1. The appeal filed against the judgment and decree passed in RA No.34/88 on the file Additional Civil Judge, Gulbarga arising out of the judgment and decree passed in O.S. No. 23/82 on the file of Principal Munsiff, Aland. The appellant is the plaintiff filed a suit for declaration of title in respect of suit schedule lands and for possession and mesne profits. The plaintiff claims that the suit schedule land measuring 6 acres out of total extent of 10 acres in Sy. No. 33 is purchased under a sale deed executed by the mother of the first defendant as a minor guardian. The defendants 2 and 3 are the purchasers of the remaining extent of 4 acres of land in survey No.33 it is in no way connected with the disputed property claimed by the plaintiff. On the strength of the registered sale deed the plaintiff claims that he came into possession of the land and continued till the year 1982 when he came to be illegally dispossessed by the plaintiff. Within a couple of years, the suit is filed for declaration of title. The first defendant is the only contesting party, contends that the sale made by his mother during his minority is not binding and it is not for any legal necessity or benefit of the minor and without the permission of the Court, further claims that he is in continuous possession and enjoyment of the land and denies the plaintiff's possession between 1970 to 1980, submits that such a plea is taken only to over come the period of limitation.
2. In the sale deed executed under Ex.P.1 the properties sold in favour of plaintiff is described as survey No.32 by mistake instead of survey No.33. It is the contention of the plaintiff that the first defendant never owned Sy. No.32 at any point of time. The only land available to their family is Sy.No.33 and the said land is the one sold under Ex.P.1. The boundaries mentioned in Ex.P.1 accords with the boundaries of Sy. No.32 and not Sy.No.33 and therefore contends that land sold under Ex.P.1 is to be taken as land situate in Sy.No.33 and not survey No.32.
3. The trial court upholds the contention of the plaintiff that the family of the first defendant owned only Sy.No.33 and they had no right over survey No.32. It was by mistake in the sale deed property is shown as Sy.No.32 instead of Sy.No.33 and thus upholds the claim of the plaintiff that the sale deed Ex.P.1 should be taken as one relating to survey No.33. The trial court also upholds the contention of the plaintiff's possession and dispossession and grants a decree in favour of plaintiff. The first appellate court reversed the findings of the trial court reversed the findings of the trial court regarding the claim of possession and dispossession and further holds that the first defendant is in continuous possession without interruption despite Ex.P.1 and that the plaintiff has failed to prove that the sale is for the benefit of the minor or for the legal necessity and also holds that it is not necessary for the minor in possession to seek cancellation of the sale deed Ex.P.1 and that he can resist the claim as a defendant without a relief for cancellation of the sale deed. In that view allowed the appeal and dismissed the suit of the plaintiff. As a result this appeal is filed.
4. The following points of law are framed for consideration:
"1. Whether the first appellate courts was justified in dismissing the suit of the plaintiff for declaration of title and possession of 6 acres of land on the northern portion in Sy.No.33 of Chitali Village by allowing the appeal?
2. Whether the lower appellate court was justified in holding that the defendants need not filed suit for cancellation of sale deed within three years after attaining majority?
5. Sri. Basavaraj Kareddy for the appellant relied on the ruling of the Supreme Court in SHEODHYAN SINGH AND ORS. VS. MST. SANICHARA KUER AND OTHERS (1963 SC 1879) to bring home the point that it is permissible for the party to plead and establish that there is a mis-description of the property in the title deed and also establish the identity of the property sold under the title deed with reference to boundaries and by other independent material. In para 7 the following observations are made:
"7. We are of opinion that the present case is analogous to a case of misdescription. As already pointed out the area, the Khata number and the boundaries all refer to plot No.1060 and what has happened, is that in writing the plot number, one zero has been missed and 1060 has become 160. It is also important to remember that there is no plot bearing No.160 in Khata No.97. In these circumstances we are of opinion that the High Court was right in holding that this is a case of misdescription only and that the identity of the property sold is well established, namely, that it is plot No.1060. The matter may have been different if no boundaries had been given in the final decree for sale as well as in the sale certificate and only the plot number was mentioned. But where we have both the boundaries and the plot number and the circumstances are as in this case, the mistake in the plot number must be treated as a mere misdescription which does not affect the identity of the property sold. The contention of the appellants therefore with respect to this plot must fail."
The proviso (1) of Sec. 92 of Indian Evidence Act, 1872 is extracted hereunder for convenient reference
"92. Exclusion of evidence of oral agreement: x x x x x x x x x x x proviso (1) Any fact may be proved which would invalidate any document, or which would entitle any person to any decree or order relating thereto; such as fraud, intimidation, illegality, want of due execution, want of capacity in any contracting party, (want or failure of consideration, or mistake in fact or law."
6. The reading of the provision also clearly indicates that a person is permitted to adduce evidence to show that there is a mistake of fact in describing the identity of the property and that the description is a misdescription. In view of the proviso of sec. 92 and the ruling of the Supreme Court stated above I find that no error committed by the Courts below in upholding the contention of the plaintiff that the property is sold under Ex.P.1 is Sy.No.33 and not Sy.No.32.
7. The counsel for the appellant relying on the Full Bench ruling of the Panjab and Haryana High Court in SURTA SINGH VS. PRITAM SINGH (AIR 1983 P. & H 114) contends that the sale made by the guardian of a minor in contravention of section 8 of the Hindu Minority and Guardianship Act as a voidable transaction. Therefore it is necessary for the minor to seek the cancellation of the sale deed. In the absence of such a relief it is impermissible for the minor to resist the claim of the title of the purchaser.
8. Per contra Counsel for the respondent relied on the ruling of the Calcutta High Court in PANCHU VS. HRISHIKESH GHOSE AND OTHERS (AIR 1950 Cal. 446.) In para 16, 25 and 26, the following observations are made.
"16. It is now settled by a long line of decisions that an alienation by a de facto guardian, which is for the legal necessity of a minor, cannot be impeached on the ground that the alienation was made by a person, who was merely a de facto guardian. I need only refer to three decisions in support of the point of view, namely, Mohanand Modhull v. Nafur Mondul ILR 26 Cal.820, SeethaRamamma v. Appaiah AIR 1926 Mad. 457: ILR 49 Mad. 768 and the majority Judgment In Tulsidas Jsingbhai v. Raisingji FulaBhai, AIR 1933 Bomb. 15 (FB).
25. The reasons why I hold the above view are these. In order to avoid a sale made by de facto guardian, which is not for the benefit of the minor or for his necessity, it is not necessary for the minor to do so by a suit and by obtaining a judicial rescission of the sale. It may be done by an expression of the minor's intention not to honour, respect or abide by the alienation made by the de facto guardian. An expression of such an intention would certainly be by retaining possession of the alienated property or by dispossessing the transferee.
26. Under Act. 44 of the Indian Limitation Act, if a minor desires to set aside a transfer of properly by his guardian, he must bring a suit within three years of his attaining majority. A minor would certainly be compelled to bring such a suit where the transfer was made by his lawful or de jure guardian without legal necessity or against the minor's interest. A minor would also be required to bring a suit to have a sale by his guardian, whether de jure or de factor, set aside when a minor is out of possession and cannot, except through the aid of the court, recover possession of the property. But where the minor is in possession of the alienated property, the alienation notwithstanding, it is not necessary for the minor to resort to a court of law and obtain a formal declaration that the alienation by the guardian was bad and should be set aside. My attention was invited to a decision by A.N.Sen, J in the case if Nibnigab v. Budgy Bhushan, AIR 1939 Cal. 460: 43 Cal WN 295 in which his Lordship made the following observation:
"It is now well established that the sale by the natural guardian of a Hindu minor, of the minor's property when there is no legal necessity for such sale is not void but viodable and that the sale is valid until set aside. The minor on attaining majority has the right to have the sale set aside and he must do so within the period fixed by Art.44 of the Indian Limitation Act. No question of limitation arises in this case but Manimohan though he has attained majority, has not yet had the sales set aside. The sales therefore stand and are valid. It certainly cannot be said that the sales have been set aside merely because Manimohan has chosen to ignore the sales by his guardian and to sell the same property to the defendants Nos. 4 and 5."
9. The Ruling of the Division Bench of Kerala High Court in MANIYAMKHANDI KUNHIRAMAN AND ORS. MACHIL PARAMBATH VANAJA AND OTHERS (AIR 1998 Kerala 24) it is held that is not necessary for the minor to seek cancellation of the sale deed executed by the guardian. In para 13, it is observed as follows:
"13. At this stage, we think it proper to refer to the relevant provisions of Act is intended to amend and codify certain parts of the law relating to minors and guardianship among Hindus. Section 2 of the Act indicates that the provisions of the Act are in addition to and save as expressly provided, not in derogation of the Guardian and Wards Act, 1890. Section 5 of the Act makes it clear that any other law in force immediately before the commencement of the Act shall cease to have any effect to the extent of inconsistency with any provisions in the Act. In that context, the Act prevails over any other law in regard to the matters provided for by the Act. There is thus a clear indication that the Act is not a complete code relating to the Hindu law on minority and guardianship and as far as the matters not covered by the Act are concerned, they are regulated by the Hindu law as well as other statutes on the subject. However in respect of the subject-matter with which it deals, it is a codifying enactment. Section 6 indicates who are the natural guardians of a Hindu minor. It is provided that in the case of a boy or an unmarried girl, the father and after him the mother shall be the natural guardian. Section 8(1) confers power on the natural guardian subject to the provisions of that section to do all acts which are necessary or reasonable and proper for the benefit of the minor.
Sub-section (2) of section 8 then provides that the natural guardian shall not without the previous permission of the Court mortgage, charge, or transfer by ale, gift exchange or otherwise any part of the immovable property of the minor.
Sub-section (3) of section 8 states that any disposal of immovable property by a natural guardian in contravention of sub-section (2) is voidable at the instance of the minor or any person claiming under him. Sub-section (4) and (5) deal with the permission to be sought by the natural guardian. According to us, section 8 on its terms clearly displaces any other rule of law relating to alienation of the properties of a Hindu minor by the natural guardian of that minor. While section 8(1) enables a natural guardian to do all acts which are necessary or reasonable and proper for the benefit of the minor, it is subject to the other sub-sections of that section. Sub-section (2) in positive terms interdicts the guardian from selling the property of the minor. Read in the context of section 5 of the Act, it is clear that there is a statutory prohibition on a natural guardian from selling the immovable property of a minor without the previous permission of the Court. The words of section 8(2) of the Act are imperative and we do not find any justification for whittling down the scope of that provision. It is obvious that any action of a natural guardian in contravention of the positive mandate of section 8(2) of the Act could not be taken cognizance of by the Court. We must remember that it is sub-section (1) of section 8 of the Act that gives the power to the natural guardian to do acts for the benefit of the minor, but that is subject to sub-sections (2) to (5) of that section. In the face of section 8(1) of the Act, we feel that there is no scope for tracing the power of the guardian to any existing rule of Hindu Law. Thus a transaction in violation of section 8(2) of the Act has necessarily to be treated as a transaction in violation of section 8(2) of the Act has necessarily to be treated as a transaction in violation of a statute and consequently void. We do not think that section 8(3) of the Act in any manner whittles down the scope or operation of section 8(2) of the Act. Section 8(3) of the Act only clarifies that the person who is entitled to treat the transaction as void is only the minor or any person claiming under him. According to us, section 8(3) only indicates that the guardian who had sold his own interest along with that of the minor without the consent of the Court or any other alineor who was sui juris, would not be in a position to turn round and contend that the sale effected buy him of his own interest or share is also void or invalid. The object of section 8(3) of the Act, according to us, is not to whittled down the scope of section 8(2) of the Act but only to clarify that the right to treat the transaction as void is available only to the minor whose property is sold by the natural guardian without permission of the Court or to a person who is claiming under that minor. This understood. Section 8(3) cannot be relied on to hold that a transaction in contravention of the mandate of section 8(2) of the Act, is only voidable and not void."
(Underlining emphasized by me)
10. In the aforesaid decision, the Ruling of the Andhra Pradesh High Court in NAGABHUSHANA RAO VS. GOWRAMMA 1968(2) Andhra Weekly Reporter 57 at page 28 is extracted and the same is reproduced here under for convenient reference.
"Thus there is large consensus of opinion that unless an alienation by a de facto guardian is for legal necessity or for benefit to the estate the onus of proving which is on the alienee, the alienation will not be binding on the minor as that is an unauthorized alienation. If such alienation has been said to be voidable by judicial precedents as it is unauthorized it is open to the minor on attaining majority to ratify it, if he does not ratify it or express dissent to it not binding on him and he need not come to court to get it set aside. He may treat it a nullity and claim possession in the court. The expression "voidable" has been used only in this limited sense."
The Act does make a distinction between a de facto guardian and a natural guardian. But that does not alter the mode of avoidable by the minor. We are in respectful agreement with that statement of the law."
11. The Ruling of the Orissa High Court in CHANIRAM SAHU V. SAMARU NAG AND OTHERS (AIR 1988) Orissa 136 in para 8, the following observations are made:
"On the aforesaid admitted positions, the point formulated earlier is to be considered. A number of decisions have been relied upon by the learned counsel for both parties. The consensus that emerges on perusal of these decisions, as it appears to me, is that a transfer of property of the minor by natural guardian without permission of court is voidable at the instance of the minor. It is not voidable in the sense that it is binding on him until set aside, but it means that although not binding on him the transfer may be ratified by the minor on attaining majority. It is open to the minor to avoid the transaction either by filing a suit to transaction either by filing a suit to set aside the sale or by unilateral conduct. One such conduct may be to sell the very same property to another person ignoring the sale by the guardian. There may be situations in which he erstwhile minor may have to file a suit to establish his title to the property and in such a suit he has to seek the relief of setting aside the sale deed and has to pay court fee on that basis. Such situation may arise where the minor is out of possession of where the minor is out of possession of the property and wants recover Possession from the purchaser. A suit by a minor to set aside the sale has to be filed within three years from the date of his attaining majority as prescribed under Art. 60 of the Limitation Act 1963. If the minor fails to file the suit to set aside the transfer within the prescribed period his right to the property is not extinguished; the only consequence is that he is debarred from recovering possession of the property if he has been dispossessed therefrom. I may notice here a few decisions laying down the aforementioned principles.
12. It is further observed in para 8A as follows:
"From the discussion in the foregoing para, the position is manifest that in the present case it was open to the defendants 2 and 3 on attaining majority to avoid the transfer by their father, defendant No.1, as per Ext.1 by executing the sale deed as per Ext.A. As noticed earlier, the lower appellate court, the final court of fact, found that Ext. was executed within three years from the date of attaining majority by defendant 2, the eldest amongst the three minors. The lower appellate court was, therefore, right in holding that the plaintiff could not seek declaration of title on the basis of the sale deed (Ext.1) which stood repudiated by the aforementioned conduct by defendants 2 and 3. Thus the judgment and decree passed by the lower appellate court are unassailable."
13. It is pertinent to note that in the facts of the Full Bench Division of the Panjab and Haryana High Court, a minor files a suit for recovery of possession. In the decision of Kerala it was a case where minor filed a suit for partition of his share in the properties including the properties sold by the guardian on behalf of the minor. The provisions of section 8(3) of the Hindu Minority Guardianship Act lays down that the sale made by guardian without the permission of the court in contravention of sub-sections 1 and 2 of section 8 is voidable at the instance of the minor. The decision of the Orissa High Court cited at the bar makes a subtle distinction between the minor who is out of possession approaching the court for seeking relief of possession of the property on the ground that the transfer is in contravention of section 8 of the Act and a minor who is in possession resisting the claim of the purchaser. In case where minor is out of possession wants to challenge the sale that it is not for his benefit and seek possession the Article 60 of the Act would apply and necessarily the minor has to seek a relief of cancellation but when a minor who is in possession resists the claim of a purchaser he can do so as defendant by raising a defence that the sale was not for the benefit or there was no necessity and was without the permission of the court. As a defendants it is not necessary for the minor to seek cancellation of the said deed. Therefore in law a distinction has to be made between a case where minor not in possession when approaches the court for seeking possession of the property on the ground of contravention of section 8 he has to necessarily seek the cancellation of sale deed and also should file the suit within three years as envisaged under article 60. In that view I am in respectful agreement with the view of the Orissa High Court -AIR 1988 Orissa 136. The full Bench decision of the Punjab and Haryana High Court be distinguished by facts in the sense that in the said case, the minor who was out of possession approached the Court for seeking possession. In the instant case the lower appellate court has rightly held that the plaintiff has failed to prove the possession and dispossession as alleged. As on the date of suit, the plaintiff is not in possession. The RTC extracts produced support the contention of the defendant that he was in continuous possession from 1971 till the date of suit. Therefore obviously it is permissible in law for the defendant to contend that the sale was not for the benefit and necessity and made without the permission of the court, the said facts have been established. The findings are sound and proper and does not call for interference. The points formulated is answered in negative. Accordingly, the appeal is dismissed.