Madras High Court
Venkatesa Mudaliar And Ors. vs N. Krishnaswamy Mudaliar Trust ... on 18 September, 1990
Equivalent citations: (1991)592MLJ1
JUDGMENT Srinivasan, J.
1. The respondent herein instituted the suit, which has given rise to this Second Appeal for a declaration of its absolute ownership of the suit property and for injunction restraining the appellants from interfering with the possession and enjoyment of the said property. The claim of the respondent is based on a deed of settlement executed by one Chandrasekaran on 1.11.1975 (Ex. A-2) gifting an extent of 1.40 acres in Survey Number 152 in Allapuram Village, Vellore Taluk, North Arcot District which is the subject matter of the suit.
2. It is not now in dispute that the suit property and some other properties were bequeathed by V. Kothandarama Mudaliar, the grand father of the plaintiffs donor under a Will dated 15.11.1937 (Ex. A-1) in favour of his son Nataraja Mudaliar and grandson Chandrasekaran. According to the plaintiff, Nataraja Mudaliar got a life estate without any power of alienation and Chandrasekaran had the vested remainder. It was stated in the plaint that the sale by Nataraja, Mudaliar in favour of the first appellant's father by name Choolai Sabapathi Mudaliar on 30.9.1943 under Ex. B-6 was not valid or binding on Chandrasekaran. Nataraja Mudaliar had no right, according to the plaintiff, to sell the property and there was no necessity for such a sale. It was stated in the plaint that Chandrasekaran ignored the sale deed as it was not binding on him, and there was no necessity to set aside the same. It was alleged that possession was always with the plaintiffs donor and at the time of the settlement deed, it was handed over to the plaintiff. The plaintiff alleged that appellants 2 to 4, who purchased portions of the suit property from the first appellant and the fifth appellant, who purchased a portion from the second appellant, were not in possession. Appellants 1,6 and 7 are brothers, being the sons of the purchaser from Nataraja Mudaliar. The second appellant has purchased on extent of 4 cents on 22.11.1972 under Ex.A-11 from appellants 1, 6 and 7. The third appellant has purchased an extent of 4 cents from appellants 1, 6 and 7 under Ex. A-12 dated 26.11.1972. The fourth appellant has purchased an extent of 4 cents from appellants 1, 6 and 7 under Ex. A-10 dated 17.11.1972. The fifth appellant is a purchaser from the second appellant under Ex. A-13 dated 17.2.1973.
3. The appellants contested the suit challenging the genuineness and validity of the will dated 15.11.1937 executed by Kothandarama Mudaliar. The appellants contended that the plaintiff having made a vain attempt to get the suit property acquired by the Government under, the provisions of the Land Acquisition Act was keen on grabbing the property and instituted the suit making a false claim. It was also contended that even if the will was true, Nataraja Mudaliar had a right to alienate the property for family necessity and benefit of the estate and in order to improve the estate for increasing the income, the property was sold in favour of the appellants' father. The sale was for the benefit of the donor of the plaintiff, who was a minor at that time, and as he had not questioned the transaction, the suit at the instance of the plaintiff was not maintainable, and it was barred by limitation. The appellants also set up a plea of adverse possession, besides questioning the bona fides of settlement deed in favour of ' the plaintiff by Chandrasekaran.
4. The trial court held that the will of Kothandarama Mudaliar was true and valid and Natarajan Mudaliar was given only life interest in the property without power of alienation under the same. It was found that the donor of the plaintiff being an eo nomine party to the sale deed in favour of the first appellant's father, the right to avoid the transaction was the personal privilege of the minor and that was not heritable or transferable. It was held that the plaintiff did not derive any title under the settlement deed and the suit was not maintainable without setting aside the alienation dated 30.9.1943 in favour of the first appellant's father. It was held that the plaintiff and its donor were estopped from disputing the title of the appellants over the suit property. It was found that the plaintiff was not in possession of the suit property and the suit was barred by limitation. Curiously, a finding was also given by the trial court that the suit was premature as NatarajaMudaliarwasaliveat that time. On these findings, the suit was dismissed.
5. On appeal by the plaintiff, the District Judge of North Arcot at Vellore observed that there was no plea on behalf of the appellant that the vested remainder of Chandrasekaran was conveyed to Choolai Sabapathi Mudaliar under Ex. B-6 and held that the subject matter of the sale was only the life interest belonging to Nataraja Mudaliar and nothing else. The appellate Judge also held that the entire sale consideration was taken by Nataraja Mudaliar for himself. Consequently, the appellate court declared the title of the plaintiff, but held that the plaintiff was not entitled to possession during the life time of Nataraja Mudaliar. A decree was, therefore, passed by the appellate Judge granting only the relief of declaration of title in favour of the plaintiff and dismissing the suit in other respects.
6. It is now admitted by the parties that Nataraja Mudaliar died after the filing of the Second Appeal. But, nothing will turn on that as. the plaintiff/respondent has not chosen to amend the plaint and pray for the relief of possession or file any memorandum of cross-objections challenging the dismissal of the suit with reference to the prayer for injunction. As per the finding of the lower appellate court, the remedy of the plaintiff would be to institute a suit for recovery of possession in the event of its title being upheld in this Second Appeal.
7. Thus, the only question which has to be considered by this Court is whether the plaintiff is entitled to have a decree declaring its title to the suit property. It is contended by learned Counsel for the appellants that under Ex. B-6 dated 30.9.1943, Nataraja conveyed not only his interest in the property, whatever it may be, but also the interest of his minor son Chandrasekaran as his guardian. According to learned Counsel Chandrasekaran ought to have repudiated the transaction within a period of three years from the date of his attaining majority and as he has not done so, the plaintiff claiming under a settlement deed dated 1.11.1975 executed after the right of Chandrasekaran to take action was barred by the law of Limitation was not entitled to maintain the suit. It was also contended that by the conduct of the plaintiff before the institution of the suit in moving the Government to acquire the property under the provisions of the Land Acquisition Act, admitting the ownership of the appellant's in the said property the plaintiff was estopped from denying the title of the appellants in these proceedings. Per contra, learned Counsel for the respondent contended that the subject matter of the sale in favour of the first appellant's father was only the life interest of Nataraja Mudaliar and there was no necessity for his son Chandrasekaran to set aside the transaction or repudiate the same within a period of three years after attaining majority. It is also contended that Chandrasekaran's right to recover possession would arise only on the death of his father Nataraja Mudaliar and as he was alive on the date of suit and even at the time of the filing of the second appeal, the suit was not barred by limitation. Learned Counsel also submitted that there was an embargo in the will of Kothandarama Mudaliar on any alienation by Nataraja and the transaction was therefore, void and did not require to be set aside. It is also argued that by the execution of the settlement deed, Chandrasekaran avoided the transaction and the said avoidance dated back to the date of alienation viz. 30.9.1943 and there was, therefore, no need for the plaintiff to set aside the sale.
8. The first and foremost question to be considered^ whether under the sale deed dated 30.9.1943 Nataraja Mudaliar conveyed the interest of his minor son, acting as his guardian. The answer to the question will depend on the character of the transaction which has to be ascertained not only from the language used in the document, but also the facts and circumstances of the case from which the intention of the parties could be gathered. The Principle applicable in these matters were clearly laid down by the Privy Council as early as in 1856 in Hunoomanpersaud Panday v. Mussumat Babooeemunraj Koonweree 6 M.I.A. 393. In that case, a suit was filed for recovery of possession and to set aside a mortgage bond executed by the mother of the plaintiff against the appellant before the Privy Council. The appellant contended that the plaintiff was not entitled to recover possession as the mortgage was binding on him. While the Court of first instance held against the plaintiff, the appellate court decided against the mortgagee and in substance granted the relief asked by the plaintiff. One of the reasons given by the appellate court was that the mother of the plaintiff dealt with the property in her proprietary character and she did not act as her son's guardian and, therefore, the bond was not binding on the plaintiff. On appeal by the mortgagee, the Privy Council came to a different conclusion and held that the mother of the plaintiff acted as the guardian of the minor. The reasoning of the Privy Council was as follows:
Deeds and contracts of the people of India ought to be liberally construed. The form of expression, the literal sense, is not to be so much regarded as the real meaning of the parties which the transaction discloses. Now, what is meant by the assumption of proprietorship on the part of the Ranee, which the judgment ascribes to her? It is not suggested that she ever claimed any beneficial interest in the estate as proprietor; had she done so, it would have been pro tanto, a claim adverse to her son and it is conceded by the Respondent's counsel that she did not claim adversely to her son. The terms of "Proprietor" and of "heir" when they occur, whether in deeds or pleadings, or documentary proofs, may, indeed, by a mere adherence to the letter, be construed to raise the conclusion of an assumption of ownership, in the sense of beneficial enjoyment derogatory to the rights, of the heir; but they ought not to be so construed unless they were so intended, and in this case their Lordships are satisfied that they were not so intended. They consider that the acts of the Ranee cannot be reasonably viewed otherwise than as acts done on behalf of another, whatever description she gave to herself, or others gave to her; that she must be viewed as a Manager, is accurately and erroneously described as "proprietor" or "heir"; and it is to be observed, that the Collector takes this view, for, whilst he remarks on the improper description of her as heir, or proprietor, he continues her name as "Surberakar". If the whole context of all these documents and pleadings be taken into consideration and the construction proceed on every part and not on portions of them, they are sufficient, in their Lordship's Judgment, to show the real character of her proprietorship.
11. Under Section 8 of the Transfer of Property Act, unless a different intention is expressed or necessarily implied, a transfer of property passes forthwith to the transferee of the interests which the transferor is then capable of passing in the property and in the legal incidents thereof. Hence, the transfer under Ex. B-6 did convey all that Nataraja Mudaliar could pass on to the transferee at that time. Undoubtedly, Nataraja Mudaliar was the legal and natural guardian of minor Chandrasekaran. He was entitled to act on behalf of the minor and convey the minor's interest in. the property subject to the limitations imposed by law on a guardian for alienating a minor's property.
12. The conclusion that under Ex.B-6, Nataraja Mudaliar conveyed also the interest of Chandrasekaran in the property, does not rest merely on the circumstances already referred to. There are other facts in this case which buttress and support the said conclusion. Admittedly Nataraja Mudaliar was alive till after the filing of the Second Appeal. Yet, he did not choose to examine himself as a witness in the case to speak to the intention of the parties to the transaction evidenced by Ex. B-6. Chandrasekaran deposed as P.W. 1 that he was staying in the same house as his father, but he was not on talking terms with his father. Learned Counsel for the appellants rightly placed reliance on the observations made by a Division Bench of this Court in an analogous case in Santana Venugopalakrishnan and Anr. v. K.V. Venugopal and Ors. (1976) 2 M.L.J. 134. That was a case of a son attacking the alienations of family property by father-Manager. Pointing out the difficulties of the alienees in such cases in proving the binding nature of the alienations by establishing the proper utilisation of the consideration by the alienor, the Bench observed thus:
We may also in passing refer to the decided cases making another general observation in cases like the one under consideration. It is the common feature in such cases that the father who is responsible for the litigation, who, thoughts living with the minor, keeps himself safely outside the witness-box. He can easily be presumed to be a person who is encouraging this litigation as a Sutradari. It would not be unreasonable to presume that the hand of the father is always there in this litigation and he just brings into the witness box his brother's sons, minor children and others so as to gamble in litigations, by challenging his own alienations through them.
The plaintiff ought to have, in this case, examined Nataraja Mudaliar to prove that he never intended to convey the interest of his minor son in the property.
14. In the plaint, the plaintiff studiously avoided any reference to the conveyance of the minor's interest in the property under Ex. B-6. While referring to the terms of the Will it was stated that Nataraja Mudaliar was given life interest without powers of alienations and Chandrasekaran had thevested remainder. While referring to the sale deed dated 30.9.1943, it was stated as follows:
Plaintiff submits that any sale by Nataraja Mudaliar of the schedule mentioned land is not valid or binding on Chandrasekaran. Chandrasekaran was a minor at the time when Nataraja Mudaliar seems to have sold this property to Choolai Sabapathi Mudaliar. Further, there was no need or necessity to sell this land. As already stated the income from the other properties was more than sufficient for maintenance of the family and the minor. Nataraja Mudaliar had no right to sell the property even though the minor is shown as a party to the sale deed.
The above recitals in the plaint show that the plaintiff was quite conscious of the minor's interest having been dealt with in Ex. B-6. But, at the same time, the plaintiff was clever enough not to admit the same expressly in the plaint. Very ingeniously the plaint stopped with stating the fact that Chandrasekaran was a minor at the time of sale and there was no need or necessity to sell the land, as there was more than sufficient income for the maintenance of the family and the minor. Thus, the plaintiff had made the necessary pleading that the sale was not binding on the minor, as it was not for his benefit, but at the same time, did not admit that under the transaction, the minor's interest was conveyed by the guardian. The defendants obviously, not being as clever as the plaintiff, were content with denying the ex facie averments in the plaint. While disputing the genuineness and validity of the Will by Kothandarama Mudaliar, the defendants raised an alternative plea that even if the will was true, Nataraja Mudaliar had every right to alienate for family necessity and benefit of the estate. It was also stated clearly by the defendants that Nataraja Mudaliar sold the property on 30.9.1943 purely out of legal necessity in order to improve the minor's estate for increasing the income and the sale was for the benefit of the minor's estate. Of course there is no express plea in the written statement that the subject matter of the conveyance in Ex. B-6 included the vested remainder of the minor. But, a reading of the written statement shows that such plea is clearly implied therein. When there is no express plea by the plaintiff that Nataraja Mudaliar conveyed only his interest in the property under Ex. B-6, there is no necessity for the defendants to contend that he conveyed the vested remainder of his minor son also. But, a reading of the plaint and the written statement together, gives rise to the issue as to whether the transaction under Ex. B-6 was brought about by Nataraja Mudaliar in his capacity as guardian of his minor son also. Hence, the appellate Judge, is clearly in error in holding that the defendants have not pleaded that the vested remainder of Chandrasekaran was conveyed under Ex. B-6. The Appellate Judge is also in error in holding that the sale deed under Ex. B-6 did not convey the vested remainder of minor Chandrasekaran.
15. Learned Counsel for the appellants contended that under Ex. A-1, the will of Kothandarama Mudaliar, Nataraja Mudaliar, was not given any interest in the property and what was given to him was only a right to enjoy the income with the consequence that at the time of Ex. B-6 the only interest in the property which could have been alienated by Nataraja Mudaliar was that of his minor son and nothing else. Though a reading of the Will supports the said contention of learned Counsel, I do not think it necessary to give any finding thereon. It is immaterial whether Nataraja Mudaliar had a life estate in the property or merely a right to enjoy the income without any interest in the property. Whatever right he had, he conveyed the same under Ex. B-6 along with the interest of the minor in the property.
16. Learned Counsel for the appellants relied on the circumstance that at the instance of the plaintiff, the Government sought to acquire a portion of the suit property under the provisions of the Land Acquisition Act and issued notice to the first appellant to appear for an enquiry. According to Learned Counsel, there was thus an admission on the part of the plaintiff of the title of the appellants and the plaintiff would be estopped from disputing the same. On the facts and circumstances of the case, it is wholly unnecessary for me to consider that question, though prima facie, I am of the opinion that doctrine of estoppel cannot be invoked.
17. Learned Counsel for the appellants drew my attention to the fact that the plaintiff had purchased another land from Nataraja Mudaliar and his son Chandrasekaran under Ex. B-1 dated 20.10.1975 before taking the settlement with reference to the suit land from Chandrasekaran under Ex. A-2 dated 1.11.1975. Learned Counsel pointed out that both the documents were registered on the same day, one at Madras and another at Vellore. According to him, the settlement deed was registered at Madras in order that it could be kept beyond the knowledge of the appellants. Nothing much turns on the circumstance, though it creates a suspicion to a small degree.
18. The appellants have produced Ex.B-7 a blueprint plan to show that shops had been built by Nataraja Mudaliar as recited in Ex. B-6. Thus, according to them, the consideration passed under Ex. B-6 was utilised for the benefit of the minor. The first defendant has also corroborated the same by giving evidence as D.W. 1. Thus, the evidence on record is sufficient to prove that the sale under Ex. B-6 was for the benefit of the minor son.
19. Differing from the lower appellate Court, I hold that the transaction dated 30.9.1943 conveyed not only the right and interest of; Nataraja Mudaliar, but also the entire interest of Chandrasekaran, in the property to the father of appellants 1,6 and 7. Chandrasekaran being an eo nomine party to the transaction, should have repudiated the same within three years after attaining majority. Not having done so, he lost his right by the provisions of the Limitation Act. (vide Article 44 of the Old Act and Article 60 of the present Act).
20. In RajaRamaswami and Ors. v. Govinddmmal and Ors. A.I.R. 1929 Mad. 313, a Division Bench of this Court held that Article 44 of the Limitation Act applied not only to setting aside the transfer of property made by a guardian appointed by Court or by Will, but also to suits for setting aside a transfer of property made by a natural guardian. It was pointed out in that case that a suit by a transferee from a minor was also governed by Article 44 of the Limitation Act (Old Act). It was further observed that it was not the form of the relief claimed in the plaint which determined the real character of the suit for the purpose of ascertaining the appropriate Article of the Limitation Act governing the suit and if the property sued for was held by the contesting defendant under a sale deed which was not void but only voidable and possession could not be obtained without the sale being set aside, the suit should be regarded as one brought to set aside the transfer though no relief in those terms was prayed for, but the prayer was only for possession of the property.
21. In Thayammal v. Rangaswami Reddy, (1955) 2 M.L.J. 426, a Division Bench of this Court compared an alienation by guardian with that by a limited owner and 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 valid, it is voidable. In the case of an alienation by a limited owner, prima facie an alienation beyond her life time 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. The decision of the Bombay High Court in Javerbhai v. Kabhai A.I.R. 1933 Bom. 42, on which Mr. Gopalswami Ayyangar relies relates to an alienation by a guardian; the minf or after attaining majority transferred the property to another and brought a suit along with him to set aside the previous sale by his guardian. Subsequently, the Vendor made an application to withdraw from the suit, and without any objection on the part of the purchaser he was allowed to withdraw from the suit. It was held that the purchaser alone had no authority to continue the suit because by such withdrawal from the suit he must be deemed to have elected to acquiesce in the sale by his guardian and his interests became extinguished under Article 44 read with Section 28 of the Limitation Act. The Learned Judge held that what was assigned to the purchaser was not the property but his right to sue for it...
22. In S.A. Decosta v. Sivasubramonia A.I.R. 1956 Tra. Cochin 107, a Division Bench of the Travancore High Court held that when a Christian died intestate, leaving his widow and son, the son had a vested right in the properties during the lift time of his mother, subject to her life interest, which was terminable on death or remarriage, and if the mother alienated the property during the minority of the son, it had to be set aside within three years on his attaining majority under Article 44 of the Limitation Act and a suit instituted by him for recovering possession of the property after the expiry of the period, was barred by limitation. The Bench held that the mere fact that the mother was entitled to be in possession of the property till her death and her son could get possession only after her death, did not affect the question.
23. In Ramachandran v. Rukmangadan , a Division Bench of this Court held that where a minor had a share in certain property and his father acting as his guardian alienated the same to another, the alienation was voidable and not void and the minor could not get any relief, such as partition or possession of the property, without getting the alienation set aside and a suit for partition or possession without specifically asking for setting aside the alienation would be regarded as one to set aside the alienation and it would be governed by Article 44 of the Limitation Act and not Article 140.
24. In Amirtham Kudumban v. Sornam Kudiimban , a Full Bench of this Court held that under Section 8(3) of the Hindu Minority and Guardianship Act (XXXII of 1956), the right to set aside the alienation of a minor's property by the guardian was available not only to the minor himself but also to any person claiming under him, including a transferee of the minor.
25. A Full Bench of the Punjab and Haryana High Court held in Surta Singh v. Pritam Singh , that a quondam minor challenging the transfer of an immovable property through his natural guardian in contravention of Section 8(1) and (2) of the Hindu Minority and Guardianship Act, 1956 and seeking possession of the property could bring the suit only within the prescribed period of three years after attaining majority under Article 60 of the Limitation Act.
26. In Chaniram Sahu v. Samaru Nag , Mohapatra, J. summed up the law thus:
...The consensus that emerge on perusal of these decisions, as it appears to me, is that a transfer of property of the minor by natural guardian without permission of court is voidable at the instance of the minor. It is not voidable in the sense that it is binding on him until set aside, but it means that although not binding on him the transfer may be ratified' by the minor on attaining majority. It is open to the minor to avoid the transaction either by filing a suit to set aside the sale or by unilateral conduct. One such conduct may be to sell the very same property to another person ignoring the sale by the guardian. There maybe situations in which the erstwhile minor may have to file a suit to establish his title to the property and in such a suit he has to seek the relief of setting aside the sale deed and has to pay court-fee on that basis. Such situation may arise where the minor is out of possession of the property and wants to recover possession from the purchaser. A suit by a minor to set aside the sale has to be filed within three years from the date of his attaining majority as prescribed under Article 60 of Limitation Act, 1963. If the minor fails to file the suit to set aside the transfer within the prescribed period his right to the property is not extinguished; the only consequence is that he is debarred from recovering possession of the property if he has been dispossessed therefrom.
27. Thus, it is too well settled 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 alienee. Any transferee from the minor would be in the same position and he cannot have a better right than the transferor.
28. Learned Counsel for the respondent invited my attention to the judgment in Bhagwan Dass v. Kashi Prasad and Ors. A.I.R. 1935 All. 417. In that case, the minor's property was alienated by his mother and another person during his minority and there was absolutely, nothing on record to show that the alienation was by the guardian of the minor. The Court found that the executants of the deed acted on their own behalf as if the property belonged to them. In those circumstances, it was held that the transfer was void ab initio, and not merely voidable. The law was, however, stated as follows:
Where a minor's property is sold by his guardian who professed to act as such or who can be shown to have acted in that capacity, the minor may bound to have the deed set aside within three years after attaining majority; but where the property has been alienated by the guardian as if it were his own and the mortgagee treats it as the property of the alleged guardian personally and has it sold as such Article 44 cannot apply. It cannot t c said to be a case of a transfer of minor's property by his guardian. Where a guardian transfers property in circumstances which did not justify the transfer, such transfer is only voidable. Where however the transfer is void ab initio, Article 44 does not apply. Where a minor's property is sold by another person, even though he be his guardian claiming it to his own, the minor's interest is not affected by such transfer, which is void.
29. As I have held on the facts of this case, that the alienation by Nataraja was not only on his behalf but also as the guardian, of his minor son, that judgment does not in any manner help the respondent. On the other hand, the proposition of law stated therein if applied to the facts of this case, would only be against the respondent.
30. Learned Counsel for the respondent placed reliance on the judgment of Ratnam, J., in Periyanayagam v. Rajendran and Ors. 1988 T.L.N.J. 26, (S.A. Nos. 1668 and 1669 of 1980). It is seen on the facts of that case that the suit was instituted within three years after one of the brothers attained majority and the other brother was still a minor at the time of the filing of the suit. Hence, the learned Judge had no occasion to consider the question which has arisen in this case.
31. The result of the above discussion is that the suit filed by the respondent is unsustainable as the remedy of the respondent as well as its donor had already become barred by limitation. The conclusion of the appellate Judge is wholly erroneous. Hence, the second appeal is allowed. The judgment and decree of the District Judge, North Arcot at Vellore in A.S. No 217 of 1978 are set aside and the decree of the Additional District Munsif, Vellore in O.S. No. 94 of 1977 dismissing the suit is restored. The appellants will get their costs from the respondent in this appeal.