Hon'ble Mr. Justice Ashok Bhushan
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO.1782 OF 2019
(arising out of S.L.P. (C) No. 21091 of 2010)
MURUGAN & ORS. ...APPELLANTS
Vs.
KESAVA GOUNDER (DEAD)
THR. LRS. AND ORS. ...RESPONDENTS
J U D G M E N T
ASHOK BHUSHAN, J.
This is the plaintiff’s appeal challenging the
judgment of Madras High Court dismissing the second
appeal filed by the plaintiffs-appellants.
2. Brief facts of the case are:-
2.1 The suit property belongs to one Petha
Gounder. Petha Gounder had two sons namely
Kannan and Balaraman and three daughters.
Sengani Ammal was wife of Petha Gounder. On
17.05.1971 Petha Gounder executed a Will
bequeathing life interest to his sons Kannan
and Balaraman and thereafter to the two male
1
heirs of his both the sons, who were to take
the property absolutely. Will further
stipulated that in event, there is no male
heir to one of his sons, the male heirs of
other son will take the property. Petha
Gounder died on 28.11.1971 leaving behind his
wife, two sons Balaraman and Kannan and three
daughters. Petha Gounder’s wife Sengani
Ammal died on 02.02.1982. Balaraman had one
son namely Palanivel.
2.2 Balaraman on his behalf as well as on behalf
of his minor son had sold Item Nos.1 to 3 of
the suit properties by registered Sale Deed
dated 15.12.1981. Balaraman also sold Item
No.6 and a portion of Item No.7 by two Sale
Deeds dated 30.03.1981 and 31.03.1981 in
favour of the first defendant. Balaraman had
sold Item No. 6 in favour of the second
defendant by registered Sale Deed dated
29.03.1982. Balaraman died in 1983 and
Kannan died on 02.12.1984. Balaraman’s wife
was Lakshmi. The plaintiffs are sons of
Kannan. Palanivel, the son of Balaraman died
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on 11.02.1986 while still a minor.
Palanivel’s mother Lakshmi Ammal executed a
registered Release Deed dated 24.03.1986 in
favour of the plaintiffs for a consideration.
The plaintiffs filed suit No.229 of 1992
praying for following reliefs:-
“VI. The plaintiffs therefore pray
that the Hon’ble Court may be pleased
to:-
(a) Declare that the plaintiffs are
entitled to the suit properties;
(b) Direct the Defendants to deliver
possession of the suit
properties failing which order
delivery of possession through
process of court;
(c) Direct the Defendants to pay the
cost of the suit and
(d) Grant such other reliefs as the
Hon’ble Court may deem fit in
the circumstances of the case.”
2.3 The plaintiffs’ case in the plaint was that
Balaraman had no authority to execute Sale
Deed on behalf of his minor son Palanivel and
the Sale Deeds executed by Balaraman were
void. The plaintiffs being sons of Kannan
are entitled for declaration and possession
of the properties from the defendants. It
3
was further pleaded that validity of the Will
dated 17.05.1971 has been upheld by the
Subordinate Judges Court, Cuddalore in O.S.
No. 447 of 1973.
2.4 The defendant filed written statement. The
defendant’s case was that Balaraman, in order
to discharge his debts and for family
necessity executed sale deed for himself and
on behalf of his minor son on 15.12.1981.
The sale deed binds the minor Palanivel. The
release deed executed by Lakshmi Ammal on
24.03.1986 will confer no right to the
plaintiffs. The suit is barred by limitation
since the suit has not been filed within 03
years from the date of death of Palanivel
i.e. 11.02.1986. The suit as framed is not
maintainable. The defendants are not in
illegal possession. The defendants are
bonafide purchasers for value. The
plaintiffs cannot file suit for declaration
without praying for setting aside the sale
deeds.
4
2.5 The trial court framed ten issues. Issue
No.7 was “Whether the suit is barred by
limitation?”. Issue No.8 was “Whether the
plaintiffs are entitled to seek for
declaration of title in respect of suit
properties?”. Issue No.9 was “Whether the
plaintiffs are entitled to seek for recovery
of possession?”. The trial court while
deciding Issue No.7 held that suit is not
barred by limitation. Trial court held that
plaintiff having filed the suit as
reversioner, Article 65 of the Limitation Act
will apply. As per Article 65, period for
limitation is 12 years, hence suit was within
time. The Will dated 17.05.1971 was held to
be a valid Will. The sale deeds executed by
Balaraman are voidable. On release deed, the
trial court held that Lakshmi Ammal had no
right in the suit properties, as such the
plaintiffs do not derive any new right from
the release deed. Trial court held that it
is not necessary to decide the truth and
validity of the release deed dated
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24.03.1986. The trial court further held that
there was no necessity to file the suit
seeking a prayer to set aside the sale deeds
separately since those sale deeds are
voidable and they can be ignored. It was
held that plaintiffs are competent to recover
possession from the defendants. Trial court
vide its judgment and decree dated 13.08.1997
decreed the suit.
2.6 The defendants aggrieved by the judgment of
the trial court filed appeal. The Principal
District Judge vide its judgment dated
31.08.1999 allowed the appeal dismissing the
suit. Appellate Court held that since
Palanivel died on 11.02.1986, the suit should
have been filed to set aside the sale deeds
and for possession within 03 years from his
death. The suit filed in 1992 was barred by
limitation. The Appellate Court relied on
Article 60 of the Limitation Act. Aggrieved
against the judgment of the First Appellate
Court, the plaintiffs filed second appeal in
the High Court. High Court vide its judgment
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dated 21.04.2010 dismissed the second appeal.
High Court had framed following substantial
questions of law for consideration:-
“i) Whether the Learned First Appellate
Judge is correct in holding that the
release deed Ex.A-15 dated 24.03.1986, is
not avoiding the transfers by sales under
Exs. A-9=B-9, A-10=B-7, A-11=B-2 and A12=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
7
maintainable, since the suit was not
filed to set aside the sales within three
years from the date of demise of minor
Palanivel?
2.7 The High Court held that alienations made by
Balaraman can be construed only as a voidable
alienations and not void alienations. High
Court held that plaintiffs suit ought to have
been filed within 03 years as per Article 60
of the Limitation Act. All substantial
questions of law were decided in favour of
the defendants-respondents. High Court
dismissed the second appeal. Aggrieved
against the judgment, this appeal has been
filed.
3. Shri V. Prabhakar, learned counsel for the
appellants in support of the appeal contends that
Article 60 of the Limitation Act shall not apply and
the suit was rightly held to be governed by Article
65 by the trial court, which was well within time.
It is submitted that the option to repudiate the
action on behalf of the minor having been exercised
8
by mother of the minor, the sale deed executed by
Balaraman become void from its inception. Sale deeds
executed by Balaraman were without permission of the
Court and were without legal necessity, hence was
rightly repudiated by his mother Lakshmi Ammal. On
the strength of repudiation of the alienation by
Lakshmi Ammal, the sale deeds become void and there
was no necessity for praying for setting aside the
sale deeds and suit for declaration and possession
was fully maintainable. Article 60 would have been
applicable only if the suit was filed for setting
aside the sale deeds.
4. Ms. V. Mohana, learned senior counsel appearing
for the respondents refuting the submissions of the
counsel for the appellants contends that suit was
clearly barred by time, it having been not filed
within 03 years from the date of death of the minor.
It is further submitted that release deed dated
24.03.1986 cannot be accepted as repudiation of the
sale deeds. It is submitted that without praying for
setting aside the sale deeds, the decree of
possession could not have been claimed by the
9
plaintiffs. Limitation was governed by Article 60 of
the Limitation Act.
5. Learned counsel for the parties have relied on
various judgments, which shall be referred to and
considered while considering the submissions in
detail.
6. From the submissions of the learned counsel for
the parties and pleadings on record, following are
the issues, which arise for consideration in this
appeal:-
(i) Whether the suit filed by the plaintiffsappellants was barred by limitation?
(ii) Whether without praying for setting aside
the sale deeds executed by Balaraman, the
suit for declaration and possession was
maintainable?
(iii) Whether the plaintiffs can successfully
contend that by execution of release deed
dated 24.03.1986 by Lakshmi Ammal, sale
deeds executed by Balaraman were
successfully repudiated?
10
Issue No. 1
7. The trial court has held that suit has been filed
within time relying on Article 65 whereas the
Appellate Court as well as the High Court relied on
Article 60 and held that suit was barred by time.
Part IV of the Limitation Act, which deals with suits
relating to “Decrees and instruments” contains
Articles 59 and 60. Article 60 is as follows:-
“_________________________________________________
Description of suit Period of Time from which
Limitation period begins to run
__________________________________________________________
60 To set aside a
transfer of property
made by the guardian
of a ward-
(a)by the ward who
has attained
majority.
(b)by the ward's
legal representative-
Three years When the ward attains majority.
i) When the ward dies
within three years
from the date of
attaining majority.
Three years When the ward attains majority.
ii) When the ward
dies before
attaining majority.”
Three years When the ward dies.
8. Article 65 is contained in Part V (suits relating
to immovable properties), which is as follows:-
“65. For possession of immovable Twelve Years When the possession of
property or any interest therein the defendant becomes
based on title. adverse to the plaintiff.
Explanation.- For the purposes
of this article11
(a) Where the suit is by a
remainderman, a
reversioner (other than a
landlord) or a devisee,
the possession of the
defendant shall be
deemed to become
adverse only when the
estate of the
remainderman,
reversioner or devisee, as
the case may be, falls
into possession;
(b) where the suit is by a
Hindu or Muslim entitled
to the possession of
immovable property on
the death of a Hindu or
Muslim female, the
possession of the
defendant shall be
deemed to become
adverse only when the
female dies;
(c) where the suit is by a
purchaser at a sale in
execution of a decree
when the judgmentdebtor was out of
possession at the date of
the sale, the purchaser
shall be deemed to be a
representative of the
judgment-debtor who
was out of possession.”
9. Article 60(b)(ii) refers to a suit when a ward
dies before attaining majority. The present is a
case where Palanivel died on 11.02.1986 before
attaining majority, his date of birth being
16.07.1978, the limitation to avoid instrument made
12
by guardian of the ward is 03 years from the death of
ward when he dies before attaining majority. This
Court had occasion to consider Articles 60 and 65 of
the Limitation Act in reference to alienation made by
a de-facto guardian of a minor. In the case of
Madhukar Vishwanath Vs. Madahav and Others, (1999) 9
SCC 446, the maternal uncle of the appellant has
executed a sale deed. The appellant after becoming
major on 22.08.1966 filed a suit on 07.02.1973
praying that transferors be required to deliver the
possession of the property. On behalf of appellant,
Article 65 was relied for the purposes of limitation.
This Court held that it is Article 60 and not Article
65, which is applicable. Paragraph No. 4 and 5 of
the judgment are relevant, which are quoted as
below:-
“4. XXXXXXXXX
That the defendant, Baburao Madhorao
Puranik, was the appellant’s de facto
guardian had been established and,
therefore, the disposal by him of the said
property was void. Being void, it was open
to the appellant to file the suit for
possession of the said property and the
period for limitation for such suit was
prescribed by Article 65.
13
5. ……………………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 provisions of Article 60 apply.
Article 60 relates to a suit to set aside a
transfer of property made by the guardian
of a ward by the ward who has attained
majority and the period prescribed is three
years commencing on the date on which the
ward attains majority………………………”
10. This Court in Narayan Vs. Babasaheb and Others,
(2016) 6 SCC 725 again had occasion to consider
Article 60 of the Limitation Act. In the above case,
this Court held that a suit by minor for setting
aside the sale of his property by his guardian is
governed by Article 60 of the Limitation Act. In
Paragraph Nos. 25 and 26, following was laid down:-
“25. A close analysis of the language of
Article 60 would indicate that it applies
to suits by a minor who has attained
majority and further by his legal
representatives when he dies after
attaining majority or from the death of the
minor. The broad spectrum of the nature of
the suit is for setting aside the transfer
of immovable property made by the guardian
and consequently, a suit for possession by
avoiding the transfer by the guardian in
violation of Section 8(2) of the 1956 Act.
In essence, it is nothing more than seeking
to set aside the transfer and grant
consequential relief of possession.
14
26. There cannot be any doubt that a suit
by quondam minor to set aside the
alienation of his property by his guardian
is governed by Article 60. To impeach the
transfer of immovable property by the
guardian, the minor must file the suit
within the prescribed period of three years
after attaining majority.”
11. Now, coming to Article 65, on which reliance has
been placed by learned counsel for the appellants.
The said period of limitation is available when suit
is filed for possession of immovable property on any
interest therein based on title. The present is a
case where by registered sale deeds the property was
conveyed by the father of the minor was eonominee
party. Thus, when sale deed was executed by Balaraman
he purported to convey the right of the minor also.
The sale deeds being voidable and not void,
plaintiffs cannot rely on Article 65. We, thus, are
of the view that first Appellate Court and the High
Court has rightly held that limitation for suit was
governed by Article 60 and the suit was clearly
barred by time.
12. It is important to find from the sale deed what
was conveyed. This we say, as appellant has a case
15
that the father of the minor was given a life estate
and after his death alone the minor was to get a
right. In this regard we may notice the distinction
between a vested right and a contingent right. Vested
right is the subject matter of Section 19 of the
Transfer of Property Act whereas a contingent
interest is dealt with Section 21 of the Transfer of
Property Act. Since the life estate followed by an
absolute right is created by a will, the relevant
provision is Section 119 of the Indian Succession
Act, 1925. Section 119 reads as follows:
“119. Date of vesting of legacy when
payment or possession postponed.—Where by
the terms of a bequest the legatee is not
entitled to immediate possession of the
thing bequeathed, a right to receive it at
the proper time shall, unless a contrary
intention appears by the Will, become
vested in the legatee on the testator’s
death, and shall pass to the legatee’s
representatives if he dies before that time
and without having received the legacy, and
in such cases the legacy is from the
testator’s death said to be vested in
interest.
Explanation.—An intention that a legacy
to any person shall not become vested in
interest in him is not to be inferred
merely from a provision whereby the payment
or possession of the thing bequeathed is
postponed, or whereby a prior interest
therein is bequeathed to some other person,
or whereby the income arising from the fund
16
bequeathed is directed to be accumulated
until the time of payment arrives, or from
a provision that, if a particular event
shall happen, the legacy shall go over to
another person.”
It is relevant that we notice illustration No.(iii)
which reads as follows:
“(iii) A fund is bequeathed to A for life,
and after his death to B. On the testator’s
death the legacy to B becomes vested in
interest in B.”
Therefore, the absolute right bequeathed in favour of
Palanivel became vested in him upon the death of
Petha Gounder.
Issue No.2
13. In the present case, there is no dispute that
sale deeds executed by Balaraman on behalf of himself
and his minor son Palanivel were executed without
obtaining permission of the Court. Section 8 of the
Hindu Minority & Guardianship Act, 1956, which is
relevant is as follows:-
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 realisation,
protection or benefit of the minor's
estate; but the guardian can in no case
bind the minor by a personal covenant.
17
(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
subsection (1) or sub-section (2), is
voidable at the instance of the minor or
any person claiming under him.
(4) No court shall grant permission to the
natural guardian to do any of the acts
mentioned in sub-section (2) except in case
of necessity or for an evident advantage to
the minor.
(5) The Guardians and Wards Act, 1890 (8 of
1890), shall apply to and in respect of an
application for obtaining permission of the
court under sub-section (2) in all respects
as if it were an application for obtaining
the permission of the court under section
29 of that Act, and in particular-
(a) proceedings in connection with the
application shall be deemed to be
proceedings under that Act within the
meaning of section 4A thereof.
(b) the court shall observe the
procedure and have the powers
specified in sub-sections (2), (3)
and (4) of section 31 of that Act;
and
18
(c) an appeal shall lie from an order of
the court refusing permission to the
natural guardian to do any of the
acts mentioned in sub-section (2) of
this section to the court to which
appeals ordinarily lie from the
decisions of that court.
(6) In this section, "Court" means the city
civil court or a district court or a court
empowered under section 4A of the Guardians
and Wards Act, 1890 (8 of 1890), within the
local limits of whose jurisdiction the
immovable property in respect of which the
application is made is situate, and where
the immovable property is situate within
the jurisdiction of more than one such
court, means the court within the local
limits of whose jurisdiction any portion of
the property is situate.”
14. This Court time and again has considered the
cases of alienation by natural guardian in
contravention of Section 8 and Section 8(2) of the
1956 Act. This Court held that sale deed in
violation of Section 8(1) and 8(2) is a voidable sale
deed. Voidable has been defined in Black’s Law
Dictionary, Tenth Edition as under:-
“Valid until annulled; esp., (of a
contract) capable of being affirmed or
rejected at the option of one of the
parties. This term describes a valid act
that may be voided rather than an invalid
act that may be ratified.”
19
15. Salmonds on Jurisprudence, Twelfth Edition has
noticed the distinction between Valid, Void and
Voidable in following passage:-
“… 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 of
legal efficacy. A voidable agreement
stands midway between these two
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 to have any efficacy,
but is deemed to have been void ab
initio. The avoidance of it relates
back to the making of it. The
hypothetical or contingent efficacy
which has hitherto been attributed to
it wholly disappears, 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.”
16. This Court in Dhurandhar Prasad Singh Vs. Jai
Prakash University and Others, (2001) 6 SCC 534 had
noted the distinction between Void and Voidable. In
Paragraph No. 22, following has been laid down:-
“22. Thus the expressions “void and
voidable” have been the subject-matter of
20
consideration on innumerable occasions by
courts. The expression “void” has several
facets. One type of void acts,
transactions, decrees are those which are
wholly without jurisdiction, ab initio void
and for avoiding the same no declaration is
necessary, law does not take any notice of
the same and it can be disregarded in
collateral proceeding or otherwise. The
other type of void act, e.g., may be
transaction against a minor without being
represented by a next friend. Such a
transaction is a good transaction against
the whole world. So far as the minor is
concerned, if he decides to avoid the same
and succeeds in avoiding it by taking
recourse to appropriate proceeding the
transaction becomes void from the very
beginning. Another type of void act may be
which is not a nullity but for avoiding the
same a declaration has to be made. Voidable
act is that which is a good act unless
avoided, e.g., if a suit is filed for a
declaration that a document is fraudulent
and/or forged and fabricated, it is
voidable as the apparent state of affairs
is the real state of affairs and a party
who alleges otherwise is obliged to prove
it. If it is proved that the document is
forged and fabricated and a declaration to
that effect is given, a transaction becomes
void from the very beginning. There may be
a voidable transaction which is required to
be set aside and the same is avoided from
the day it is so set aside and not any day
prior to it. In cases where legal effect of
a document cannot be taken away without
setting aside the same, it cannot be
treated to be void but would be obviously
voidable.”
17. In Vishwambhar and Others Vs. Laxminarayan (Dead)
Through LRs. and Another, (2001) 6 SCC 163, which was
21
a case of challenge to alienation without Court’s
sanction and without legal necessity, this Court
held that the alienation by natural guardian was
voidable. In the above case, the mother, natural
guardian of two minors has executed the sale deed
before they attained majority. Minors after
attaining majority had filed suit pleading that sale
deeds are not binding and operative on the legal
rights of plaintiff, and prayed that the said sale
deeds be set aside to the extent of their share and
the suit for possession of the land be decreed. In
the above case, after considering Section 8 this
Court held that sale deeds were voidable at the
instance of the plaintiff. This Court further held
that if the plaintiffs were required to have the sale
deeds set aside before making any claim in respect of
suit properties sold then a suit without such a
prayer was of no avail to the plaintiffs. Following
was held in Paragraph No.9:-
“9. …………………………………The question is, in such
circumstances, are the alienations void or
voidable? In Section 8(2) of the Hindu
Minority and Guardianship Act, 1956, it is
laid down, inter alia, that the natural
guardian shall not, without previous
permission of the court, transfer by sale
22
any part of the immoveable property of the
minor. In sub-section (3) of the said
section, it is specifically provided that
any disposal of immoveable property by a
natural guardian, in contravention of subsection (2) is voidable at the instance of
the minor or any person claiming under him.
There is, therefore, little scope for doubt
that the alienations made by Laxmibai which
are under challenge in the suit were
voidable at the instance of the plaintiffs
and the plaintiffs were required to get the
alienations set aside if they wanted to
avoid the transfers and regain the
properties from the purchasers. As noted
earlier in the plaint as it stood before
the amendment the prayer for setting aside
the sale deeds was not there, such a prayer
appears to have been introduced by
amendment during hearing of the suit and
the trial court considered the amended
prayer and decided the suit on that basis.
If in law the plaintiffs were required to
have the sale deeds set aside before making
any claim in respect of the properties
sold, then a suit without such a prayer was
of no avail to the plaintiffs. In all
probability, realising this difficulty the
plaintiffs filed the application for
amendment of the plaint seeking to
introduce the prayer for setting aside the
sale deeds. Unfortunately, the realisation
came too late. Concededly, Plaintiff 2
Digamber attained majority on 5-8-1975 and
Vishwambhar, Plaintiff 1 attained majority
on 20-7-1978. Though the suit was filed on
30-11-1980 the prayer seeking setting aside
of the sale deeds was made in December
1985. Article 60 of the Limitation Act
prescribes a period of three years for
setting aside a transfer of property made
by the guardian of a ward, by the ward who
has attained majority and the period is to
be computed from the date when the ward
attains majority. Since the limitation
23
started running from the dates when the
plaintiffs attained majority the prescribed
period had elapsed by the date of
presentation of the plaint so far as
Digamber is concerned. Therefore, the trial
court rightly dismissed the suit filed by
Digamber. The judgment of the trial court
dismissing the suit was not challenged by
him. Even assuming that as the suit filed
by one of the plaintiffs was within time
the entire suit could not be dismissed on
the ground of limitation, in the absence of
challenge against the dismissal of the suit
filed by Digamber the first appellate court
could not have interfered with that part of
the decision of the trial court. Regarding
the suit filed by Vishwambhar, it was filed
within the prescribed period of limitation
but without the prayer for setting aside
the sale deeds. Since the claim for
recovery of possession of the properties
alienated could not have been made without
setting aside the sale deeds the suit as
initially filed was not maintainable. By
the date the defect was rectified (December
1985) by introducing such a prayer by
amendment of the plaint the prescribed
period of limitation for seeking such a
relief had elapsed. In the circumstances,
the amendment of the plaint could not come
to the rescue of the plaintiff.”
18. To the same effect is the judgment of this Court
in Madhegowda (dead) by LRs. Vs. Ankegowda (dead) by
LRs. and Others, (2002) 1 SCC 178, where in Paragraph
No. 25, following has been held:-
“25.……………………The minor, on attaining
majority, can repudiate the transfer in any
manner as and when occasion for it arises.
24
After attaining majority if he/she
transfers his/her interest in the property
in a lawful manner asserting his/her title
to the same that is sufficient to show that
the minor has repudiated the transfer made
by the “de facto guardian/manager”.
19. This Court further held in Nangali Amma Bhavani
Amma Vs. Gopalkrishnan Nair and Others, (2004) 8 SCC
785 that the alienation made in violation of Section
8(2) is voidable, holding it to be void would not
only be contrary to the plain words of the statute
but would also deprive the minor of the right to
affirm or ratify the transaction upon attaining
majority. Following was held in Paragraph No.8:-
“8. In view of the express language used,
it is clear that the transaction entered
into by the natural guardian in
contravention of sub-section (2) was not
void but merely voidable at the instance of
the minor. To hold that the transaction in
violation of Section 8(2) is void would not
only be contrary to the plain words of the
statute but would also deprive the minor of
the right to affirm or ratify the
transaction upon attaining
majority…………………………….”
20. The alienations, which were voidable, at the
instance of minor or on his behalf were required to
be set aside before relief for possession can be
claimed by the plaintiffs. Suit filed on behalf of
25
the plaintiffs without seeking prayer for setting
aside the sale deeds was, thus, not properly framed
and could not have been decreed.
Issue No.3
21. The question is as to whether by execution of the
release deed dated 24.03.1986 in favour of the
plaintiffs, there was repudiation of the alienation
made by Balaraman. The release deed has been brought
on the record as Annexure P-1. A perusal of the
release deed does not indicate that there is any
reference of alienation made by Balaraman in favour
of the defendants. There being no reference of the
alienation made by Balaraman on behalf of minor,
there is no occasion to read release deed as
repudiation of the claim on behalf of the minor.
Section 8(3) gives a right to the minor or any person
claiming under him, the relevant words in Section
8(3) are “at the instance of the minor or any person
claiming under him.” Thus, alienation made on behalf
of the minor can be avoided by minor or any person
claiming under him. In event, minor dies before
26
attaining majority, obviously, his legal heirs will
have right to avoid the alienation.
22. The submission raised by the learned counsel for
the respondents is that for avoiding sale of
immovable property of a minor as contemplated under
sub-section (3) of Section 8, the minor or any person
claiming under him has to bring an action i.e. to
file a suit within the limitation prescribed.
23. Learned counsel for the appellants has refuted
the submission and contended that the avoidance of a
sale of immovable property by a minor can be in any
manner. It is submitted that it is not necessary for
minor or the person claiming on his behalf to bring a
suit for avoiding a sale deed.
24. We have noticed above that sub-section (3) of
Section 8 refers to a disposal of immovable property
by a natural guardian in contravention of sub-section
(1) or sub-section (2) as voidable. When a registered
sale deed is voidable, it is valid till it is avoided
in accordance with law. The rights conferred by a
registered sale deed are good enough against the
whole world and the sale can be avoided in case the
27
property sold is of a minor by a natural guardian at
the instance of the minor or any person claiming
under him. A document which is voidable has to be
actually set aside before taking its legal effect.
This Court in Gorakh Nath Dube vs. Hari Narain Singh
and others, (1973) 2 SCC 535, while making
distinction between void and voidable document held:
“5………We think that a distinction can be made
between cases where a document is wholly or
partially invalid so that it can be
disregarded by any court or authority and one
where it has to be actually set aside before
it can cease to have legal effect. An
alienation made in excess of power to
transfer would be, to the extent of the
excess of power, invalid. An adjudication on
the effect of such a purported alienation
would be necessarily implied in the decision
of a dispute involving conflicting claims to
rights or interests in land which are the
subject-matter of consolidation
proceedings……”
25. In Amirtham Kudumbah vs. Sarnam Kudumban, (1991)
3 SCC 20, this Court had occasion to consider the
provisions of Section 8(3) of the Hindu Minority and
Guardianship Act, 1956. The facts of the case have
been noticed in paragraph 5 which is to the following
effect:
28
“5. The relevant facts are that the suit
property belonged to one Veerammal. She had
a daughter by name Kaliammal. Veerammal
died shortly after she purchased the
property in 1948. She left behind her
husband Kandayya and their daughter
Kaliammal. Subsequently, Kandayya married a
second time when his daughter Kaliammal was
a minor. She thereupon left her father’s
house and resided with her maternal
grandfather who protected and maintained
her. During her minority, Kandayya sold the
property on October 29, 1959 to
Jainulavudeen. On April 25, 1966,
Jainulavudeen in turn sold the property to
the defendant-appellant. Subsequently, on
May 26, 1966 the plaintiff obtained a deed
of sale of the suit property in his favour
from Kaliammal who had by then attained
majority. The plaintiff thereafter
instituted the present suit (O.S. No. 491
of 1968) against the appellant to set aside
the transfer of property made by Kandayya
and for recovery of its possession.”
26. One of the questions which came for consideration
in the above case was that “whether a transferee from
a minor after he attained majority, can file a suit
to set aside the alienation made by the minor’s
guardian or the said right is one to be exercised
only by the minor? A person entitled to avoid such a
sale is either the minor or any person claiming under
him. This Court held that either the minor, or his
legal representative in the event of his death, or
his successor-in-interest claiming under him by
29
reason of transfer inter vivos, must bring action
within the period prescribed for such a suit, i.e.
three years. Following is laid down in paragraph 9:
“9. The effect of this sub-section is
that any disposal of immovable property by a
natural guardian otherwise than for the
benefit of the minor or without obtaining
the previous permission of the court is
voidable. A person entitled to avoid such a
sale is either the minor or any person
claiming under him. This means that either
the minor, or his legal representative in
the event of his death, or his successor-ininterest claiming under him by reason of
transfer inter vivos, must bring action
within the period prescribed for such a
suit, i.e. three years from the date on
which the minor died or attained majority,
as the case may be. In the present case, the
suit was brought, as found by the courts
below, within three years after the minor
attained majority.”
27. In Vishwambhar and others vs. Laxminarayan(Dead)
through LRs. and another (supra) this Court has
observed that if in law the plaintiffs were required
to have the sale deeds set aside before making any
claim in respect of the properties sold, then a suit
without such a prayer was of no avail to the
plaintiffs.
28. This Court time and again held that setting aside
of a sale which is voidable under Section 8(3) is
30
necessary for avoiding a registered sale deed. We
may, however, not to be understood that we are
holding that in all cases where minor has to avoid
disposal of immovable property, it is necessary to
bring a suit. There may be creation of charge or
lease of immovable property which may not be by
registered document. It may depend on facts of each
case as to whether it is necessary to bring a suit
for avoiding disposal of the immovable property or it
can be done in any other manner. We in the present
case are concerned with disposal of immovable
property by natural guardian of minor by a registered
sale deed, hence, we are confining our consideration
and discussion only with respect to transfer of
immovable property by a registered deed by a natural
guardian of minor.
29. The Limitation Act, 1963 has been enacted by the
Parliament after the enactment of Hindu Minority and
Guardianship Act, 1956. Article 60 of the Limitation
Act, 1963 which provides for limitation “suits
relating to decrees and instruments”. The Limitation
Act contemplates suit to set aside a transfer of
property made by the guardian of a ward for which
31
limitation is contemplated as three years. Article 60
of the Limitation Act although provides for a
limitation of a suit but also clearly indicates that
to set aside a transfer of property made by the
guardian of a ward a suit is contemplated.
30. We may notice a judgment of this Court reported
in Madhegowda (Dead) by LRs. vs. Ankegowda (Dead) by
LRs. and others, (2002) 1 SCC 178. This Court in the
above case had occasion to consider Section 11 of the
Hindu Minority and Guardianship Act, 1956. In the
above case sister of a minor acting as guardian sold
immovable property by registered sale deed. In the
above reference this Court had made following
observations:
“25………Undoubtedly Smt Madamma, sister of
the minor, is not a “guardian” as defined in
Section 4(b) of the Act. Therefore, she can
only be taken to be a “de facto guardian” or
more appropriately “de facto manager”. To a
transfer in such a case Section 11 of the
Act squarely applies. Therefore, there is
little scope for doubt that the transfer of
the minor’s interest by a de facto
guardian/manager having been made in
violation of the express bar provided under
the section is per se invalid. The existence
or otherwise of legal necessity is not
relevant in the case of such invalid
transfer. A transferee of such an alienation
32
does not acquire any interest in the
property. Such an invalid transaction is not
required to be set aside by filing a suit or
judicial proceeding. The minor, on attaining
majority, can repudiate the transfer in any
manner as and when occasion for it arises.
After attaining majority if he/she transfers
his/her interest in the property in a lawful
manner asserting his/her title to the same
that is sufficient to show that the minor
has repudiated the transfer made by the “de
facto guardian/manager”.”
31. The above observations were made by this Court in
the context of Section 11 of the Act, 1956. Section
11 of the Act contains a statutory prohibition on “de
facto guardian” of the minor from disposing of the
property of the minor. The transfer made by de facto
guardian is, thus, void and can be repudiated in any
manner. It is well settled that it is not necessary
for a minor or any person claiming under him to file
a suit for setting aside a void deed. A void deed can
be ignored. The above observations cannot be held to
be applicable to transfer made by a natural guardian
under Section 8(3) of the Act.
32. We may notice one more judgment of this Court
relied on by the learned counsel for the appellants
that is G. Annamalai Pillai vs. District Revenue
33
Officer and others, (1993) 2 SCC 402. The question
which arose for consideration in the said case has
been noticed in paragraph 1 of the judgment in
following words:
“1. The short question for consideration in
this appeal is whether lease deed in dispute, which
was voidable in terms of Section 8(3) of the Hindu
Minority and Guardianship Act, 1956 (the Act) when
validly avoided, was effective from the date of the
lease deed so as to make the transaction void and
unenforceable from the very inception.”
33. The land in dispute was owned by one Janarthanan.
His father, Purushothaman executed a registered lease
deed in favour of appellant on 12.12.1971 on which
date the owner was minor. The appellant filed
application before Tehsildar to be registered as a
tenant which was contested by Janarthanan.
Janarthanan contended that his father has no right or
title to deal with land and lease by his father is in
contravention of Section 8 of Hindu Minority and
Guardianship Act, 1956. Tehsildar held that there was
no valid lease which order was confirmed by the High
Court against which judgment appeal was filed. In
paragraphs 5 and 6 following has been laid down:
34
“5. We have heard learned counsel for the
parties. We have been taken through the
orders of the Revenue authorities, judgment
of the learned Single Judge and of the
Division Bench of the High Court in writ
appeal. The Division Bench of the High
Court, in a lucid judgment, answered the
question — posed by us in the beginning —
in the affirmative and against the
appellant-Annamalai Pillai on the following
reasoning:
“We have already seen that clause (3) of
Section 8 of the Hindu Minority and
Guardianship Act, 1956, specifically makes
the transaction voidable. The lease
executed by the guardian in this case is
prohibited and in that sense it was
without any authority. On the legal
efficacy and the distinction between
valid, void and voidable agreements, we
find the following passage in Salmond on
Jurisprudence, Twelfth Edition at page
341:
‘… 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 of legal efficacy. A
voidable agreement stands midway
between these two 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 to have any
efficacy, but is deemed to have been
void ab initio. The avoidance of it
relates back to the making of it. The
hypothetical or contingent efficacy
35
which has hitherto been attributed to
it wholly disappears, 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.’
This distinction has also been
judicially noticed in the Privy Council
judgment reported in Satgur Prasad v.
Harnarain Das and in the Division Bench
judgment in S.N.R. Sundara Rao and Sons,
Madurai v. CIT. The Division Bench held,
following the said Privy Council judgment as
follows:
‘When a person, who is entitled to
dissent from the alienation, does so, his
dissent is in relation to the transaction
as such and not merely to the possession
of the alienee on the date of such
dissent.
The effect of the evidence is,
therefore, to get rid of the transaction
with the result that in law it is as if
the transaction had never taken place.’
We have, therefore, no doubt that when the
fifth respondent avoided the lease executed
by his father, the fourth respondent, the
lease became void from its inception and no
statutory rights, could, therefore, accrue
in favour of the appellant herein.”
6. We agree with the reasoning and the
conclusions reached by the Division Bench
of the High Court and as such this appeal
has to be dismissed.”
34. Learned counsel for the appellants relying on the
above decision contends that sale by Balaraman when
has been avoided by release deed it became void from
36
the very beginning. There can be no quarrel to the
proposition laid down in G. Annamalai Pillai vs.
District Revenue Officer and others(supra). In the
present case there having been no repudiation of sale
deed on behalf of minor, the question of voidable
sale deed becoming void does not arise.
35. We are, thus, of the considered opinion that in
the present case it was necessary for the person
claiming through minor to bring an action within a
period of three years from the date of the death of
the minor to get sale deed executed by Balaraman set
aside. We, thus, conclude that the sale deeds
executed by Balaraman were not repudiated or avoided
within the period of limitation as prescribed by law.
Issue No.3 is answered accordingly.
36. In view of the foregoing discussions, we do not
find any merit in this appeal. The appeal is
dismissed accordingly.
......................J.
( ASHOK BHUSHAN )
......................J.
( K.M. JOSEPH )
New Delhi,
February 25, 2019.
37
