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Murugan And 5 Others Petitioners v. Kesava Gounder And 2 Others S
Structured Summary of the Opinion — Second Appeal under Section 100 CPC
Factual and Procedural Background
The appellants (plaintiffs in the original suit) filed O.S. No. 229 of 1992 in the Additional District Munsif Court, Villupuram seeking a declaration and recovery of possession in respect of properties originally belonging to their paternal grandfather, Petha Gounder.
Petha Gounder executed a registered Will dated 17.5.1971 (Ex.A-21) bequeathing his properties to his two sons, Kannan and Balaraman, to be enjoyed during their lifetimes without power of alienation and with the male heirs to take absolutely thereafter. Petha Gounder died on 28.11.1971. The Will had previously been the subject of O.S. No. 447 of 1973 in the Subordinate Court, Cuddalore, and that decree treated the Will as binding on the parties.
Balaraman executed several registered sale deeds (Exs. A-9 to A-12) in respect of portions of the properties, purportedly for himself and, in some instances, as guardian of his minor son Palanivel. Palanivel was born on 16.4.1978 and died on 11.2.1986 before attaining majority. Palanivel's mother, Lakshmi Ammal, executed a registered release deed (Ex.A-15) dated 24.3.1986 in favour of the appellants.
At trial, the Trial Court decreed the suit in favour of the plaintiffs except for past damages. The defendants appealed in A.S. No. 153 of 1997 before the Principal District Court, Villupuram, which reversed the Trial Court's decree and allowed the appeal (i.e., dismissed the plaintiffs' suit). The plaintiffs then preferred this Second Appeal under Section 100 of the Code of Civil Procedure against the appellate court's judgment dated 31.8.1999. On hearing, the Second Appeal was dismissed and there was no order as to costs.
Legal Issues Presented
- Whether the learned First Appellate Judge was correct in holding that the release deed Ex.A-15 dated 24.3.1986 does not avoid the transfers by sale under Exs. A-9, A-10, A-11 and A-12 executed by the natural guardian late Balaraman of the properties belonging to the deceased minor Palanivel?
- Whether the Sale Deeds executed by late Balaraman, the natural guardian of minor Palanivel, of the properties of the minor are valid in law when the said Sale Deeds were executed in gross violation of Section 8(2)(a) of the Hindu Minority and Guardianship Act, especially when the mother, who claimed under the minor, avoided the sale immediately on the demise of the minor?
- Whether the First Appellate Judge was correct in holding that the Suit is not maintainable because it was not filed to set aside the sales within three years from the date of demise of minor Palanivel?
Arguments of the Parties
Appellants' Arguments (Plaintiffs)
- The suit properties were the separate properties of Petha Gounder, who validly executed the registered Will dated 17.5.1971 (Ex.A-21) leaving life estates to his sons with vested remainder to male heirs.
- The Will was affirmed as genuine by the decree in O.S. No. 447 of 1973 (Subordinate Court, Cuddalore), and therefore the defendants are estopped from questioning its validity.
- Balaraman had no right or authority to alienate the properties by the Sale Deeds (Exs. A-9 to A-12); those Sale Deeds are void, not supported by consideration, and not for legal necessity.
- Defendants are in illegal occupation based upon void Sale Deeds and plaintiffs alone are entitled to the suit properties absolutely; plaintiffs issued a lawyer's notice to defendants on 26.2.1991 and received a reply on 23.3.1991.
- Lakshmi Ammal (mother of Palanivel) executed Ex.A-15 (release deed) in favour of the plaintiffs for valid consideration on 24.3.1986, which, by virtue of the settlement, entitles plaintiffs to the properties absolutely.
Respondents' / Defendants' Arguments
- They challenged the testamentary capacity of Petha Gounder to execute Ex.A-21 and denied that the Will was binding; contended that the Will's restriction on alienation is repugnant to Hindu law.
- The defendants asserted that the properties or the relevant share were acquired legitimately by Balaraman (including by division of family properties) and that Balaraman, as natural guardian of his minor son Palanivel, validly executed Sale Deeds (Ex.A-10, Ex.A-12) which are binding on the minor.
- Even if the Will is valid, Balaraman had a life estate and the vested remainder was to his male issue; thus the life estate holder and the vested remainder holder (Palanevel) became absolutely entitled to the half share and Balaraman could sell the minor's vested remainder for legal necessity; at best the sale deeds are voidable and required setting aside within the statutory period.
- The defendants contended the suit is barred by limitation because it was filed only on 10.1.1992 even though Palanivel died on 11.2.1986, and the proper remedy was for Lakshmi Ammal to avoid the sale within three years; until set aside the Sale Deeds are valid and binding.
- The defendants also maintained bona fide purchaser status and contended O.S. No. 447 of 1973 was a compromise decree that did not decide the Will issue, denying estoppel.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Periyanayagam v. Rajendran and ors., 1988 (1) LW 198 | Held that the sale effected by the father without the permission of the Court is rendered voidable under Section 8(2) of the Hindu Minority and Guardianship Act. | Cited as authority supporting the proposition that alienations by a natural guardian without court sanction are voidable. |
| Santa v. Cherukuty, AIR 1972 Ker. 71 | Held that transfer of a minor's property by his natural guardian without sanction of the Court is voidable at the instance of the minor and the minor can avoid it by conduct without a Suit. | Referred to for the principle that alienations without sanction are voidable and may be avoided by the minor. |
| Maniyamkandi Kunhiraman v. Machil Parambath Vanaja, AIR 1998 Ker. 24 | Held that where alienation of property of minor occurred without Court sanction, the minor on attaining majority can file a suit for partition and delivery of possession without a prayer for setting aside the Sale Deeds. | Cited among authorities dealing with remedies available to a minor after attaining majority in respect of alienations by guardian. |
| Amirtham Kudumban v. Sornam Kudumban, 1977 (1) MLJ 1 (Full Bench) | Held that the right to set aside alienation of a minor's property by the guardian is available under Section 8(3) of the Hindu Minority and Guardianship Act not only to the minor but also to persons claiming under him (including transferees). | Referred to as authority that persons claiming under the minor also have the right to challenge alienations made by the guardian. |
| Madhukar Vishwanath v. Madhao and others, 1999 (9) SCC 446 | Held that in alienation by guardian cases, plaintiff should plead that the alienation was bad in law; recovery of possession is consequential and Article 60 of the Limitation Act applies. | Cited to support the requirement that a suit must challenge the alienation itself and that Article 60 governs limitation. |
| Surtha Singh v. Priram Singh, 1983 P & H 114 | Held that a minor plaintiff challenging transfer by his natural guardian contravening Sections 8(2) and (3) of the Hindu Minority and Guardianship Act and seeking possession must bring the suit within three years after attaining majority under Article 60 of the Limitation Act. | Referred to for the principle that Article 60 prescribes a three-year period to challenge guardian-made transfers. |
| Sankaranarayanan Pillai v. Kandasamia Pillai, 1956 (3) MLJ 411 (Full Bench) | Held that where a minor is eo-nomine party to a Sale Deed executed by a guardian which he seeks to set aside, it is not enough to sue merely for possession; he must sue for cancellation of the document. | Relied upon to support the proposition that mere suit for possession is insufficient and cancellation of the alienating document must be sought. |
| Basawanappa and others v. Nana Rao @ Prakash and others, CDJ 2004 Kar. 275 | Held that when the minor was not in possession, to seek possession on ground of contravention of Section 8, the minor must seek cancellation of the Sale Deed and file suit within three years under Article 60. | Cited to reinforce that cancellation and the three-year period under Article 60 are necessary when challenging guardian's alienation. |
| Srinivasam Pillai v. Subramanian and another, 2006 (3) MLJ 92 | Held that plaintiffs filing suit without prayer to set aside alienation made while they were minors is not maintainable under Section 37(1) of the Tamil Nadu Court-fees Act. | Used to support the view that suits without a prayer to set aside the alienation are not maintainable. |
| Venkatesa Mudaliar and ors. v. N. Krishnaswamy Mudaliar Trust, 1991 (1) MLJ 592 | Held that if the alienation by a guardian is not set aside within the period prescribed by the law of limitation, the minor is barred from recovering the property from the aliene and transferees stand in same position as transferor. | Cited for the limitation principle that failure to set aside within the statutory time bars recovery against alienees and transferees. |
| Viswambhar and ors. v. Lakminarayana (dead) through L.Rs and another, 2001 (3) CTC 316 | Held that any transfer made by guardian of a ward can be set aside by the ward on attaining majority and the period of limitation is three years from the date on which the ward attains majority; alienations have to be challenged and without setting aside no relief can be obtained. | Relied upon for the principle that Article 60's three-year period governs challenges to guardian-made transfers and that alienations must be set aside for relief. |
| Madhukar Viswanath v. Madhao and others, 2002 (4) CTC 49 | Held that Article 60 of the Limitation Act applies (not Article 65) to suits for possession filed by a minor after three years from attaining majority; period to set aside alienation by guardian is three years from date minor attained majority. | Cited to emphasize that Article 60 governs limitation for suits attacking guardian's alienations and that suits after three years are not maintainable. |
| Ramados Menon v. Sreedevi, AIR 2004 Ker. 126 (Full Bench) | Held that there must be a prayer to set aside alienation effected by the natural guardian without Court sanction and that without setting aside alienations no relief can be obtained. | Relied upon to support the requirement that a suit attacking guardian alienations must seek cancellation and cannot merely ignore the sale deed. |
Court's Reasoning and Analysis
The court undertook a step-by-step analysis grounded in the trial record, documentary evidence and the authorities cited by both parties.
- Findings of fact:
- The Will dated 17.5.1971 (Ex.A-21) was held to be genuine by a prior decree (O.S. No. 447 of 1973) and both lower courts found Ex.A-21 to be true and validly executed.
- Balaraman executed the Sale Deeds Exs. A-9 to A-12, and in certain deeds minor Palanivel was an eo-nominee party; Balaraman did not obtain court sanction for those alienations.
- Palanevel died on 11.2.1986 before attaining majority; his mother executed Ex.A-15 (release deed) on 24.3.1986 in favour of the appellants. The appellants filed the Suit on 10.1.1992.
- Characterisation of the alienations:
- The court found there was nothing on record to show the alienations were for legal necessity or for the benefit of the minor.
- Accordingly, the court characterised the alienations effected by Balaraman as voidable (not void) because they lacked sanction of the Court and were not shown to be for legal necessity.
- Proper remedy and limitation:
- Once alienations are voidable, the appropriate remedy is to file a suit to set aside the Sale Deeds. The appellants' suit sought declaration, delivery of possession and mesne profits but did not pray for cancellation of the Sale Deeds.
- Article 60 of the Limitation Act prescribes a three-year period to set aside a transfer by a guardian; Article 60(b)(ii) applies where the ward dies before attaining majority, and the limitation period begins from the date of the ward's death.
- The Trial Court had applied Article 65 (12-year period) treating the documents as void, but the appellate court (and this court) held Article 65 applies only where a document is void; because the documents were held voidable, Article 60 governs.
- Because Palanivel died on 11.2.1986 and the suit was filed on 10.1.1992 (beyond three years), the challenge was time-barred under Article 60(b)(ii).
- Application of authority:
- The court applied and relied upon the authorities cited by both sides to conclude that (a) alienations by a guardian without court sanction are voidable, (b) the proper remedy is to seek cancellation/set-aside, and (c) Article 60 prescribes the three-year limitation period to mount such a challenge (running from the date specified in Article 60(b)(ii) where the ward died before majority).
- Conclusion of analysis:
- Because the appellants did not seek to set aside the Sale Deeds and filed the Suit after the three-year period under Article 60 had expired, the claim was barred by limitation and therefore not maintainable.
Holding and Implications
Holding: The Second Appeal is DISMISSED. The judgment and decree of the Lower Appellate Court (which reversed the Trial Court and dismissed the Suit) are maintained.
Implications:
- Direct effect: The appellants' suit for declaration and recovery of possession is dismissed as barred by limitation under Article 60(b)(ii) of the Limitation Act because the alienations by the guardian were held to be voidable and the appellants did not seek to set aside the Sale Deeds within the prescribed three-year period following the death of the minor ward.
- The trial court's application of Article 65 was rejected by the appellate courts and this court on the ground that Article 65 applies only to void documents, whereas the alienations here were held to be voidable.
- No costs were ordered against the parties (the judgment records "there shall be no order as to costs").
- Broader precedent: The opinion applies and reiterates established principles from earlier authorities concerning (i) the voidable nature of guardian-made alienations without court sanction, (ii) the need to seek cancellation/set-aside of such alienations, and (iii) the applicability of Article 60's three-year limitation; the decision affirms these existing legal principles rather than creating a new rule.
Order in original opinion: The Second Appeal is dismissed and there shall be no order as to costs.
RSN/BV
Prayer: Second Appeal filed under Section 100 of the Code of Civil Procedure judgment and decree dated 31.8.1999 made in A.S No. 153 of 1997 on the file of Principal District Judge, Villupuram reversing the judgment and decree dated 13.8.1997 passed in O.S No. 229 of 1992 on the file of Additional District Munsif, Villupuram.
JUDGMENT
1. The above Second Appeal arises against the judgment and decree in A.S No. 153 of 1997 on the file of Principal District Court, Villupuram reversing the judgment and decree in O.S No. 229 of 1992 on the file of Additional District Munsif Court, Villupuram.
2. The plaintiffs in the Suit are the appellants in the above Second Appeal and the respondents are the defendants in the Suit.
3. The plaintiff filed the Suit in O.S No. 229 of 1992 on the file of Additional District Munsif Court, Villupuram for declaration and for recovery of possession.
4. The brief case of the plaintiffs in the Suit are as follows:
(i) According to the plaintiffs, the suit properties originally belonged to one Petha Gounder, the paternal grand-father of the plaintiffs. Petha Gounder had 2 sons and 3 daughters. Petha Gounder's wife is Sengeni Ammal. His daughters are Poorani Ammal, Pavunammal and Vellachi Ammal. The sons are Kannan and Balaraman. The plaintiffs are the sons of Kannan. Balaraman's wife is Lakshmi Ammal and they had a son by name, Palanivel.
(ii) According to the plaintiffs, the suit properties and other properties are the separate properties of Petha Gounder, who purchased those properties under registered Sale Deeds from various persons. Petha Gounder was enjoying the properties till his life time. On 17.5.1971, the said Petha Gounder executed a registered Will bequeathing his properties in favour of his sons Kannan and Balaraman. As per the Will, Kannan and Balaraman are entitled to the properties in equal moieties to be enjoyed till their life time, without any power of alienation and after their life time, their male heirs are to take their share of the properties absolutely. The Will further provides that if any one of them namely, Kannan or Balaraman dies without leaving any male heirs, the male heirs of other sharers are to take the entire properties absolutely. Petha Gounder died on 28.11.1971 and the registered Will dated 17.5.1971 came into effect. The said Will is the last Will and testament of Petha Gounder.
(iii) According to the plaintiffs, Petha Gounder's wife Sengeni Ammal died on 2.2.1982 Balaraman died in 1983 and Kanan died on 2.12.1984 Palanivel is the only son of Balaraman. Palanivel died on 11.2.1986 before attaining majority. Palanivel's only heir is her mother Lakshmi Ammal and she has executed registered release deed in favour of the plaintiffs on 24.3.1986 for valid consideration. Therefore, by virtue of the settlement deed, the plaintiffs are entitled to all the properties of Petha Gounder absolutely.
(iv) According to the plaintiffs, by Sale Deed dated 15.12.1981, Balaraman sold item Nos. 1 to 3. The said Balaraman also sold item No. 6 and a portion of item No. 7 by two Sale Deeds dated 30.3.1981 and 31.3.1981 in favour of the first defendant, allegedly as a guardian of his son Palanivel. Likewise, Balaraman has sold Item No. 6 in favour of the second defendant by a registered Sale Deed dated 29.3.1982 The Sale Deeds dated 15.12.1981 and 29.3.1982 are void and Balaraman had no right or authority to alienate the properties. The alienation were not for any legal necessity and they had no sanction by the competent Court of law. The Sale Deeds are not supported by any consideration. The alienation effected by Balaraman, without authority, are not binding upon the plaintiffs.
(v) According to the plaintiff, the defendants are in illegal occupation of the suit properties based upon the void Sale Deeds. The plaintiff alone are entitled to the suit properties absolutely. The plaintiff issued lawyer's notice to the defendants on 26.2.1991 to which the defendants gave a reply through their counsel on 23.3.1991 The properties are not the joint family properties of Petha Gounder and his sons Balaraman and Kannan. The said Petha Gounder cannot execute any Will over the undivided share of his two sons. The truth and genuineness of the Will dated 17.5.1971 has been affirmed by the decree in O.S No. 447 of 1973 on the file of Subordinate Court, Cuddalore. Therefore, the defendants are estopped from questioning the validity of the Will. The brothers did not effect a division of their joint family properties according to local custom, after the death of Petha Gounder, they were in possession of their respective shares. It is false to state that Lakshmi Ammal had no interest over the property in question. In these circumstances, the plaintiffs have filed the Suit.
5. The brief case of the defendants 1 and 3 are as follows:
(i) According to the defendants, the suit properties are the separate properties of deceased Petha Gounder. The said Petha Gounder and his two brothers divided the ancestral properties and Petha Gounder got 3 acres of land towards his share. From and out of the income therefrom, Petha Gounder purchased other properties including the suit properties and hence, they are joint family properties belonging to Petha Gounder and his two sons. The said Petha Gounder had no testamentary capacity to execute the alleged Will dated 17.5.1971 The defendant denied the truth, validity and binding nature of the Will. The condition to restrict the power of alienation is repugnant to Hindu law and hence invalid. The two brothers namely, Kannan and Balaraman were enjoying the properties for some time and thereafter they divided the joint family properties in which, the suit properties and several other items fell to the share of Balaraman.
(ii) According to the defendants, Balaraman and his son Palanivel constituted a joint family of which, Balaraman was the Manger. Balaraman for himself, and as guardian of his minor son Palanivel, sold Suit Item Nos. 1 to 3 by means of a registered Sale Deed dated 15.12.1981 The Sale Deed is binding on the minor Palanivel. Similarly Balaraman sold Item No. 6 to the second defendant by means of a registered Sale Deed dated 29.3.1982 In pursuance of the Sale Deed dated 15.12.1981, the first defendant is in possession of Item Nos. 1 to 3 and the second defendant is in possession of Item No. 6. On the date of the death of Palanivel, he had no interest in the suit properties to be inherited by his mother Lakshmi Ammal. Therefore, the alleged release deed by Lakshmi Ammal on 24.3.1986 will not confer any right on the plaintiffs to the suit properties.
(iii) According to the defendants, even if the Will dated 17.5.1971 is construed to be valid, Balaraman had only life estate and the vested remainder was reserved for his male issue failing which, the estate should devolve on the other branch which had male issues. The life estate holder and his son Palanivel, the vested remainder man became absolutely entitled to the half share in the properties covered under the Will. Balaraman being the natural guardian is competent to sell the vested remainder interest of minor Palanivel for the legal necessity and at best, the Sale Deeds executed by Balaraman can be treated as voidable and not void. The Sale Deeds dated 15.12.1981 and 29.3.1982 should have been avoided by Lakshmi Ammal mother of Palanivel, who died on 11.2.1986 Lakshmi Ammal or any transferee from her ought to have filed a Suit to set aside the alienations made by the natural guardian Balaraman within three years from the date of death of minor Palanivel. Until the Sale Deeds are set side, they are valid and binding on Palanivel and his heirs.
(iv) According to the defendants, the plaintiffs are not entitled for declaration as prayed for in the Suit. The Suit is barred by limitation, since it is not filed within three years from the date of death of Palanivel. The defendants are not in illegal occupation and they are not bound to pay mesne profits. O.S No. 447 of 1973 on the file of Sub-Court, Cuddalore was a compromise decree and no issue regarding the Will was decided thereunder. Hence, there is no question of estoppel or any bar from questioning the validity of the Will. The defendants are the bona fide purchasers for value.
(v) According to the defendants, with a dominant intention to preserve the co-parcenery properties to the male decedents the alleged Will was executed as it could be seen from the terms and conditions. The compromise decree in O.S No. 447 of 1973 was not given effect to. The Sale Deed dated 30.3.1981 contained wrong survey numbers which already belonged to the first defendant. The mistake was later on found and Balaraman executed the Sale Deed dated 15.12.1981 The Sale Deed is fully supported by consideration. The Suit in O.S No. 447 of 1978 is a collusive one. Therefore, the defandants prayed for dismissal of the Suit.
6. Before the Trial Court, on the side of the plaintiffs, 5 witnesses were examined and 22 documents Exs.A-1 to A-22 were marked and on the side of the defendants, 3 witnesses were examined and 14 documents Exs.B-1 to B-14 were marked. The school records were marked as Exs.X-1 and X-2.
7. The Trial Court after taking into consideration, the oral and documentary evidences of both the parties, decreed the Suit except the prayer for past damages.
8. Aggrieved over the judgment and decree of the Trial Court, the defendants preferred Appeal in A.S No. 153 of 1997 on the file of Principal District Court, Villupuram and the Lower Appellate Court reversed the judgment and decree of the Trial Court and allowed the Appeal.
9. Aggrieved over the judgments and decrees of the Courts below, the plaintiffs have preferred the above Second Appeal.
10. Heard Mrs. Hema Sampath, learned Senior Counsel appearing for the appellants, Mr. N. Suresh, learned counsel for the respondents.
11. At the time of admission of the above Second Appeal, the following substantial questions of law arose for consideration:
“(i) Whether the learned First Appellate Judge is correct in holding that the release deed Ex.A-15 dated 24.3.1986, is not avoiding the transfers by sales under Exs. A-9 = B-9, A-10 = B-7, A-11 = B-2, and A-12 = B-9, executed by the natural guardian late Balaraman, of the properties belong to the deceased minor Palanivel?
(ii) Whether the Sale Deeds executed by late Balaraman, the natural guardian of minor Palanivel, of the properties of the minor are valid in law when the said Sale Deeds were executed in gross violation of Section 8(2)(a) of the Hindu Minority and Guardianship Act, especially when the mother, who claimed under the minor avoided the sale immediately on the demise of the minor?
(iii) Whether First Appellate Judge is correct in holding that the Suit is not maintainable, since the Suit was not filed to set aside the sales within three years from the date of demise of minor Palanivel?”
12. On a careful consideration of the materials available on record and the submissions made by Mrs. Hema Sampath, learned Senior Counsel appearing for the appellants and Mr. N. Suresh, learned counsel for the respondents, it could be seen that the suit properties originally belonged to one Petha Gounder, who is the paternal grand-father of the appellants. The said Petha Gounder had 2 sons and 3 daughters. Petha Gounder's wife is Sengeni Ammal. His daughters are Poorani Ammal, Pavunammal Ammal and Vellachi Ammal. The two sons are Kannan and Balaraman. The appellants are the sons of Kannan. The other son Balaraman's wife is Lakshmi Ammal and they had a son by name, Palanivel.
13. According to the appellants, the suit properties are the separate properties of Petha Gounder, who purchased those properties under various Sale Deeds from different persons. On 17.5.1971, the said Petha Gounder executed Ex.A-21, registered Will bequeathing his properties in favour of his sons Kannan and Balaraman. As per the said Will, Kannan and Balaraman were entitled to the properties in equal moieties to be enjoyed till their life time, without any power of alienation and after their life time, their male heirs are to take their share of the properties absolutely. If any one of them namely, Kannan or Balaraman dies without leaving any male heirs, the male heirs of other sharers are to take the entire properties absolutely.
14. It is not in dispute that Petha Gounder died on 28.11.1971, Petha Gounder's wife Sengeni Ammal died on 2.2.1982, Balaraman died in 1983 and Kannan died on 2.12.1984 Balaraman's son Palanivel died on 11.2.1986, before attaining majority. Palanivel's only heir is her mother Lakshmi Ammal. The said Lakshmi Ammal executed Ex.A-15 registered release deed dated 24.3.1986 in favour of the appellants for valid consideration. Balaraman, as a guardian of his son Palanivel, sold Item Nos. 1 to 3 by Ex.A-10-Sale Deed dated 15.12.1981 in favour of the first respondent/first defendant. Similarly, Balaraman have also sold item No. 6 and a portion of item No. 7 by Ex.A-11-Sale Deed dated 30.3.1981 and Ex.A-9-Sale Deed dated 31.3.1981 respectively in favour of the first respondent/first defendant. Balaraman also sold item No. 6 in favour of the second respondent/second defendant by Ex.A-12-Sale Deed dated 29.3.1982 According to the appellants, Ex.A-10-Sale Deed dated 15.12.1981and Ex.A-12-Sale Deed dated 29.3.1982 are void documents, since Balaraman had no right or authority to alienate the properties.
15. According to the respondents/defendants, Petha Gounder had no testimony capacity to execute Ex.A-11 -Will dated 17.5.1971 in favour of the appellants. The two brothers namely, Kannan and Balaraman were enjoying the properties for some time and thereafter they divided the joint family properties in which the suit properties and several other items fell to the share of Balaraman. Ex.A-10 and A-12 Sale Deeds are binding on the minor Palanivel, since the same was executed by Balaraman for himself and as a guardian of minor son Palanivel. Thus, according to the respondents, by virtue of the above Sale Deeds the right, title and interest of the Palanivel were transferred to the respondents/defendants for valuable consideration. Further according to the respondents, on the date of the death of Palanivel i.e, on 11.2.1986, he had no interest in the suit properties to be inherited by his mother Lakshmi Ammal. Therefore, according to the respondents, Ex.A-15 release deed will not confer any right on the appellants in respect of the suit properties.
16. According to the respondents, Ex.A-10-Sale Deed dated 15.12.1981 and Ex.A-12- Sale Deed dated 29.3.1982 should have been avoided by the mother of minor Palanivel, who died on 11.2.1986 The respondents also contended that the Suit is barred by limitation, since the Suit was filed only on 10.1.1992, when minor Palanivel had died on 11.2.1986 itself. Learned counsel for the respondents also contended that inasmuch as the Suit is not one for setting aside the alienation, the appellants are not entitled to declaration.
17. So far as the genuineness of Ex.A-21-Will is concerned, the issue with regard to the genuineness and the validity of Ex.A-21-Will dated 17.5.1971, executed by Petha Gounder, bequeathing his property in favour of his sons Kannan and Balaraman, was raised in O.S No. 447 of 1973 on the file of Sub-Court, Cuddalore and from Ex.A-7, the judgment in O.S No. 447 of 1973, it could be seen that the decree was passed based on Ex.A- 21-Will. The said judgment is binding on the appellants and respondents. Both the Courts below also found that Ex.A-21-Will is true and genuine and validly executed and attested by the attestors.
18. The learned Senior Counsel appearing for the appellants in support of her contention, relied upon the following judgments:
(i) Periyanayagam v. Rajendran and ors., 1988 (1) LW 198, wherein it is held that the sale effected by the father without the permission of the Court is rendered voidable under Section 8(2) of the Hindu Minority and Guardianship Act.
(ii) Santa v. Cherukuty, AIR 1972 Ker. 71, wherein it was held that in the case of transfer of minor's property by his natural guardian without Sanction of the Court is voidable at the instance of the minor and the minor can avoid it by his conduct without a Suit.
(iii) Maniyamkandi Kunhiraman v. Machil Parambath Vanaja, AIR 1998 Ker. 24, wherein the Division Bench of Kerala High Court held that in the case of alienation of property of minor without sanction of Court, the minor on attaining majority, can file a Suit for partition and delivery of possession without a prayer for setting aside the Sale Deeds.
(iv) Amirtham Kudumban v. Sornam Kudumban, 1977 (1) MLJ 1, wherein the Full Bench of this Court held that the right to set aside the alienation of a minor's property by the guardian is available under Section 8(3) of the Hindu majority and Guardianship Act, 1956 not only to the minor himself but also to any person claiming under him latter expression includes a transferee of the minor.
(v) Madhukar Vishwanath v. Madhao and others, 1999 (9) SCC 446, wherein the Hon'ble Apex Court held that the alienation by the guardian in respect of minors property, the plaintiff should have pleaded for a declaration that the alienation was bad in law and the recovery of possession was only the consequential relief. Even if the Suit was entertained as pleaded, no decree for possession could have been passed without first finding that the alienation was not for legal necessity and was, therefore, bad in law. To such a Suit the provision of Article 60 of the Limitation Act shall apply.
(vi) Surtha Singh v. Priram Singh, 1983 P & H 114, wherein the Hon'ble Apex Court held that a minor plaintiff challenging the transfer of immovable property through his natural guardian in contravention of Section 8(2) and (3) of the Hindu Minority and Guardianship Act, 1956 and seeking possession of the property can bring the Suit only within the prescribed period of three years after attaining majority under Article 60 of the Limitation Act.
19. Per contra, learned counsel appearing for the respondents relied upon the following judgments in support of his submissions:
(i) Sankaranarayanan Pillai v. Kandasamia Pillai, 1956 (3) MLJ 411, wherein the Full Bench of this Court held that where a minor is eo-nomine party to the Sale Deed or other document of alienation by a guardian which he seeks to set aside, it is not enough for him to merely sue for possession and he must sue for the cancellation of the document. The Full Bench also held that it is not open to the minor to ignore the transaction and seek possession of the property.
(ii) Basawanappa and others v. Nana Rao @ Prakash and others, CDJ 2004 Kar. 275, wherein it is held that in a case where the minor not in possession when he approaches the Court for seeking possession of the property on the ground of contravention of Section 8, he has to necessarily seek for the cancellation of the Sale Deed and also should file the Suit within 3 years as envisaged under Article 60 of the Limitation Act.
(iii) Srinivasam Pillai v. Subramanian and another, 2006 (3) MLJ 92, wherein this Court held that when the plaintiffs filed the Suit without the prayer to set aside the alienation made by their mother while they were minors, is not maintainable under Section 37(1) of the Tamil Nadu Court-fees Act.
(iv) Venkatesa Mudaliar and ors. v. N. Krishnaswamy Mudaliar Trust, 1991 (1) MLJ 592, wherein this Court after taking into consideration Section 8(1)(2) of the Hindu Minority and Guardianship Act held that if the alienation by the guardian is not set aside by the minor within the period prescribed by the Law of Limitation, he would be barred from recovering the property from the alinee and any transferee from the minor would be in the same position and he cannot have a better right than the transferor.
(v) Viswambhar and ors. v. Lakminarayana (dead) through L.Rs and another, 2001 (3) CTC 316. In the above judgment the Hon'ble Apex Court hald that any transfer of property made by guardian of ward can be set aside by such ward on attaining and period of limitation is 3 years from the date on which minor ward attains majority. The Apex Court also held that the alienations have to be challenged and without setting aside the alienation no relief can be obtained.
(vi) Madhukar Viswanath v. Madhao and others, 2002 (4) CTC 49, wherein the Hon'ble Apex Court held that in case of a Suit for possession filed by minor after 3 years from the date of attaining majority, maintainability Article 60 of Limitation Act will apply and not Article 65 and the period of limitation prescribed to set aside the alienation made by guardian is 3 years from the date of minor had attained majority. The Suit filed after expiry of 3 years is not maintainable.
(vii) Ramados Menon v. Sreedevi, AIR 2004 Ker. 126, wherein the Full Bench of Kerala High Court held that there should be a prayer to set aside alienation effected by the natural guardian without Court's sanction and the plaintiff cannot merely ignore Sale Deed and alienations have to be challenged and without setting aside alienations, no relief can be obtained.
20. Applying the principles laid down in the above referred judgments, it is clear that under Ex.A-9-Sale Deed dated 31.3.1981, minor Palanivel's father Balaraman sold a portion of Item No. 7 in the suit property to the first respondent/first defendant. Further, Balaraman sold Item Nos. 1 to 3 under Ex.A-10-Sale Deed dated 15.12.1981 for himself and as guardian of his minor son Palanivel, in favour of the first respondent. Similarly, the said Balaraman also sold Item No. 6 and a portion of Item No. 7 under Ex.A-11- Sale Deed dated 30.3.1981 Item No. 6 was sold to the second respondent under Ex.A-12 Sale Deed dated 23.3.1982
21. It is not in dispute that the Balaraman died in 1983 and his son minor Palanivel died on 11.2.1986 before attaining majority. Under Ex.A-15- Release Deed dated 24.3.1986, the minor's mother Lakshmi Ammal released her rights in favour of the appellants for valid consideration. Under Ex.X-1, it could be seen that minor Palanivel was born on 16.4.1978 The appellants filed the present Suit on 10.1.1992 On a perusal of Exs.A-9 to A-12-Sale Deeds, it could be seen that minor Palanivel was a eo-nominee party to the said documents. It is also not in dispute that father of minor Palanivel did not get the sanction of the Court for alienating the minor's properties.
22. The Trial Court after dealing with the issue regarding the limitation found that the Suit is not barred by Limitation in view of Article 65 of the Limitation Act. Article 65 of the Limitation Act relates to Suits regarding delivery of possession of immovable property of any interest therein based on title, wherein the period of 12 years has been prescribed from the date when the possession of the defendant becomes adverse to the plaintiff.
23. In the case on hand, there is nothing on record to show that the alienation made by Balaraman were for the legal necessity for the benefit of the minor. In such case alienations made by the said Balaraman can be construed only as a voidable alienations and not void alienations. Once it is found that alienation are voidable, the remedy open to the appellants-plaintiffs is to file a Suit to set aside the Sale Deed and not for recovery of possession. The appellants have not prayed to set aside the alienations made by Balaraman. The appellants have filed the Suit in respect of declaration, delivery of possession and for mesne profits. The appellants have questioned the alienations made by the father of minor Palanivel under Exs.A-9 to A-12. Further, the appellants have not prayed to set aside the Sale Deed made by the guardian on behalf of the minor, who was a eo-nominee party in the Sale Deeds. Therefore, the prayer sought for in the Suit is liable to be rejected. Article 60 of the Limitation Act prescribes 3 years' period to file a Suit to set aside the transfer of property made by guardian of a ward. Under Article 60(b)(ii), when the ward dies before attaining majority, the limitation starts from the date when the ward dies.
24. With regard to the question of limitation, since the proper prayer is to set aside the alienations made by Balaraman, Article 60 will apply to the present case. The minor died on 11.2.1986 The Suit was filed on 10.11.1992 As per Article 60(b)(ii) of the Limitation Act, the appellants ought to have filed the Suit within three years from the date of the death of minor Palanivel. But they had filed the Suit only on 10.1.1992 Since it is found that the alienations made by Balaraman on behalf of minor are voidable, the appellants cannot avoid the alienations. Therefore, the appellants challenging the alienations made by Balaraman on his behalf and on behalf of his minor son Palanivel in contravention of Section 8(2) and (3) of the Hindu Minority and Guardianship Act, 1956 and seeking declaration and possession of the property can bring the Suit only within the prescribed period of three years from the date of death of minor under Article 60(b)(ii) of the Limitation Act, 1963. Article 65 of the Limitation Act applies only to a Suit for possession based on a void document. Therefore, Article 65 of the Limitation Act is not applicable to the present case where the documents are held to be voidable. In the case on hand, as already found, the alienations made by Balaraman are voidable alienations and not void alienations. Therefore, Article 60 of the Limitation Act will apply. Therefore, the Suit barred by limitation. The Lower Appellate Court has rightly reversed the judgments and decree of the Trial Court and dismissed the Suit.
25. In these circumstances, I find no ground much less substantial questions of law to interfere with the judgment and decree of the Lower Appellate Court. The above Second Appeal is liable to be dismissed. Accordingly, the above Second Appeal is dismissed. However, there shall be no order as to costs.
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