Order
1. This appeal by grant of special leave is directed against the judgment of the High Court of Judicature at Madras in Second Appeal No. 831 of 1992 wherein the High Court after reversing the judgment and decree passed by the first appellate court has dismissed the suit filed by the plaintiff-appellant. Nagappan, the appellant herein, is the son of Respondent 4 Periathambi @ Karuppana Gounder (father) and Respondent 5 Smt Karuppayammal (mother).
2. Respondent 4 executed a registered deed of settlement on 1-5-1963 in favour of the appellant and appointed Respondent 5 as his guardian as the appellant was a minor at that time. On 21-5-1963 a partition took place between Respondent 4, his father and his brother. The partition was effected by a registered deed of partition. By virtue of this deed the suit property came to be allotted to Respondent 4. According to the appellant, the combined effect of these two documents is that he became the absolute owner of the suit schedule properties.
3. On 6-7-1964, Respondent 4 created a mortgage (Exhibit A-3) of suit property in favour of Sellabba Gounder, his aunt's husband. On 6-6-1970 Respondents 4 and 5 sold Item 1 of the property vide sale deed (Exhibit A-4) in favour of Defendant 1. Further on 12-8-1970, Respondents 4 and 5 executed a sale deed (Exhibit A-5) in favour of defendant-Respondents 2 and 3 (defendant-Respondents 1 to 3 would hereinafter be referred to as “the vendee respondents”). During all this time, the appellant was a minor. After attaining majority and within the period of limitation, the appellant filed a suit claiming two main reliefs for:
“(a) a declaration, declaring the title of the properties described in Items 1 and 2 of the plaint schedule in favour of the plaintiffs;
(b) directing delivery of possession of Item 1 of the schedule mentioned property by the 1st defendant to the plaintiff and Item 2 of the schedule mentioned property by Defendants 2 and 3 to the plaintiff, failing which, delivery of the suit property by court amena.”
4. In addition to the aforestated reliefs, the appellant also asked for a decree for payment of the mesne profits, past as well as future.
5. On the pleadings of the parties, the trial court framed issues. Apart from issues on merits, issue regarding limitation was also framed. The trial court decided the issues on merit in favour of the appellant but came to the conclusion that the suit had been filed beyond the period of limitation prescribed under the Limitation Act, 1963 and dismissed the suit as barred by time. Aggrieved against the judgment and decree of the trial court, the appellant filed first appeal which was accepted. The first appellate court affirmed the finding recorded by the trial court on merits and reversed the finding of the trial court on the point of limitation. It was held that the suit had been filed within limitation. The judgment and decree of the trial court was set aside and the suit was ordered to be decreed.
6. Vendee respondents, being aggrieved, filed Second Appeal No. 831 of 1992 in the High Court of Judicature at Madras in which the following three questions of law were framed at the time of the admission of the appeal:
“1. Whether the lower appellate court is right in decreeing the suit for recovery of possession of the entire suit properties when the settlement deed Ext. A-1 under which the plaintiff claims title, covers only an extent of 1.66 2/3 acres out of 3.50 acres?
2. Whether the suit for recovery of possession is maintainable ignoring the sale deeds Exts. A-4 and A-5 especially when the plaintiff was an eo nominee party to the same and without a prayer for setting aside the same?
3. Whether the lower appellate court is right in accepting Ext. A-7 birth extract as the conclusive proof of the age of the plaintiff overlooking the probative value of the same?”
7. The counsel for the vendee respondents argued all the three substantial questions of law formulated. But the High Court being of the view that the second substantial question of law alone was sufficient for disposal of the appeal recorded its findings on the second question of law only and did not advert to Questions 1 and 3.
8. The High Court held that in the absence of a prayer for setting aside of the sale deeds, the suit filed by the appellant for recovery of possession was not maintainable. Placing reliance on the two Division Bench judgments in Sridharan v. Arumugam (1993) 2 MLJ 428 and in K. Jagannathan v. A.M Vasudevan Chettiar (2001) 2 CTC 641 and a Full Bench decision in C.R Ramaswami Ayyangar v. C.S Rangachariar ILR 1940 Mad 259, AIR 1940 Mad 113 (FB) of his own High Court, the learned Single Judge held that where the minor is an eo nomine party to a sale deed or other documents related to alienation, he must sue for the cancellation of the documents and it is not enough if he applies for possession without getting the sale deed cancelled. Such a suit would not be maintainable. Since the appellant had failed to seek the relief of setting aside of the sale deed and their cancellation, the suit filed by the appellant was not maintainable.
9. The view taken in the impugned judgment is in consonance with the view taken by this Court in Vishwambhar v. Laxminarayan (2001) 6 SCC 163. In the said decision, Their Lordships, after considering the entire case-law, held that sale effected without taking permission of the Court under Section 8(2) of the Hindu Minority and Guardianship Act, 1956 is voidable at the instance of the plaintiffs and the plaintiffs are required to get the alienation set aside if they want to avoid the transfer and recover the property from the purchasers. If a prayer for setting aside the alienation is not made, then the suit seeking possession would not be maintainable.
10. Under Section 8 of the Hindu Minority and Guardianship Act, 1956 the natural guardian of a Hindu minor has the power, subject to the provisions of the section, to do all acts which are necessary or reasonable and proper for the benefit of the minor or for the realisation, protection or benefit of the minor's estate but the natural guardian cannot without taking 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 or 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 shall attain majority. Under sub-section (3) disposal of immovable property by a natural guardian in contravention of sub-section (1) or sub-section (2) of Section 8 is made voidable at the instance of the minor or any other person claiming under him. Reading of the section itself shows that the sale made by the natural guardian in contravention of sub-sections (1) and (2) is voidable at the instance of the minor. If the requirement of law is to have the alienation set aside before making any claim in respect of the property sold then a suit without such a prayer would be of no avail. We respectfully agree with the view taken by this Court in Vishwambhar (2001) 6 SCC 163. We need not dilate on this point any more as the same is squarely covered by the aforesaid judgment of this Court. We do not find any merit in the appeal and dismiss the same. However, in the circumstances of the case, there shall be no order as to costs.