Madras High Court
Nainar Mohammad Rowther And Anr. vs Minor Vijayasankar And Ors. on 16 November, 1987
Equivalent citations: (1988)1MLJ407
JUDGMENT Srinivasan, J.
1. This second appeal arises out of a suit for redemption of a usufructuary mortgage executed by one Easanapothi for himself and as guardian of his minor sons in favour of the 1st defendant and his brother Khader Mohideen Rowther on 18.6.1971 under Ex.A-3 for a sum of Rs. 5,000. It is admitted that Khader Mohideen Rowther had assigned his share to the 1st defendant by a document dated 14.6.1974 marked as Ex.A-4. The plaintiffs are claiming under two sale deeds dated 3.12.1975 marked as Exs.A-1 and A-2 obtained from Easanapothi for himself and as guardian of his minor sons. Easanapothi got a life interest in the property in a partition deed in the family, dated 6.4.1960, and the vested remainder was with his minor sons.
2. The main defence raised in the written statement filed by the 1st defendant which was adopted by the 2nd defendant was that the sale deeds in favour of the plaintiffs were not valid as they were not for the benefit of the minors or the necessity of the family. The 1st defendant also raised a contention that he had made improvements for the value of Rs. 2,000 and that he should be compensated therefor. In the written statement, there is an averment in paragraph 4 that the 1st defendant was in possession of the mortgaged property for 30 years and that he was doing business therein by investing huge capital. In paragraph 7 of the written statement, the 1st defendant stated that in Door No. 66 of East Car Street, the 2nd defendant was doing business in the name and style of Mohan Biscuit Stall for about 30 years and that the 2nd defendant was a necessary party to the suit. It was thereafter the 2nd defendant was impleaded in the suit as a party. He did not, however, choose to file any separate written statement, but adopted the written statement filed by the 1st defendant.
3. The trial Court framed three issues as follows:
(1) Whether the plaintiffs have title to redeem?
(2) Whether the 1st defendant has made any improvements in the mortgaged property?
(3) To what relief, are the plaintiffs entitled?
4. The trial Court found against the defendants on all the three issues and granted a decree in favour of the plaintiffs. The trial Court straightaway passed a final decree for redemption as the entire amount due under the mortgage had been deposited into Court and there was no dispute with regard to the quantum of the amount due. On appeal, the learned Subordinate Judge of Tenkasi framed the following four points:
(1) Whether the plaintiffs have right to redeem the plaint schedule properties?
(2) Whether the claim of improvement alleged to have been made by the 1st defendant is acceptable?
(3) Whether the 2nd defendant is entitled to the protection under the Tamil Nadu Buildings (Lease and Rent Control) Act, 1960?
(4) Whether the passing of a Final Decree straightaway is correct?
5. The learned Subordinate Judge affirmed the findings of the trial Court on Point Nos. 1 and 2. On Point No.3, the learned Subordinate Judge found that the matter was covered by a decision of this Court in S.V. Venkatarama Reddiar v. Absul Ghani Rowther (1980)2 M.L.J. 179, and that the defendants were not entitled to claim the benefits of Tamil Nadu Buildings (Lease and Rent Control) Act, 1960. On point No. 4, the learned Subordinate Judge took the view that the plaintiffs had not deposited the entire amount to the credit of the present suit for redemption and that the plaintiffs had deposited in an earlier O.P, filed under Section 83 of the Transfer of Property Act a sum of Rs. 2,014 and that the plaintiffs should take steps to get the amount transferred to the credit of the present suit. In that view the learned Subordinate Judge held that it was proper to pass a preliminary decree at first and grant two months time for bringing the amount to the credit of the suit and that a final decree could be passed only thereafter.
6. Against the judgment and decree passed by the learned Subordinate Judge, the defendants have filed the second appeal and the plaintiffs have preferred a memorandum of cross-objections in so far as the decree is against them in the sense that the final decree passed by the trial Court is set aside and substituted by a preliminary decree.
7. In this second appeal, learned Counsel for the appellants urges the following contentions. The first contention is that the 1st defendant and the 2nd defendant were tenants occupying the mortgaged premises for about 30 years prior to the date of suit, i.e., even prior to the execution of the usufructuary mortgage and on the redemption of the mortgage, their tenancy rights could get revived and they cannot be dispossessed pursuant to the decree for redemption. This plea was not raised in the written statement. However, learned Counsel for the appellants argues that the plea is implicit in the averments made in paragraphs 4 and 7 of the written statement to which I have already made a reference. The averments are to the effect that the 1st defendant as well as the 2nd defendant were doing business in the mortgaged premises for about 30 years. There is no specific averment that they were in possession as tenants prior to the execution of the mortgage, nor was there any plea that the tenancy rights got revived on the redemption of the mortgage. Learned Counsel draws my attention to paragraph 7(a) of the plaint which was introduced at the time of impleading the 2nd defendant as a party to the suit. It is stated in that paragraph that the 1st defendant had leased out Door No. 66 to the 2nd defendant and that the 2nd defendant was having a biscuit shop therein. It is contended by learned Counsel of the appellants that a reading of the averment in paragraph 7(a) of the plaint and the averments in paragraphs 4 and 7 of the written statement, makes it clear that the possession of the defendants for about 30 years prior to the suit was not a matter in dispute and such possession could only be referred to a tenancy prior to the usufructuary mortgage. I am unable to agree with this contention. It cannot be by any stretch of imagination inferred from the recitals found in the plaint and written statement that there was a lease in favour of both the defendants prior to the execution of the usufructuary mortgage. As pointed out already, there is absolutely no plea that the tenancy rights got revived on the redemption of the mortgage.
8. Learned Counsel for the appellants refers to the memorandum of grounds filed in the lower appellate Court and points out that this plea was raised before the lower appellate Court. In the grounds of appeal before the lower appellate Court, it is stated that the trial Court had over-looked the admission made by P.W. 1 that the defendants were in possession for over 30 years prior to the suit. It is now seem from the deposition of P.W. 1 that no such admission was made by him and the ground raised before the lower appellate Court was based on a mistake. A ground has been raised in the memorandum of grounds of second appeal that the learned Subordinate Judge had not considered the argument advanced on behalf of the appellants that the defendants being tenants in possession of the shop before the suit othi, were entitled to have their possession protected even on redemption. I do not find any reference to this argument in the judgment of the lower appellate Court. If the learned Subordinate Judge had omitted to consider such an argument, it was for the appellants to have filed an application to review and invited him to give his findings on that aspect. I am not prepared to accept the contention of learned Counsel for the appellants that such an argument was advanced before the lower appellate Court and not considered by it.
9. Even assuming that the point could be allowed to be raised in this second appeal, I am of the opinion that there is no substance therein. It is seen from the othi deed Ex.A-3 that the 1st defendant was put in possession only pursuant to the othi. There is absolutely no reference whatsoever to any prior lease in the othi deed. Unless the relationship of landlord and tenant had been preserved by the othi deed, it cannot be contended that even after the redemption of the othi, the mortgagee can continue to be in possession as a tenant by virtue of the prior lease. In paragraph 2 of the written statement, it is expressly stated that the 1st defendant was in possession of the property from the time of othi. Obviously the 1st defendant did not think of putting forward any rights under the prior tenancy which is now alleged to have been in existence. Even if there had been a prior lease in favour of the defendants, that came to an end by the execution of the othi and after the mortgage came into existence, the relationship between the parties was only that of mortgagor and mortgagee and not that of landlord and tenant. Hence I reject this contention urged by learned Counsel for the appellants.
10. The second contention urged on behalf of the appellants is that the sale in favour of the plaintiffs was not valid as there was no attempt on the part of the plaintiffs to justify the same by proving necessity or benefit. Though I am of the opinion that this contention cannot be raised by the mortgagee and it is only for the minor sons of Easanapothi to question the validity of the transaction, if they so choose, I will deal with the merits of this contention also. I find from the recitals of Exs.A-1 and A-2 that there were mortgages other than the othi in favour of the 1st defendant, and the sales were effected for the purpose of discharging those mortgages also. The recitals in the sale deeds also show that the amount realised under the same was required for family expenses and for a lodging business conducted by Easanapothi. It should not be forgotten that Easanapothi had a life Interest in the property. So long as he is alive, he is entitled to be in possession. The minor children had only a vested remainder. With regard to possession, Easanapothi can transfer it to any person, he likes. When he had transferred it to the present plaintiffs under Exs.A-1 and A-2, it is not for the mortgagees to contend that the transfer is not valid, because, it is not binding on the minors. Whether the sales are binding on the minors or not, the right to be in possession of the property as a life-estate holder could be validly transferred by Easanapothi even without consideration to the plaintiffs. It is not open to the mortgagees to say that the plaintiffs are not entitled to redeem. As the plaintiffs have purchased not only the rights of the minor children, who had vested remainder, but also the life interest of Easanapothi, they are entitled to redeem the mortgage and take possession from the mortgagee. I find that the evidence of P.W.1 corroborated by the recitals in Exs.A-1 and A-2 having been accepted by the Courts below as proving the benefit and family necessity, the sales have been rightly held to be binding on the minor children with reference to their vested remainder. It is also noted by the lower appellate Court that the sale deeds were attested by the mother of the minor children and the brother of Easanapothi. The reasoning adopted by the Courts below for holding that the sales were binding on the minor children cannot be said to be erroneous.
11. The next contention urged by the learned Counsel for the appellants is that the sales were void as they were in contravention of Sub-section (2) of Section 8 of the Hindu Minority and Guardianship Act, 1956. Admittedly, the guardian did not obtain the sanction of the Court before effecting the sales. The question is, whether the absence of a permission by the Court would invalidate the sales and make them AB Initio void. Sub-secs.(2) and (3) of Section 8 of the said Act read thus:
8. Powers of natural guardian:(1) XXX XX (Z) 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 Sub-section(l) or Sub-section(2), is voidable at the instance of the minor or any person claiming under him.
It is urged by learned Counsel for the appellants that a transaction which is in contravention of Sub-section (2) of Section 8 of the said Act is void Ab Initio and that Sub-section(3) has been introduced by the Legislature only to enable the minors to ratify the transaction and make it valid and till such ratification is made, the transaction continues to be invalid. In support of this contention, learned Counsel relies upon the minority, judgment of Justice Goyal in Surta Singh v. Pritam Singh . The learned Judge has expressed his opinion on a construction of Section 8(2) and (3) in the following terms:
As regards the alienation by a certificated guardian under the Guardians and Wards Act Section 29 provides that he could not do so without the previous permission of the Court and under Section 30 any disposal of the immovable property made without sanction is voidable at the instance of the minor or any other person affected thereby. The provisions of Section 8(2) and (3) of the Act are Pari Materia with those of the Guardians and Wards Act. From a bare perusal of the provisions of the statute it is apparent that the natural guardian after the enforcement of the Act is debarred from alienating the property of the minor without the prior sanction of the Court. The Legislature had purposely used the word, "shall" in Sub-section(2) of Section 8 to make this provision mandatory. However, in Sub-section(3), the alienation made in contravention of the provisions of Sub-section(2) has been made voidable at the instance of the minor or any other person claiming under him. The use of the term voidable does not necessarily mean that the alienation is voidable in the sense that it is binding on the minor unless it is set aside. The minor, however, may choose to ratify the alienation though it is not Binding on him and it is only to that extent that it is voidable. The term voidable has obviously been used to convey the latter sense in Sub-section(3) because by virtue of the provisions of Sub-section(2) the guardian is absolutely barred from making any alienation without the prior sanction of the Court. The alienation made by the guardian without the permission of the Court would be against the mandatory provisions of law and, therefore, being not binding on the minor, he would not be required to get it set aside by the Court. Still the alienation would be voidable in the sense that the minor on attaining majority may choose to ratify it, may be it was for his benefit or for any other reason.
12. With respect to the learned Judge, I do not agree with the opinion expressed by him. As far as this Court is concerned, a Division Bench had occasion to consider the nature of a guardian's sale vis-a-vis the minor prior to the passing of the Hindu Minority and Guardianship Act in Thayammal v. Rangaswami Reddy and Ors. (1955)2 M.L.J. 426. The Division Bench made a distinction between the sale effected by a guardian and a sale effected by a Hindu widow. With regard to the alienation by a guardian, the Bench observed as follows:
The case of an alienation by a minor's guardian stands on a basis entirely different from that of an alienation by a limited owner like a widow. In the former case, the alienation is binding on the minor unless it is set aside. It is not void, it is voidable. In the case of an alienation by a limited owner, Prima Facie an alienation beyond her lifetime is not valid and binding on the reversioner. It is only if the alienee establishes certain circumstances that the alienation can convey to him the absolute interest in the property conveyed. When, therefore, a minor purports to transfer property which had already been alienated by his guardian to another, he cannot convey title to the property as such. He is really transferring his right to recover the properties after setting aside the alienations.
13. I am of the opinion that this exposition of the law was statutorily approved by the Legislature in introducing Sub-section(3) of Section 8. Sub-secs.(2) and (3) of Section 8 have to be read together in order to decide the validity of an alienation effected by a guardian without obtaining the permission of the Court. While Sub-section(2) enjoins upon the guardian not to alienate without the prior permission of the Court, Sub-section(3) makes it clear that any alienation effected in contravention of Sub-section(2) is voidable at the instance of the minor. If as contended by learned Counsel for the appellants, the transaction continues to be void till ratification is made by the minor, the language of Sub-section(3) would have been entirely different. The section would have read that the transaction is not valid until and unless ratified by the minor. When Sub-section(3) expressly says that a disposal of immovable property by a natural guardian, in contravention of Sub-section(l) or Sub-section(2), is voidable at the instance of the minor, it is very clear that the transaction is valid until it is set aside by the minor. Hence I do not accept the third contention raised by learned Counsel for the appellants. I do not think it necessary to refer in detail to the decision of a Full Bench of this Court in Amirtham Kudumbam v. Sornam Kudumbam (1977)1 M.L.J. 1, referred to by learned Counsel for the appellants. The ruling given in that case was that the right to set aside the alienation of a minor's property by the guardian was available under Section 8(3) of the Hindu Minority and Guardianship Act not only to the minor himself but also to any person claiming under him, which latter expression included a transferee of the minor. I do not think that the decision would held the appellants in the present case in view of the findings already arrived at by me.
14. What remains to be considered is the memorandum of cross-objections filed by the plaintiffs. The trial Court straightaway passed a final decree for redemption. The lower appellate Court has chosen to substitute it with a preliminary decree on the ground that the entire amount due under the mortgage was not deposited to the credit of the suit. This view of the lower appellate Court is factually wrong. Learned Counsel for the respondents produced before me a certified copy of the suit register extract which shows that the amount deposited to the credit of O.P.3 of 1977 was already directed by the trial Court by order dated 31.8.1979 in La. 1380 of 1979 to be sent for to the credit of the present suit for redemption. It is represented by learned Counsel for the respondents that pursuant to the said order, the amount had been entered to the credit of the suit for redemption. Thus, the entire amount having been brought to the credit of the suit for redemption, and there being no dispute with regard to the quantum of the amount due under the mortgage, the plea that there should be preliminary decree in the first instance and thereafter a final decree, is nothing but a hyper-technicality. Nothing else remains to be done in the suit by passing a preliminary decree. It is clear from a reading of Order 34, Rule 7 of the Code of Civil Procedure that a preliminary decree is to be passed for taking of account as to what was the amount due to the defendant at the date of the decree for principal and interest of the mortgage, costs of suit, if any, awarded to him and other costs, expenses properly incurred by him upto the date of decree in respect of the mortgage security together with interest thereon. In this case, the claim made by the defendants that they had made improvements and that they were entitled to be compensated therefore had been found against by both the Courts below. Hence there is no dispute with respect to the amount due under the mortgage. There is no dispute to pass a final decree straightaway. Learned Counsel for the appellants contended that some time should be granted to the defendants to produce the documents and, re-transfer the property to the plaintiffs. I do not think that there is any necessity to fix any time therefor. The decree of the trial Court is one for delivery of possession of the properties by the defendants to the plaintiffs along with the documents of title and other connected documents.
15. In the result, the decree of the lower appellate Court is set aside and it will be substituted by the final decree passed by the trial Court. The second appeal fails and is dismissed with costs. The memorandum of cross-objections is allowed, but there will be no order as to costs.