MURUGAN & ORS. versus KESAVA GOUNDER (DEAD) THR. LRS. AND ORS. on 25 February 2019

[2019] 4 S.C.R. 357

MURUGAN & ORS.

v.

KESAVA GOUNDER (DEAD) THR. LRS. AND ORS.

(Civil Appeal No. 1782 of 2019)

FEBRUARY 25, 2019

[ASHOK BHUSHAN AND K. M. JOSEPH, JJ.]

Limitation Act, 1963 – Arts.60 and 65 – Suit property belongedto one ‘PG’, who had two sons, ‘K’ and ‘B’ and three daughters –‘PG’ executed Will in 1971 bequeathing life interest to his sons ‘K’and ‘B’ and thereafter to the two male heirs of his sons – ‘PG’died – ‘B’ on his behalf and on behalf of his minor son ‘P’ soldcertain portion of the suit property to defendants-respondents in1981-82– ‘B’ died in 1983, his minor son ‘P’ died on 11.02.1986 –B’s wife executed registered Release Deed in 1986 in favour of theplaintiffs-appellants (sons of ‘K’) for consideration – Plaintiffs filedsuit in 1992 on the ground that ‘B’ had no authority to execute theSale Deeds on behalf of his minor son ‘P’ and the same were void –Defendants inter alia contended that the suit was barred by limitationas it was not filed within 3 years from the death of ‘P’, i.e. 11.02.1986– Suit decreed – Defendants filed appeal – Allowed – Plaintiffsfiled second appeal in the High Court – Dismissed – Held: Part IVof the Limitation Act, dealing with suits relating to “Decrees andinstruments”, contains Art.60 – Art.60 although provides forlimitation of a suit but also clearly indicates that to set aside atransfer of property made by the guardian of a ward a suit iscontemplated – Art.60(b)(ii) refers to a suit when a ward dies beforeattaining majority – Present is a case where ‘P’ died before attainingmajority – Limitation to avoid instrument made by guardian of theward is 3 years from the death of ward when he dies before attainingmajority – Sale deeds by ‘B’ on his behalf and on behalf of hisminor son ‘P’, executed without the permission of the Court were incontravention of s.8(2), 1956 Act and hence voidable – Sale deedsbeing voidable and not void, plaintiffs cannot rely on Art.65, periodfor limitation under which is 12 years – High Court rightly heldthat limitation for suit was governed by Art. 60 and the suit wasbarred by time – Alienations being voidable, were required to be set

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Aaside before relief for possession can be claimed by the plaintiffs –Suit filed by the plaintiffs without seeking prayer for setting asidethe sale deeds was, thus, not properly framed and could not havebeen decreed – Sale deeds executed by ‘B’ were not repudiated oravoided within the period of limitation as prescribed by law – HinduMinority & Guardianship Act, 1956 – s.8.B

Hindu Minority & Guardianship Act, 1956 – s.8(3) – Rightunder – Of the minor or any person claiming under him – Discussed.

Words & Phrases - “Vested Right” and “Contingent Right” –Distinction between – Held: Vested right is the subject matter ofCs.19 of the 1882 Act while contingent interest is dealt with u/s.21 ofthe 1882 Act – Transfer of Property Act, 1882 – ss.19, 21.

Dismissing the appeal, the Court

HELD: 1.1 Part IV of the Limitation Act, 1963 which dealswith suits relating to “Decrees and instruments” contains ArticlesD59 and 60. Article 65 is contained in Part V (suits relating toimmovable properties). Article 60(b)(ii)refers to a suit when award dies before attaining majority. The present is a case where‘P’ died on 11.02.1986 before attaining majority, his date of birthbeing 16.07.1978, the limitation to avoid instrument made byEguardian of the ward is 03 years from the death of ward when hedies before attaining majority. [Paras 7, 8 and 9][366-G; 367-D;360-A-B]

1.2 The period of limitation under Article 65 is availablewhen suit is filed for possession of immovable property on anyinterest therein based on title. The present is a case where byFregistered sale deeds the property was conveyed by the father ofthe minor. Thus, when sale deed was executed by Balaraman hepurported to convey the right of the minor also. The sale deedsbeing voidable and not void, plaintiffs cannot rely on Article 65.First Appellate Court and the High Court rightly held thatGlimitation for suit was governed by Article 60 and the suit wasclearly barred by time. [Para 11][369-D, E]

1.3 In the present case, there is no dispute that sale deedsexecuted by ‘B’ on behalf of himself and his minor son ‘P’ wereexecuted without obtaining permission of the Court. Sale deedHin violation of Section 8(1) and 8(2) of the Hindu Minority &

Guardianship Act, 1956 is a voidable sale deed. The alienations,which were voidable, at the instance of minor or on his behalfwere required to be set aside before relief for possession can beclaimed by the plaintiffs. Suit filed on behalf of the plaintiffs withoutseeking prayer for setting aside the sale deeds was, thus, notproperly framed and could not have been decreed. [Paras 13,14, 20] [370-F; 372-A; 375-G-H]

1.4 The release deed dated 24.03.1986 has been broughton the record as Annexure P-1. A perusal of the release deeddoes not indicate that there is any reference of alienation madeby ‘B’ favour of the defendants. There being no reference of thealienation made by ‘B’ on behalf of minor, there is no occasion toread release deed as repudiation of the claim on behalf of theminor. Section 8(3), 1956 Act gives a right to the minor or anyperson claiming under him, the relevant words in Section 8(3)are “at the instance of the minor or any person claiming underhim.” Thus, alienation made on behalf of the minor can be avoidedby minor or any person claiming under him. In event, minor diesbefore attaining majority, obviously, his legal heirs will have rightto avoid the alienation. Sub-section (3) of Section 8 refers to adisposal of immovable property by a natural guardian incontravention of sub-section (1) or sub-section (2) as voidable.When a registered sale deed is voidable, it is valid till it is avoidedin accordance with law. The rights conferred by a registered saledeed are good enough against the whole world and the sale canbe avoided in case the property sold is of a minor by a naturalguardian at the instance of the minor or any person claiming underhim. A document which is voidable has to be actually set asidebefore taking its legal effect. [Paras 21, 24] [376-A-C; 376-F-G]

1.5 Supreme Court time and again held that setting asideof a sale which is voidable under Section 8(3) is necessary foravoiding a registered sale deed. Court may, however, not to beunderstood that it is holding that in all cases where minor has toavoid disposal of immovable property, it is necessary to bring asuit. There may be creation of charge or lease of immovableproperty which may not be by registered document. It may dependon facts of each case as to whether it is necessary to bring a suitfor avoiding disposal of the immovable property or it can be done AB

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Ain any other manner. The Limitation Act, 1963 has been enactedby the Parliament after the enactment of Hindu Minority andGuardianship Act, 1956. Article 60 of the Limitation Act, 1963which provides for limitation “suits relating to decrees andinstruments”. The Limitation Act contemplates suit to set asidea transfer of property made by the guardian of a ward for whichBlimitation is contemplated as three years. Article 60 of theLimitation Act although provides for a limitation of a suit but alsoclearly indicates that to set aside a transfer of property made bythe guardian of a ward a suit is contemplated. [Paras 28, 29][378-E-H; 379-A]C

1.6 Section 11 of the 1956 Act contains a statutoryprohibition on “de facto guardian” of the minor from disposing ofthe property of the minor. The transfer made by de facto guardianis, thus, void and can be repudiated in any manner. It is well settledthat it is not necessary for a minor or any person claiming underDhim to file a suit for setting aside a void deed. A void deed can beignored. [Para 31] [379-G]

1.7 In the present case there having been no repudiationof sale deed on behalf of minor, the question of voidable saledeed becoming void does not arise. In the present case it wasEnecessary for the person claiming through minor to bring an actionwithin a period of three years from the date of the death of theminor to get sale deed executed by ‘B’ set aside. The sale deedsexecuted by ‘B’ were not repudiated or avoided within the periodof limitation as prescribed by law. [Paras 34, 35] [382-B, C]

FMadhukar Vishwanath v. Madahav and Others (1999)9 SCC 446; Narayan v. Babasaheb and Others (2016)6 SCC 725 : [2016] 2 SCR 948; Nangali Amma BhavaniAmma v. Gopalkrishnan Nair and Others (2004) 8 SCC785; Gorakh Nath Dube v. Hari Narain Singh andothers (1973) 2 SCC 535 : [1974] 1 SCR 339 – reliedGon.

Dhurandhar Prasad Singh v. Jai Prakash Universityand Others (2001) 6 SCC 534 : [2001] 3 SCR 1129;Vishwambhar and Others v. Laxminarayan (Dead)Through LRs. and Another (2001) 6 SCC 163;HMadhegowda (dead) by LRs. v. Ankegowda (dead) by LRs. and Others (2002) 1 SCC 178 : [2001] 5 Suppl.SCR 290; Amirtham Kudumbah v. Sarnam Kudumban(1991) 3 SCC 20 : [1991] 2 SCR 389; Madhegowda(Dead) by LRs. v. Ankegowda (Dead) by LRs. andothers (2002) 1 SCC 178 : [2001] 5 Suppl. SCR 290;G. Annamalai Pillai v. District Revenue Officer andothers (1993) 2 SCC 402 : [1993] 2 SCR 397 –referred to.

Case Law Reference

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CIVIL APPELLATE JURISDICTION: Civil Appeal No. 1782of 2019

From the Judgment and Order dated 21.04.2010 of the HighCourt of Judicature at Madras in S.A. No. 644 of 2000.

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V. Prabhakar, Ms. Jyoti Parasher, N. J. Ramchandar,R. Chandrachud, Advs. for the Appellants.

Ms. V. Mohana, Sr. Adv., B. Ragunath, Mrs. N. C. Kavitha,

C. D. Singh, Vijay Kumar, Advs. for the Respondents.

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AThe Judgment of the Court was delivered by ASHOK BHUSHAN, J. 1. This is the plaintiff’s appealchallenging the judgment of Madras High Court dismissing the secondappeal filed by the plaintiffs-appellants.

2. Brief facts of the case are:-

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B2.1 The suit property belongs to one Petha Gounder. PethaGounder had two sons namely Kannan and Balaraman andthree daughters. Sengani Ammal was wife of PethaGounder. On 17.05.1971 Petha Gounder executed a Willbequeathing life interest to his sons Kannan and Balaramanand thereafter to the two male heirs of his both the sons,Cwho were to take the property absolutely. Will furtherstipulated that in event, there is no male heir to one of hissons, the male heirs of other son will take the property. PethaGounder died on 28.11.1971 leaving behind his wife, twosons Balaraman and Kannan and three daughters. PethaDGounder’s wife Sengani Ammal died on 02.02.1982.Balaraman had one son namely Palanivel.

2.2 Balaraman on his behalf as well as on behalf of his minorson had sold Item Nos.1 to 3 of the suit properties byregistered Sale Deed dated 15.12.1981. Balaraman alsoEsold Item No.6 and a portion of Item No.7 by two SaleDeeds dated 30.03.1981 and 31.03.1981 in favour of thefirst defendant. Balaraman had sold Item No. 6 in favourof the second defendant by registered Sale Deed dated29.03.1982. Balaraman died in 1983 and Kannan died on02.12.1984. Balaraman’s wife was Lakshmi. The plaintiffsFare sons of Kannan. Palanivel, the son of Balaraman diedon 11.02.1986 while still a minor. Palanivel’s motherLakshmi Ammal executed a registered Release Deed dated24.03.1986 in favour of the plaintiffs for a consideration.The plaintiffs filed suit No.229 of 1992 praying for followingGreliefs:- “VI. The plaintiffs therefore pray that the Hon’ble Courtmay be pleased to:-

“VI. The plaintiffs therefore pray that the Hon’ble Courtmay be pleased to:- (a) Declare that the plaintiffs are entitled to the suitproperties; H

(b) Direct the Defendants to deliver possession of thesuit properties failing which order delivery ofpossession through process of court;

(c) Direct the Defendants to pay the cost of the suitand (d) Grant such other reliefs as the Hon’ble Court maydeem fit in the circumstances of the case.”

2.3 The plaintiffs’ case in the plaint was that Balaraman had noauthority to execute Sale Deed on behalf of his minor sonPalanivel and the Sale Deeds executed by Balaraman werevoid. The plaintiffs being sons of Kannan are entitled fordeclaration and possession of the properties from thedefendants. It was further pleaded that validity of the Willdated 17.05.1971 has been upheld by the Subordinate JudgesCourt, Cuddalore in O.S. No. 447 of 1973.

2.4 The defendant filed written statement. The defendant’scase was that Balaraman, in order to discharge his debtsand for family necessity executed sale deed for himselfand on behalf of his minor son on 15.12.1981. The saledeed binds the minor Palanivel. The release deed executedby Lakshmi Ammal on 24.03.1986 will confer no right tothe plaintiffs. The suit is barred by limitation since the suithas not been filed within 03 years from the date of death ofPalanivel i.e. 11.02.1986. The suit as framed is notmaintainable. The defendants are not in illegal possession.The defendants are bonafide purchasers for value. Theplaintiffs cannot file suit for declaration without praying forsetting aside the sale deeds.

2.5 The trial court framed ten issues. Issue No.7 was “Whetherthe suit is barred by limitation?”. Issue No.8 was “Whetherthe plaintiffs are entitled to seek for declaration of title inrespect of suit properties?”. Issue No.9 was “Whether theplaintiffs are entitled to seek for recovery of possession?”.The trial court while deciding Issue No.7 held that suit isnot barred by limitation. Trial court held that plaintiff havingfiled the suit as reversioner, Article 65 of the Limitation Actwill apply. As per Article 65, period for limitation is 12years, hence suit was within time. The Will dated A

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17.05.1971 was held to be a valid Will. The sale deedsexecuted by Balaraman are voidable. On release deed,the trial court held that Lakshmi Ammal had no right in thesuit properties, as such the plaintiffs do not derive any newright from the release deed. Trial court held that it is notnecessary to decide the truth and validity of the releasedeed dated 24.03.1986. The trial court further held that therewas no necessity to file the suit seeking a prayer to setaside the sale deeds separately since those sale deeds arevoidable and they can be ignored. It was held that plaintiffsare competent to recover possession from the defendants.Trial court vide its judgment and decree dated 13.08.1997decreed the suit.

2.6 The defendants aggrieved by the judgment of the trial courtfiled appeal. The Principal District Judge vide its judgmentdated 31.08.1999 allowed the appeal dismissing the suit.Appellate Court held that since Palanivel died on 11.02.1986,the suit should have been filed to set aside the sale deedsand for possession within 03 years from his death. The suitfiled in 1992 was barred by limitation. The Appellate Courtrelied on Article 60 of the Limitation Act. Aggrieved againstthe judgment of the First Appellate Court, the plaintiffs filedsecond appeal in the High Court. High Court vide itsjudgment dated 21.04.2010 dismissed the second appeal.High Court had framed following substantial questions oflaw for consideration:-

“i) Whether the Learned First Appellate Judge is correctin holding that the release deed Ex.A-15 dated24.03.1986, is not avoiding the transfers by sales underExs. A-9=B-9, A-10=B-7, A-11=B-2 and A-12=B-9,executed by the natural guardian late Balaraman, ofthe properties belong to the deceased minor Palanivel?

ii) Whether the sale deeds executed by late Balaraman,the natural guardian of minor Palanivel, of the propertiesof the minor are valid in law when the said sale deedswere executed in gross violation of Section 8(2)(a) ofthe Hindu Minority and Guardianship Act, especially when the mother, who claimed under the minor avoidedthe sale immediately on the demise of the minor?

iii) Whether first appellate Judge is correct in holding thatthe suit is not maintainable, since the suit was not filedto set aside the sales within three years from the dateof demise of minor Palanivel?

2.7 The High Court held that alienations made by Balaramancan be construed only as a voidable alienations and not voidalienations. High Court held that plaintiffs suit ought to havebeen filed within 03 years as per Article 60 of the LimitationAct. All substantial questions of law were decided in favourof the defendants-respondents. High Court dismissed thesecond appeal. Aggrieved against the judgment, this appealhas been filed.

3. Shri V. Prabhakar, learned counsel for the appellants in supportof the appeal contends that Article 60 of the Limitation Act shall notapply and the suit was rightly held to be governed by Article 65 by thetrial court, which was well within time. It is submitted that the option torepudiate the action on behalf of the minor having been exercised bymother of the minor, the sale deed executed by Balaraman become voidfrom its inception. Sale deeds executed by Balaraman were withoutpermission of the Court and were without legal necessity, hence wasrightly repudiated by his mother Lakshmi Ammal. On the strength ofrepudiation of the alienation by Lakshmi Ammal, the sale deeds becomevoid and there was no necessity for praying for setting aside the saledeeds and suit for declaration and possession was fully maintainable.Article 60 would have been applicable only if the suit was filed for settingaside the sale deeds.

4. Ms. V. Mohana, learned senior counsel appearing for therespondents refuting the submissions of the counsel for the appellantscontends that suit was clearly barred by time, it having been not filedwithin 03 years from the date of death of the minor. It is further submittedthat release deed dated 24.03.1986 cannot be accepted as repudiationof the sale deeds. It is submitted that without praying for setting asidethe sale deeds, the decree of possession could not have been claimed bythe plaintiffs. Limitation was governed by Article 60 of the LimitationAct.

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5. Learned counsel for the parties have relied on various judgments,which shall be referred to and considered while considering thesubmissions in detail.

6. From the submissions of the learned counsel for the parties andpleadings on record, following are the issues, which arise for considerationBin this appeal:-

(i) Whether the suit filed by the plaintiffs-appellants was barredby limitation?

(ii) Whether without praying for setting aside the sale deedsexecuted by Balaraman, the suit for declaration andCpossession was maintainable?

(iii) Whether the plaintiffs can successfully contend that byexecution of release deed dated 24.03.1986 by LakshmiAmmal, sale deeds executed by Balaraman were successfullyrepudiated?

Issue No. 1D

7. The trial court has held that suit has been filed within timerelying on Article 65 whereas the Appellate Court as well as the HighCourt relied on Article 60 and held that suit was barred by time. Part IVof the Limitation Act, which deals with suits relating to “Decrees andinstruments” contains Articles 59 and 60. Article 60 is as follows:-E

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60 To set aside a transfer ofFproperty made by the guardian of a ward-

8. Article 65 is contained in Part V (suits relating to immovableproperties), which is as follows:- “65.

For possession of immovable Twelve Years When the possession of property or any interest therein the defendant becomes based on title. 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 only when the female dies;

(c) 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.”

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A9. Article 60(b)(ii)refers to a suit when a ward dies before attainingmajority. The present is a case where Palanivel died on 11.02.1986before attaining majority, his date of birth being 16.07.1978, the limitationto avoid instrument made by guardian of the ward is 03 years from thedeath of ward when he dies before attaining majority. This Court hadoccasion to consider Articles 60 and 65 of the Limitation Act in referenceBto alienation made by a de-facto guardian of a minor. In the case ofMadhukar Vishwanath Vs. Madahav and Others, (1999) 9 SCC446, the maternal uncle of the appellant has executed a sale deed. Theappellant after becoming major on 22.08.1966 filed a suit on 07.02.1973praying that transferors be required to deliver the possession of theCproperty. On behalf of appellant, Article 65 was relied for the purposesof limitation. This Court held that it is Article 60 and not Article 65,which is applicable. Paragraph No. 4 and 5 of the judgment are relevant,which are quoted as below:- “4. XXXXXXXXX

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That the defendant, Baburao Madhorao Puranik, was theappellant’s de facto guardian had been established and, therefore,the disposal by him of the said property was void. Being void, itwas open to the appellant to file the suit for possession of the saidproperty and the period for limitation for such suit was prescribedEby Article 65.

5. ……………………Even if the suit was entertained as pleaded,no decree for possession could have been passed without firstfinding that the alienation was not for legal necessity and was,therefore, bad in law. To such a suit the provisions of Article 60Fapply. Article 60 relates to a suit to set aside a transfer of propertymade by the guardian of a ward by the ward who has attainedmajority and the period prescribed is three years commencing onthe date on which the ward attainsmajority………………………”

G10. This Court in Narayan Vs. Babasaheb and Others, (2016)6 SCC 725 again had occasion to consider Article 60 of the LimitationAct. In the above case, this Court held that a suit by minor for settingaside the sale of his property by his guardian is governed by Article 60 ofthe Limitation Act. In Paragraph Nos. 25 and 26, following was laiddown:-H

“25. A close analysis of the language of Article 60 would indicatethat it applies to suits by a minor who has attained majority andfurther by his legal representatives when he dies after attainingmajority or from the death of the minor. The broad spectrum ofthe nature of the suit is for setting aside the transfer of immovableproperty made by the guardian and consequently, a suit forpossession by avoiding the transfer by the guardian in violation ofSection 8(2) of the 1956 Act. In essence, it is nothing more thanseeking to set aside the transfer and grant consequential relief ofpossession.

26. There cannot be any doubt that a suit by quondam minor toset aside the alienation of his property by his guardian is governedby Article 60. To impeach the transfer of immovable property bythe guardian, the minor must file the suit within the prescribedperiod of three years after attaining majority.”

11. Now, coming to Article 65, on which reliance has been placedby learned counsel for the appellants. The said period of limitation isavailable when suit is filed for possession of immovable property on anyinterest therein based on title. The present is a case where by registeredsale deeds the property was conveyed by the father of the minor waseonominee party. Thus, when sale deed was executed by Balaramanhe purported to convey the right of the minor also. The sale deeds beingvoidable and not void, plaintiffs cannot rely on Article 65. We, thus, areof the view that first Appellate Court and the High Court has rightly heldthat limitation for suit was governed by Article 60 and the suit was clearlybarred by time.

12. It is important to find from the sale deed what was conveyed.This we say, as appellant has a case that the father of the minor wasgiven a life estate and after his death alone the minor was to get a right.In this regard we may notice the distinction between a vested right anda contingent right. Vested right is the subject matter of Section 19 of theTransfer of Property Act whereas a contingent interest is dealt withSection 21 of the Transfer of Property Act. Since the life estate followedby an absolute right is created by a will, the relevant provision is Section119 of the Indian Succession Act, 1925. Section 119 reads as follows:

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A“119. Date of vesting of legacy when payment or possessionpostponed.—Where by the terms of a bequest the legatee is notentitled to immediate possession of the thing bequeathed, a rightto receive it at the proper time shall, unless a contrary intentionappears by the Will, become vested in the legatee on the testator’sdeath, and shall pass to the legatee’s representatives if he diesBbefore that time and without having received the legacy, and insuch cases the legacy is from the testator’s death said to be vestedin interest.

Explanation.—An intention that a legacy to any person shallnot become vested in interest in him is not to be inferred merelyCfrom a provision whereby the payment or possession of the thingbequeathed is postponed, or whereby a prior interest therein isbequeathed to some other person, or whereby the income arisingfrom the fund bequeathed is directed to be accumulated until thetime of payment arrives, or from a provision that, if a particularDevent shall happen, the legacy shall go over to another person.”

It is relevant that we notice illustration No.(iii) which reads as follows:

“(iii)A fund is bequeathed to A for life, and after his death to B.On the testator’s death the legacy to B becomes vested in interestin B.”

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Therefore, the absolute right bequeathed in favour of Palanivel becamevested in him upon the death of Petha Gounder.

Issue No.2

13. In the present case, there is no dispute that sale deeds executedFby Balaraman on behalf of himself and his minor son Palanivel wereexecuted without obtaining permission of the Court. Section 8 of theHindu Minority & Guardianship Act, 1956, which is relevant is as follows:-

8. Powers of natural guardian.- (1) The natural guardian of aHindu minor has power, subject to the provisions of this section,Gto do all acts which are necessary or reasonable and proper forthe benefit of the minor or for the realisation, protection or benefitof the minor’s estate; but the guardian can in no case bind theminor by a personal covenant.

(2) The natural guardian shall not, without the previous permissionof the court,- H

(a) mortgage or charge, or transfer by sale, gift, exchange orotherwise any part of the immovable property of the minor or (b) lease any part of such property for a term exceeding fiveyears or for a term extending more than one year beyond thedate on which the minor will attain majority.

(3) Any disposal of immovable property by a natural guardian, incontravention of subsection (1) or sub-section (2), is voidable atthe instance of the minor or any person claiming under him.

(4) No court shall grant permission to the natural guardian to doany of the acts mentioned in sub-section (2) except in case ofnecessity or for an evident advantage to the minor.

(5) The Guardians and Wards Act, 1890 (8 of 1890), shall apply toand in respect of an application for obtaining permission of thecourt under sub-section (2) in all respects as if it were anapplication for obtaining the permission of the court under section29 of that Act, and in particular- (a) proceedings in connection with the application shall be deemedto be proceedings under that Act within the meaning of section4A thereof.

(b) the court shall observe the procedure and have the powersspecified in sub-sections (2), (3) and (4) of section 31 of thatAct; and

(c) an appeal shall lie from an order of the court refusingpermissionto the natural guardian to do any of the actsmentioned in sub-section (2) of this section to the court towhich appeals ordinarily lie from the decisions of that court.

(6) In this section, “Court” means the city civil court or a districtcourt or a court empowered under section 4A of the Guardiansand Wards Act, 1890 (8 of 1890), within the local limits of whosejurisdiction the immovable property in respect of which theapplication is made is situate, and where the immovable propertyis situate within the jurisdiction of more than one such court, meansthe court within the local limits of whose jurisdiction any portionof the property is situate.”

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A14. This Court time and again has considered the cases of alienationby natural guardian in contravention of Section 8 and Section 8(2) of the1956 Act. This Court held that sale deed in violation of Section 8(1) and8(2) is a voidable sale deed. Voidable has been defined in Black’s LawDictionary, Tenth Edition as under:- B“Valid until annulled; esp., (of a contract) capable of being affirmedor rejected at the option of one of the parties. This term describesa valid act that may be voided rather than an invalid act that maybe ratified.”

15. Salmonds on Jurisprudence, Twelfth Edition has noticed theCdistinction between Valid, Void and Voidable in following passage:-

“… A valid agreement is one which is fully operative in accordancewith the intent of the parties. A void agreement is one which entirelyfails to receive legal recognition or sanction, the declared will ofthe parties being wholly destitute of legal efficacy. A voidableDagreement stands midway between these two cases. It is not anullity, but its operation is conditional and not absolute. By reasonof some defect in its origin it is liable to be destroyed or cancelledat the option of one of the parties to it. On the exercise of thispower the agreement not only ceases to have any efficacy, but isdeemed to have been void ab initio. The avoidance of it relatesEback to the making of it. The hypothetical or contingent efficacywhich has hitherto been attributed to it wholly disappears, as if ithad never existed. In other words, a voidable agreement is onewhich is void or valid at the election of one of the parties to it.”

16. This Court in Dhurandhar Prasad Singh Vs. Jai PrakashFUniversity and Others, (2001) 6 SCC 534 had noted the distinctionbetween Void and Voidable. In Paragraph No. 22, following has beenlaid down:- “22. Thus the expressions “void and voidable” have been thesubject-matter of consideration on innumerable occasions byGcourts. The expression “void” has several facets. One type ofvoid acts, transactions, decrees are those which are wholly withoutjurisdiction, ab initio void and for avoiding the same no declarationis necessary, law does not take any notice of the same and it canbe disregarded in collateral proceeding or otherwise. The othertype of void act, e.g., may be transaction against a minor withoutH

being represented by a next friend. Such a transaction is a goodtransaction against the whole world. So far as the minor isconcerned, if he decides to avoid the same and succeeds in avoidingit by taking recourse to appropriate proceeding the transactionbecomes void from the very beginning. Another type of void actmay be which is not a nullity but for avoiding the same a declarationhas to be made. Voidable act is that which is a good act unlessavoided, e.g., if a suit is filed for a declaration that a document isfraudulent and/or forged and fabricated, it is voidable as theapparent state of affairs is the real state of affairs and a partywho alleges otherwise is obliged to prove it. If it is proved that thedocument is forged and fabricated and a declaration to that effectis given, a transaction becomes void from the very beginning.There may be a voidable transaction which is required to be setaside and the same is avoided from the day it is so set aside andnot any day prior to it. In cases where legal effect of a documentcannot be taken away without setting aside the same, it cannot betreated to be void but would be obviously voidable.”

17. In Vishwambhar and Others Vs. Laxminarayan (Dead)Through LRs. and Another, (2001) 6 SCC 163, which was a caseof challenge to alienation without Court’s sanction and without legalnecessity, this Court held that the alienation by natural guardian wasvoidable. In the above case, the mother, natural guardian of two minorshas executed the sale deed before they attained majority. Minors afterattaining majority had filed suit pleading that sale deeds are not bindingand operative on the legal rights of plaintiff, and prayed that the said saledeeds be set aside to the extent of their share and the suit for possessionof the land be decreed. In the above case, after considering Section 8this Court held that sale deeds were voidable at the instance of theplaintiff. This Court further held that if the plaintiffs were required tohave the sale deeds set aside before making any claim in respect of suitproperties sold then a suit without such a prayer was of no avail to theplaintiffs. Following was held in Paragraph No.9:- “9. …………………………………The question is, in suchcircumstances, are the alienations void or voidable? In Section8(2) of the Hindu Minority and Guardianship Act, 1956, it is laiddown, inter alia, that the natural guardian shall not, without previouspermission of the court, transfer by sale any part of the immoveable AB

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property of the minor. In sub-section (3) of the said section, it isspecifically provided that any disposal of immoveable property bya natural guardian, in contravention of sub-section (2) is voidableat the instance of the minor or any person claiming under him.There is, therefore, little scope for doubt that the alienations madeby Laxmibai which are under challenge in the suit were voidableat the instance of the plaintiffs and the plaintiffs were required toget the alienations set aside if they wanted to avoid the transfersand regain the properties from the purchasers. As noted earlier inthe plaint as it stood before the amendment the prayer for settingaside the sale deeds was not there, such a prayer appears to havebeen introduced by amendment during hearing of the suit and thetrial court considered the amended prayer and decided the suit onthat basis. If in law the plaintiffs were required to have the saledeeds set aside before making any claim in respect of the propertiessold, then a suit without such a prayer was of no avail to theplaintiffs. In all probability, realising this difficulty the plaintiffsfiled the application for amendment of the plaint seeking tointroduce the prayer for setting aside the sale deeds. Unfortunately,the realisation came too late. Concededly, Plaintiff 2 Digamberattained majority on 5-8-1975 and Vishwambhar, Plaintiff 1 attainedmajority on 20-7-1978. Though the suit was filed on 30-11-1980the prayer seeking setting aside of the sale deeds was made inDecember 1985. Article 60 of the Limitation Act prescribes aperiod of three years for setting aside a transfer of property madeby the guardian of a ward, by the ward who has attained majorityand the period is to be computed from the date when the wardattains majority. Since the limitation started running from the dateswhen the plaintiffs attained majority the prescribed period hadelapsed by the date of presentation of the plaint so far as Digamberis concerned. Therefore, the trial court rightly dismissed the suitfiled by Digamber. The judgment of the trial court dismissing thesuit was not challenged by him. Even assuming that as the suitfiled by one of the plaintiffs was within time the entire suit couldnot be dismissed on the ground of limitation, in the absence ofchallenge against the dismissal of the suit filed by Digamber thefirst appellate court could not have interfered with that part of thedecision 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 forrecovery of possession of the properties alienated could not havebeen made without setting aside the sale deeds the suit as initiallyfiled was not maintainable. By the date the defect was rectified(December 1985) by introducing such a prayer by amendment ofthe plaint the prescribed period of limitation for seeking such arelief had elapsed. In the circumstances, the amendment of theplaint could not come to the rescue of the plaintiff.”

18. To the same effect is the judgment of this Court inMadhegowda (dead) by LRs. Vs. Ankegowda (dead) by LRs. andOthers, (2002) 1 SCC 178, where in Paragraph No. 25, following hasbeen held:- “25.……………………The minor, on attaining majority, canrepudiate the transfer in any manner as and when occasion for itarises. After attaining majority if he/she transfers his/her interestin the property in a lawful manner asserting his/her title to thesame that is sufficient to show that the minor has repudiated thetransfer made by the “de facto guardian/manager”.

19. This Court further held in Nangali Amma Bhavani AmmaVs. Gopalkrishnan Nair and Others, (2004) 8 SCC 785 thatthealienation made in violation of Section 8(2) is voidable, holding it to bevoid would not only be contrary to the plain words of the statute butwould also deprive the minor of the right to affirm or ratify the transactionupon attaining majority. Following was held in Paragraph No.8:- “8. In view of the express language used, it is clear that thetransaction entered into by the natural guardian in contraventionof sub-section (2) was not void but merely voidable at the instanceof the minor. To hold that the transaction in violation of Section8(2) is void would not only be contrary to the plain words of thestatute but would also deprive the minor of the right to affirm orratify the transaction upon attainingmajority…………………………….”

20. The alienations, which were voidable, at the instance of minoror on his behalf were required to be set aside before relief for possessioncan be claimed by the plaintiffs. Suit filed on behalf of the plaintiffswithout seeking prayer for setting aside the sale deeds was, thus, notproperly framed and could not have been decreed.

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21. The question is as to whether by execution of the releasedeed dated 24.03.1986 in favour of the plaintiffs, there was repudiationof the alienation made by Balaraman. The release deed has been broughton the record as Annexure P-1. A perusal of the release deed does notBindicate that there is any reference of alienation made by Balaraman infavour of the defendants. There being no reference of the alienationmade by Balaraman on behalf of minor, there is no occasion to readrelease deed as repudiation of the claim on behalf of the minor. Section8(3) gives a right to the minor or any person claiming under him, therelevant words in Section 8(3) are “at the instance of the minor or anyCperson claiming under him.” Thus, alienation made on behalf of theminor can be avoided by minor or any person claiming under him. Inevent, minor dies before attaining majority, obviously, his legal heirs willhave right to avoid the alienation.

22. The submission raised by the learned counsel for theDrespondents is that for avoiding sale of immovable property of a minoras contemplated under sub-section (3) of Section 8, the minor or anyperson claiming under him has to bring an action i.e. to file a suit withinthe limitation prescribed.

23. Learned counsel for the appellants has refuted the submissionEand contended that the avoidance of a sale of immovable property by aminor can be in any manner. It is submitted that it is not necessary forminor or the person claiming on his behalf to bring a suit for avoiding asale deed.

24. We have noticed above that sub-section (3) of Section 8 refersFto a disposal of immovable property by a natural guardian in contraventionof sub-section (1) or sub-section (2) as voidable. When a registered saledeed is voidable, it is valid till it is avoided in accordance with law. Therights conferred by a registered sale deed are good enough against thewhole world and the sale can be avoided in case the property sold is ofGa minor by a natural guardian at the instance of the minor or any personclaiming under him. A document which is voidable has to be actually setaside before taking its legal effect. This Court in Gorakh Nath Dubevs. Hari Narain Singh and others, (1973) 2 SCC 535, while makingdistinction between void and voidable document held:

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“5………We think that a distinction can be made between caseswhere a document is wholly or partially invalid so that it can bedisregarded by any court or authority and one where it has to beactually set aside before it can cease to have legal effect. Analienation made in excess of power to transfer would be, to theextent of the excess of power, invalid. An adjudication on theeffect of such a purported alienation would be necessarily impliedin the decision of a dispute involving conflicting claims to rights orinterests in land which are the subject-matter of consolidationproceedings……”

25. In Amirtham Kudumbah vs. Sarnam Kudumban, (1991)3 SCC 20, this Court had occasion to consider the provisions of Section8(3) of the Hindu Minority and Guardianship Act, 1956. The facts of thecase have been noticed in paragraph 5 which is to the following effect:

“5. The relevant facts are that the suit property belonged toone Veerammal. She had a daughter by name Kaliammal.Veerammal died shortly after she purchased the property in 1948.She left behind her husband Kandayya and their daughterKaliammal. Subsequently, Kandayya married a second time whenhis daughter Kaliammal was a minor. She thereupon left herfather’s house and resided with her maternal grandfather whoprotected and maintained her. During her minority, Kandayya soldthe property on October 29, 1959 to Jainulavudeen. On April 25,1966, Jainulavudeen in turn sold the property to the defendant-appellant. Subsequently, on May 26, 1966 the plaintiff obtained adeed of sale of the suit property in his favour from Kaliammalwho had by then attained majority. The plaintiff thereafter institutedthe present suit (O.S. No. 491 of 1968) against the appellant toset aside the transfer of property made by Kandayya and forrecovery of its possession.”

26. One of the questions which came for consideration in theabove case was that “whether a transferee from a minor after he attainedmajority, can file a suit to set aside the alienation made by the minor’sguardian or the said right is one to be exercised only by the minor? Aperson entitled to avoid such a sale is either the minor or any personclaiming under him. This Court held that either the minor, or his legalrepresentative in the event of his death, or his successor-in-interest AB

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Aclaiming under him by reason of transfer inter vivos, must bring actionwithin the period prescribed for such a suit, i.e. three years. Following islaid down in paragraph 9:

“9. The effect of this sub-section is that any disposal ofimmovable property by a natural guardian otherwise than for theBbenefit of the minor or without obtaining the previous permissionof the court is voidable. A person entitled to avoid such a sale iseither the minor or any person claiming under him. This meansthat either the minor, or his legal representative in the event of hisdeath, or his successor-in-interest claiming under him by reasonof transfer inter vivos, must bring action within the periodCprescribed for such a suit, i.e. three years from the date on whichthe minor died or attained majority, as the case may be. In thepresent case, the suit was brought, as found by the courts below,within three years after the minor attained majority.”

27. In Vishwambhar and others vs. Laxminarayan(Dead)Dthrough LRs. and another (supra) this Court has observed that if inlaw the plaintiffs were required to have the sale deeds set aside beforemaking any claim in respect of the properties sold, then a suit withoutsuch a prayer was of no avail to the plaintiffs.

28. This Court time and again held that setting aside of a saleEwhich is voidable under Section 8(3) is necessary for avoiding a registeredsale deed. We may, however, not to be understood that we are holdingthat in all cases where minor has to avoid disposal of immovable property,it is necessary to bring a suit. There may be creation of charge or leaseof immovable property which may not be by registered document. ItFmay depend on facts of each case as to whether it is necessary to bringa suit for avoiding disposal of the immovable property or it can be donein any other manner. We in the present case are concerned with disposalof immovable property by natural guardian of minor by a registered saledeed, hence, we are confining our consideration and discussion onlywith respect to transfer of immovable property by a registered deed byGa natural guardian of minor.

29. The Limitation Act, 1963 has been enacted by the Parliamentafter the enactment of Hindu Minority and Guardianship Act, 1956. Article60 of the Limitation Act, 1963 which provides for limitation “suits relatingto decrees and instruments”. The Limitation Act contemplates suit toHset aside a transfer of property made by the guardian of a ward for which limitation is contemplated as three years. Article 60 of theLimitation Act although provides for a limitation of a suit but also clearlyindicates that to set aside a transfer of property made by the guardian ofa ward a suit is contemplated.

30. We may notice a judgment of this Court reported inMadhegowda (Dead) by LRs. vs. Ankegowda (Dead) by LRs. andothers, (2002) 1 SCC 178. This Court in the above case had occasionto consider Section 11 of the Hindu Minority and Guardianship Act, 1956.In the above case sister of a minor acting as guardian sold immovableproperty by registered sale deed. In the above reference this Court hadmade following observations:

“25………Undoubtedly Smt Madamma, sister of the minor,is not a “guardian” as defined in Section 4(b) of the Act. Therefore,she can only be taken to be a “de facto guardian” or moreappropriately “de facto manager”. To a transfer in such a caseSection 11 of the Act squarely applies. Therefore, there is littlescope for doubt that the transfer of the minor’s interest by a defacto guardian/manager having been made in violation of theexpress bar provided under the section is per se invalid. Theexistence or otherwise of legal necessity is not relevant in thecase of such invalid transfer. A transferee of such an alienationdoes not acquire any interest in the property. Such an invalidtransaction is not required to be set aside by filing a suit or judicialproceeding. The minor, on attaining majority, can repudiate thetransfer in any manner as and when occasion for it arises. Afterattaining majority if he/she transfers his/her interest in the propertyin a lawful manner asserting his/her title to the same that issufficient to show that the minor has repudiated the transfer madeby the “de facto guardian/manager”.”

31. The above observations were made by this Court in the contextof Section 11 of the Act, 1956. Section 11 of the Act contains a statutoryprohibition on “de facto guardian” of the minor from disposing of theproperty of the minor. The transfer made by de facto guardian is, thus,void and can be repudiated in any manner. It is well settled that it is notnecessary for a minor or any person claiming under him to file a suit forsetting aside a void deed. A void deed can be ignored. The aboveobservations cannot be held to be applicable to transfer made by a naturalguardian under Section 8(3) of the Act.

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32. We may notice one more judgment of this Court relied on bythe learned counsel for the appellants that is G. Annamalai Pillai vs.District Revenue Officer and others, (1993) 2 SCC 402. Thequestion which arose for consideration in the said case has been noticedin paragraph 1 of the judgment in following words:

“1. The short question for consideration in this appeal is whetherlease deed in dispute, which was voidable in terms of Section 8(3)of the Hindu Minority and Guardianship Act, 1956 (the Act) whenvalidly avoided, was effective from the date of the lease deed soas to make the transaction void and unenforceable from the veryinception.”

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33. The land in dispute was owned by one Janarthanan. His father,Purushothaman executed a registered lease deed in favour of appellanton 12.12.1971 on which date the owner was minor. The appellant filedapplication before Tehsildar to be registered as a tenant which wascontested by Janarthanan. Janarthanan contended that his father has noDright or title to deal with land and lease by his father is in contraventionof Section 8 of Hindu Minority and Guardianship Act, 1956. Tehsildarheld that there was no valid lease which order was confirmed by theHigh Court against which judgment appeal was filed. In paragraphs 5and 6 following has been laid down:

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“5. We have heard learned counsel for the parties. We have beentaken through the orders of the Revenue authorities, judgment ofthe learned Single Judge and of the Division Bench of the HighCourt in writ appeal. The Division Bench of the High Court, in alucid judgment, answered the question — posed by us in theFbeginning — in the affirmative and against the appellant-AnnamalaiPillai on the following reasoning:

“We have already seen that clause (3) of Section 8 of theHindu Minority and Guardianship Act, 1956, specifically makesthe transaction voidable. The lease executed by the guardianGin this case is prohibited and in that sense it was without anyauthority. On the legal efficacy and the distinction betweenvalid, void and voidable agreements, we find the followingpassage in Salmond on Jurisprudence, Twelfth Edition atpage 341:

‘… A valid agreement is one which is fully operative inaccordance with the intent of the parties. A void agreementis one which entirely fails to receive legal recognition orsanction, the declared will of the parties being whollydestitute of legal efficacy. A voidable agreement standsmidway between these two cases. It is not a nullity, but itsoperation is conditional and not absolute. By reason of somedefect in its origin it is liable to be destroyed or cancelled atthe option of one of the parties to it. On the exercise of thispower the agreement not only ceases to have any efficacy,but is deemed to have been void ab initio. The avoidance ofit relates back to the making of it. The hypothetical orcontingent efficacy which has hitherto been attributed to itwholly disappears, as if it had never existed. In other words,a voidable agreement is one which is void or valid at theelection of one of the parties to it.’

This distinction has also been judicially noticed in the PrivyCouncil judgment reported in Satgur Prasad v. Harnarain Dasand in the Division Bench judgment in S.N.R. Sundara Rao andSons, Madurai v. CIT. The Division Bench held, following thesaid Privy Council judgment as follows:

‘When a person, who is entitled to dissent from the alienation,does so, his dissent is in relation to the transaction as such andnot merely to the possession of the alienee on the date of suchdissent.

The effect of the evidence is, therefore, to get rid of thetransaction with the result that in law it is as if the transactionhad never taken place.’

We have, therefore, no doubt that when the fifth respondentavoided the lease executed by his father, the fourth respondent,the lease became void from its inception and no statutory rights,could, therefore, accrue in favour of the appellant herein.”

6. We agree with the reasoning and the conclusions reached bythe Division Bench of the High Court and as such this appeal hasto be dismissed.”

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A34. Learned counsel for the appellants relying on the above decisioncontends that sale by Balaraman when has been avoided by releasedeed it became void from the very beginning. There can be no quarrel tothe proposition laid down in G. Annamalai Pillai vs. District RevenueOfficer and others(supra). In the present case there having been norepudiation of sale deed on behalf of minor, the question of voidable saleBdeed becoming void does not arise.

35. We are, thus, of the considered opinion that in the presentcase it was necessary for the person claiming through minor to bring anaction within a period of three years from the date of the death of theminor to get sale deed executed by Balaraman set aside. We, thus,Cconclude that the sale deeds executed by Balaraman were not repudiatedor avoided within the period of limitation as prescribed by law. IssueNo.3 is answered accordingly.

36. In view of the foregoing discussions, we do not find any meritin this appeal. The appeal is dismissed accordingly.D

Divya Pandey

Appeal dismissed.

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