Madras High Court
Manickam Kandiar vs Rengammal on 16 March, 2023
S.A.No.133 of 1996
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 16..03..2023
Coram
THE HON'BLE MR JUSTICE V. LAKSHMINARAYANAN
Second Appeal No.133 of 1996
Manickam Kandiar
..... Appellant / Appellant / 1st Defendant
-Versus-
1.Rengammal
2.Banumathi (Deaf & Dump)
Rep. by 1st respondent
..... Respondents / Respondents / Plaintiffs
3.Silambayi
.... Respondents / Respondent / 2nd Defendant
Appeal filed under Section 100 of C.P.C. against the judgment and
decree made in A.S.No.18 of 1994 on the file of the Subordinate Judge,
Pattukkottai, dated 31.07.1995 confirming the judgment and decree made in
O.S.No.438 of 1991 dated 29.07.1994 on the file of the District Munsif,
Pattukkottai.
For Appellant : Mr.T.Ayyasamy
For Respondents : Mr.P.Thiyagarajan
for RR1 & 2
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JUDGEMENT
The present appeal arises out of the Judgement and Decree in A.S.No.18 of 1994, on the file of the Sub Court, Pattukkottai dated 31.07.1995 in confirming the judgment and Decree in O.S.No.438 of 1991 dated 29.07.1994 on the file of the District Munsif Court at Pattukkottai. The appellant before me is the 1st Defendant in the suit. The suit had been presented by one Rengammal and Banumathi ( a person who was born with hearing and speech challenges). The relief sought for in the suit was for a declaration that the plaintiffs are the owners of the property and for a consequential order of injunction restraining the defendants 1 & 2 from interfering with their peaceful possession and enjoyment of the property. The core facts are not in dispute.
2. The father of the plaintiff was one Rathinam Sethuruyar. The plaintiffs were born from the wedlock between said Sethuruyar and Silambayi, the 2nd defendant. Ratnam Sethurayar had a younger brother by name Kannuswami Sethurayar. The said Kannusami Sethurayar had gone to Singapore, earned income and purchased the suit schedule property. Both parties agree that Ratnam Sethuruyar died in the year 1967, and Kannusami died in the year 1975. The 2nd defendant, as the mother and natural guardian of the plaintiff, had sold the suit schedule property to Manickam Kandiar, the appellant, on https://www.mhc.tn.gov.in/judis 3 of 24 S.A.No.133 of 1996 08.03.1976.
3. The claim of the plaintiff is that their mother had sold the property as if she was the owner of the property when they are the Class-II heirs of the deceased Kannusami Sethuruyar and therefore, the document is void ab initio. In fine, nothing was conveyed to the 1st Defendant and therefore, they are entitled to the property.
4. As is not unusual in such kind of litigations, the 1 st Defendant took all kinds of defences including accusing the second defendant of living with the Deceased Kannusami Sethuruyar, after the death of Ratnam Sethuruyar, as man and wife. He had pleaded that this is as per the custom and practice in their community and in the area where they were residing. He would also plead that the Sethuruyar brothers had one more brother by name Chidambaram, who had two children and they had not been made as parties to the suit. Ignoring these frills, his case was that he purchased the property for a valuable consideration and had been in possession and enjoyment of a major portion of the property. He pleaded the revenue records had been mutated in his favour. He further stated that on a plea of the 2nd defendant, as she had two minor girls at the time of sale, he had permitted the plaintiffs and their mother (the 2nd defendant and https://www.mhc.tn.gov.in/judis 4 of 24 S.A.No.133 of 1996 her children) to reside in the North-Eastern corner of the property. He took a plea that he put up the superstructure, for their sake, so as to enable them to reside therein. He also pleaded that suit is barred by Limitation. He would also plead that the frame of the suit is untenable because the plaintiffs had not sought for setting aside the sale deed dated 08.03.1976 executed by Silambayi in his favour. It is needless to state but as it happens in all such cases as the present case, the 2nd Defendant remained ex-parte. However, it is on record that the plaintiffs and the 2nd defendant are residing in the same house.
5. The Trial Court framed the following issues:-
"(1)jhth brhj;J thjpfSf;F ghj;jpag;gl;ljh? (2)1Mk; vjph;thjpahy; 08/03/1976,y;
bra;ag;gl;Ls;s fpiuak; bry;yj;jf;fjy;;y vd thjpfs; TWtJ rhpah?
(3)thjpfSf;F mth;fs; nfhUk; ghpfhuk;
fpilf;fj;jf;fjh?
(4)jhth brhj;J thjpfspd; mDnghfj;jpYk;
RthjPdj;jpYk; ,Ue;J tUfpwjh?
(5)thjpfSf;F mth;fs; nfhUk; epiyahd
cWj;Jf;fl;lis ghpfhuk; fpilf;fj;jf;fjh?
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(6)thjpfSf;F fpilf;ff;Toa ,ju ghpfhuk;
vd;d?"
6. The 1st plaintiff examined herself and another person and marked three documents. On the side of the defendants, the 1st defendant examined himself and a neighbour and marked 7 documents. The Advocate Commissioner, appointed by the Court to note down the physical features of the property, submitted Exs. C1 and C2. The parties went to Trial on the aforesaid issues in which the Trial Court found:-
(i) That the Claim of the defendant that the Sethuruyar Brothers had another brother had not been proved.
(ii) That there is no proof of marriage between Silambayi, the 2nd defendant and the Deceased Kannusami.
(iii) The sale deed is void because it had been executed by 2nd Defendant claiming to be the legal heir of the Deceased Kannusami.
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(iv) There was no proof that the 1st Defendant had built the house for the plaintiffs and her mother. On the contrary, there is concrete evidence to show that the plaintiffs had been residing in the property much before the date of sale, namely 08.03.1976.
(v) The Advocate Commissioner had found that the plaintiffs are in possession of the property and the remaining land is a barren.
(vi) The revenue records, though they stand in the name of the 1st defendant, it does not show the nature of cultivation.
(vii) No plea of legal necessity had demonstrated by the 1st defendant and finally.
(viii). A suit for declaration of title can be filed, soon after the knowledge of the sale comes to the plaintiffs and not from the date of sale.
7. On these findings the suit was decreed.
8. Aggrieved by which the 1st defendant filed an appeal. https://www.mhc.tn.gov.in/judis 7 of 24 S.A.No.133 of 1996
9. The Lower Appellate Court dismissed the appeal suit on the ground that:-
(i) The judgment of the Full Bench of the Madras High Court in Shankar Narayanan Pillai reported in 1956 2 MLJ 411 is no longer good Law after the enactment of the Hindu Guardians and Wards Act, 1956.
(ii) It concurred with the finding that the sale made by the mother was on the ground that she is the legal heir of the Deceased Kannusami Sethuruyar and hence void.
(iii) That Article 60 of the Limitation Act, will not apply as the document is void ab initio and by virtue of the presentation of the suit, the otherwise “voidable” document has become void.
10. On these grounds, it dismissed the appeal against which the present Second Appeal has been presented.
11. This appeal was admitted on the following substantial questions of law:-
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1. Whether the suit instituted beyond the period of three years after attaining the age of majority would be maintainable at the instance of the minors and whether the issue of limitation can be put against the plaintiff by the defendant / purchaser of the property?
2.Whether the minors who had been shown as eo nominie parties in the sale deed can avoid the sale deed and if so, whether they should take such a step within the period of limitation as provided under Article 60 of the Limitation Act, 1963 or if they view it as void document, the suit is maintainable even after the prescribed period of limitation?
3.Whether the suit seeking declaration of title which is sought to be clear a cloud on the title namely, the execution of the sale deed would be still maintainable without seeking a relief to set aside that particular sale deed?
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12 I heard Mr.T.Ayyasamy, learned counsel for the appellants and Mr.P.Thiyagarajan, learned counsel for the respondent.
13. Mr.T.Ayyasamy, learned Counsel for the Appellant would submit as follows:-
(i) The suit is not maintainable without a prayer to set aside the sale dated 08.03.1976.
(ii) Article 60 (a) of the Limitation Act is applicable, therefore, the suit should have been filed within three years of the majority of the 1st plaintiff that is by 1982 or at least by 1986 when the second plaintiff attained majority but the suit was filed on 28.03.1991 and therefore, the suit is barred by time.
(iii) As an alternative, he would submit that if the suit is not presented within a period of three years from the date of majority, it could be filed within 12 years from date of execution of sale deed, which is on or before 07.03.1988, the suit having been filed in 1991 in any event is hopelessly barred by time.
(iv) He submitted the vitality of the judgment in https://www.mhc.tn.gov.in/judis 10 of 24 S.A.No.133 of 1996 AIR 1956 Madras Page 360 is not taken away by the view of Mr.Justice K.Ratnam in 1988 1 Law Weekly 198 and would rely upon the judgment of Mr.Justice M.Srinivasan (as His Lordship then was) in 1990 2 Law Weekly 522 to state that the issue of Limitation never arose in the case of Mr. Justice Ratnam and therefore, the Court need not be persuaded to follow the said judgment.
14. He would invite the attention of this Court to the latest pronouncement of the Supreme Court in Murugan and others v. Kesava Gounder (Dead) through LRs and others [AIR 2019 SC 2696] where under the view taken by this Court in 2010 (5) CTC 582 stood confirmed.
15. Mr.P.Thiyagarajan, learned counsel appearing for the respondent would argue that there is no necessity to seek for cancellation / setting aside of the document as the 2nd defendant had executed the document as the owner of the property, which is not the case, as plaintiffs that are clause II heirs of Kannusami Sethurayar. He would rely upon the Advocate Commissioner's report to say that he is in possession of the property and that on an enquiry being made by the respondents, they came to know that no sale consideration https://www.mhc.tn.gov.in/judis 11 of 24 S.A.No.133 of 1996 has been paid for the sale deed by Manickam Kandiar in favour of Silambayi. He would plead that the limitation period of 3 years from the date of the sale does not here in the present case because the suit had been presented within three years from the date of knowledge. On the facts, he would say that there is no wall segregating the house from the agricultural land and therefore, he is in possession of the entire 37 cents and not only in the house property and finally, he would plead that the 1st defendant has not proved his possession and therefore, it has to be presumed that the plaintiffs are in possession of the property.
16. I have carefully considered the arguments advanced on either side and I am afraid the judgement of both the courts below are liable to be set aside in part.
Frame of the suit:
17. A perusal of the sale deed executed the 2nd defendant in favour 1st defendant would show that it was not only executed on behalf of the 2nd defendant but also on behalf of the minors. The relevant portion of the sale deed are extracted hereunder:
https://www.mhc.tn.gov.in/judis 12 of 24 S.A.No.133 of 1996 "fpuak; U:/4000/00 khh;bfl; kjpg;g[ U:7400/00 1976 khh;r; 8 gl;Lf;nfhl;il jhYf;fh 24 K:j;jhFhpr;rp tl;lk; fz;oa';fhL fpuhkj;jpy; trpf;Fk;
rpd;ida;ah fz;oah; kfd;fs; fs;sh;$hjp rptkjk; kpuhR khzpf;f fz;oaUf;F nkw;go tl;lk; nkw;go ChpypUf;Fk; buj;jdnrJuhah; kidtp nkw;go $hjp kjk; kpuhR bryk;ghap jdf;fhft[k; nkw;goahh; ikdh;
kfs; 15 taJs;s bu';fk;khs; (1). nkw;goahh;
ikdh; kfs; 11 taJs;s ghDkjp (2) ikdh;fSf;F
jhahUk; fhh;oaDk; nghc&hfpa[k; ehndahjyhy; nkw;go ikdh;fSf;fhft[k; jdf;fhft[k; ///////" [Underlined by me]
18. A reading of the document shows that the sale was for and on behalf of the minors also, who are the plaintiffs in the present suit. The request of Mr.P.Thiyagarajan that I should ignore the word 'minors' and read out as if only Silambayi had alienated the property, does not appeal to me. A court has to read the document as it stands and not add or delete from the same. Silambayi was the mother and natural guardian of the two minors as their father Rathinam Sethurayar had passed away in the year 1967. The document also reads that for her family expenses, she had mortgaged the property for a sum of Rs.3,000/- (Rupees Three Thousand only). This is evidenced under Ex.B.2 dated https://www.mhc.tn.gov.in/judis 13 of 24 S.A.No.133 of 1996 15.11.1973. The document further reads that she had sold the property in order to redeem the mortgage as well as to pay the sundry creditors. In addition, she had received a sum of Rs.500/- (Rupees Five Hundred only) in the presence of the Sub Registrar. These facts recorded in the document goes to show that the plaintiffs mother and natural guardian had executed the document on her behalf and on behalf of the two minor children. Utilizing the funds from the sale, she had repaid the loans taken for the purpose of family. It is nobody's case that the permission of the court was secured prior to the alienation. One aspect to be seen is that under Section 8(3) of The Hindu Minority and Guardianship Act, 1956, a document alienated by the natural guardian without the permission of the court is only “voidable” and not “void ab initio”.
19. Though Mr.T.Ayyasamy would refer to several judgements to bring home the point that a suit should have been filed seeking to set aside the sale deed/ cancellation of the sale deed dated 08.03.1976, I am referring only to the latest judgement of the Supreme Court in Murugan v. Kesava Gounder and others [AIR 2019 SC 2696]. In para 20 of the said judgement after referring to all the previous authorities of the Supreme Court on the point, the court has held:
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"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. The suit filed on behalf of the plaintiffs without seeking prayer for setting aside the sale deeds was, thus, not properly framed and could not have been decreed."
20. The judgement in AIR 2019 SC 2696 had confirmed the judgement of this court in Murugan v. Kesava Gounder, 2010 (3) CTC 502 wherein in para 23, the learned judge had held as follows:-
"23. ... ... Once it is found that alienation are voidable, the remedy open to the appellants- plaintiffs is to file a Suit to set aside the Sale Deed and not for recovery of possession. The appellants have not prayed to set aside the alienations made by Balaraman. ....."
21. This settles the position of law that the minors cannot present a mere suit for declaration of title ignoring a document which is voidable in character when the sale has been executed by the guardian representing the minors. The https://www.mhc.tn.gov.in/judis 15 of 24 S.A.No.133 of 1996 fact that the guardian also represented that she was a co-owner of the property does not make a difference to the fact that the sale had been made by the natural guardian on behalf of the minors.
22. The nature of the document being voidable, the plaintiffs could have avoided the same by some act which is contrary to the sale. In the present case, right from 1976 till the presentation of the plaint in 1991, there is nothing on record to show that the plaintiffs had taken any steps to avoid the document. This only raises a presumption that the minors on attaining majority had stood by the document.
23. The relevant provision for the purpose of setting aside the transfer of a property made by a guardian of a minor is Article 60(a) of The Limitation Act. Though the date of birth of the plaintiffs have not been mentioned, the plaint avers that on the date of the sale in 1976, the 1 st plaintiff was 15 years old and the 2nd plaintiff was 11 years old. Therefore, the suit ought to have been presented by 1982 or assuming that a suit which is barred against the 1st plaintiff can still be filed by the other minor, the 2nd plaintiff by 1986. Unfortunately, for the plaintiff the suit came to be presented only in the year 1991. By that time, more than 15 years had elapsed from the date of the sale https://www.mhc.tn.gov.in/judis 16 of 24 S.A.No.133 of 1996 and 9 years from the date of majority of the 1st plaintiff.
24. The argument that the mother had no right and therefore, she could not be a party to the document still remains to be addressed.
25. In Bhagwan Dass v. Kashi Prasad, AIR 1935 All 417, the court held 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 be 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.”
26. In the case on hand, the sale deed reads that the minors were parties to the document and it was not as if the 2nd defendant had alienated the property as if she was the sole owner. Further more, applying the judgment Bhagwan Dass v. Kashi Prasad [cited supra], Justice M.Srinivasan (as His Lordship then was) in Venkatesa Mudaliar v. N.Krishnaswamy Mudaliar Trust https://www.mhc.tn.gov.in/judis 17 of 24 S.A.No.133 of 1996 [(1991) MLJ 592] held as follows:-
“10. As against the above circumstances, the only recital which would appear to be inconsistent therewith is the description of the property belonging to the executant. The terms used are vdf;Fg; ghj;jpag;gl;l moapy; fz;l g[";ir epyj;jij/ It is argued that the said recital would conclusively establish that Nataraja Mudaliar treated the property as exclusive his own and dealt with it as such under the document. I do not agree. If Nataraja Mudaliar was of the opinion that it was his exclusive property and nobody else had any right therein, there was no necessity for him to have made his minor son a party to the transaction and acted as his guardian. There was also no necessity to set out the purposes of the of the sale and intended user of the consideration realised therefrom. The cumulative effect of all the recitals found in the document put together would lead only to one conclusion that Nataraja Mudaliar acted for himself and also as guardian of his minor son Chandrasekaran. In the context, the words vdf;Fg;
ghj;jpag;gl;l brhj;jij mean “the property in which I have a right in my individual capacity and https://www.mhc.tn.gov.in/judis
18 of 24 S.A.No.133 of 1996 a right as guardian of my minor son” and not “the property exclusively owned by me”. The absence absence of the words “rh;t Rje;jpu” before the word “ghj;jpag;gl;l” support the above conclusion.
27. In addition, here is a case where mother had alienated the property and as seen above, it was for the family necessity of repaying the debts incurred as early as 1973. The mother had also received a sum of Rs.500/- (Rupees Five Hundred only) over and amounts paid to clear the debts from the 1st defendant.
28. Further, Mr.T.Ayyasamy would argue that the Advocate Commissioner had not issued him notice prior to the inspection and therefore, the report cannot be relied upon. I am not in agreement with Mr.T.Ayyasamy on this issue. As per the Code of Civil Procedure, the power of the court to appoint an ex parte commission is very much available. The pre-requisite is that the Advocate Commissioner should put the parties on notice prior to the inspection. There has been no evidence forthcoming from the appellant that the Advocate Commissioner did not give any notice to them prior to his inspection. Apart from that it is seen from the record that the defendants did not object to the Advocate Commissioner's Report before the trial court or at least, at the https://www.mhc.tn.gov.in/judis 19 of 24 S.A.No.133 of 1996 first appellate court.
29. This court in Krishna Reddiyar and others v. Ramanuja Reddiar [AIR 1929 Mad 492] had held, albeit in a suit for partition, that where the party does not raise his objection before the Commissioner and does not object to the Advocate Commissioner's report in the trial court, he is not entitled to come to the High Court and object to the report filed by the Commissioner. The court always reserves the right in itself to accept or reject the Advocate Commissioner's Report. Since the Commissioner's report had not been objected to and no evidence had been let in by the 1st defendant to show that the Advocate Commissioner did not give notice to him prior to the inspection, I am not willing to travel the distance that Mr.T.Ayyasamy wanted me to do and hold that the objection on the Advocate Commissioner Report is untenable.
30. Now turning to the finding in the said report that the respondents are in possession,this argument deserves rejected. No Advocate commissioner can give a report on possession, save in exceptional cases like sub-tenancy. For this proposition, I only need to refer to K.M.A.Wahab and others v. Eswaran and another [(2008) 6 MLJ 1258]. In this case, there is no requirement to look https://www.mhc.tn.gov.in/judis 20 of 24 S.A.No.133 of 1996 into the report for possession, as the appellant has conceded the possession of the plaintiffs vis-a-vis the residential area.
31. The reason for discussion on the Advocate Commissioner's Report is as follows:-
The plaintiffs had pleaded that they are in possession of the property and this was rebutted by the defendants stating that the house in which the plaintiffs are residing was constructed by the 1st defendant. The commissioner's report finds a house in which, it is conceded by either side, that the plaintiffs and the 2nd defendant are residing even today. Therefore, the 1st defendant cannot take advantage of the dismissal of the suit to forcibly dispossess the plaintiffs and the 2nd defendant from the property. He has not proved the permissive occupation. I am not going into the issue of whether the plaintiffs have prescribed title by adverse possession insofar as that portion is concerned, as the plea of permissive occupation has not been proved. I am not doing so since, it is not a subject matter of pleading by the plaintiffs nor has the 1st defendant filed counter claim seeking recovery of possession in respect of that portion is concerned.
32. The finding of the trial court as well as the first appellate court that it https://www.mhc.tn.gov.in/judis 21 of 24 S.A.No.133 of 1996 was Silambayi alone who had executed the document is not sustainable. I read ExA2 = Ex.B1, as a document executed by Silambayi for her behalf and on behalf of the minors and therefore, the suit should have been filed within three years from the date of majority. Since the present suit has not been filed within the time stipulated, the same is barred by limitation.
33. Mr.P.Thiyagarajan, learned counsel for the respondents 1 & 2 would argue that the suit had been presented from the date of knowledge. The black letter law is very clear. Under Article 60 (a) for setting aside a document, a suit has to be filed within 3 years from the time the minor attains majority. Apart from this, interpreting the said provision, a learned single Judge of the Aurangabad Bench of Bombay High Court in Gurnath Rangnath Mali and others v. Arun Nagorao Potdar and others [2009 (2) ALL MR 316] has held that the date of knowledge cannot be held to be the starting period of limitation under Article 60(a). I respectfully follow the said judgment and reject the argument that the date of knowledge cannot give cause of action for the plaintiff to present the plaint. I reiterate, the relevant date is the date of attaining majority. The 1st plaintiff having attained majority in the year 1978 / 1979, the suit having been presented in the year 1991, it was hopelessly barred. It does not require an authority from the proposition that if the suit is barred https://www.mhc.tn.gov.in/judis 22 of 24 S.A.No.133 of 1996 against the 1st plaintiff, it stands equally barred against the 2nd plaintiff.
In fine, the Second Appeal is allowed. The judgment and decree dated 31.07.1995 made in A.S.No.18 of 1994 on the file of the Subordinate Judge at Pattukkottai, confirming the judgment and decree dated 29.07.1994 made in O.S.No.438 of 1991 on the file of the District Munsif at Pattukkottai are set aside. The suit in O.S.No438 of 1991 shall stand dismissed. The parties, having debated an interesting question of law, I am not inclined to impose costs on the plaintiffs and both the parties shall bear their respective costs throughout.
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Index : yes / no
Neutral Citation : yes / no
Speaking / Non Speaking Order
nst/kmk
1.The Subordinate Judge, Pattukkottai, Thanjavur District.
2.The District Munsif, Pattukkottai, Thanjavur District. https://www.mhc.tn.gov.in/judis 23 of 24 S.A.No.133 of 1996 V.LAKSHMINARAYANAN, J.
kmk S.A.No.133 of 1996
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