Madras High Court
A.Jeyapandi vs Gnanammal on 27 October, 2006
Author: S.Tamilvanan
Bench: S.Tamilvanan
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED : 27/10/2006 CORAM : THE HONOURABLE MR. JUSTICE S.TAMILVANAN Second Appeal No.1178 of 1993 1. A.Jeyapandi 2. A.Chellathurai ..... Appellants Vs. Gnanammal ..... Respondent Second Appeal is filed against the Judgment and Decree dated 10.03.1993 made in A.S.No.172 of 1989 on the file of the Subordinate Court, Tuticorin, confirming the Judgment and Decree, dated 23.03.1989 and made in O.S.No.394 of 1984 on the file of the Additional District Munsif Court, Tuticorin. !For Appellants ... Mr.T.R.Rajaraman for M/s. S.Sundar ^For Respondent ... Mr.K.Srinivasan :JUDGMENT
This Second Appeal has been directed against the Judgment and Decree, dated 10.03.1993, made in A.S.No.172 of 1989 on the file of the Subordinate Judge, Tuticorin, confirming the Judgment and Decree dated 23.03.1989, made in O.S.No.394 of 1984 on the file of the Additional District Munsif, Tuticorin.
2. The brief facts of the case are as follows:
The appellants are the defendants 2 and 3 in the suit filed by the respondent herein. The suit was filed by the respondent / plaintiff for declaration of title and recovery of possession, alternately for partition and separate possession of 2/3rd share in the suit property. It is an admitted fact that the suit property was originally belonged to one Poochangara Nadar. The respondent / plaintiff is the daughter and the first defendant in the suit is the wife of Poochangara Nadar. According to the respondent / plaintiff, her father Poochangara Nadar died in the year 1974, leaving her as sole legal heir and that her mother, the first defendant, Rajammal left the home and lived with one Arunachalam. She has further stated that on 23.05.1973, the first defendant, her mother Rajammal, executed a sale deed in favour of Arumuga Nadar, the father of the appellants / defendants 2 and3 under the original of Ex.A1. The Birth certificate of the respondent / plaintiff was marked as Ex.A2. AS per the said document, it has been established that she is the daughter of Poochangara Nadar, born on 03.11.1962. She has also produced the copy of the legal notice as Ex.A3 and reply notice sent by the Defendants 2 and 3 as Ex.A4 before the trial court.
3. It is not in dispute that Ex.B3 is the certificate copy of the sale deed, relating to the suit property and Poochangara Nadar, father of the respondent/ plaintiff had purchased the property under the original of Ex.B3, dated 18.07.1960. The original mortgage deed, dated 16.06.1962, under which the property was mortgaged by Poochangara Nadar in favour of one Sundaram Nadar was marked as Ex.B4. As per Ex.B5, dated 21.05.1973, the first defendant Rajammal, executed the sale deed in dispute in favour of Arumuga Nadar, father of the appellants 1 & 2. After the death of Poochangara Nadar, while the respondent/plaintiff, his daughter, was a minor, the first defendant his wife, executed the sale deed Ex.B5 in favour of the father of the appellants. It has been admitted by both sides that Poochangara Nadar died leaving first defendant, Rajammal and the respondent / plaintiff his minor daughter as his legal hairs and that the first respondent / plaintiff was a minor, while the first defendant executed the sale deed, Ex.B5 in favour of Arumuga Nadar, father of the appellants. In such circumstances, as a rightly held by the courts below, the first respondent / plaintiff cannot seek declaration of title and recovery of possession for the entire property, as she was only one of the two legal heirs of Poochangara Nadar.
4. The vital point for determination in this case is whether the sale deed, dated 23.05.1973 marked as Ex.A5 executed by first defendent Rajammal is binding on the respondent / plaintiff.
5. The trial court has held that the suit property was not sold by the first Defendant, for the benefit of the minor respondent / plaintiff and hence the same would not bind the share of the respondent/plaintiff. The trial court after considering the oral and documentary evidence adduced by both sides and after hearing both sides has decided that the plaintiff was not entitled to declaration of title and recovery of possession, as prayed for. But as she was one of the legal heirs of the deceased Poochangara Nadar, she is entitled to get . share in the suit property, for which preliminary decree for partition was passed by the trial Court.
6. The first appellant court after considering the appeal on merits, confirmed the Judgment and Decree pasted by the trial court and dismissed the first appeal. Aggrieved by which, the Second Appeal has been prepared by the defendants 2 & 3in the suit and the same has been admitted on the following Substantial Questions of Law:
" 1. Is not the learned Subordinate Judge wrong in holding that the suit is maintainable without a prayer for setting aside the sale under Ex.A1?
2. Is not the learned Subordinate Judge wrong in decreeing the suit without considering the improvements made by the appellants in the suit property ?
3. Is not the sale deed Ex.A1 was executed for the benefits and legal necessities of the plaintiff when she was a minor?"
7. The learned counsel appearing for the appellants Mr.T.R.Rajaraman contented that the suit itself is not maintainable, since the same was filed without a prayer for setting aside the sale deed, Ex.A1.
8. The first appellate court has held that, though the first defendant executed the sale deed, Ex.A5 for herself and also on behalf of the guardian of the minor respondent / plaintiff, stating herself as guardian in favour of Arumuga Nadar, the father of the appellants herein, it was not established that the same was executed for the benefit of the minor. The Defendants have not disputed the averments of the plaintiff that after the demise of Poochangara Nadar, his wife Rajammal the first defendant in the suit, had left the plaintiff, after having developed intimacy with one Arunachalam and started to live with him and the appellants have also admitted in the evidence, that the respondent / plaintiff, as a minor child, was brought up only by her maternal grand mother.
9. There is no evidence available to show that the share of the respondent/plaintiff was sold by the first defendant for the benefit of the said minor. Her evidence would show that she was given education only upto 3rd standard. The Birth certificate of the respondent / plaintiff would show that her date of birth is 03.11.1962 and as per Ex.A5, sale deed, it was executed on 21.03.1973. Therefore, on the date of the sale deed, the respondent / plaintiff was only a father-less minor child below the age of 11 years and the evidence shows that she was brought up by her maternal grand mother, since the first defendant was living with one Arunachalam. Therefore, the courts below have held that the 1/2 share of the said minor respondent / plaintiff was not sold by the first defendant for the benefit of the minor. In the absence of contra evidence, I could find no error in the aforesaid concurrent findings of the court below.
10. The learned counsel appearing for the appellants contended that the sale deed, under Ex.A5, was only voidable and not a void document and hence the respondent / plaintiff could have sought for setting aside the sale deed under Section 8 (2) of the Hindu Minority and Guardianship Act, 1926 and hence the suit was not maintainable. In support of his contention, the learned counsel relied on the following decisions.
1. 2001 (3) CTC 316 (Vishwambhar v. Laxminarayana (Dead))
2. 2002 (2) CTC 641 (Jagannathan, K. v. A.M.Vasudevan Chettiar)
3. 2002 (3) CTC 211 (Anthonysamy, C. v. V.Rajagopal Padayachi)
4. 1996 (1) CTC 661 (Ramjee, P.B. v. P.B.Lakshmanaswamy Naidu)
5. 1988 TNLJ 195 (Nainar Mohamed Rowther and another v. Minor Vijayasankar and 2 others )
6. AIR 1956 Madras 670 (Sankaranarayana v. Kandasamia)
7. 2003 (2) LW 384 (Veni & 3 others v. Perumal & 2 others)
11. Per contra, the learned counsel Mr.K.Srinivasan appearing for the respondent relied on the decisions reported in
1. 1994 (1) LW 40 (Panni Lal v. Rajinder Singh & another)
2. 1997 (3) LW 586 (Govindaraju Padayachi, P. and another v. V.V.O.Malavaraya Narayanan & Others)
3. AIR 1988 Kerala 24 (Maniyamkandi Kunhiraman v. Machil Parambath Vanaja)
12. Mr. T.R.Rajaraman, learned counsel for the appellants relying on the decision of the Honourable Supreme Court of India reported in 2001 (3) CTC 316 (Vishwambhar v. Laxminarayana (Dead)) contended that the mother who was acting as guardian of her minor sons therein, sold their ancestral property without legal necessity and without obtaining permission from the court and hence the sale was held voidable as per Section 8 (3) of the Hindu Minority and Guardianship Act, 1956 and therefore the suit without a prayer seeking for setting aside the sale by the minor within a period of 3 years after attaining majority is not legally maintainable.
13. Here in this case, as per the findings of the court below, after the death of Poochangara Nadar, the first defendant, the mother who had left her minor daughter, the respondent herein and was living with some other man, had sold the property stating herself as guardian of the minor, without obtaining any permission from the court, against the interest of the minor and therefore, according to Mr.K.Srinivasan the learned counsel for the respondent the decision cited above is not applicable for the facts and circumstances of the present case.
14. As per Section 8(2) of the Hindu Minority and Guardianship Act, 1956, the mother being the natural guardian is not empowered to sell the property of the minor without prior permission of the court and any such sale made without the permission of the Court is voidable and that the minor on attaining majority within a period of three years as per Article 30 of the Limitation Act has to seek the relief of setting aside the sale. On the facts of the case referred above, the mother who was acting as natural guardian had sold the ancestral property of her minor sons, without legal necessity and without obtaining permission from the court.
15. The Division Bench of this Court in the decision reported in 2002 (2) CTC 641 (Jagannathan, K. v. A.M.Vasudevan Chettiar) has held that in a case where partition deed was executed between members of the family and the minor member who was represented by his mother as guardian, though minor father was also a party to partition deed, had challenged the partition after attaining majority. The minor member was made eo nominee party to partition deed and represented by mother and guardian and the Division Bench of this Court held that the suit was not maintainable, as there was no relief sought for setting aside the document. In the aforesaid case, it is seen that the father of the minor was a party to the partition deed, apart from the mother representing the minor, stating herself as guardian. In the said case, the Division Bench of this Court has held that the minor should seek relief of setting aside of the partition deed.
16. In the decision reported in 1996 (1) CTC 661 (Ramjee, P.B. v. P.B.Lakshmanaswamy Naidu), the Division Bench of this Court held that the suit filed by the minor, after attaining majority without prayer, for setting aside the mortgage was not maintainable.
17. In the present case, even in the written statement, the appellants herein, as defendants 2 and 3 in the suit, have not raised the defence that the suit was not maintainable, as there was no prayer for setting aside the sale deed, Ex.A1. Further, as per the Birth certificate of the respondent / plaintiff marked Ex.A2, her date of birth is 03.11.1962. The document was not disputed by the appellants as per the Decree passed by the trial court, the suit in O.S.No. 394 of 1984 was instituted by the respondent / plaintiff, on 06.09.1982, approximately at the age of 19 years and 10 months. Therefore, as per Article 60 of the Limitation Act, the respondent / plaintiff had filed the suit, within three years after attaining majority.
18. Further, it has been held that the minor was eo-nominee party to the sale deed or other document of alienation, and hence he must suo for cancellation of document, as the document is only voidable. In the aforesaid decisions cited by the learned counsel for the appellants, the documents challenged by the minors, after attaining majority, were only voidable, as the sale deed or other document was executed by the natural guardian or defacto guardian of the minor and as such minor could challenge the same within three years after attaining majority, as per Article 60 of the Limitation Act, 1963, shall seek relief for setting aside the sale deed.
19. In the instant case, it is not in dispute that after the death of Poochangara Nadar, the first Defendant, who had left the minor respondent / plaintiff and while she was living with one Arunachalam, executed the sale deed in favour of the father of the appellants, without the permission of the Court. In such circumstances, the court can reasonably have the presumption that the sale deed, Ex.B5 was executed against law by the first defendant stating herself as guardian detrimental to the interest of the minor, who was in the custody of her maternal grand mother. In such circumstances, on the above facts and circumstances, the sale transaction, so far as it relates to the minor respondent is concerned could be construed as illegal and as such a void transaction and not merely voidable.
20. Here, in this case, unlike the other cases cited, the first defendant who was living with some other person, after the death of the father of the respondent had falsely stated herself as the guardian of the minor, and sold the property including the minor's share, and therefore, it is illegal and a void transaction as far as the minor's share is concerned.
21. The learned counsel for the respondent / plaintiff relied on the decision reported in 1994 (1) LW 40 (Panni Lal v. Rajinder Singh & another), wherein the Honourable Supreme Court held at page number 41 held as follows :
" 7. In the present case, there is no evidence to show that the father of the respondents was not taking any interest in their affairs or that they were in keeping and care of the mother to the exclusion of the father. In fact, his attestation of the sale deed shows that he was very much existent and in the picture. If he was, then the sale by the mother, not withstanding the fact that the father attested it, cannot be held to be a sale by the father and natural guardian satisfying the requirements of S.8.
8. The provisions of S.8 are devised to fully protect the property of a minor, even from the depredations of his parents. S.8 empowers only the legal guardian to alienate a minor's immovable property provided it is for the necessity or benefit of the minor or his estate and it further requires that such alienation shall be effected after the permission of the Court has been obtained. It is difficult, therefore, to hold that the sale was voidable, not void, by reason of the fact that the mother of the minor respondents signed the sale deed and the father attested it. "
22. In the decision reported in AIR 1988 Kerala 24 (Maniyamkandi Kunhiraman v. Machil Parambath Vanaja), it was held at page number 29 as follows :
" 13...According to us, Section 8(3) only indicates that the guardian who had sold his own interest along with that of the minor without the consent of the Court or any other alienor who was sui juris, would not be in a position to turn round and content that the sale effected by him of his own interest or share is also void or invalid. The object of Section 8(3) of the Act, according to us, is not to whittled down the scope of Section 8(2) of the Act but only to clarify that the right to treat the transaction as void is available only to the minor whose property is sold by the natural guardian without permission of the Court or to a person who is claiming under that minor. Thus understood, Section 8(3) cannot be relied on to hold that a transaction in contravention of the mandate of Section 8(2) of the Act, is only voidable and not void. "
23. This court in the decision reported in 1997 (3) LW 586 (Govindaraju Padayachi, P. and another v. V.V.O.Malavaraya Narayanan & Others) has held at page number 593 as follows :
" 24... no one can be a de facto guardian unless he looks after the property of the minor as well as takes care of the person of the minor. "
24. In the decision reported in 1993 (4) SCC 38 (Pannilal v. Rajinder Singh) , where a mother executed a document on behalf of the minor children when the father was alive, which was also attested by him, where the question that arose was, what is the effect of the said transaction, for which, the Honourable Apex Court has held thus :
" The provisions of Section 8 are devised to fully protect the property of a minor, "even from the depredations of his parents. Section 8 empowers only the legal guardian to alienate a minor's immovable property provided it is for the necessity or benefit of the minor or his estate and it further requires that such alienation shall be effected after the permission of the Court has been obtained. In the present case, there is no evidence to show that the father of the respondents was not taking any interest in their affairs or that they were in keeping and care of the mother to the exclusion of the father. In fact, his attestation of the sale deed shows that he was very much existent and in the picture. If he was, then the sale by the mother, not withstanding the fact that the father attested it, cannot be held to be a sale by the father and natural guardian satisfying the requirements of Section 8. It is difficult, therefore, to hold that the sale was voidable, not void, by reason of the fact that the mother of the minor respondents signed the sale deed and the father attested it "
25. In the instant case, as per the evidence and findings of the Courts below and in the light of the decision reported in 1997 (3) LW 586 (Govindaraju Padayachi, P. and another vs. V.V.O.Malavaraya Narayanan & Others), it would be proper to hold that the first defendant could not be the defacto guardian of the minor as she was neither looking after the property of the minor, nor taking care of the person of the minor, and the father-less child was brought up only by her maternal grand mother. In such circumstances, in the light of the aforesaid decisions, I am of the view that the first defendant could not be considered as de-facto guardian of the minor, while she executed the sale deed Ex.B.5.
26. As the sale deed had been executed detrimental to the interest of the minor by the mother, who had neither taken any care in safeguarding the property, nor the person of the minor, could be construed only as void transaction and not voidable and hence, there is no need for the respondent seeking the relief to set aside the sale, which is required only for voidable transactions. Further, as discussed earlier, as per findings of the court below, the appellant as Defendants 2 and 3 have not raised the defence that the suit was not maintainable, since there had been no prayer for setting aside the sale deed. Further, from the evidence, it is seen that the respondent / plaintiff has filed the suit, within three years after attaining majority. Therefore, on the facts and circumstances of the case, I am of the view that as there is no relief sought, for setting aside the sale deed, Ex.A1, it cannot be held that the suit is not maintainable. Accordingly, in view of the aforesaid finding, I answer the first Substantial Question of Law framed in this Second Appeal against the appellants / defendants and in favour of the respondent / plaintiff.
27. As per the second Substantial Question of Law, the appellants / defendants had raised a plea that they had made improvements in the suit property, for which as per the findings of the court below, there is no evidence. Further, as rightly contended by the courts below, it won't be a defence to reject the legitimate right of the respondent / plaintiff, claiming her r share, by way of partition. Therefore, I am of the view to answer the second Substantial Question of Law also against the appellants / defendants.
28. As I could find no perverse findings or infirmity in the impugned judgment rendered by the court below to interfere with and hence, I am of the view that this Second Appeal fails and the same is liable to be dismissed.
29. In the result, confirming the Judgment and Decree rendered by the courts below, this Second Appeal is dismissed. However, there is no order as to costs.
tsvn To
1. The Subordinate Court Tuticorin.
2. The Additional District Munsif Court Tuticorin.