Whether in suit by minor for share in joint family property, it is necessary to ask for setting aside sale?

Property Laws – Sale by Guardian – Cancellation of sale deeds – Absence of sanction – Hindu Minority and

Guardianship Act 32 of 1956 (Act), Section 8 – Properties are ancestral properties of Appellant/Plaintiff’s father who

died intestate – 1st Defendant/mother had to sell property for family necessity and for purpose of marriage of 2

Defendant/sister – Property sold to Respondents/Defendants 5 and 4 – On date of sale, Appellant was minor – After

attaining majority, Appellant challenged sale by claiming 5/12th share in suit property – Trial Judge held alienation

void and decreed suit as prayed for – Respondents challenged same – Lower Appellate Court set aside judgment of

Trial Court – Second Appeal – Contention of Appellant that in absence of sanction from Court under Section 8, sale

is voidable at instance of Appellant – Whether Lower Appellate Court legally right in holding that since Appellant

not prayed for setting aside sale of his share, suit is not maintainable – Whether in suit by minor for share in joint

family property, is it necessary to ask for setting aside sale – Whether sale by guardian of minor without obtaining

sanction from Court for sale valid – Held, Section 8(2) of Act specifically states that without previous sanction of

Court, natural guardian shall not alienate – One minor chooses to repudiate sale within limitation, i.e., within 3

years from date of attaining majority, alienation for binding necessity no longer available – Appellant has right to

avoid alienation in terms of Section 8 and till alienation set aside, it is valid – Appellant has to set aside sale if

wants to avoid transfers and recover properties from purchasers – But Appellant has not asked for prayer for

setting aside sale, instead, asked for preliminary decree declaring his share in suit properties – Appellant ought to

have prayed for cancellation of sale deeds expressly or impliedly and pay required Court fees – As prayer for

setting aside sale not asked for, sale cannot be cancelled – Having failed to seek prayer for cancellation of sale

deeds by paying Court fees, relief sought for by Appellant cannot be granted – Appeal dismissed.

Equivalent Citation: (2014)7MLJ37

IN THE HIGH COURT OF MADRAS

S.A. No. 1082 of 2006

Decided On: 19.08.2014

 R. Nagarajan
Vs.
Sundaravelu

Hon'ble Judges/Coram:Pushpa Sathyanarayana, J.

1. This second appeal is filed by the plaintiff inveighing the judgement and decree dated 13.8.2004 passed by the learned Subordinate Judge, Ariyalur, in A.S. No. 32 of 1999 reversing the judgment and decree dated 30.6.1999 passed by the learned District Munsif, Jayankondam, in O.S. No. 95 of 1997. The plaintiff has filed the suit for partition of his 5/12th share and for mesne profits.

2. The facts, in brief, that are necessary for the disposal of this Second Appeal may be set out as under:

The suit property originally belonged to one Ramamurthy, who is the father of the plaintiff and defendants 2 and 3 and the wife of the first defendant. The first defendant, who is the mother and natural guardian, along with her eldest son, viz., the third defendant, and making the minor as Eo-nomine party, had sold the property to the defendants 5 and 4 under Exs. B.2 and B.3 respectively. Hence, the plaintiff laid the suit for impeaching the said sale deeds claiming that he has got 5/12th share in the suit property and that he had to file the suit within three years from the date of attaining majority.

3. The purchasers, viz., defendants 4 and 5, had contested the suit contending that they have been in possession of the property even during the lifetime of the plaintiff's father Ramamurthy. It is stated that on the date of death of Ramamurthy, the second defendant, who is the daughter of the Ramamurthy and sister of the plaintiff, was yet to be married and as there was family expenditure and the second defendant was to be married, the first defendant, who is the natural guardian, decided to sell a portion of the suit property to the defendants 4 and 5. The defendants have stated that earlier they were in possession of the property as lessees and as the sale was made by the mother for the family necessity, viz., to marry the daughter and for other expenses, the sale is binding on the plaintiff.

4. The parties went on trial before the trial court, before which the plaintiff examined himself as P.W.1 and marked Exs. A.1 to A.7. The defendants 1 to 3 remained ex parte and the fifth defendant examined himself as D.W.1 and marked Exs. B.1 to B.5.

5. After considering the rival submissions and pleadings of the parties and after appreciating the evidence on record, the learned trial Judge framed eleven issues and held that the alienation under Exs. B.2 and B.3 is void and hence, decreed the suit as prayed for by the plaintiff as regards the claim for 5/12th share in the first schedule property and regarding the second schedule property, the suit was dismissed. The alienees, viz., defendants 4 and 5, who are in possession of the properties challenged the same in A.S. No. 32 of 1999 before the Lower Appellate Court and the Lower Appellate Court, after having examined the judgment and decree passed by the learned trial Judge and also after considering the material and evidence on record, came to the conclusion that the defendants are in possession of the suit first schedule property and accordingly, allowed the appeal filed by the defendants setting aside the judgment and decree passed by the trial Court. Aggrieved by the same, the plaintiff has projected the instant Second Appeal.

6. Pending the First Appeal, the fourth defendant died and his legal representatives were brought on record.

7. At the time of admission of the second appeal, the following questions of law were formulated by this Court:

1. Whether the judgment and decree of the Lower Appellate Court is vitiated by its failure to consider the document of sale in favour of the respondent's predecessor in title in its proper perspective?
2. Is not the judgment and decree of the Lower Appellate Court vitiated by its failure to consider the stand of the respondent in filing I.A. No. 77/2005 in A.S. No. 11/2005 a petition to amend the plaint wherein the respondent sought for the amendment of the Schedule of Property to the plaint, restricting his claim to only 47 Cents in item 1 of the suit property?

Though the above questions were framed for consideration, during the course of argument, the other following substantial questions of law which were raised in the grounds of memorandum, were also urged before this Court.

(i) Whether the Lower Appellate Court is legally right in holding that since the appellant has not prayed for setting aside the sale of his share, the suit is not maintainable?
(ii) In a suit by a minor for a share in the joint family property, is it necessary to ask for setting aside sale?
(iii) Whether a sale by a guardian of minor without obtaining sanction from Court for the sale is valid and what is the effect of not getting the sanction of the Court?

8. Heard the learned counsel appearing for the appellant as well as the learned counsel for the respondents 1 to 5 and perused the records.

9. The indisputed facts are that there are two items of property for which partition was sought by the plaintiff. Both the Courts below had dismissed the suit with regard to the second item of the property. Now the challenge is only with respect to the first item of the property which is in the hands of the alienees.

10. Admittedly, the properties are ancestral properties of the plaintiff's father Ramamurty, who died intestate in 1985. As his sister was not married, the mother, as the natural guardian, had to sell the property for the family necessity and for the purpose of marriage of the second defendant. The mother and third defendant, who was the major son on the date of sale and who would have been the best person to speak about the family necessity, had remained ex parte. Admittedly, on the date of sale, the plaintiff was a minor. The recitals in Exs. B.2 and B.3 specifically find a mention about the reason for the sale. There is no contra evidence brought in by the plaintiff, who is challenging the sale deeds, to say that there was no family necessity on the date of sale. The plaintiff was also made a Eo-nomine party to the sale deed. Therefore, the question whether the sale is for the family necessity or not, has been held to be valid by the Lower Appellate Court and there is no perversity in the finding of the Lower Appellate Court also.

11. Learned counsel appearing for the appellant urged before this Court that the mother ought to have sought permission from the Court before selling the property under Section 8 of the Hindu Minority and Guardianship Act 32 of 1956 [for short, 'the Act']. It was contended by the learned counsel for the appellant that no sanction was obtained by the first defendant as contemplated under Section 8(2) of the Act for the alienation under Exs. B.2 and B.3. Therefore, the contention of the appellant was that in the absence of sanction from the Court for sale, the sale is of voidable at the instance of the plaintiff/appellant.

12. Once the transfer is held to be voidable at the instance of the minor, the question whether the alienation was for family necessity and the binding nature of the same need not be gone into. No doubt, true, Section 8(2) of the Act specifically states that without the previous sanction of the Court, the natural guardian shall not alienate. The sale by the guardian can only be voidable at the instance of the minor. Once the minor chooses to repudiate the sale within the limitation, i.e., within three years from the date of attaining majority, the alienation for binding necessity is no longer available to the plaintiff.

13. Further more, once the sale is held to be voidable at the instance of the minor, who has chosen to repudiate the same by filing the suit. which is also within time, it is to be decided whether the same can be allowed in favour of the plaintiff in the absence of the prayer for setting aside the sale.

14. At this juncture, it would be relevant to refer to Section 8(1) to 8(3) of the Act, which read as follows:

"S.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."

15. Therefore, it is clear that Section 8(2) of the Act lays down that the natural guardian shall not, without the previous permission of the Court, transfer any immovable property of the minor whereas in Sub-section 3, it is specifically provided that any such disposal of immovable property by a natural guardian in contravention of Sub-section (2) is voidable at the instance of the minor. Therefore, there is little scope for doubt that the first defendant Rukmani Ammal alienated in favour of the defendants 4 and 5 and the same are voidable at the instance of the plaintiff and the plaintiff has to set aside the sale if he wants to avoid transfers and recover the properties from the purchasers.

16. In the case on hand, the plaintiff has not asked for the prayer for setting aside the sale. Instead, he has asked for a preliminary decree declaring his 5/12th share in the suit properties and for mesne profits. When the entire case of the plaintiff is based on Exs. B.2 and B.3 which he is seeking to impeach, he ought to have asked for the prayer to set aside the same. The plaintiff admittedly has been made EO-nomine party to the above said sales by the mother, natural guardian. Necessarily, the plaintiff has to pray for the cancellation of the sale deeds expressly or impliedly and pay the required Court fees. When the alienation is on behalf of the minor and the same is executed by the guardian, the minor has to set aside the sale and he cannot ignore the same by mere filing of the suit. After the amendment, sub-section (3) of section 8 of the Act is a corollary to the limitations specified in sub-section (2). Therefore, any dealing by the natural guardian with the immovable property of the minor in contravention to the above said rules, is not binding on the minor. But, however, such transfer can be challenged by the minor repudiating the same within the period of limitation. If the minor is not challenging the same, it implies that he is accepting the sale.

17. Learned counsel for the appellant contended that it is suffice to repudiate the transaction by filing the suit and it is not necessary to ask for setting aside the sale. In this regard, he placed reliance on the decision in Rajendran v. T.K. Ramadoss Naidu, MANU/TN/0830/1999 : LNIND 1999 MAD 877 : (1999) 3 MLJ 451 and more particularly, referred to paragraphs 28 to 30, wherein this Court has observed as follows:

"28. However, this Court is unable to sustain the view expressed by the two courts below as the very institution of the suit by the erstwhile minor is a manifestation of his unequivocal intention to get rid of the alienation or the repudiation of the transaction. It is not essential to seek a relief to set aside the alienation as such. This view of mine is supported by the view taken by Rathnam, J. in Perianayagam v. Rajendran, MANU/TN/0240/1988 : (1988) 1 L.W. 198.
29. In the said case, the learned Judge held that they very suit for recovery of possession is sufficient as it is a manifestation to avoid the alienation, which is voidable. In this respect, it has been held thus:

"Even though Ex.B-1 is statutorily declared to be a voidable transaction, there must be some manifestation, by an act or omission of an unequivocal intention, on the part of the minors or the erstwhile minors avoiding or repudiating the transaction for, only then, such avoidance will result in rendering the transaction void since its inception. It is in this connection a reference may be made to a pass in Salmond on Jurisprudence, 11th Ed., to the following effect: A valid agreement is one which is fully operative in accordance with the intent of the parties. A void agreement is one which entirely fails to receive legal recognition or sanction, the declared will of the parties being wholly destitute or legal efficacy. A voidable agreement stands midway between these cases. It is not a nullity, but its operation is conditional and not absolute. By reason of some defect in its origin it is liable to be destroyed or cancelled at the option of one of the parties to it. On the exercise of this power, the agreement not only ceases ab initio. The avoidance of it relates back to the making of it. The hypothetical or contingent efficacy appears, as if it had never existed. In other words, a voidable agreement is one which is void or valid at the election of one of the parties to it."

30. As already held, Ex.B-1 is binding and the plaintiff had voluntarily affirmed the alienation which is valid till it is avoided. On the date when the deed of affirmation or consent was executed by the plaintiff, the plaintiff was a major and he had validly affirmed the alienation already effected by his natural guardian. A confirmation is more than alienation in terms of Sec. 8 and till this alienation is terms of Sec. 8 and till this alienation is set aside, as held by this Court, the alienation is valid. Therefore, by mere affirmation, the plaintiff had chosen to affirm the alienation effected by his natural guardian in favour of the plaintiff."

18. The aforesaid decision also says that the plaintiff has a right to avoid the alienation in terms of Section 8 of the Act and till the alienation is set aside, it is valid. In the case on hand, as the prayer for setting aside the sale is not asked for, the sale cannot be cancelled.

19. Learned counsel also seeks in aid of the decision of this Court in Dhanasekaran v. Manoranjithammal, MANU/TN/0330/1985 : LNIND 1985 MAD 143 : (1985) 2 MLJ 366 wherein in paragraph 3, it has been held as follows:

"Section 8(2) lays down in specific and explicit terms that the natural guardian shall not, without the previous permission of the Court, indulge in and effect any of the alienations set out in Sub-clauses (a) and (b). Section 8(3) is categoric leaving no room for any argument that any disposal of immovable property by a natural guardian in contravention of Section 8(2) is voidable at the instance of the minor. The field and sphere of argument that such an alienation is for binding necessities and should be upheld are no longer available. When the inhibition is of the statute and it is plain and unambiguous, it is not open to sustain an alienation done in contravention of it by still investigating and finding out justifying factors therefor."

Even in the said decision, it only holds that any sale by the natural guardian is voidable at the instance of the minor and the minor can void the same by setting aside the sale.

20. From the materials available on record, it is seen that the sale under Exs. B.2 and B.3 are dated 02.8.1986. The plaintiff attained majority on 28.01.1987 and the suit was filed on 22.01.1990. From the above facts, it is very clear that the plaintiff within three years from the date of attaining majority, has filed the suit challenging the sale. However, having failed to seek prayer for setting aside or cancellation of sale deeds by paying the requisite Court fees, the relief sought for by the plaintiff cannot be granted.

21. Further, it is to be noted that the lower Appellate Court also placing its reliance on the decision of this Court in Sridharan v. Arumugm, MANU/TN/0545/1993 : LNIND 1993 MAD 148 : (1993) 2 MLJ 428, has rightly dismissed the suit. The question of law framed as to whether the cancellation of the sale deeds is necessary by the plaintiff, who was an EO-nomine party as a minor to the sale deed, is answered accordingly. Having considered the rival submissions of the parties and having gone through the impugned judgments passed by the Courts below, the Court is of the view that as the Lower Appellate Court has rightly discussed the controversy between the parties and the factual finding recorded by the Lower Appellate Court after appreciation of the documents cannot be disturbed by this Court while exercising its appellate jurisdiction under Section 100 of the Civil Procedure Code. This Court does not see any infirmity or defect in the decision of the lower Appellate Court and even otherwise, this being a finding of fact recorded by the Lower Appellate Court, the Court does not see any justification in interfering with the said judgment.

In fine, the Second Appeal fails and the same stands dismissed confirming the judgment dated 13.08.2004 passed by the learned Subordinate Judge, Ariyalur, in A.S. No. 32 of 1999. In view of the relationship between the parties, there shall be no order as to costs.

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