Kerala High Court
Maniyamkandi Kunhiraman And Ors. vs Machil Parambath Vanaja And Ors. on 30 May, 1997
Equivalent citations: AIR1998KER24, AIR 1998 KERALA 24, ILR(KER) 1997 (3) KER 252, (1997) 2 KER LT 5, (1998) 1 MARRILJ 236, (1997) 4 CURCC 281
Author: P.K. Balasubramanyan
Bench: P.K. Balasubramanyan
JUDGMENT Balasubramanyan, J.
1. These appeals at the instance of the contesting defendants in O.S. Nos. 14 of 1986 and 4 5 of 1986 have been referred to the Division Bench in view of the importance of the question arising for decision. The appeal from O.S. 15 of 1986 was initially filed as A.S. 253 of 1987 before the District Court of Calicut but was subsequently withdrawn to this Court by order dt. 9-10-1992 for being heard with A.S. 323 of 1987. The appeal withdrawn from the District Court was subsequently numbered as A.S. 657 of 1992.
2. In a partition dt. 4-10-1962 between one Kumaran and his brother Kunhikannan, the properties involved in these suits were set apart to the share of Kunhikannan. Kunhikannan, a Hindu, died in the year 1967. On 4-5-1978 defendant No. 7 in the suit, the widow of Kunhikannan, the mother of the plaintiffs and defendants 8 to 10 sold for herself and as guardian of the minors the plaint B schedule property in O.S. No. 14of 1986 to defendants 1 to 5 in the suit and one Andy, father of defendant No. 6. The extent of the property sold was 6 acres 77 cents and the price for which it was sold was Rs. 10500/-. A daughter and son of Kunhikannan filed the suit O.S. 14 of 1986 on 10-2-1986 for partition of the property and delivery to them of their share on the basis that the deed of assignment executed by their mother on 4-3-1978 was void and could be ignored by them in view of the fact that they were minors on the date of the sale, the sale was effected without sanction from the Court in terms of the Hindu Minority and Guardianship Act, hereinafter called the Act and that it was not for the necessity or the benefit of the minors. Another item of property having an extent of 1 acre 98 cents held on tenancy right by Kunhikannan and inherited by his widow and children was also sold by the widow acting for herself and as guardian of her minor children, along with her major children on 16-8-1967 to defendants 1 to 6 in O.S. 15 of 1986 for a price of Rs. 200/-. The two children who instituted the suit O.S. 14 of 1986 instituted the suit O.S. 15 of 1986 praying for partition and delivery of their share in the property sold on 16-8-1967 on identical grounds.
3. In defence the contesting defendants arrayed as defendants 1 to 6 in both the suits contended that the age of minors shown is not correct, that the suit tiled for partition without seeking the setting aside of alienations effected by their mother, their natural guardian was not maintainable, that the sale was for the benefit of the minors, that Hindu Minority and Guardianship Act had no application since the property was joint family property, that a suit merely for partition is not maintainable and that the suits are liable to be dismissed.
4. On the evidence the trial Court found that the suit by the plaintiffs was within time, having been brought within three years of their attaining majority, that defendant No. 10 was also a minor on the date of the sale deed dated 4-5-1978 impugned in O.S. 14 of 1986, that the sale could be ignored by the plaintiffs and defendant No. 10 and that they were entitled to shares in the property. In O.S. 15 of 1986 the Court held that the plaintiffs were entitled to claim their shares on partition. In negativing the claim of the contesting defendants that the plaintiffs were bound to seek a setting aside of the sale deeds and could not simply ignore them, the trial Court relied on a decision of this Court in Santha v. Cherukutty, 1972 Ker LT 1051 : (AIR 1972 Ker 71) wherein His Lordship Justice Krishna Iyer (as he then was) held that a quandom minor could merely avoid a transaction without sanction under Section 8(2) of the Act by his conduct and there was no need for him to file a suit for avoiding the transfer. This view of the learned Judge in the decision followed by the trial Court was questioned before the learned single Judge by counsel for the appellants and that led to a reference of these appeals to the Division Bench.
5. The main contention raised on behalf of the appellants is that a transaction in violation of Section 8(2) of the Act is only voidable and not void and since the minors are co nominee parties to the transaction, they were not entitled to simply ignore the transaction but are hound to sue for setting it aside before claiming the additional or ancillary relief of partition. It was contended that the view expressed by Mr. Justice Krishna Iyer in Santha's case has not been accepted by some of the other High Courts and consequently the said view cannot be taken to be correct. Learned counsel for the respondents on the other hand submitted that on the scheme of the Act, the view expressed by Mr. Justice Krishna Iyer in Santha's case (AIR 1972 Ker 71) was correct in law and the view expressed therein deserved affirmance by the Division Bench. It is further contended that even if the transaction was only voidable, as and when the minors avoid the transaction by seeking either possession of the properly transferred or by seeking partition as in the present suit, the transaction would stand avoided and there was no need to sue for setting the same aside as contended by counsel for the appellants.
6. At the outset we may consider our argument raised by counsel for the appellants. He contended that by virtue of Section 6 of the Act, Section 8 of the Act was not applicable to the transactions in question since the properties were joint properties of the minors and others and were not the exclusive properties of the minors. This was based on the exclusion contained in Section 6 of the Act while describing the natural guardian of a Hindu minor and excluding from the purview of the definition the undivided interest of the minor in joint family property. There is no case for the contesting defendants that the properties involved in the transactions in question are the properties of a joint Hindu family of which the minors are members. The plaintiffs proceeded on the basis that they have succeeded to the property under the Hindu Succession Act on the death of their father. This claim of the minors is not seen questioned in the written statements. In fact the case proceeded on the basis that Section 8 of the Act did apply to the transactions in question. In the absence of anything to show that the properties are the properties of a joint family in which the plaintiffs are members, it cannot be held that Section 8 of the Act cannot have application. We have therefore to proceed on the basis that Section 8 of the Act is attracted to the transactions in question.
7. Another contention attempted by learned counsel for the contesting defendants was that the respective dates of birth of the plaintiffs and defendant No. 10 in O.S. 14 of 1986 have not been proved. The plaintiffs and the 10th defendant had set out their dates of birth and the 10th defendant was examined as DW 1 to prove the extracts from the school register in support of the claim of the plaintiffs and the 10th defendant regarding the respective dates of their birth. While in paragraph No. 6 of the written statement an attempt was made to deny the dates of birth pleaded, nothing was brought out to discredit the acceptability of the extracts from the admission register of the school and the evidence of the 10th defendant as DW 1. None of the contesting defendants even went to the box to challenge the dates of birth claimed by the plaintiffs and the 10th defendant. The Court below accepted the extracts from the school admission register to uphold the plea of the plaintiffs and the 10th defendant that they were minors at the lime of the transaction involved in O.S. 14 of 1986 and that the plaintiffs were minors at the time of the transaction involved in O.S. 15 of 1986. It may be noted that the plaintiffs have also cited and got produced the originals of the admission register from the school and they were also perused by the trial Court. After the decision of the Supreme Court in Umesh Chandra v. State of Rajasthan, AIR 1982 SC 1057 there cannot be any doubt that the admission registers are admissible in evidence.
On the materials therefore we are satisfied that the Court below was right in accepting the case of the plaintiffs and the 10th defendant as regards their respective dates of birth. We therefore overrule the contention raised by counsel for the appellants to the effect that it has not been shown that at the relevant time the plaintiffs and defendant No. 10 were minors.
8. There is no dispute that the mother while executing the sale deed on behalf of the minors did not seek or obtain the sanction of the Court in terms of Section 8 of the Hindu Minority and Guardianship Act. In the absence of the father the mother is the natural guardian in terms of Section 6 of the Act. It is therefore the contention of the plaintiffs that the alienations effected by the mother of their properly without the sanction of the Court in terms of Section 8(2) of the Act are void in law and they are entitled to ignore them and seek the relief of partition and separate possession in the present suit. The main, if not the only contention, raised on behalf of the contesting defendants to meet this case of the plaintiffs is that a transaction in violation of Section 8 of the Act is only voidable at the instance of the minors and is not void and since the plaintiffs are eonomince parties to the deeds of sale executed by the mother as their guardian, they were obliged to seek the setting aside of me deeds of sale before seeking the relief of possession or of partition. The decision of this Corn in Chako Maine w v. Ayyappankutty. 1962 Ker LT 6l : (AIR 1962 Ker 164) (FB) was relied on in support. The respondent necessarily relied on the decision in Santha, 1972 Ker LT 1051 : (AIR 1972 Ker 71) wherein the learned single Judge after referring to the decision in Malhew v. Ayyappankutty took the view that a transaction in violation of Section 8(2) of the Act was void and it was not necessary for a quandom minor plaintiff to pray for the relief of setting aside the transaction entered into by the guardian before seeking the relief of possession or the relief of partition. The learned Judge held that the transaction could be avoided by the minor by a manifestation of an intention op his part and by filing the suit for possession or, partition he having evinced the intention to avoid the transaction, the transaction becomes void as against him and he could seek the relief, of partition or recovery ignoring the transaction. As observed earlier the Court below followed the decision in Santha. The question is whether the view expressed in Santha is liable to be deviated from.
9. In Santha (AIR 1972 Ker 71) after a survey of the earlier authorities on the question including the ones in Mathew v. Ayyappankulty, 1962 Ker LT 61 : (AIR 1962 SC 164) (FB) and Sankaranarayana Pillai v. Kandasamia Pillai, (1956) 2 Mad LJ 411 : (AIR 1956 Mad 670)(FB) the learned Judge observed (at p. 75 of AIR).:
"In the present case, however, we are concerned with a specific statute, namely. Section 8 of the Hindu Minority and Guardianship Act, 1956. It is indisputable that no sanction of the Court was taken for the alienation in the present case by the mother acting as the guardian of the minor and, therefore, there is a plain Violation of Section 8(2) of the Act. Consequently. Section 8(3) is attracted and the disposal of the property, even though by a natural guardian becomes voidable al the instance of the minor. Should this process of avoidance be effected by a suit to set aside the alienation, or is it enough if the minor repudiates the transaction by his own act. I have considered this question in an unreported decision in S.A. No. 683 of 1969 and the view (1971 Ker LT (Short Notes, P. 32) expressed by me there, which, after all the arguments on both sides I am not inclined to change, is that when a minor is entitled to avoid a transfer effected by his guardian on the ground of absence of permission of the Court, it becomes a nullity on his unilateral act. He can merely avoid it by his conduct and there is no need to file a suit for avoiding the transfer."
10. We do not think it necessary to refer to the various decisions noticed in Santha by the learned Judge. But we think it appropriate to refer to the observations of the Full Bench consisting of P.T. Raman Nair, C. J.. P. Govindan Nair and K. K. Mathew, JJ. in the decision in A.S.A. 8 of 1968 commenting on some of the observations in Mathew v. Ayyappan Kutty, 1962 Ker LT 61 : (AIR 1962 Ker 164). The Full Bench has observed :--
"Regarding the second ground, the view explicitly taken by the learned single Judge and implicit in the decision in Sivarama Konar v. Thiruvadinatha Pillai (1956 Ker LT 880) and in certain observations in Mathew v. Ayyappankutty, that a member of a tarawad can avoid an invalid sale made by the karanavan only by instituting a suit for the purpose seem open to question. It is open to a member who is not a party to such a sale either to affirm it or to repudiate it. If he affirms it, he will not thereafter be allowed to go back on the affirmance; but, we are by no means certain that repudiation can only be by a suit."
We find that these observations do indicate that the view adopted by the learned Judge in Santha (AIR 1972 Ker 71) merits consideration notwithstanding certain observations in Mathew v. Ayyappankutty, 1962 KerLT61 : (AIR 1962 Ker 164) (FB). We think it appropriate in this context to refer to the following observations of the Division Bench of the Andhra Pradesh High Court in Nagabhushana Rao v. Gowramma, (1968) 2 Andh WR 57 :
"Thus there is large consensus of opinion that unless an alienation by a de facto guardian is for legal necessity or for benefit to the estate the onus of proving which is on the alienee, the alienation will not be binding on the minor as that is an unauthorised alienation. If such alienation has been said to be voidable by judicial precedents as it is unauthorised it is open to the minor on attaining majority to ratify it, if he does not ratify it or express dissent to it is not binding on him and he need not come to Court to get it set aside. He may treat it a nullity and claim possession in the Court. The expression "voidable" has been used only in this limited sense."
The Act does make a distinction between a de facto guardian and a natural guardian. But that does not alter the mode of avoidance by the quandum minor. We are in respectful agreement with that statement of the law.
11. Counsel for the appellant referred to the observations of K. S. Paripoornan, J. (as he then was) in Chathu Chettiar v. Kanaran, 1983 Ker LT 888 : (AIR 1984 Ker 118) to contend that the view taken in Santha requires reconsideration. The learned Judge, at the close of the said judgment, after referring to the decision in Santha (AIR 1972 Ker 71) has observed (al Pp. 123 and 124 of AIR) :
"I should at once indicate that different view has been struck by a learned single Judge of the Madras High Court in Narasimham Naidu v. S. Avilu Naidu, (1971) 1 Mad LJ 228). Therein the learned Judge has heid that the sale deed executed by a natural guardian without the previous permission of the Court "is voidable and not void". So also the majority Judges in the Full Bench decision reported in Surta Singh v. Pritam Singh. AIR 1983 Punj and Har 114 after an exhaustive consideration of the relevant case law, dissented from the decision of Krishna Iyer, J., reported in Santha v. Cherukutty, (1972 Ker LT 105 : AIR 1972 Ker 71). As to whether an alienation by a natural guardian without the previous permission of the Court is void ab initio, or is only voidable, seems to be a matter on which there is 'sharp clevage of judicial opinion'. It may be necessary, in an appropriate case, to consider the matter in greater detail and it may have to be considered by a larger bench. Since for the disposal of this second appeal, it is not necessary to adjudicate that matter, I am not expressing any view on this moot question."
12. The Punjab and Haryana High Court in Surta Singh v. Pritem Singh. AIR 1983 Punj and Har 114 (FB) by a majority has held that "the minor being eo nominee a party to the transaction which is merely voidable, it cannot He in his mouth to say that it is a nullity or is non-est, which he can conveniently ignore at his bidding. A suit for possession by avoiding the transfer by the guardian in violation of Section 8(2) is in essence nothing more than seeking a setting aside of the transfer and as a consequential relief, to claim possession". In his dissenting view, the learned Judge held :
"The alienation made by the guardian without the permission of the Court would be against the mandatory provisions of Sub-section (2) of Section 8 and therefore, being not binding on the minor, he would not be required to get it set aside by the Court."
13. At this stage, we think it proper to refer to the relevant provisions of the Act. The Act is intended to amend and codify certain parts of the law relating to minors and guardianship among Hindus. Section 2 of the Act indicates that the provisions of the Act are in addition to and save as expressly provided, not in derogation of the Guardian and Wards Act, 1890. Section 5 of the Act makes it clear that any other law in force immediately before the commencement of the Act shall cease to have any effect to the extent of inconsistency with any provisions in the Act. In that context, the Act prevails over any other law in regard to the matters provided for by the Act, There is thus a clear indication that the Act is not a complete code relating to the Hindu law on minority and guardianship and as far as the matters not covered by the Act are concerned, they are regulated by the Hindu law as well as other statutes on the subject. However in respect of the subject-matter with which it deals, it is a codifying enactment. Section 6 indicates who are the natural guardians of a Hindu minor. It is provided that in the case of a how or an unmarried girl, the father and after him the mother shall be the natural guardian. Section 8 of the Act deals with the power of the natural guardian. Section 8(1) confers power on the natural guardian subject to the provisions of that Section to do all acts which are necessary or reasonable and proper for the benefit of the minor. Sub-section (2) of Section 8 then provides that the natural guardian shall notwithout the previous permission of the Court mortgage, charge, or transfer by sale, gift, exchange or otherwise any part of the immovable property of the minor. Sub-section (3) of Section 8 states that any disposal of immovable property by a natural guardian in contravention of Sub-section (2) is voidable at the instance of the minor or any person claiming under him. Sub-sections (4) and (5) deal with the permission to be sought by the natural guardian. According to us. Section 8 on its terms, clearly displaces any other rule of law relating to alienation of the properties of a Hindu minor by the natural guardian of that minor. While Section 8(1) enables a natural guardian to do all acts which are necessary or reasonable and proper for the benefit of the minor, it is subject to the other sub-sections of that Section. Sub-section (2) in positive terms interdicts the guardian from selling the property of the minor. Read in the context of Section 5 of the Act, it is clear that there is a statutory prohibition on a natural guardian from selling the immovable property of a minor without the previous permission of the Court. The words of Section 8(2) of the Act are imperative and we do not find any justification for whittling down the scope of that provision. It is obvious that any action of a natural guardian in contravention of the positive mandate of Section 8(2) of the Act could not be taken cognisance of by the Court. We must remember that it is Sub-section (1) of Section 8 of the Act that gives the power to the natural guardian to do acts for the benefit of the minor, but that is subject to Sub-sections (2) to (5) of that Section. In the face of Section 8(1) of the Act, we feel that there is no scope for tracing the power of the guardian to any existing rule of Hindu Law. Thus a transaction in violation of Section 8(2) of the Act has necessarily to be treated as a transaction in violation of a statute and consequently void. We do not think that Section 8(3) of the Act in any manner whittles down the scope or operation of Section 8(2) of the Act. Section 8(3) of the Act only clarifies that the person who is entitled to treat the transaction as void is only the minor or any person claiming under him. 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 contend 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.
14. In, .G. Annamalai Pillai v. District Revenue Officer, AIR 1985 Mad 357, a Division Bench of the Madras High Court held that by contesting a proceeding initiated under the Tenancy Act by a lessee from a natural guardian under a lease in violation of Section 8(2) of the Act, a minor is entitled to avoid the lease and once he has done so, the lease becomes inoperative from the date of the inception of the transaction. The Division Bench has stated that the effect of the avoidance of the transaction is as if the transaction had never taken place. There the avoidance was by filing an objection to the proceeding initiated by the lessee. In Hariharan v. Smt. Parvuthykutty Amma, (1989) 2 Ker LJ 266, this Court held that any dealing without permission under Sub-section 8(2) of the Act would convert the transaction as one without authority and as such void in the eye of law. A Division Bench of this Court in Santhosh Kumar v. Varghese, (1987) 2 Ker LT 27 : (AIR 1988 Ker 277) was of the view that the permission of the Court is a condition precedent for the validity of a sale by the natural guardian of a minor. The Division Bench further held that any transaction by a natural guardian; of the immovable property of the minor without permission of the Court will not have any legal force and would not he binding on the minor. With respect we feel that in the context of what we have stated about the scope of the Act, the said observation reflects the correct position in law. We are therefore not persuaded to differ from the view expressed by V. R. Krishna Iyer, J. (as he then was) in Santha (AIR 1972 Ker
71), notwithstanding the majority view of the Punjab and Haryana High Court in Surta Singh (AIR 1983 Punj and Har 114) (FB). With respect, we feel that the minority view in Surta Singh reflects the correct legal position.
15. What is contended in the present case is that the suit for partition filed within 3 years of attaining majority, by the quandum minors, should be dismissed for the reason that the plaintiffs do not seek a relief of setting aside the sales effected by the natural guardian in contravention of Section 8(2) of the Act. The minors are not attacking the entire sale in the sense that they are only claiming their shares in the properties, from the alienee on the basis that those shares have not passed. The effective and primary relief they claim is the relief of partition. They have come forward with a case that the alleged alienation of their shares in violation of the Act cannot be countenanced by the Court or is not binding on them. The relief of setting aside the transaction is at best a procedural requirement under such circumstances, to support their claim for partition. On the scheme of Section 8 of the Act, why should that procedural requirement be given such primacy as to defeat the very protection offered to the minors by the Act and to throw a mantle of protection on an alienee who has clearly bypassed the requirements of the statute and violated the mandate of Section 8(2) of the Act? In the context of the Act and the object sought to be achieved by Section 8 of the Act, we do not think that such an approach is warranted. The aim must be to protect the interest of the minor rather than to defeat it by recourse to procedural obstructions. There is also considerable authority for the position that no prayer for setting aside the transaction is necessary. In Periyanayagam v. Rajendran, (1988 (1) Mad LJ 380 : (AIR 1990 NOC 8) Ratnam. J. (as he then was) after an exhaustive analysis of the case law on the subject has held that avoidance of a transaction by a quandum minor can be by treating the transaction as if it is not in existence. His Lordship has held :
"The above extracted observations of the Full Bench referring to two other earlier decisions clearly establish that an election to avoid may as well be by instituting an action to recover possession of the property. It would therefore, in my view, suffice if the transaction under Ext. B-1 is avoided by the institution of the suit for recovery of possession."
We therefore overrule the contention that without a prayer for setting aside the sale deeds, the plaintiffs cannot seek partition and delivery of their share.
16. The Court below has adopted the view expressed in Santha (AIR 1972 Ker 71) in holding that there was no need for the plaintiffs to seek the relief of setting aside of the sale deeds in these cases. We must observe that the suits have been filed within three years of the attainment of majority by the plaintiffs. In the view we have taken, we do not find any reason to differ from the conclusion of the trial Court.
17. Learned counsel for the appellants argued that the plaintiffs and the 10th defendant are in any event bound to disgorge the benefits derived by them by the transactions impugned and that it ought to have been provided for even at this stage. We do not think that it is necessary to go into that question since the question of equities have been left open to be decided by the Court while passing the final decree. It will be open to the contesting defendants to raise that claim at the stage of the final decree as a question of equity and then it will be for the Court to consider whether such an equity is available in a case where a transaction is held void for transgression of a statutory mandate. We need only clarify that it is open to the defendants to raise this claim at the stage of the final decree.
We thus confirm the preliminary decrees passed by the Court below and dismiss these appeals with costs.