It is fairly well settled that under Section 8 (of the Hindu Minority and Guardianship Act), a natural guardian of the property of the Hindu minor before he disposes of any immovable property of the minor, must seek permission of the Court. But since there need be no natural guardian for the minor's undivided interest in the joint family property, as provided under Sections 6 and 12 of the Act, the previous permission of the Court under Section 8 for disposing of the undivided interest of the minor in the joint family property is not required." "Even though such permission of the Court is not required for alienation of minor's undivided interest in the joint family property, in the instant case, parties have jointly incorporated the clause in Ex.A-1.agreement of sale that such permission/sanction of the Court has to be obtained by the 1st Defendant for alienation of the minor's interest. We are of the view that at the time of entering into agreement, when parties have consciously incorporated such term insisting for sanction of the Court for alienation of the minor's share, now it is not open to the Plaintiff to turn round and contend that such permission was not required and it is only to protect the interest of the purchaser.
2. The averments in the plaint are as follows:
(a) The suit properties originally belongs to one Kuppusamy Chettiar. He executed a Will dated 12.5.1969 and he died in 1975. As per the Will, the defendants are in possession and enjoyment of the properties in their own right. The defendants 2 and 4 are the brothers and are jointly doing silver ornament manufacturing business. (b) The defendants divided the suit properties into four portions and leased out the same on usufructuary mortgages (nghf;fpag;gj;jpuk;) separately to: (i) Gurumurthy for Rs.70,000/-, (ii) R.Ganesan for Rs.70,000/-, (iii)A.Prabhakaran for Rs.70,000/- and (4) S.Selvam for Rs.60,000/-, totally for Rs.2,70,000/-. The defendants represented that they have also indebted to third parties. (c) The second defendant who is maintaining the entire family, approached the plaintiff and decided to sell the properties for good price. The second defendant stated that in order to sell the suit properties, the defendants are jointly given Power of Attorney to one B.M.Chockalingam on 1.6.2004. In turn, B.M.Chockalingam entered into agreement of sale with one Devika, but she declined to purchase the properties. (d) Considering all the circumstances, the plaintiff intended to purchase the properties with a condition to obtain a proper and necessary permission from the Court to sell the properties on behalf of minor defendants 6 and 7, since the properties clubbed with the rights of the minor children in the Will executed by the said Kuppusamy Chettiar and to determine the actual extent of properties by measuring the same with a qualified surveyor. (e) The plaintiff states that on 20.10.2004, the defendants cancelled the Power of Attorney executed by them in favour of B.M.Chockalingam. The second defendant executed the sale agreement for himself and also stood as a guardian for the minor defendants 6 and 7. The sale agreement was registered and the terms and conditions stipulated are that the plaintiff has to pay towards the sale consideration of the properties at Rs.370/- per sq.ft; the period for concluding the contract is fixed till 30th of the Thai month of the Tamil era of 2005, i.e. on or before 12.2.2005; the contract should be concluded after measuring the properties as per the enjoyment with the help of the qualified surveyor; the plaintiff has to discharge the usufructuary mortgages to the defendants who occupied the properties to the tune of Rs.2,70,000/- in the presence of any one of the defendants. (f) The plaintiff states that on the date of agreement, the defendants have received Rs.1,25,000/- as advance of sale price from the plaintiff and discharged the debts due to the family out of the advance amount. The defendants have also agreed to sell the properties free from all encumbrances and handover the possession. (g) As per the terms and conditions stipulated, the plaintiff is always ready and willing to perform his part of the contract. He was always demanding the defendants to go over with him to discharge the usufructuary mortgages to the tenants who occupied the properties and also to file a petition seeking for permission from the Court of law for selling the properties on behalf of the minor defendants 6 and 7, but the defendants have not responded to the lawful request and postponing the performance. (h) In the meanwhile, one Sumathi, D/o S.K.Krishnan, issued legal notice on 30.10.2004 to the plaintiff and the defendants, stating that the defendants have entered into the sale agreement and on receipt of the notice, he also issued reply. Since the defendants have not come forward to perform their part of the contract and are trying to breach the contract, the plaintiff issued notice. The defendants 1 to 5 sent a letter dated 4.2.2005 to the counsel stating that they have not instructed him to send reply to the notice issued by the said Sumathi. The defendants have sent a letter to the plaintiff dated 7.2.2005 along with the cheque for Rs.1,30,000/- stating that as though they have received the amount of Rs.1,25,000/- only as a loan and returning the same along with the interest of Rs.5,000/-. (i) The defendants are playing fraud against the contract, having bad intention in their mind to cheat the plaintiff. Since the plaintiff is always ready and willing to perform his part of the contract and the defendants may create encumbrance over the properties, the plaintiff was forced to file the suit for specific performance and for permanent injunction against the defendants, restraining them from creating or encumbering the suit properties and for costs and prayed for a decree.
3. The gist and essence of the written statement filed by the fourth defendant, adopted by the defendants 1 to 3 and 5, are as follows:
(a) Kuppusamy Chettiar is the owner of the properties. He has executed a Will, as per the Will, the defendants 1, 2, 4 and 5 have been given the life estate and the grand-sons of the first defendant have been given the absolutely right over the properties. Defendants 6 and 7 are the children of the second defendant/grand children of the first defendant. The sixth defendant being the grand-son is alone entitled to the suit properties. (b) The second defendant is an auto driver. The fourth defendant is working in a private concern. The defendants leased out the suit properties to Gurumoorthy, Ganesan, Prabakaran and Vasanthi. The defendants executed a registered Power of Attorney to B.M.Chockalingam on 1.7.2004 and not on 1.6.2004. That has been executed only for maintenance of the suit properties. The defendants have no intention to alienate the properties to any person including the plaintiff. The sale agreement between Chockalingam with one Devika is only imaginary. The allegations are false. (c) The sale agreement dated 20.10.2004 is silent about the so-called obtaining proper and necessary permission of the Court to sell the suit properties on behalf of the minor defendants 6 and 7. The Power of Attorney in favour of Chockalingam was in force till 24.2.2005 and that has been cancelled only on 25.2.2005. (d) The defendants borrowed Rs.1,25,000/- from the plaintiff for their urgent family needs on 20.10.2004 and executed a Promissory Note on the same day in favour of the plaintiff, agreeing to repay the same with interest @ 1% per hundred per month. In fact , the plaintiff obtained the signatures of the defendants in two blank Promissory Notes, blank stamp papers and blank papers. Further, the plaintiff stressed for security for the loan given by him. The defendants urged that they would repay the amount in three or four months, the plaintiff stressed for an immovable property as security for the loan amount. Only on that basis, the suit sale agreement dated 20.10.2004 was formally written by the defendants in the name of the plaintiff. It was not intended to be acted upon, nor was it ever acted upon. (e) The defendants had no intention to alienate the suit properties. The plaintiff himself was also well aware that the sale agreement was brought into existence only as a security for the loan of Rs.1,25,000/-.
(f) The defendants are not aware of the entire recitals of the suit sale agreement. The document writer and the attestors mentioned in the suit sale agreement, are the business partners of the plaintiff. All have colluded to hit the defendants behind their back. Rs.1,25,000/- was not paid as an advance. Since there was no contract of sale between the plaintiff and the defendants, the question of readiness and willingness of the plaintiff never took place. The plaintiff never approached the defendants at any point of time for purchasing the suit properties. Since the defendants never intended to sell the properties, there was no necessity for the second defendant to take steps to get permission from the Court of law for selling the properties on behalf of the minors. (g) As per the Will, the suit properties at present belong only to the sixth defendant and others have only right to enjoyment of the same.
(h) The defendants' sister Sumathi issued legal notice on 30.10.2004. The defendants never represented to issue notice to Sumathi on behalf of the defendants also. The names of the defendants have been suo motu included by the plaintiff in the reply dated 8.11.2004 without their consent. In fact, the defendants also informed the said Sumathi that the suit sale agreement was brought into existence only for the name sake and as security for the loan amount borrowed from the plaintiff. The defendants are not aware of the legal notice dated 28.1.2005. Even in the letter dated 4.2.2005, the defendants requested to send the so-called notice alleged to have been sent to them. But there was no reply for the same till date. (i) It is true that the defendants on 7.2.2005 sent a letter to the plaintiff along with the cheque for Rs.1,30,000/- for repayment of the loan of Rs.1,25,000/- along with interest of Rs.5,000/-. The defendants have no intention whatsoever to defraud the lawful amount borrowed by the defendants from the plaintiff. The plaintiff who is trying to grab the suit properties from the defendants by playing foul game. So, the plaintiffs returned the cheque for Rs.1,30,000/-. (j) The suit properties worth more than Rs.700/- per Sq.Ft. So, there is no necessity for the defendants to sell the suit properties to the plaintiff. Even the guideline value is more than Rs.400/- per Sq.Ft., No prudent man would purchase any property without measuring the same. The plaintiff know pretty well that the suit sale agreement was only a formal one. The suit has been filed to grab the suit properties by some hook or crook. (k) Except the sixth defendant, the other defendants are only life estate holder and they cannot alienate or create encumbrance by executing any sale agreement over the same. There is no cause of action for filing the suit. Hence, the defendants prayed for dismissal of the suit.
4. The trial Court, after considering the averments both in the plaint and in the written statement, and arguments of both the counsel, framed four issues for consideration and on consideration of the oral evidence of P.Ws.1 and 2 and D.W.1 and the documentary evidence of Exs.A-1 to A-24 and Exs.B-1 and B-2, granted decree of specific performance and two months' time was granted for deposit of balance sale consideration and to get the sale deed executed, against which, the present First Appeal has been preferred by the defendants.
5. After considering the arguments of both the learned counsel, the following points are framed for consideration in this First Appeal:
(i) Whether the trial Court is correct in holding that Ex.A-1 is a sale agreement ?
(ii) Whether the defence raised by the appellants/defendants that Ex.A-1 is executed only as a security for the loan obtained for Rs.1,25,000/-, is true ?
(iii) Since the suit properties belong to minor defendants 6 and 7, whether the trial Court is correct in granting the decree of specific performance ?
(iv) Whether the judgment and decree of the trial Court are sustainable ? and
(v) To what relief the appellants/defendants are entitled to ?
6. Learned counsel appearing for the appellants/defendants submitted that the suit properties originally belong to Kuppusamy Chettiar. He executed a Will as per Ex.B-1. The sale agreement Ex.A-1 has been executed only as a security for the loan obtained for Rs.1,25,000/-. There is no concluded contract and since defendants 6 and 7 are minors, permission of the Court is necessary under Section 8 of the Hindu Minority and Guardianship Act, and without obtaining permission from the Court of law, the appellants/defendants are not entitled to alienate the properties.
7. Learned counsel appearing for the appellants/defendants relied upon the decision of this Court reported in 2006 (3) LW 368 (Thiruvenkada Gounder (died) and 3 others Vs. Ammaiappan and 3 others) and also a decision of the Full Bench of this Court reported in 1999 (2) CTC 181 (Gopirathanam P. Vs. Ferrodous Estate (Pvt.) Ltd.,) and submitted that the enforcement of the contract against any provision of law, is not maintainable. He further submitted that the value of the properties is fixed at Rs.370/- per Sq.Ft., but the guideline value is more than Rs.400/- per Sq.Ft., on the date of Ex.A-1 sale agreement. That factum has not been considered by the trial Court.
8. Learned counsel appearing for the appellants/defendants further relied upon the decisions of the Division Bench of this Court reported in 1988 (1) LW 216 (Selvaraj.M. Vs. P. Kumariah) and also in 1971 (2) MLJ 466 (Venkatakrishna Reddy Vs. Amarababu) and submitted that the Court is the guardian for the minor's properties.
9. Learned counsel for the appellants/defendants further stated that the trial Court has committed error in holding that the Will is not proved overlooking the specific case of the parties admitting the Will. Hence, for all the above reasonings, the learned counsel for the appellants/defendants prayed for setting aside the judgment and decree of the trial Court and allowing the First Appeal.
10. Repudiating the said contentions, learned counsel for the respondent/plaintiff submitted that it is true that originally, the suit properties belong to Kuppusamy Chettiar. The said Kuppusamy Chettiar made testamentary disposition. It is the duty of the appellants/defendants to obtain necessary permission from the Court in respect of the properties of the minor. The appellants themselves have not complied with the conditions imposed in Ex.A-1 sale agreement. Learned counsel for the respondent/plaintiff further stated that as per Section 92 of the Indian Evidence Act, the appellants are excluded to let in evidence against the document Ex.A-1 sale agreement. The appellants/defendants had the intention to sell the properties and so, they have executed the Power of Attorney in favour of the said Chockalingam. He further stated that the said Chockalingam entered into sale agreement with one Kavitha and since she was not able to purchase the properties, the appellants/defendants have directly entered into sale agreement Ex.A-1 with the respondent/plaintiff. Even though the second appellant/second defendant accepted to get the permission from the Court for executing the sale deed, he kept quiet all along and hence, the respondent/plaintiff was forced to issue notice and file the present suit. Learned counsel for the respondent/plaintiff further submitted that the trial Court considered all the aspects in proper perspective and came to the correct conclusion and granted decree and hence, he prayed for confirming the judgment and decree of the trial Court and dismiss the present First Appeal.
11. Points (i) and (ii):
Ex.A-1 is a registered sale agreement. In that document, it was mentioned that for 1 Sq.Ft., the price is fixed at Rs.370/- and then the vendor received Rs.1,25,000/- as advance. Since the properties were in possession of usufructuary mortgagees, the respondent/plaintiff was directed to discharge Rs.70,000/- to Gurumurthy, Rs.70,000/- to Ganesan, Rs.70,000/- to Prabhakaran and Rs.60,000/- to Selvam. After discharging the mortgages, the respondent/plaintiff was permitted to take possession of the properties. After that, the properties will be measured and sale price has to be fixed and time for executing the sale deed was on or before Thai Tamil Month, i.e. 30th of the Tamil Era. In this document Ex.A-1, the appellants/defendants were not directed to obtain necessary permission from the Court.
12. Ex.A-4 Notice has been issued by one Sumathi on 30.10.2004, stating to cancel the sale agreement, which was executed on 20.10.2004 in favour of the appellants/defendants, which shows that they treated Ex.A-1 as a sale agreement. Reply is marked as Ex.A-5, dated 8.11.2004. On 28.1.2005, the respondent/plaintiff issued notice under Ex.A-7 and the postal receipts are marked as Ex.A-8. Certificate of Posting is marked as Ex.A-9 on 28.1.2005. Admittedly, there is no reply. In Ex.A-7, it was specifically mentioned that the plaintiff, has not taken any steps to get the permission from the Court of law for selling the properties on behalf of the minor defendants 6 and 7. There was no reply to Ex.A-7. Subsequently, another letter/notice Ex.A-12 was sent by the appellants 1 to 5/defendants 1 to 5, on 4.2.2005, in which, they have raised a plea that they have received Rs.1,25,000/- as loan and they executed the sale agreement. They had no intention to alienate the properties. But reply has been issued by the respondent/plaintiff under Ex.A-13, in which he has stated that the averments are false and the document is only the sale agreement. Another notice under Ex.A-14 was issued by the defendants and they sent the amount by cheque for Rs.1,30,000/- for returning Rs.1,25,000/- with interest at Rs.5,000/-. Under Exs.A-13 and 15 issued on the same day stating that the plaintiff was always ready and willing to perform his part of the contract and the appellants are having intention to sell the properties and so, they executed the Power of Attorney in favour of one Chockalinga and he entered into sale agreement and then, the plaintiff filed the suit. For the first time, under Ex.A-12, dated 4.2.2005, by which the appellants/defendants issued notice, stating that after receipt of Rs.1,25,000/-, they executed the sale agreement only as a security for the amount borrowed and then they returned the amount along with Rs.5,000/- as interest, and the cheque was enclosed while issuing notice under Ex.A-14.
13. As per Section 92 of the Indian Evidence Act, since Ex.A-1 sale agreement is a registered document, the appellants/defendants are excluded from letting in any oral agreement contra to the written registered document. Proviso 3 to Section 92 of the Indian Evidence Act shows that the existence of any separate oral agreement, constituting a condition precedent to the attaching of any obligation under any such contract, grant or disposition of the property, may be proved and so, it is the duty of the appellants/defendants to prove the same. Except the oral ipse-dixit of the appellants/defendants and Exs.A-12 and 14, no other document or no supporting evidence is available.
14. It is pertinent to note that under Ex.A-2, on 20.10.2004, the appellants/defendants have cancelled the Power of Attorney in favour of Chockalingam, which was stated to have been executed on 1.6.2004 and in pursuance of the said Power of Attorney, the said Chockalingam has entered into sale agreement on 17.7.2004 and that has proved that the appellants/defendants have intention to sell the properties and to facilitate the same, they have executed the Power of Attorney earlier in favour of the said Chockalingam on 1.6.2004 and in pursuance of the Power of Attorney, on 17.7.2004, the Power of Attorney Holder Chockalingam has entered into the sale agreement with one Kavitha and the price fixed was Rs.385/- per Sq.Ft, but that sale deed has not been fulfilled and hence, the Power of Attorney has been cancelled on 20.10.2004 in respect of the execution of the sale agreement, and so, it has clearly proved that the intention of the appellants/defendants was that they wanted to alienate the properties. So, the argument advanced by the learned counsel for the appellants/defendants that Ex.A-1 was executed only as a security for Rs.1,25,000/- is unacceptable. The trial Court is correct in holding that Ex.A-1 is a sale agreement. Points (i) and (ii) are answered accordingly. Point (iii):
15. It is pertinent to note that Ex.B-1 is Will. Both parties are admitting the Will. In the said Ex.B-1 Will, the life estate has been bequeathed to his wife Kuppammal and after her lifetime, to the testator's daughter Visalakshmiammal and to his son Krishna Chettiar and the life estate has also been given to daughter-in-law Rajeswari/first defendant. After the lifetime of Rajeswari, the children born to her heirs alone were having right to enjoy the properties, without alienation and only male children born to Thiagaran/second defendant and his brother are having absolute estate over the properties.
16. While considering the recitals in Ex.B-1 Will, as per Section 13 of the Transfer of Property Act and Sections 112 to 114 of the Indian Succession Act, the Will is void in respect of disposition made in favour of unborn children. It is appropriate to quote Section 13 of the Transfer of Property Act and Sections 112 to 114 of the Indian Succession Act : Section 13 of the Transfer of Property Act: Transfer for benefit of unborn person: Where, on a transfer of property, an interest therein is created for the benefit of a person not in existence at the date of the transfer subject to a prior interest created by the same transfer, the interest created for the benefit of such person shall not take effect, unless it extends to the whole of the remaining interest of the transferor in the property."
Sections 112 to 114 of the Indian Succession Act:
"112. Bequest to person by particular description, who is not in existence at testator's death.--Where a bequest is made to a person by a particular description, and there is no person in existence at the testator's death who answers the description, the bequest is void. Exception.--If property is bequeathed to a person described as standing in a particular degree of kindred to a specified individual, but his possession of it is deferred until a time later than the death of the testator, by reason of a prior bequest or otherwise; and if a person answering the description is alive at the death of the testator, or comes into existence between that event and such later time, the property shall, at such later time, go to that person, or, if he is dead, to his representatives."
"113: Bequest to person not in existence at testator's death subject to prior bequest:--Where a bequest is made to a person not in existence at the time of the testator's death, subject to a prior bequest contained in the Will, the later bequest shall be void, unless it comprises the whole of the remaining interest of the testator in the thing bequeathed."
"114: Rule against perpetuity:- No bequest is valid whereby the vesting of the thing bequeathed may be delayed beyond the life-time of one or more persons living at the testator's death and the minority of some person who shall be in existence at the expiration of that period, and to whom, if he attains full age, the thing bequeathed is to belong."
On the date of the death of the testator, the minors, i.e. sixth and seventh defendants were not born. Even the fourth defendant Manokaran was not born. So, the testator's bequest in favour of unborn persons is void.
17. The gift to unborn persons can be made subject to the condition that the gift shall be of the whole of the remaining interest of the testator in the thing bequeathed and not of a limited interest and that the vesting is not postponed beyond the life in being and 18 years, being the rule against perpetuities as laid down in Section 114 of the Indian Succession Act.
18. It is true that no interest could be created in favour of unborn person, but when the gift is made to a class or series of persons, some of whom are in existence and some are not, it does not fail in its entirety and it is valid with regard to the persons who are in existence at the time of the testator's death and is invalid as to the rest, as laid down by the Supreme Court in the decision reported in AIR 1953 SC 7 (Bajrang Bahadur Vs. Bakhtraj Kuer).
19. In such circumstances, Ex.B-1 Will in respect of the second defendant-Thiagarajan alone is valid and since others were not born on the date of the death of the testator, those persons are not entitled to get the relief in the said Will.
20. At this juncture, it is appropriate to consider the argument advanced by learned counsel for the appellants/defendants that as per Ex.B-1 Will, the male born to the second appellant/second defendant/Thiagaraj and the fourth appellant/fourth defendant/Mahendran alone are entitled to the properties absolutely and so, as laid down under Section 8 of the Hindu Minority and Guardianship Act, without the prior permission of the Court, the natural guardian shall not alienate the properties. To substantiate his argument, learned counsel appearing for the appellant relied upon Section 8 of the Hindu Minority and Guardianship Act, as well as various decisions.
21. Now, it is appropriate to quote Section 8 of the Hindu Minority and Guardianship Act:
"Section 8: Powers of natural guardian--(1) The natural guardian of a Hindu minor has power, subject to the provisions of this section, to do all acts which are necessary or reasonable and proper for the benefit of the minor or for the realization, protection or benefit of the minor's estate; but the guardian can in no case bind the minor by a personal covenant. (2) The natural guardian shall not, without the previous permission of the Court,--
(a) mortgage or charge, or transfer by sale, gift, exchange or otherwise, any part of the immovable property of the minor; or
(b) lease any part of such property for a term exceeding five years or for a term extending more than one year beyond the date on which the minor will attain majority.
(3) Any disposal of immovable property by a natural guardian, in contravention of sub-section (1) or sub-section (2), is voidable at the instance of the minor or any person claiming under him.
(4) No Court shall grant permission to the natural guardian to do any of the acts mentioned in sub-section (2) except in case of necessity or for an evident advantage to the minor.
(5) The Guardians and Wards Act, 1890, shall apply to and in respect of an application for obtaining the permission of the Court under sub-section (2) in all respects as if it were an application for obtaining the permission of the Court under section 29 of that Act, and in particular-- (a) proceedings in connection with the application shall be deemed to be proceedings under that Act within the meaning of Section 4-A thereof;
(b) the Court shall observe the procedure and have the powers specified in sub-sections (2), (3) and (4) of Section 31 of that Act; and
(c) an appeal shall lie from an order of the Court refusing permission to the natural guardian to do any of the acts mentioned in sub-section (2) of this section to the Court to which appeals ordinarily lie from the decisions of that Court.
(6) In this section, "Court" means the City Civil Court or a District Court or a Court empowered under section 4-A of the Guardians and Wards Act, 1890, within the local limits of whose jurisdiction the immovable property in respect of which the application is made is situate, and where the immovable property is situate within the jurisdiction of more than one such Court, means the Court within the local limits of whose jurisdiction any portion of the property is situate."
22. Learned counsel appearing for the appellants/defendants mainly focussed that the properties were not inherited by the minor appellants 6 and 7/defendants 6 and 7, but they have got the properties by way of testamentary disposition and so, they are the separate properties and therefore, as per Section 8 of the Hindu Minority and Guardianship Act, they have no right to deal with the properties except with the prior permission of the Court. If there is any disposal of the immovable properties by the natural guardian, is voidable at the instance of the minor(s) or any person claiming under them.
23. To substantiate the above contention, learned counsel appearing for the appellants/defendants relied upon the following decisions:
(a) 1988 (1) LW 216 : Selvaraj.M. Vs. P.Kumariah: Division Bench of Madras High Court:
"Held, rejecting the contention: In this case it is known that the properties are the ancestral properties and that the minor sons of the defendant have got 4/5th share in them. Courts are enjoined to protect the interest of the minor children. It is not the case of the plaintiffs that if the minor children have any interest in the properties, the sale would be binding on them on any ground of necessity or benefit to the estate of the minors. The only argument was that they can be left to file a separate suit questioning the sale deed executed by the father. Normally, we have to decide the case and avoid multiplicity of suits, especially in a case where we are satisfied that the minor children have a defined share in the properties which could not have been disposed of by the father. On the admitted facts, therefore, with a view to protect the interest of the minor children and avoid multiplicity of suits, we have to see whether we could exercise our discretion against the plaintiffs as the relief in a specific performance suit is normally discretionary. On the facts and in the circumstances of the case, we are satisfied that we have to deny the equitable relief to the plaintiffs in so far as the shares of the minor children are concerned."
(b) 1971 (2) MLJ 466 : Venkatakrishna Reddy Vs. Amarababu: Division Bench of Madras High Court:
"Held Neither the natural guardian nor the guardian appointed under the Guardians and Wards Act has any power to sell the undivided interest of a minor coparcener of a joint family even for necessity of for benefit."
(c) 2006 (3) LW 368 : Thiruvenkada Gounder (died) and 3 others Vs. Ammaiappan & 3 others :
"Held As rightly contended by the learned counsel for the respondents 1 and 2, the third defendant, having not obtained permission from the Court to sell the property of his minor sons viz., Plaintiffs as required under Section 8(2) of the Hindu Minority and Guardianship Act, the same is voidable, and consequently, the suit filed by the mother on behalf of the minor plaintiffs is clearly maintainable It is not the case of the third defendant that he had obtained prior permission from the Court to deal with the properties of the minor sons - Further it is not proved that the minors' property was dealt with for the benefit of the minors themselves Hence, this Court is of the view that the judgment of the lower appellate Court is correct and the dismissal of the suit by the trial Court is unsustainable."
(d) 2010 (2) CTC 198 : Natarajan Vs. Paramasivam : (Madras High Court):
"As per Section 6 read along with Section 8 of the Hindu Minority and Guardianship Act, I am of the opinion that the brother Thirunavukkarasu is not a natural guardian for his minor brothers. Moreover, as per Section 8(2) of the Hindu Minority and Guardianship Act, the natural guardian shall not, without the previous permission of the Court, mortgage or charge, or transfer by sale, gift, exchange or otherwise, any part of the immovable property of the minor. In the present case, the vendor the appellant-plaintiff, namely Thirunavukkarasu, is not the natural guardian. Without permission from the Court, he is not entitled to sell the property to anybody. So, the First Appellate Court in its judgment, dealt with the same elaborately and came to the conclusions that as per Sections 4 and 6 of the Hindu Minority and Guardianship Act, the brother Thirunavukkarasu is not the natural guardian. As per Section 8 of the Hindu Minority and Guardianship Act, the said Thirunavukkarasu is not empowered to alienate the property without the permission of the Court."
(e) 2010 (3) CTC 411: Manoharakumari Vs. Anitha : Division Bench of Madras High Court:
"It is fairly well settled that under Section 8 (of the Hindu Minority and Guardianship Act), a natural guardian of the property of the Hindu minor before he disposes of any immovable property of the minor, must seek permission of the Court. But since there need be no natural guardian for the minor's undivided interest in the joint family property, as provided under Sections 6 and 12 of the Act, the previous permission of the Court under Section 8 for disposing of the undivided interest of the minor in the joint family property is not required." "Even though such permission of the Court is not required for alienation of minor's undivided interest in the joint family property, in the instant case, parties have jointly incorporated the clause in Ex.A-1.agreement of sale that such permission/sanction of the Court has to be obtained by the 1st Defendant for alienation of the minor's interest. We are of the view that at the time of entering into agreement, when parties have consciously incorporated such term insisting for sanction of the Court for alienation of the minor's share, now it is not open to the Plaintiff to turn round and contend that such permission was not required and it is only to protect the interest of the purchaser. This point is answered accordingly."
24. There is no quarrel over the proposition of laws laid down in the above decisions. In the present case, as already stated, on the date of the death of the testator of Ex.B-1 Will, the defendants 6 and 7/minors were not born and so, the bequest is void. So, they have not derived any right over the properties. The bequest is void as per Section 13 of the Transfer of Property Act and also as per Sections 112 and 113 of the Indian Succession Act. Hence, the argument advanced by learned counsel for the appellants/defendants that permission of the Court before alienation, for dealing with the properties of the minors, does not arise.
25. It is also appropriate to refer to a decision of the Full Bench of this Court, reported in 1999 (2) CTC 181 (Gopirathanam P. Vs. Ferrodous Estate (Pvt.) Ltd., in which Full Bench referred to a decision reported in 1996 (1) LW 721 (Shoba Viswanathan Vs. D.P. Kinggley), wherein it was held that the position of law is clear that when the enforcement of the contract is against any provision of law, that will amount to enforcement of an illegal contract and the contract per se may not be illegal, but its enforcement requires compliance of the statutory conditions, failure of which will amount to statutory violation; a Court which is expected to enforce the law, cannot be a party to such a decree.
26. There is no quarrel over the proposition of law laid down in that decision. But, in this case, as already observed in the earlier paragraphs of this judgment, the bequest in respect of the unborn children on the date of the death of the testator, i.e. the minor defendants 6 and 7, is void. The permission under Section 8(2) of the Hindu Minority and Guardianship Act, does not arise. Hence, the arguments advanced by learned counsel for the appellants/defendants will not in any way help the case of the appellants/defendants, and since the appellants 1 to 5 / defendants 1 to 5 are parties to Ex.A-1 sale agreement, they are liable to execute the sale deed.
27. Furthermore, as per Section 8(3) of the Hindu Minority and Guardianship Act, even if the natural guardian makes any disposal of the immovable property in contravention of sub-sections (1) and (2), it is voidable at the instance of the minor or any person claiming under him. Considering the same, to avoid execution of the sale deed and rise in prices in the properties, the appellants/defendants have come forward with a plea that without permission from the Court, no sale deed will be executed. The receipt of the advance amount is not disputed.
28. As already stated, Ex.A-1 is the sale agreement and it is not executed as a security for the amount borrowed. The bequest in respect of the minor defendants 6 and 7, is void, as they were not born on the date of the death of the testator and so, the permission of the Court under Section 8 of the Hindu Minority and Guardianship Act, does not arise.
29. Now, this Court has to decide as to whether the respondent/plaintiff was ready and willing to perform his part of the contract. The respondent/plaintiff issued notice on 28.1.2005 under Ex.A-7 to the appellants/defendants, requesting them to execute the sale deed. On 4.2.2005, in Ex.A-12, the appellants/defendants issued notice to the respondent/plaintiff stating that they have received Rs.1,25,000/- and only as a security for the amount borrowed, Ex.A-1 sale agreement had been executed. The rejoinder had been issued by the plaintiff's counsel on 10.2.2005 in Ex.A-13. On 7.2.2005, the appellants/defendants sent a notice along with a cheque for Rs.1,30,000/- and that is evidenced by Ex.A-14. Reply for the same had been marked as Ex.A-15, dated 10.2.2005. These aspects clearly prove that the respondent/plaintiff has always been ready and willing to perform his part of the contract. That factum had been considered by the trial Court and it granted decree of specific performance. Hence, the respondent/plaintiff is entitled to get equitable relief of decree of specific performance. In such circumstances, I am of the view that the trial Court is correct in granting the decree of specific performance. Point (iii) is answered accordingly. Points (iv) and (v) :
30. In view of the answers given to Points (i) to (iii) that Ex.A-1 is a sale agreement and Ex.B-1 Will is void in respect of the minor appellants 6 and 7/defendants 6 and 7 and those who are not born on the date of the death of the testator, and so, the bequest in favour of the unborn children, is void and even as per Section 8(3) of the Hindu Minority and Guardianship Act, even if alienations are made by the natural guardian, without permission of the Court of law, that contract is voidable at the instance of the minor. Considering the same, I am of the view that respondent/plaintiff is entitled to the decree of specific performance as granted by the trial Court, which is sustainable and does not warrant any interference. Hence, the judgment and decree of the trial Court are confirmed. The appellants/defendants are not entitled to any relief. Points (iv) and (v) are answered accordingly.
31. In view of the foregoing discussion:
(a) The First Appeal is dismissed with costs.
(b) The judgment and decree passed by the trial Court are confirmed.
(c) Two months' time from today is granted to the parties to execute Ex.A-1 sale agreement.
(d) The Miscellaneous Petitions are closed.
cs
To
1. The Additional District Judge (Fast Track Court No.2), Salem.
2. The Record Keeper, V.R. Section, High Court,
Madras
Print Page
Madras High Court
The Appeal Suit (First Appeal) is preferred against the judgment and decree dated 28.11.2006 in O.S.No.36 of 2005 on the file of the Additional District Court (Fast Track Court No.2), Salem.2. The averments in the plaint are as follows:
(a) The suit properties originally belongs to one Kuppusamy Chettiar. He executed a Will dated 12.5.1969 and he died in 1975. As per the Will, the defendants are in possession and enjoyment of the properties in their own right. The defendants 2 and 4 are the brothers and are jointly doing silver ornament manufacturing business. (b) The defendants divided the suit properties into four portions and leased out the same on usufructuary mortgages (nghf;fpag;gj;jpuk;) separately to: (i) Gurumurthy for Rs.70,000/-, (ii) R.Ganesan for Rs.70,000/-, (iii)A.Prabhakaran for Rs.70,000/- and (4) S.Selvam for Rs.60,000/-, totally for Rs.2,70,000/-. The defendants represented that they have also indebted to third parties. (c) The second defendant who is maintaining the entire family, approached the plaintiff and decided to sell the properties for good price. The second defendant stated that in order to sell the suit properties, the defendants are jointly given Power of Attorney to one B.M.Chockalingam on 1.6.2004. In turn, B.M.Chockalingam entered into agreement of sale with one Devika, but she declined to purchase the properties. (d) Considering all the circumstances, the plaintiff intended to purchase the properties with a condition to obtain a proper and necessary permission from the Court to sell the properties on behalf of minor defendants 6 and 7, since the properties clubbed with the rights of the minor children in the Will executed by the said Kuppusamy Chettiar and to determine the actual extent of properties by measuring the same with a qualified surveyor. (e) The plaintiff states that on 20.10.2004, the defendants cancelled the Power of Attorney executed by them in favour of B.M.Chockalingam. The second defendant executed the sale agreement for himself and also stood as a guardian for the minor defendants 6 and 7. The sale agreement was registered and the terms and conditions stipulated are that the plaintiff has to pay towards the sale consideration of the properties at Rs.370/- per sq.ft; the period for concluding the contract is fixed till 30th of the Thai month of the Tamil era of 2005, i.e. on or before 12.2.2005; the contract should be concluded after measuring the properties as per the enjoyment with the help of the qualified surveyor; the plaintiff has to discharge the usufructuary mortgages to the defendants who occupied the properties to the tune of Rs.2,70,000/- in the presence of any one of the defendants. (f) The plaintiff states that on the date of agreement, the defendants have received Rs.1,25,000/- as advance of sale price from the plaintiff and discharged the debts due to the family out of the advance amount. The defendants have also agreed to sell the properties free from all encumbrances and handover the possession. (g) As per the terms and conditions stipulated, the plaintiff is always ready and willing to perform his part of the contract. He was always demanding the defendants to go over with him to discharge the usufructuary mortgages to the tenants who occupied the properties and also to file a petition seeking for permission from the Court of law for selling the properties on behalf of the minor defendants 6 and 7, but the defendants have not responded to the lawful request and postponing the performance. (h) In the meanwhile, one Sumathi, D/o S.K.Krishnan, issued legal notice on 30.10.2004 to the plaintiff and the defendants, stating that the defendants have entered into the sale agreement and on receipt of the notice, he also issued reply. Since the defendants have not come forward to perform their part of the contract and are trying to breach the contract, the plaintiff issued notice. The defendants 1 to 5 sent a letter dated 4.2.2005 to the counsel stating that they have not instructed him to send reply to the notice issued by the said Sumathi. The defendants have sent a letter to the plaintiff dated 7.2.2005 along with the cheque for Rs.1,30,000/- stating that as though they have received the amount of Rs.1,25,000/- only as a loan and returning the same along with the interest of Rs.5,000/-. (i) The defendants are playing fraud against the contract, having bad intention in their mind to cheat the plaintiff. Since the plaintiff is always ready and willing to perform his part of the contract and the defendants may create encumbrance over the properties, the plaintiff was forced to file the suit for specific performance and for permanent injunction against the defendants, restraining them from creating or encumbering the suit properties and for costs and prayed for a decree.
3. The gist and essence of the written statement filed by the fourth defendant, adopted by the defendants 1 to 3 and 5, are as follows:
(a) Kuppusamy Chettiar is the owner of the properties. He has executed a Will, as per the Will, the defendants 1, 2, 4 and 5 have been given the life estate and the grand-sons of the first defendant have been given the absolutely right over the properties. Defendants 6 and 7 are the children of the second defendant/grand children of the first defendant. The sixth defendant being the grand-son is alone entitled to the suit properties. (b) The second defendant is an auto driver. The fourth defendant is working in a private concern. The defendants leased out the suit properties to Gurumoorthy, Ganesan, Prabakaran and Vasanthi. The defendants executed a registered Power of Attorney to B.M.Chockalingam on 1.7.2004 and not on 1.6.2004. That has been executed only for maintenance of the suit properties. The defendants have no intention to alienate the properties to any person including the plaintiff. The sale agreement between Chockalingam with one Devika is only imaginary. The allegations are false. (c) The sale agreement dated 20.10.2004 is silent about the so-called obtaining proper and necessary permission of the Court to sell the suit properties on behalf of the minor defendants 6 and 7. The Power of Attorney in favour of Chockalingam was in force till 24.2.2005 and that has been cancelled only on 25.2.2005. (d) The defendants borrowed Rs.1,25,000/- from the plaintiff for their urgent family needs on 20.10.2004 and executed a Promissory Note on the same day in favour of the plaintiff, agreeing to repay the same with interest @ 1% per hundred per month. In fact , the plaintiff obtained the signatures of the defendants in two blank Promissory Notes, blank stamp papers and blank papers. Further, the plaintiff stressed for security for the loan given by him. The defendants urged that they would repay the amount in three or four months, the plaintiff stressed for an immovable property as security for the loan amount. Only on that basis, the suit sale agreement dated 20.10.2004 was formally written by the defendants in the name of the plaintiff. It was not intended to be acted upon, nor was it ever acted upon. (e) The defendants had no intention to alienate the suit properties. The plaintiff himself was also well aware that the sale agreement was brought into existence only as a security for the loan of Rs.1,25,000/-.
(f) The defendants are not aware of the entire recitals of the suit sale agreement. The document writer and the attestors mentioned in the suit sale agreement, are the business partners of the plaintiff. All have colluded to hit the defendants behind their back. Rs.1,25,000/- was not paid as an advance. Since there was no contract of sale between the plaintiff and the defendants, the question of readiness and willingness of the plaintiff never took place. The plaintiff never approached the defendants at any point of time for purchasing the suit properties. Since the defendants never intended to sell the properties, there was no necessity for the second defendant to take steps to get permission from the Court of law for selling the properties on behalf of the minors. (g) As per the Will, the suit properties at present belong only to the sixth defendant and others have only right to enjoyment of the same.
(h) The defendants' sister Sumathi issued legal notice on 30.10.2004. The defendants never represented to issue notice to Sumathi on behalf of the defendants also. The names of the defendants have been suo motu included by the plaintiff in the reply dated 8.11.2004 without their consent. In fact, the defendants also informed the said Sumathi that the suit sale agreement was brought into existence only for the name sake and as security for the loan amount borrowed from the plaintiff. The defendants are not aware of the legal notice dated 28.1.2005. Even in the letter dated 4.2.2005, the defendants requested to send the so-called notice alleged to have been sent to them. But there was no reply for the same till date. (i) It is true that the defendants on 7.2.2005 sent a letter to the plaintiff along with the cheque for Rs.1,30,000/- for repayment of the loan of Rs.1,25,000/- along with interest of Rs.5,000/-. The defendants have no intention whatsoever to defraud the lawful amount borrowed by the defendants from the plaintiff. The plaintiff who is trying to grab the suit properties from the defendants by playing foul game. So, the plaintiffs returned the cheque for Rs.1,30,000/-. (j) The suit properties worth more than Rs.700/- per Sq.Ft. So, there is no necessity for the defendants to sell the suit properties to the plaintiff. Even the guideline value is more than Rs.400/- per Sq.Ft., No prudent man would purchase any property without measuring the same. The plaintiff know pretty well that the suit sale agreement was only a formal one. The suit has been filed to grab the suit properties by some hook or crook. (k) Except the sixth defendant, the other defendants are only life estate holder and they cannot alienate or create encumbrance by executing any sale agreement over the same. There is no cause of action for filing the suit. Hence, the defendants prayed for dismissal of the suit.
4. The trial Court, after considering the averments both in the plaint and in the written statement, and arguments of both the counsel, framed four issues for consideration and on consideration of the oral evidence of P.Ws.1 and 2 and D.W.1 and the documentary evidence of Exs.A-1 to A-24 and Exs.B-1 and B-2, granted decree of specific performance and two months' time was granted for deposit of balance sale consideration and to get the sale deed executed, against which, the present First Appeal has been preferred by the defendants.
5. After considering the arguments of both the learned counsel, the following points are framed for consideration in this First Appeal:
(i) Whether the trial Court is correct in holding that Ex.A-1 is a sale agreement ?
(ii) Whether the defence raised by the appellants/defendants that Ex.A-1 is executed only as a security for the loan obtained for Rs.1,25,000/-, is true ?
(iii) Since the suit properties belong to minor defendants 6 and 7, whether the trial Court is correct in granting the decree of specific performance ?
(iv) Whether the judgment and decree of the trial Court are sustainable ? and
(v) To what relief the appellants/defendants are entitled to ?
6. Learned counsel appearing for the appellants/defendants submitted that the suit properties originally belong to Kuppusamy Chettiar. He executed a Will as per Ex.B-1. The sale agreement Ex.A-1 has been executed only as a security for the loan obtained for Rs.1,25,000/-. There is no concluded contract and since defendants 6 and 7 are minors, permission of the Court is necessary under Section 8 of the Hindu Minority and Guardianship Act, and without obtaining permission from the Court of law, the appellants/defendants are not entitled to alienate the properties.
7. Learned counsel appearing for the appellants/defendants relied upon the decision of this Court reported in 2006 (3) LW 368 (Thiruvenkada Gounder (died) and 3 others Vs. Ammaiappan and 3 others) and also a decision of the Full Bench of this Court reported in 1999 (2) CTC 181 (Gopirathanam P. Vs. Ferrodous Estate (Pvt.) Ltd.,) and submitted that the enforcement of the contract against any provision of law, is not maintainable. He further submitted that the value of the properties is fixed at Rs.370/- per Sq.Ft., but the guideline value is more than Rs.400/- per Sq.Ft., on the date of Ex.A-1 sale agreement. That factum has not been considered by the trial Court.
8. Learned counsel appearing for the appellants/defendants further relied upon the decisions of the Division Bench of this Court reported in 1988 (1) LW 216 (Selvaraj.M. Vs. P. Kumariah) and also in 1971 (2) MLJ 466 (Venkatakrishna Reddy Vs. Amarababu) and submitted that the Court is the guardian for the minor's properties.
9. Learned counsel for the appellants/defendants further stated that the trial Court has committed error in holding that the Will is not proved overlooking the specific case of the parties admitting the Will. Hence, for all the above reasonings, the learned counsel for the appellants/defendants prayed for setting aside the judgment and decree of the trial Court and allowing the First Appeal.
10. Repudiating the said contentions, learned counsel for the respondent/plaintiff submitted that it is true that originally, the suit properties belong to Kuppusamy Chettiar. The said Kuppusamy Chettiar made testamentary disposition. It is the duty of the appellants/defendants to obtain necessary permission from the Court in respect of the properties of the minor. The appellants themselves have not complied with the conditions imposed in Ex.A-1 sale agreement. Learned counsel for the respondent/plaintiff further stated that as per Section 92 of the Indian Evidence Act, the appellants are excluded to let in evidence against the document Ex.A-1 sale agreement. The appellants/defendants had the intention to sell the properties and so, they have executed the Power of Attorney in favour of the said Chockalingam. He further stated that the said Chockalingam entered into sale agreement with one Kavitha and since she was not able to purchase the properties, the appellants/defendants have directly entered into sale agreement Ex.A-1 with the respondent/plaintiff. Even though the second appellant/second defendant accepted to get the permission from the Court for executing the sale deed, he kept quiet all along and hence, the respondent/plaintiff was forced to issue notice and file the present suit. Learned counsel for the respondent/plaintiff further submitted that the trial Court considered all the aspects in proper perspective and came to the correct conclusion and granted decree and hence, he prayed for confirming the judgment and decree of the trial Court and dismiss the present First Appeal.
11. Points (i) and (ii):
Ex.A-1 is a registered sale agreement. In that document, it was mentioned that for 1 Sq.Ft., the price is fixed at Rs.370/- and then the vendor received Rs.1,25,000/- as advance. Since the properties were in possession of usufructuary mortgagees, the respondent/plaintiff was directed to discharge Rs.70,000/- to Gurumurthy, Rs.70,000/- to Ganesan, Rs.70,000/- to Prabhakaran and Rs.60,000/- to Selvam. After discharging the mortgages, the respondent/plaintiff was permitted to take possession of the properties. After that, the properties will be measured and sale price has to be fixed and time for executing the sale deed was on or before Thai Tamil Month, i.e. 30th of the Tamil Era. In this document Ex.A-1, the appellants/defendants were not directed to obtain necessary permission from the Court.
12. Ex.A-4 Notice has been issued by one Sumathi on 30.10.2004, stating to cancel the sale agreement, which was executed on 20.10.2004 in favour of the appellants/defendants, which shows that they treated Ex.A-1 as a sale agreement. Reply is marked as Ex.A-5, dated 8.11.2004. On 28.1.2005, the respondent/plaintiff issued notice under Ex.A-7 and the postal receipts are marked as Ex.A-8. Certificate of Posting is marked as Ex.A-9 on 28.1.2005. Admittedly, there is no reply. In Ex.A-7, it was specifically mentioned that the plaintiff, has not taken any steps to get the permission from the Court of law for selling the properties on behalf of the minor defendants 6 and 7. There was no reply to Ex.A-7. Subsequently, another letter/notice Ex.A-12 was sent by the appellants 1 to 5/defendants 1 to 5, on 4.2.2005, in which, they have raised a plea that they have received Rs.1,25,000/- as loan and they executed the sale agreement. They had no intention to alienate the properties. But reply has been issued by the respondent/plaintiff under Ex.A-13, in which he has stated that the averments are false and the document is only the sale agreement. Another notice under Ex.A-14 was issued by the defendants and they sent the amount by cheque for Rs.1,30,000/- for returning Rs.1,25,000/- with interest at Rs.5,000/-. Under Exs.A-13 and 15 issued on the same day stating that the plaintiff was always ready and willing to perform his part of the contract and the appellants are having intention to sell the properties and so, they executed the Power of Attorney in favour of one Chockalinga and he entered into sale agreement and then, the plaintiff filed the suit. For the first time, under Ex.A-12, dated 4.2.2005, by which the appellants/defendants issued notice, stating that after receipt of Rs.1,25,000/-, they executed the sale agreement only as a security for the amount borrowed and then they returned the amount along with Rs.5,000/- as interest, and the cheque was enclosed while issuing notice under Ex.A-14.
13. As per Section 92 of the Indian Evidence Act, since Ex.A-1 sale agreement is a registered document, the appellants/defendants are excluded from letting in any oral agreement contra to the written registered document. Proviso 3 to Section 92 of the Indian Evidence Act shows that the existence of any separate oral agreement, constituting a condition precedent to the attaching of any obligation under any such contract, grant or disposition of the property, may be proved and so, it is the duty of the appellants/defendants to prove the same. Except the oral ipse-dixit of the appellants/defendants and Exs.A-12 and 14, no other document or no supporting evidence is available.
14. It is pertinent to note that under Ex.A-2, on 20.10.2004, the appellants/defendants have cancelled the Power of Attorney in favour of Chockalingam, which was stated to have been executed on 1.6.2004 and in pursuance of the said Power of Attorney, the said Chockalingam has entered into sale agreement on 17.7.2004 and that has proved that the appellants/defendants have intention to sell the properties and to facilitate the same, they have executed the Power of Attorney earlier in favour of the said Chockalingam on 1.6.2004 and in pursuance of the Power of Attorney, on 17.7.2004, the Power of Attorney Holder Chockalingam has entered into the sale agreement with one Kavitha and the price fixed was Rs.385/- per Sq.Ft, but that sale deed has not been fulfilled and hence, the Power of Attorney has been cancelled on 20.10.2004 in respect of the execution of the sale agreement, and so, it has clearly proved that the intention of the appellants/defendants was that they wanted to alienate the properties. So, the argument advanced by the learned counsel for the appellants/defendants that Ex.A-1 was executed only as a security for Rs.1,25,000/- is unacceptable. The trial Court is correct in holding that Ex.A-1 is a sale agreement. Points (i) and (ii) are answered accordingly. Point (iii):
15. It is pertinent to note that Ex.B-1 is Will. Both parties are admitting the Will. In the said Ex.B-1 Will, the life estate has been bequeathed to his wife Kuppammal and after her lifetime, to the testator's daughter Visalakshmiammal and to his son Krishna Chettiar and the life estate has also been given to daughter-in-law Rajeswari/first defendant. After the lifetime of Rajeswari, the children born to her heirs alone were having right to enjoy the properties, without alienation and only male children born to Thiagaran/second defendant and his brother are having absolute estate over the properties.
16. While considering the recitals in Ex.B-1 Will, as per Section 13 of the Transfer of Property Act and Sections 112 to 114 of the Indian Succession Act, the Will is void in respect of disposition made in favour of unborn children. It is appropriate to quote Section 13 of the Transfer of Property Act and Sections 112 to 114 of the Indian Succession Act : Section 13 of the Transfer of Property Act: Transfer for benefit of unborn person: Where, on a transfer of property, an interest therein is created for the benefit of a person not in existence at the date of the transfer subject to a prior interest created by the same transfer, the interest created for the benefit of such person shall not take effect, unless it extends to the whole of the remaining interest of the transferor in the property."
Sections 112 to 114 of the Indian Succession Act:
"112. Bequest to person by particular description, who is not in existence at testator's death.--Where a bequest is made to a person by a particular description, and there is no person in existence at the testator's death who answers the description, the bequest is void. Exception.--If property is bequeathed to a person described as standing in a particular degree of kindred to a specified individual, but his possession of it is deferred until a time later than the death of the testator, by reason of a prior bequest or otherwise; and if a person answering the description is alive at the death of the testator, or comes into existence between that event and such later time, the property shall, at such later time, go to that person, or, if he is dead, to his representatives."
"113: Bequest to person not in existence at testator's death subject to prior bequest:--Where a bequest is made to a person not in existence at the time of the testator's death, subject to a prior bequest contained in the Will, the later bequest shall be void, unless it comprises the whole of the remaining interest of the testator in the thing bequeathed."
"114: Rule against perpetuity:- No bequest is valid whereby the vesting of the thing bequeathed may be delayed beyond the life-time of one or more persons living at the testator's death and the minority of some person who shall be in existence at the expiration of that period, and to whom, if he attains full age, the thing bequeathed is to belong."
On the date of the death of the testator, the minors, i.e. sixth and seventh defendants were not born. Even the fourth defendant Manokaran was not born. So, the testator's bequest in favour of unborn persons is void.
17. The gift to unborn persons can be made subject to the condition that the gift shall be of the whole of the remaining interest of the testator in the thing bequeathed and not of a limited interest and that the vesting is not postponed beyond the life in being and 18 years, being the rule against perpetuities as laid down in Section 114 of the Indian Succession Act.
18. It is true that no interest could be created in favour of unborn person, but when the gift is made to a class or series of persons, some of whom are in existence and some are not, it does not fail in its entirety and it is valid with regard to the persons who are in existence at the time of the testator's death and is invalid as to the rest, as laid down by the Supreme Court in the decision reported in AIR 1953 SC 7 (Bajrang Bahadur Vs. Bakhtraj Kuer).
19. In such circumstances, Ex.B-1 Will in respect of the second defendant-Thiagarajan alone is valid and since others were not born on the date of the death of the testator, those persons are not entitled to get the relief in the said Will.
20. At this juncture, it is appropriate to consider the argument advanced by learned counsel for the appellants/defendants that as per Ex.B-1 Will, the male born to the second appellant/second defendant/Thiagaraj and the fourth appellant/fourth defendant/Mahendran alone are entitled to the properties absolutely and so, as laid down under Section 8 of the Hindu Minority and Guardianship Act, without the prior permission of the Court, the natural guardian shall not alienate the properties. To substantiate his argument, learned counsel appearing for the appellant relied upon Section 8 of the Hindu Minority and Guardianship Act, as well as various decisions.
21. Now, it is appropriate to quote Section 8 of the Hindu Minority and Guardianship Act:
"Section 8: Powers of natural guardian--(1) The natural guardian of a Hindu minor has power, subject to the provisions of this section, to do all acts which are necessary or reasonable and proper for the benefit of the minor or for the realization, protection or benefit of the minor's estate; but the guardian can in no case bind the minor by a personal covenant. (2) The natural guardian shall not, without the previous permission of the Court,--
(a) mortgage or charge, or transfer by sale, gift, exchange or otherwise, any part of the immovable property of the minor; or
(b) lease any part of such property for a term exceeding five years or for a term extending more than one year beyond the date on which the minor will attain majority.
(3) Any disposal of immovable property by a natural guardian, in contravention of sub-section (1) or sub-section (2), is voidable at the instance of the minor or any person claiming under him.
(4) No Court shall grant permission to the natural guardian to do any of the acts mentioned in sub-section (2) except in case of necessity or for an evident advantage to the minor.
(5) The Guardians and Wards Act, 1890, shall apply to and in respect of an application for obtaining the permission of the Court under sub-section (2) in all respects as if it were an application for obtaining the permission of the Court under section 29 of that Act, and in particular-- (a) proceedings in connection with the application shall be deemed to be proceedings under that Act within the meaning of Section 4-A thereof;
(b) the Court shall observe the procedure and have the powers specified in sub-sections (2), (3) and (4) of Section 31 of that Act; and
(c) an appeal shall lie from an order of the Court refusing permission to the natural guardian to do any of the acts mentioned in sub-section (2) of this section to the Court to which appeals ordinarily lie from the decisions of that Court.
(6) In this section, "Court" means the City Civil Court or a District Court or a Court empowered under section 4-A of the Guardians and Wards Act, 1890, within the local limits of whose jurisdiction the immovable property in respect of which the application is made is situate, and where the immovable property is situate within the jurisdiction of more than one such Court, means the Court within the local limits of whose jurisdiction any portion of the property is situate."
22. Learned counsel appearing for the appellants/defendants mainly focussed that the properties were not inherited by the minor appellants 6 and 7/defendants 6 and 7, but they have got the properties by way of testamentary disposition and so, they are the separate properties and therefore, as per Section 8 of the Hindu Minority and Guardianship Act, they have no right to deal with the properties except with the prior permission of the Court. If there is any disposal of the immovable properties by the natural guardian, is voidable at the instance of the minor(s) or any person claiming under them.
23. To substantiate the above contention, learned counsel appearing for the appellants/defendants relied upon the following decisions:
(a) 1988 (1) LW 216 : Selvaraj.M. Vs. P.Kumariah: Division Bench of Madras High Court:
"Held, rejecting the contention: In this case it is known that the properties are the ancestral properties and that the minor sons of the defendant have got 4/5th share in them. Courts are enjoined to protect the interest of the minor children. It is not the case of the plaintiffs that if the minor children have any interest in the properties, the sale would be binding on them on any ground of necessity or benefit to the estate of the minors. The only argument was that they can be left to file a separate suit questioning the sale deed executed by the father. Normally, we have to decide the case and avoid multiplicity of suits, especially in a case where we are satisfied that the minor children have a defined share in the properties which could not have been disposed of by the father. On the admitted facts, therefore, with a view to protect the interest of the minor children and avoid multiplicity of suits, we have to see whether we could exercise our discretion against the plaintiffs as the relief in a specific performance suit is normally discretionary. On the facts and in the circumstances of the case, we are satisfied that we have to deny the equitable relief to the plaintiffs in so far as the shares of the minor children are concerned."
(b) 1971 (2) MLJ 466 : Venkatakrishna Reddy Vs. Amarababu: Division Bench of Madras High Court:
"Held Neither the natural guardian nor the guardian appointed under the Guardians and Wards Act has any power to sell the undivided interest of a minor coparcener of a joint family even for necessity of for benefit."
(c) 2006 (3) LW 368 : Thiruvenkada Gounder (died) and 3 others Vs. Ammaiappan & 3 others :
"Held As rightly contended by the learned counsel for the respondents 1 and 2, the third defendant, having not obtained permission from the Court to sell the property of his minor sons viz., Plaintiffs as required under Section 8(2) of the Hindu Minority and Guardianship Act, the same is voidable, and consequently, the suit filed by the mother on behalf of the minor plaintiffs is clearly maintainable It is not the case of the third defendant that he had obtained prior permission from the Court to deal with the properties of the minor sons - Further it is not proved that the minors' property was dealt with for the benefit of the minors themselves Hence, this Court is of the view that the judgment of the lower appellate Court is correct and the dismissal of the suit by the trial Court is unsustainable."
(d) 2010 (2) CTC 198 : Natarajan Vs. Paramasivam : (Madras High Court):
"As per Section 6 read along with Section 8 of the Hindu Minority and Guardianship Act, I am of the opinion that the brother Thirunavukkarasu is not a natural guardian for his minor brothers. Moreover, as per Section 8(2) of the Hindu Minority and Guardianship Act, the natural guardian shall not, without the previous permission of the Court, mortgage or charge, or transfer by sale, gift, exchange or otherwise, any part of the immovable property of the minor. In the present case, the vendor the appellant-plaintiff, namely Thirunavukkarasu, is not the natural guardian. Without permission from the Court, he is not entitled to sell the property to anybody. So, the First Appellate Court in its judgment, dealt with the same elaborately and came to the conclusions that as per Sections 4 and 6 of the Hindu Minority and Guardianship Act, the brother Thirunavukkarasu is not the natural guardian. As per Section 8 of the Hindu Minority and Guardianship Act, the said Thirunavukkarasu is not empowered to alienate the property without the permission of the Court."
(e) 2010 (3) CTC 411: Manoharakumari Vs. Anitha : Division Bench of Madras High Court:
"It is fairly well settled that under Section 8 (of the Hindu Minority and Guardianship Act), a natural guardian of the property of the Hindu minor before he disposes of any immovable property of the minor, must seek permission of the Court. But since there need be no natural guardian for the minor's undivided interest in the joint family property, as provided under Sections 6 and 12 of the Act, the previous permission of the Court under Section 8 for disposing of the undivided interest of the minor in the joint family property is not required." "Even though such permission of the Court is not required for alienation of minor's undivided interest in the joint family property, in the instant case, parties have jointly incorporated the clause in Ex.A-1.agreement of sale that such permission/sanction of the Court has to be obtained by the 1st Defendant for alienation of the minor's interest. We are of the view that at the time of entering into agreement, when parties have consciously incorporated such term insisting for sanction of the Court for alienation of the minor's share, now it is not open to the Plaintiff to turn round and contend that such permission was not required and it is only to protect the interest of the purchaser. This point is answered accordingly."
24. There is no quarrel over the proposition of laws laid down in the above decisions. In the present case, as already stated, on the date of the death of the testator of Ex.B-1 Will, the defendants 6 and 7/minors were not born and so, the bequest is void. So, they have not derived any right over the properties. The bequest is void as per Section 13 of the Transfer of Property Act and also as per Sections 112 and 113 of the Indian Succession Act. Hence, the argument advanced by learned counsel for the appellants/defendants that permission of the Court before alienation, for dealing with the properties of the minors, does not arise.
25. It is also appropriate to refer to a decision of the Full Bench of this Court, reported in 1999 (2) CTC 181 (Gopirathanam P. Vs. Ferrodous Estate (Pvt.) Ltd., in which Full Bench referred to a decision reported in 1996 (1) LW 721 (Shoba Viswanathan Vs. D.P. Kinggley), wherein it was held that the position of law is clear that when the enforcement of the contract is against any provision of law, that will amount to enforcement of an illegal contract and the contract per se may not be illegal, but its enforcement requires compliance of the statutory conditions, failure of which will amount to statutory violation; a Court which is expected to enforce the law, cannot be a party to such a decree.
26. There is no quarrel over the proposition of law laid down in that decision. But, in this case, as already observed in the earlier paragraphs of this judgment, the bequest in respect of the unborn children on the date of the death of the testator, i.e. the minor defendants 6 and 7, is void. The permission under Section 8(2) of the Hindu Minority and Guardianship Act, does not arise. Hence, the arguments advanced by learned counsel for the appellants/defendants will not in any way help the case of the appellants/defendants, and since the appellants 1 to 5 / defendants 1 to 5 are parties to Ex.A-1 sale agreement, they are liable to execute the sale deed.
27. Furthermore, as per Section 8(3) of the Hindu Minority and Guardianship Act, even if the natural guardian makes any disposal of the immovable property in contravention of sub-sections (1) and (2), it is voidable at the instance of the minor or any person claiming under him. Considering the same, to avoid execution of the sale deed and rise in prices in the properties, the appellants/defendants have come forward with a plea that without permission from the Court, no sale deed will be executed. The receipt of the advance amount is not disputed.
28. As already stated, Ex.A-1 is the sale agreement and it is not executed as a security for the amount borrowed. The bequest in respect of the minor defendants 6 and 7, is void, as they were not born on the date of the death of the testator and so, the permission of the Court under Section 8 of the Hindu Minority and Guardianship Act, does not arise.
29. Now, this Court has to decide as to whether the respondent/plaintiff was ready and willing to perform his part of the contract. The respondent/plaintiff issued notice on 28.1.2005 under Ex.A-7 to the appellants/defendants, requesting them to execute the sale deed. On 4.2.2005, in Ex.A-12, the appellants/defendants issued notice to the respondent/plaintiff stating that they have received Rs.1,25,000/- and only as a security for the amount borrowed, Ex.A-1 sale agreement had been executed. The rejoinder had been issued by the plaintiff's counsel on 10.2.2005 in Ex.A-13. On 7.2.2005, the appellants/defendants sent a notice along with a cheque for Rs.1,30,000/- and that is evidenced by Ex.A-14. Reply for the same had been marked as Ex.A-15, dated 10.2.2005. These aspects clearly prove that the respondent/plaintiff has always been ready and willing to perform his part of the contract. That factum had been considered by the trial Court and it granted decree of specific performance. Hence, the respondent/plaintiff is entitled to get equitable relief of decree of specific performance. In such circumstances, I am of the view that the trial Court is correct in granting the decree of specific performance. Point (iii) is answered accordingly. Points (iv) and (v) :
30. In view of the answers given to Points (i) to (iii) that Ex.A-1 is a sale agreement and Ex.B-1 Will is void in respect of the minor appellants 6 and 7/defendants 6 and 7 and those who are not born on the date of the death of the testator, and so, the bequest in favour of the unborn children, is void and even as per Section 8(3) of the Hindu Minority and Guardianship Act, even if alienations are made by the natural guardian, without permission of the Court of law, that contract is voidable at the instance of the minor. Considering the same, I am of the view that respondent/plaintiff is entitled to the decree of specific performance as granted by the trial Court, which is sustainable and does not warrant any interference. Hence, the judgment and decree of the trial Court are confirmed. The appellants/defendants are not entitled to any relief. Points (iv) and (v) are answered accordingly.
31. In view of the foregoing discussion:
(a) The First Appeal is dismissed with costs.
(b) The judgment and decree passed by the trial Court are confirmed.
(c) Two months' time from today is granted to the parties to execute Ex.A-1 sale agreement.
(d) The Miscellaneous Petitions are closed.
cs
To
1. The Additional District Judge (Fast Track Court No.2), Salem.
2. The Record Keeper, V.R. Section, High Court,
Madras
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