 1993 (2) MLJ 428 and it has held that insofar as the documents in which the minor children are made parties, they are bound in law to pray for setting aside the same and without such prayer, the suit is not sustainable in relation to those documents.
20. Hence, the view taken by the trial judge that the suit is not maintainable in the absence of a prayer to set aside the alienations, is correct."
3.A learned Single Judge of this Court in Anjalai and six others -vs- Arumuga Chettiar and another reported in2000 (II) CTC 154 has relied upon the judgment of Honourable Supreme Court and the Full Bench of this Court and held as follows:-
"7 . Per contra, Mr. G. Rajagopalan, learned counsel appearing for the respondents contends that the transaction is not a void one but only a voidable one, having regard to the Judgment of the Supreme Court reported in Divyadip Singh and others v. Ram Cachan Mishra and others, JT 1997 (1) S.C. 504. Reliance is placed on the observation that when the natural guardian without the previous permission of the Court had alienated the property, it was voidable at the instance of the minor. Therefore, according to the learned counsel, the sale as well as the release being only voidable and not void, there was an obligation on the part of the plaintiff to have prayed, for to set aside the earlier transaction. He would also rely upon the judgment of the Full Bench of this Court reported in Mir Ghulam Hussain Sahib v. Ayesha Bibi and others, A.I.R. 1941 Mad. 481 wherein the Full Bench held that the transfer by guardian appointed by Court without. Court sanction is voidable and not void. It is valid unless set aside at the instance of minors, within limitation.
8. Reference is also made to another judgment of this Court reported in Sankaranarayana Pillai and another v. Kandasamia Pillai, 1956 (II) M.L.J. 411. The Full Bench held in that case that when the minor was co-nominee a party to a sale deed or other document of alienation by a guardian which he seeks to set aside, it is not enough for him to merely sue for possession but he must have also prayed for cancellation of the document and pay due Court fee for the said prayer.
9. Therefore having regard to the declaration of the law by the Supreme Court holding that the transaction of the present nature was only voidable and not void, the Courts below have rightly held that the plaintiffs ought to have prayed for setting aside the release in favour of the defendants."
It is pertinent to mention that the Full Bench of this Court relied upon by this Court in a direct authority in respect of an alienation by a guardian appointed by Court without permission of Court.
4. The Honourable Supreme Court in Vishwambhar and others -vs- Laximnarayana (Dead) through L.R.s and another reported in 2001 (3) CTC 316 has held as follows:-
"9.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 the 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 to set aside the sale deeds dated 14.11.1967 and 24.10.1974, recover possession of the properties sold 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 Guradianship 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-section (3) of the said section it is specifically provided that any disposal of immovable property by a natural guardian, in contravention of sub-section (2) is voidable at the instance of the minor or any person claiming under him. There is, therefore, little scope for doubt that the alienations made by Laxmibai which are under challenge in the suit were voidable at the instance of the plaintiffs and the plaintiffs were required to get the alienations set aside if they wanted to avoid the transfers and regain the properties from the purchasers. As noted earlier in the plaint as it stood before the amendment the prayer for setting aside the sale deeds was not there, such a prayer appears to have been introduced by amendment during hearing of the suit and the trial court considered the amended prayer and decided the suit on that basis. If in law the plaintiffs were required to have the sale deeds set aside before making any claim in respect of the properties sold then a suit without such a prayer was of no avail to the plaintiffs. In all probability realising this difficulty the plaintiffs filed the application for amendment of the plaint seeking to introduce the prayer for setting aside the sale deeds. Unfortunately, the realisation came too late. Concededly, plaintiff no.2 Digamber attained majority on 5th August, 1975 and Vishwambhar, plaintiff no.1 attained majority on 20th July, 1978. Though the suit was filed on 30th November, 1980 the prayer seeking setting aside of the sale deeds was made in December, 1985. Article 60 of the Limitation Act, prescribes a period of three years for setting aside a transfer of property made by the guardian of a ward, by the ward who has attained majority and the period is to be computed from the date when the ward attains majority. Since the limitation started running from the dates when the plaintiffs attained majority the prescribed period had elapsed by the date of presentation of the plaint so far as Digamber is concerned. Therefore, the trial Court rightly dismissed the suit filed by Digamber. The judgment of the trial court dismissing the suit was not challenged by him. Even assuming that as the suit filed by one of the plaintiffs was within time the entire suit could not be dismissed on the ground of limitation, in the absence of challenge against the dismissal of the suit filed by Digambar the first appellate court could not have interfered with that part of the decision of the trial court. Regarding the suit filed by Vishwambhar it was filed within the prescribed period of limitation but without the prayer for setting aside the sale deeds. Since the claim for recovery of possession of the properties alienated could not have been made without setting aside the sale deeds the suit as initially filed was not maintainable. By the date the defect was rectified (December, 1985) by introducing such a prayer by amendment of the plaint the prescribed period of limitation for seeking such a relief had elapsed. In the circumstances the amendment of the plaint could not come to the rescue of the plaintiff."
5.A Learned Single Judge of this Court after referring to various judgments of Honourable Supreme Court and High Courts in a similar case in Murugan and five others -vs- Kesava Gounder and two others reported in 2010 (3) CTC 502 held as follows:-
"23. In the case on hand, there is nothing on record to show that the alienation made by Balaraman were for the legal necessity for the benefit of the minor. In such case alienations made by the said Balaraman can be construed only as a voidable alienations and not void alienations. Once it is found that alienation are voidable, the remedy open to the appellants-plaintiffs is to file a suit to set aside the Sale Deed and not for recovery of possession. The appellants have not prayed to set aside the alienations made by Balaraman. The appellants have filed the Suit in respect of declaration, delivery of possession and for mesne profits. The appellants have questioned the alienations made by the father of minor Palanivel under Exs.A9 to A-12. Further, the appellants have not prayed to set aside the Sale Deed made by the guardian on behalf of the minor, who was a eo-nominee party in the Sale Deeds. Therefore, the prayer sought for in the Suit is liable to be rejected. Article 60 of the Limitation Act prescribes 3 years' period to file a Suit to set aside the transfer of property made by guardian of a ward. Under Article 60(b)(ii), when the ward dies before attaining majority, the limitation starts from the date when the ward dies."
6. Similar view was expressed by the Honourable Justice K.Govindaraj as he then was in C.Anthonysamy -Vs- V.Rajagopal Padayachi and another reported in 2002 (3) CTC 211.
7. After following several precedents, this Court in Balu alias Balakrishnan -vs- Minor B.Sasikumar and others reported in (2001) 3 M.L.J. 15 has observed that failure to seek cancellation of sale will be fatal to the minors case."
13. Hence, following the judgment of the Honourable Supreme Court and this Court as referred to above, the judgment of the lower appellate Court confirming the judgment of the trial Court in O.S.No.137 of 2005 is liable to be set aside. Accordingly, the substantial questions of law are answered in favour of the appellant.
14. In the result, this Second Appeal is allowed. the judgment of the lower appellate Court in A.S.No.91 of 2008 confirming the judgment of the trial Court in O.S.No.137 of 2005 is set aside. The suit in O.S.No.137 of 2005 is dismissed. However No costs.
15. It is brought to the notice of this Court that by order of this Court 08.04.2014 some amount has been deposited by the defendant to the credit of the suit. The learned Counsel for the appellant in this case has no objection for the plaintiff to withdraw the said amount which is lying to the credit of the suit. The undertaking that the appellant will not have any objection for withdrawal of the amount is recorded and this Court further held that the amount paid to the plaintiff so far pursuant to interim order shall not be recovered from the plaintiff.