The defendant in the suit in O.S.No.195 of 1987 on the file of the
Additional District Munsif, Kallakurichi is the appellant herein. The
respondents filed the suit for declaration and recovery of possession of the
suit property with mesne profits and costs. The appellant resisted the suit
by filing the written statement and the trial court having considered the
evidence and arguments of both sides decreed the suit as prayed for and
granted three months time for delivery of possession of the suit property to
the respondents herein. Aggrieved by the said judgment and decree of the
trial court, the appellant preferred the appeal before the Subordinate Court,
Kallakurichi in A.S. No.41 of 1996. The learned Subordinate Judge after
analysing the recorded evidence in the light of the judgment and decree passed
by the trial court dismissed the appeal with costs confirming the findings
rendered by the trial court. Hence the Second Appeal.
2. The parties to this Second Appeal may be referred to hereunder as
they were arrayed before the trial court for the sake of convenience.
3. The brief facts necessary for the disposal of this Second Appeal
may be briefly stated as under:-
a) The respondents herein/plaintiffs filed the suit against the
appellant herein/defendant for the said reliefs on the ground that the suit
property was purchased by the mother of the plaintiffs on 2.6.1969 when the
plaintiffs were minors, and that she was in possession and enjoyment of the
same in her own right and on behalf of her minor children. While so, despite
the fact that the father of the plaintiffs was alive, the defendant obtained
the said sale deed from the mother of the plaintiffs fraudulently and
trespassed into the suit property. Hence, they have filed the suit for
declaration and recovery of the suit property with mesne profits at the rate
of Rs.3,000/- per annum.
b) The defendant resisted the suit on the ground that since the father
of the plaintiffs neglected the family, the mother alone was managing the
affairs by purchasing and selling properties for and on behalf of the minor
sons namely, the plaintiffs. In fact, she had sold the property on 3.3.1976
to the defendant for valuable consideration and immediately thereafter on
6.3.1976, she purchased another property out of the said sale proceeds in the
name of the then minor plaintiffs for Rs.7,000/- and also dug a well in the
said land. Hence the defendant resisted the suit on the ground that the said
transactions were entered into by the mother of the then minor plaintiffs for
their benefit and that therefore the suit filed beyond time is barred by
limitation. In the above circumstances, the courts below rendered the
judgments and decrees as referred to above.
4. Heard Mrs.Hema Sampath, learned counsel appearing for the
appellant and Mrs.Mythili Suresh, learned counsel appearing for the
respondents.
5. Learned counsel for the appellant has submitted the following in
support of the appeal:-
The courts below failed to note that while the natural
guardian of the minors, their father, neglected the family, their mother was
the only guardian available to look after the affairs for and on behalf of the
minors. Similarly, both the courts below failed to render a finding that the
sale consideration was utilised by the mother for the benefit of the minors to
purchase another property (vide) Ex.B-2, sale deed dated 6.3.1976, within
three days from the date of sale in favour of the appellant. The lower
appellate court erred in rendering a finding that the suit was not barred by
limitation even after holding that the first respondent came to court three
years after attaining majority.
6(a) In the above circumstances, the following substantial question of
law was formulated by this Court on 7.10.1997 for consideration:-
Whether in law are not the courts below wrong in overlooking that the suit was
barred by limitation under Article 58 of the Limitation Act?
(b) The following additional substantial question of law was
formulated on 12.4.2006:-
Whether in law the courts below are right in overlooking that as the
respondents are eonomine parties to Ex.A-2, sale deed, the suit as framed is
not maintainable as they had not sought to set aside the sale deed on paying
Court fee (vide) 69 L.W.686 ?
7. Admittedly the respondents/plaintiffs' mother purchased the
property as mother and guardian of the respondents under a registered sale
deed dated 2.6.1969 for Rs.5,000/- from one Chinnapillai Ammal for herself and
as guardian of her minor children and subsequently, the respondents' mother
sold the same to the appellant herein/defendant under Ex.B-1, registered sale
deed dated 3.3.1976 for valuable consideration for herself and as guardian of
the then minor sons who are the plaintiffs in the suit before the trial court.
The case of the plaintiffs is that the said sale deed Ex.B-1 is not binding
for the reason that the same was obtained from their mother by the defendant
under threat, coercion and fraud and that therefore they are entitled to
recover the property from the defendant. Since the courts below agreed with
the contention put forth by the plaintiffs, it has to be considered in this
appeal whether the plaintiffs have discharged the burden of proof cast on them
in proving the alleged fraud, misrepresentation and coercion alleged to be
perpetrated by the defendant in obtaining the sale deed Ex.B-1 from their
mother.
8. Learned counsel for the appellant has argued at the outset that
since the father of the plaintiffs as natural guardian neglected the family,
their mother Pavayee Ammal acting as their guardian entered into the
transactions under Ex.A-1 and B-1 referred supra. In this context, she has
relied on the decision GITHA HARIHARAN v. RESERVE BANK OF INDIA (1999 (I)
C.T.C. 481) in support of her contention that the mother could validly act as
guardian on behalf of minor if the father is indifferent to minors and even if
the father and mother live together or by virtue of mutual understanding,
mother has to be exclusively in charge of the minor or if the father is
physically unable to take care of minor either because staying away from
mother and the minors or on account of physical or mental incapacity of the
father.
9. It is no doubt true that Section 6 of the Hindu Minority and
Guardianship Act, 1956 provides as follows:-
"6. Natural guardians of a Hindu minor.-- The guardians of a Hindu minor, in
respect of the minor's person as well as in respect of the minor's property
(excluding his or her undivided interest in joint family property), are-
(a) in the case of a boy or an unmarried girl-the father, and after
him the mother; provided that the custody of a minor who has not completed the
age of five years shall ordinarily be with the mother;
(b) in the case of an illegitimate boy or an illegitimate unmarried
girl-the mother, and after her, the father;
(c) in the case of a married girl-the husband;
Provided that no person shall be entitled to act as the natural
guardian of a minor under the provisions of this section
(a) if he has ceased to be a Hindu, or
(b) if he has completely and finally renounced the world by becoming a
hermit (vanaprastha) or an ascetic (yati or sanyasi).
Explanation.-- In this section, the expressions 'father' and ' mother'
do not include a step-father and step-mother."
10. Learned counsel for the appellant has pointed out the evidence in
this case that the father of the plaintiffs, who were then minors, was working
in Salem and that the mother and the minor children were living separately.
It is seen from the evidence of the first plaintiff as P.W.1 that his father
was working as a weaver in Salem and living separately and also having
separate mess by cooking himself and that the mother and children who were
originally residing in the suit property shifted to Alagapuram, Kallakurichi
Taluk after selling the property. Therefore the learned counsel for the
appellant has relied on the ratio laid down in the decision cited to above, to
support her further contention that in view of the evidence in this case, it
can be safely concluded that even though the father was alive, since he was
indifferent, the mother was looking after the affairs of the minor children as
their guardian.
11. In this context, the ratio laid down in the said decision in
paragraph 16 by the Hon'ble Supreme Court may be extracted hereunder to
appreciate the facts and the evidence in this case:-
While both the parents are duty bound to take care of the person and property
of their minor child and act in the best interest of his welfare, we hold that
in all situations where the father is not in actual charge of the affairs of
the minor either because of an agreement between him and the mother of the
minor (oral or written) and the minor is in the exclusive care and custody of
the mother or the father for any other reason is unable to take care of the
minor because of his physical and/or mental incapacity, the mother, can act as
natural guardian of the minor and all her actions would be valid even during
the life time of the father, who would be deemed to be 'absent' for the
purposes of Sections 6(a) of Hindu Minority and Guardianship Act and Section
19(b) of Guardian and Ward Act.
12. Though the learned counsel appearing for the respondents has
contended that since it is admitted by D.W.2, vendor under Ex.B-2 that at the
time of the execution of the sale deed, father of the plaintiffs was also
present in the office of the Sub Registrar, he acted as the natural guardian,
such contention is not fortified by any clinching evidence that the father had
attested in Ex.B-2 nor had he taken any part in the transaction so as to
enable this Court to accept such an argument put forth on behalf of the
respondents. Therefore, I am unable to endorse the submission made by the
learned counsel for the respondents. Hence in view of the admission of the
first plaintiff as P.W.1 in his evidence as referred to above and having
regard to the ratio of the said decision, this Court has no hesitation to come
to the conclusion that the transaction under Ex.B-1 cannot be challenged on
the mere ground that the same was executed by the mother as guardian of the
minor sons while the father, who was the natural guardian alive. It follows
that the sale deed Ex.B-1 executed by the mother of the then minor sons cannot
be questioned on the basis of the aforesaid contention.
13. Moreover, as has been rightly pointed out by the learned counsel
for the appellant, in view of the above said ratio laid down by the Apex Court
in 1999 (I) C.T.C. 481, the principle of law on this aspect of the matter as
laid down in GOVINDARAJU PADAYACHI, P. AND ANOTHER v. V.V.O.MALAVARAYA
NAYANAR & OTHERS (1997-3-L.W. 586) and SRI AUROBINDO SOCIETY, PONDICHERRY v.
RAMADOSS NAIDU (1980 (I) ML.J. 118) relied on by the learned counsel for the
respondents cannot be made applicable to the facts of this case. In the
judgment in 1997-3 Law Weekly, 586 the question whether maternal uncle could
act as a de facto guardian or not was decided with reference to the suit for
partition of joint family properties. Similarly, in the case reported in
1980(1 ) M.L.J. 118, sale by the life estate holder for her minor son and on
her own behalf was challenged and therefore, on facts also the ratio laid
therein can not be applied to the facts of this case.
14. Similarly, the learned counsel for the appellant has also pointed
out the evidence in this case to show that the property acquired by the mother
under Ex.A-1 was subsequently sold by her under Ex.B-1 to the appellant for
purchasing another property (vide) Ex.B-2, registered sale deed dated 6.3.1976
from D.W.2, Saradhammbal for herself and as guardian for her minor children
and therefore he has contended that the plaintiffs had not only been benefited
out of the sale consideration passed under Ex.B-1 in favour of them through
their guardian and mother Pavayee Ammal, but also utilised the balance amount
for their welfare. In this context, she has pointed out the specific recitals
in Ex.B-1 itself that the property was sold by the mother in order to purchase
the property covered by the sale deed Ex.B-2 from D.W.2 and her husband.
Further as per the recitals in Ex.B-1 immediately three days after the
execution of the sale deed, the said Pavayee Ammal purchased the property
under the original of Ex.B-2, measuring 2.8 3 acres for a sum of Rs.7,000/-.
It is in the evidence of D.W.2, the vendor under Ex.B-2 that the said Pavayee
Ammal as well as the plaintiffs were in possession and enjoyment of the
property purchased under Ex.B-2 by digging a well in the said land for
cultivation.
15. In this context, learned counsel for the appellant has referred
me to the certified copy of the sale deed produced along with the petition in
C.M.P.No.9591 of 2003 in this appeal in support of her further contention that
the plaintiffs after attaining majority joined with their mother Pavayee Ammal
and their sister in executing the said sale deed on 23.10.2002, after filing
of this appeal in respect of 1 .07 acres out of 2.83 acres purchased by them
under the said sale deed Ex.B-2 from D.W.2 for a consideration of Rs.49,200/-.
Further he has also pointed out the recitals in the said sale deed produced in
the said C.M.P. that on the same date, they had also sold 1.30 acres to one
Ayyakannu out of the remaining extent in the property purchased under Ex.B-2
and contended that even after executing the sale deeds totally comprising an
extent of 2.37 acres, they are still in possession and enjoyment of 0.46 acres
in the property purchased by them under Ex.B-2.
16. It is in these circumstances that the learned counsel for the
appellant has strenuously contended that in view of the subsequent events, as
narrated above, it is no longer open to the plaintiffs to contend that the
sale deed under Ex.B-1 was obtained by the defendant by fraud,
misrepresentation and coercion from the said Pavayee Ammal as well as her
minor sons who are the plaintiffs in this suit. As has been rightly pointed
out by the learned counsel for the appellant, curiously enough the mother of
the plaintiffs, though alive has not gone into the box in support of the claim
made by the plaintiffs. On the contrary, the self serving testimony of P.W.1,
the first plaintiff who was a minor at the time of the said transaction under
Exs.A-1 and B-1 cannot help to advance the case put forth in the plaint.
Hence, there is no clinching evidence adduced in this case to support any of
the contentions put forth in the plaint.
17. As has been referred to above, the evidence of the appellant/
defendant as D.W.1 is corroborated by D.W.2, the vendor under Ex.B-2 and
therefore this Court is of the considered view that the defendant who had
purchased the suit property under Ex.B-1 for valuable consideration was
entitled to protect the same in a manner known to law. But, on the contrary,
though the plaintiffs have alleged fraud, coercion and undue influence in
obtaining the sale deed Ex.B-1 by the defendant, they have not discharged the
burden of proof cast on them.
18. It is seen from the plaint averments that the plaintiffs filed
the suit as soon as they attained the age of 21 and 19 years respectively and
therefore this Court is inclined to accept the contention of the learned
counsel for the respondents/plaintiffs that the suit is not barred by
limitation (vide) Article 58 of the Limitation Act, 196 3.
19. Further, as has been rightly argued by the learned counsel for
the appellant, in view of the provision under Section 35 of the Transfer of
Property Act, 1882, the plaintiffs ought to have elected to return the
benefits availed by them under the said transactions, as it has been proved
categorically that they had not only purchased the property from D.W.2 under
Ex.B-2 by utilising the sale proceeds received by them under Ex.B-1, but also
they had largely benefited by subsequent sale of 2.37 acres out of 2.83 acres
purchased under Ex.B-2.
20. Section 35(1) of the Transfer of Property Act reads as under:-
35. Election.-- (1) Where a person professes to transfer property which he
has no right to transfer, and as part of the same transaction confers any
benefit on the owner of the property, such owner must elect either to confirm
such transfer or to dissent from it; and in the latter case he shall
relinquish the benefit so conferred, and the benefit so relinquished shall
revert to the transferor or his representative as if it had not been disposed
of, subject nevertheless,
where the transfer is gratuitous, and the transferor has, before the
election, died or otherwise become incapable of making a fresh transfer,
and in all cases where the transfer is for consideration,
to the charge of making good to the disappointed transferee the amount
or value of the property attempted to be transferred to him.
21. It is in this context that this Court finds the principles of Law
in paragraph 41 of the judgment rendered by S.S.SUBRAMANI,J., in Govindaraju
Padayachi,P. and another - vs. - V.V.O. Malavaraya Nayanar and others
reported in 1997-3 Law Weekly 586, may be quoted as under:-
Section 35 of the Transfer of Property Act deals with the principles
of election. The argument of learned Senior Counsel is that when a
transaction is set aside, the benefit derived on the transaction must be
returned. If the plaintiffs are not prepared to return the benefit, they
cannot have the transaction set aside. I do not think the said argument
merits acceptance. There is no evidence in this case to show that the minors
were benefited by any of the transactions. When the transaction is declared
void, in the eye of law, there is no transaction at all. If that be so, the
question of return of any benefit also will not arise. The principle of
election has no application in such cases.
Per contra, as has been rightly argued by the learned counsel for the
appellant, in this case, the defendant has proved that the plaintiffs have
derived the benefits out of the impugned transaction and that since the
transaction under Ex.B-1 is not liable to be set aside as a void one, the
plaintiffs ought to have elected under the said provision of law to return the
benefits derived by them.
22. In view of the ratio laid down in the decision referred supra and
in the light of the said provision of law, I am of the considered view that
the plaintiffs ought to have averred in the plaint that they elected to return
the benefits derived by them under the sale deed Ex.B-1 as well as by the
subsequent purchase and sale of the said property under Ex.B-2. In the
absence of any such averment regarding election of their claim in the suit,
vide Section 35 of the Transfer of Property Act, 1882, as has been rightly
argued by the learned counsel for the appellant, the plaintiffs have to be
non-suited.
23. Nextly, learned counsel for the appellant has relied on the
decisions SANKARANARAYANA PILLAI v. KANDASAMIA PILLAI (69 L.W. 686 (F.B.)),
SRIDHARAN v. ARUMUGAM (1993 (2) M.L.J. 428 (D.B.)) and BALU @ BALAKRISHNAN
v. MINOR B.SASIKUMAR AND OTHERS (2001 (3) M.L.J. 15) in support of her
contention that since the suit was laid by the plaintiffs without a prayer to
set aside the alienation made by their mother, while they were minors and in
the absence of the suit being valued as per Section 37(1) of the Tamil Nadu
Court Fees and Suit Valuation Act 1955, the suit is not maintainable. The
dictum of law on this aspect of the matter was reiterated by the Division
Bench of this Court in 1993(2) M.L.J. 428, in paragraph 6 as under:-
Thus there is ample evidence to show that the plaintiffs are not in
joint possession. Even if the allegations on the plaint are taken without
considering the evidence on record, it is clear that the plaintiffs cannot
take shelter under Section 37(2) of the Court-fees Act. They ought to have
paid Court-fee under Section 37(1) of the Act. They should have also prayed
for setting aside the alienations. The law is well settled by a Full Bench of
thi s Court in C.R.Ramaswami Ayyangar - vs. - C.S.Rangachariar, I.L.R. 1940
Mad. 259:32 M.L.J. 477.
In view of the facts and circumstances of this case, this Court is of the
considered view that the said principles of law is squarely applicable herein.
Hence, this Court has no other option except to hold that the suit as framed
is not maintainable, as the plaintiffs had not sought to set aside the sale
deed by paying necessary court fees.
24. In any view of the factual aspects of the case and having regard
to the principles of law cited above, this Court finds that the courts below
failed to appreciate the evidence on record and therefore in view of the ratio
of the decision of the Hon'ble Supreme Court in Estralla Rubber v. Dass Estate (P) Ltd.. (2001 (8) S.C.C. 97), the judgments and decrees rendered by
both the courts below are set aside as their findings are not at all justified
on the basis of the evidence on record and in view of the settled legal
position, as no reasonable person can accept the same.
25. For the foregoing reasons, the appeal is allowed setting aside
the judgments and decrees passed by the courts below and the suit is
dismissed. However, there is no order as to costs. Consequently, C.
M.P.No.9591 of 2003 is ordered.
dpp/ts
To
1. The Subordinate Judge, Kallakurichi.
2. The Additional District Munsif, Kallakurichi.
3. The Section Officer, V.R.Section, High Court, Madras.