IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 16.12.2010 CORAM: THE HONOURABLE MS.JUSTICE R.MALA Appeal Suit No.74 of 2007 M.Venkatachalapathy .. Appellant/1st Plaintiff Vs. 1. C.Muthappan 2. E.P.Muthiayan (Remained ex-parte before the trial Court and hence notice may be dispensed with) 3. V.Geetha .. Respondents/Defendant 1 and 2 Plaintiff Appeal Suit (First Appeal) against the judgment and decree dated 25.8.2005 in O.S.No.352 of 2004 on the file of the Additional District Court (Fast Track Court No.2), Salem. For appellant : Mr.K.Kalyanaraman For respondent-1: Mrs.R.Meenal JUDGMENT The Appeal Suit (First Appeal) arises out of the judgment and decree dated 25.8.2005 in O.S.No.352 of 2004 on the file of the Additional District Court (Fast Track Court No.2), Salem. 2. The averments in the plaint are as follows: (a) The suit properties are joint family properties of the plaintiffs and the second defendant. The plaintiffs are the son and daughter of the second defendant. The first plaintiff was born on 5.10.1982.The second plaintiff was married to one M.Venkatachalam of Adaiyur on 22.5.1996 and so, she is a co-parcener as per the amended Tamil Nadu Act 1 of 1990 (The Hindu Succession (Tamil Nadu Amendment) Act, 1989). (b) The second defendant entered into a sale agreement of the suit properties with the first defendant on 24.12.1998 and agreed to sell the suit properties for a paltry sum of Rs.2 lakhs to the first defendant and on the date of agreement, the second defendant appears to have taken an advance amount of Rs.1,80,000/- from the first https://hcservices.ecourts.gov.in/hcservices/ defendant and ten months had been granted for the performance of the contract. (c) Since the second defendant did not execute the sale deed, the suit had been filed in O.S.No.554 of1999 on the file of the Sub- Court, Mettur, in which, the first plaintiff herein was added as a defendant and since he was minor, he was represented by his father, the guardian, i.e. the second defendant herein. The said suit was decreed on 13.3.2002. (d) The second plaintiff is a co-parcener having 1/3 undivided share in the suit properties. In the said suit in O.S.No.554 of 1999, which was filed on 22.11.1999, the first plaintiff herein was described as a minor and the guardian of the minor was appointed by Sub-Court in I.A.No.703 of 1999 only on 20.10.2000, by the time the first plaintiff became major. During the trial of the said suit, the minor-first plaintiff herein was not declared as major and so, the decree is illegal. Since the first plaintiff herein was not represented in the said suit, the decree shall not bind him. (e) The joint family properties cannot be alienated by the father without the consent of the other co-parceners and if he does so, such sale is void in law. Absolutely, there is no necessity for the second defendant to sell the only joint family properties to the first defendant for Rs.2 lakhs, especially, when the suit properties worth more than Rs.15 lakhs at the time of agreement. The properties lie on the road side and even the guideline value fixed by the Government is more than Rs.6 lakhs. So, the whole decree is void and will not bind the plaintiffs at all to any extent. Since the Court has executed the sale deed for and on behalf of the second defendant and the first plaintiff as minor son, the decree is totally void and will not bind the plaintiffs. So, the plaintiffs are constrained to file the suit for partition in respect of 2/3 share in the suit properties. They prayed for a decree. 3. The gist and essence of the written statement filed by the first defendant are as follows: (a) The suit properties were allotted to the share of the second defendant in the family partition. The plaintiffs and the second defendant are not in joint possession of the suit properties. The second defendant entered into an agreement of sale of the suit properties with the first defendant on 24.12.1998 for Rs.2 lakhs. It is not a paltry sum. The first defendant filed a suit in O.S.No.554 of 1999 on the file of the Sub-Court, Mettur, for specific performance of the said agreement against the second defendant and the first plaintiff herein, since the second defendant executed the said agreement for himself and as guardian for the then minor first plaintiff. The suit was decreed after contest, on 13.3.2002. https://hcservices.ecourts.gov.in/hcservices/ (b) The second defendant is the father/Manager of the family and he is entitled to sell the properties on behalf of the other co- parceners also. It is not necessary that all the co-parceners should be parties to the agreement or in the suit. If during the pendency of a suit, a minor defendant attains majority, it is up to him to file an application to declare him as major and to continue the suit and it is not necessary for the plaintiff in the suit to take such steps to declare the minor defendant as a major. If the minor defendant did not take steps to declare himself as major, and the suit was continued showing him as a minor, the decree passed in such suit is a valid as if it is passed against the said minor defendant as major. (c) The decree passed in favour of the first defendant-purchaser is legally binding on the first plaintiff also. The "Kartha" of the family can execute the sale deed of the entire joint family properties including the sharers of the other co-parceners, whether they are majors or minors, and such a sale deed is perfectly valid in law and it is not a void sale. If the other co-parceners dispute the fact that the alienation was not a legal necessity or binding the parties, they are entitled to file the suit to set aside the sale deed as not binding on their share and so, the sale deed is only a voidable transaction and not a void transaction. (d) The second defendant incurred debts for the marriage expenses of the second plaintiff and also for agricultural and family expenses and only to discharge the debts which are binding on all the members of the family, the second defendant sold the suit properties for the correct market value of Rs.2 lakhs. The value of the suit properties is not more than Rs.15 lakhs. (e) The suit properties are not adjacent to any Road and they are far away from the Road. Even now the plaintiffs and the second defendant are living together and the second defendant has not acted against the interest of the plaintiffs. Since the second defendant has not executed the sale deed, the same was executed through Court as per the decree in O.S.No.554 of 1999 on behalf of the first plaintiff also. The present suit framed is not maintainable. (f) Without setting aside the decree in O.S.No.554 of 1999 passed against the appellant/first plaintiff, the present suit is not maintainable and so, the plaintiffs are not entitled to get any relief. Since the second plaintiff married at the expense of the joint family, she is not entitled to claim of the suit properties. The second defendant prayed for dismissal of the suit. 4. The trial Court, after considering the averments both in the plaint and in the written statement, and considering the arguments advanced by both sides, framed three points for consideration. After considering the oral and documentary evidence, namely D.W.1 and Exs.A-1 and A-2 and Exs.B-1 to B-6, granted a preliminary decree of https://hcservices.ecourts.gov.in/hcservices/ partition of 1/3 share to the second plaintiff and dismissed the suit in respect of the first plaintiff. Challenging the said judgment and decree of the trial Court, the present First Appeal has been preferred by the first plaintiff. 5. After hearing the arguments of the learned counsel for the appellant/first plaintiff and the first respondent/D1, this Court frames the following points for determination in this First Appeal: (i) Whether the trial Court is correct in holding that the suit filed by the appellant/first plaintiff is not maintainable, without prayer to set aside the sale deed executed by Court in pursuance of the decree passed in O.S.No.554 of 1999 in favour of the first respondent/D1/purchaser ? (ii) Whether the judgment and decree of the trial Court are sustainable ? and (iii) To what relief the appellant/first plaintiff is entitled to ? 6. The appellant as first plaintiff, along with his sister, the second plaintiff, filed the suit for partition in respect of 2/3 share in the suit properties against their father (second defendant) and the purchaser (first defendant) of the properties. Admittedly, the suit properties are joint family properties and in view of the amended Tamil Nadu Act 1 of 1990 (The Hindu Succession (Tamil Nadu Amendment) Act, 1989), the second plaintiff became the co-parcener along with the appellant/first plaintiff and their father/D2. When the appellant/first plaintiff was minor, second respondent/D2/father entered into a sale agreement with the first respondent/D1/purchaser and since D2 has not executed the sale deed, D1/purchaser preferred a suit for specific performance in O.S.No.554 of 1999, in which the present appellant/first plaintiff was shown as a minor along with D2/father. D2-father (first defendant therein) resisted the said suit and he also represented on behalf of the appellant-first plaintiff- minor son (second defendant therein) and the suit in O.S.No.554 of 1999 filed by D1-purchaser, was decreed on 13.3.2002. Against the said decree in O.S.No.554 of 1999, D2-father, along with the appellant/first plaintiff preferred an appeal in A.S.No.92 of 2004, which was dismissed, as evidenced by Ex.B-2. Since D2-father has not executed the sale deed on behalf of the appellant-minor plaintiff, the sale deed was executed by the Court, which is evidenced by Ex.B-3. 7. During the pendency of the said appeal in A.S.No.92 of 2004, the son (appellant/first plaintiff herein) and the daughter (third respondent/second plaintiff herein) came forward with the present suit in O.S.No.352 of 2004, for partition of 2/3 share in the suit properties. The father (D2) of the appellant/first plaintiff and the third respondent/second plaintiff, remained ex-parte before the trial https://hcservices.ecourts.gov.in/hcservices/ Court. The first defendant/purchaser filed the written statement and contested the suit in O.S.No.352 of 2004. The trial Court granted preliminary decree of partition of 1/3 share in favour of the second plaintiff stating that she is not the eo-nomine in the sale agreement and hence, her share will not be binding. However, the suit was dismissed as against the first plaintiff, stating that since he was a party to the sale agreement and the suit, without prayer to set aside the sale deed Ex.B3, the present suit in O.S.No.352 of 2004 is not maintainable. Challenging the same, the present First Appeal is preferred by the appellant/first plaintiff. 8. Learned counsel for the appellant/first plaintiff submitted that the trial Court committed error in dismissing the suit as against the appellant/first plaintiff, stating that without setting aside the sale deed in favour of first respondent/D1-purchaser, the present suit is maintainable. He further submitted that as per the dictum of this Court, without cancelling the sale deed, the suit for partition is not maintainable. To substantiate his arguments, he relied on the decisions of this Court reported in 1988 (1) LW 198 (Periyanayagam Vs. Rajendran) and Vol.89 L.W. 574 (V.Nataraja Iyer Vs. Arunachalam) and prayed for setting aside the dismissal of the suit and for allowing the present appeal and for grant of preliminary decree of partition. 9. Learned counsel for the appellant/first plaintiff further submitted that during the pendency of the suit in O.S.No.554 of 1999, the appellant/first plaintiff attained majority, but D1-purchaser has not taken any steps to declare him as a major. He further submitted that absolutely, there is no legal necessity for the sale of the suit properties and the trial Court has not considered the aspects in proper perspective. He prayed for allowing the present appeal. 10. Learned counsel for the first respondent/D1-purchaser submitted that the suit properties are admittedly the joint family properties; D2-father entered into a sale agreement for himself and on behalf of the appellant/first plaintiff, since he was a minor. Since D2-father failed to execute the sale deed, D1-purchaser was constrained to file the suit for specific performance against the appellant/first plaintiff and D2-father in O.S.No.554 of 1999; after contest, the said suit was decreed, against which, D2-father along with the appellant/first plaintiff, preferred First Appeal in A.S.No.92 of 2004, which was dismissed. Then only, Execution Petition was filed and the sale deed was executed by Court of law. During the pendency of the First Appeal in A.S.No.92 of 2004, at the instigation of D2-father, the plaintiffs preferred the present suit for partition in O.S.No.352 of 2004, and it was filed only to drag on the proceedings. She further submitted that since the appellant/first plaintiff is the eo-nomine to the sale deed and to the suit, he ought to have filed the suit for setting aside the sale deed, executed by Court, in O.S.No.554 of 1999, and then only, he is entitled to file https://hcservices.ecourts.gov.in/hcservices/ the suit for partition, and without setting aside the sale deed, the present suit is not maintainable. The trial Court considered the arguments of the learned counsel for the parties and came to the correct conclusion and hence, she prayed for dismissal of the present appeal. 11. While considering the rival submissions of the learned counsel for the parties, it is seen that even though the appellant/first plaintiff in the grounds of the present appeal in Ground No.5 stated that there is no legal necessity for the sale of the suit properties, none entered into the witness box on the side of the plaintiffs before the trial Court to let in evidence to substantiate this point. Per contra, the first respondent/D1/purchaser let in evidence and also filed Ex.B6 promissory note to prove that only for legal necessity, the second respondent/D2/father intended to sell the properties and executed the sale deed. Considering the oral evidence of D.W.1 (first respondent/D1-purchaser) and Ex.B-6, I am of the view that the first respondent/D1/purchaser has proved that the sale deed has been executed only for legal necessity. 12. At this juncture, it is pertinent to note the documents filed before the trial Court. In Ex.B-4 written statement in O.S.No.554 of 1999, filed by D2-father of the appellant/first plaintiff, he raised a plea that the sale agreement is a created document only for the purpose of filing the suit. It is pertinent to note that at the time of filing of the present suit in O.S.No.352 of 2004, in the plaint itself, the date of birth of the first plaintiff is shown as 5.10.1982. The suit in O.S.No.554 of 1999 was filed on 22.11.1999 and the decree was passed on 13.3.2002, by the time, the appellant/first plaintiff attained majority. A.S.No.92 of 2004 against O.S.No.554 of 1999, was preferred by the father/D2 and the appellant/first plaintiff, which is evidenced by Ex.B-5 grounds of appeal in A.S.No.92 of 2004. The present appellant/first plaintiff was aware of the pendency of the appeal in A.S.No.92 of 2004. In such circumstances, the appellant/first plaintiff could have very well filed an application to declare himself as major and agitate the appeal in A.S.No.92 of 2004. He kept quiet all along. 13. The second respondent/D2/father contested the suit in O.S.No.554 of 1999 and in paragraph 7 of the written statement filed by D2-father in O.S.No.554 of 1999, he raised the plea of forgery, as follows: "... this defendant never executed any sale agreement in favour of the plaintiff or anybody else at any point of time. This defendant has no necessity at all to execute any sale agreement in favour of the plaintiff....". After considering the oral and documentary evidence, O.S.No.554 of 1999 was decreed, against which, D2-father and the appellant-first plaintiff preferred First Appeal in A.S.No.92 of 2004, which is https://hcservices.ecourts.gov.in/hcservices/ evidenced by Ex.B-5 Memorandum of Grounds of Appeal, in which D2- father stated in the cause title that the appellant/first plaintiff was aged about 17 years. The said A.S.No.92 of 2004 was earlier filed on 10.6.2002 and subsequently re-presented on 29.7.2002, 28.7.2003, etc., and taken on file on 5.8.2004. After hearing both sides, A.S.No.92 of 2004 was disposed of on 1.4.2005, which is evidenced by Ex.B-2 judgment. O.S.No.554 of 1999 was decreed on 13.3.2002. 14. D1 filed E.A.No.194 of 2004 in R.E.P.No.59 of 2004 in O.S.No.554 of 1999, to discharge the guardianship of the appellant/first plaintiff, as he became major, and the said E.A. was dismissed on 23.12.2004, which is evidenced by Ex.A-2. The present suit for partition was filed on 17.12.2004 and disposed of on 25.8.2005. Since the appellant/first plaintiff along with his sister, filed the suit for partition on 17.12.2004, he was very well aware of the pendency of the suit. But he kept quiet all along. This shows that the appellant/first plaintiff has been a silent spectator in the entire proceedings in respect of the sale agreement. 15. It is pertinent to note that since the appellant/first plaintiff is a party to the suit in O.S.No.554 of 1999 as well as the sale agreement, when he filed the present suit for partition in O.S.No.352 of 2004 along with his sister, he ought to have filed a suit for setting aside the sale deed alleged to have been executed by Court of Law in pursuance of the decree passed in O.S.No.554 of 1999. He filed the suit only for partition along with his married sister and valued the suit under Section 37(2) of the Tamil Nadu Court Fees and Suits Valuation Act. 16. At this juncture, it is proper on the part of this Court to decide as to whether the present suit for partition, filed by the appellant/first plaintiff is maintainable/sustainable, without seeking to set aside the sale deed executed by Court in pursuance of the decree in O.S.No.554 of 1999. 17. In this regard, learned counsel for the appellant/first plaintiff relied upon decisions of this Court reported in Vol.89 L.W. 574 (V.Nataraja Iyer Vs. Arunachalam) and 1988 (1) L.W. 198 (Periyanayagam Vs. Rajendran), wherein, it was held as follows: Vol.89 L.W. 574 "Where the alienations questioned are by a joint family manager, the plaintiffs who question the alienations need not pray for setting aside the alienations and the question of paying court fees under Section 40 of the Madras Court Fees and Suits Valuation Act does not arise. Only in a case where property belonging to a minor is alienated by his guardian, the minor becomes eo nomine a party to the document and hence he is obliged to ask for setting aside the https://hcservices.ecourts.gov.in/hcservices/ alienation. In a case where the joint family manager alienates the family properties, even though the minor coparceners are also mentioned as parties to the document, that would not lead to the conclusion that when the minor coparceners question the alienation, they would be obliged to pray for setting aside the alienation." (para 8) 1988 (1) LW 198: "In this case, it is seen that the sale under Ex.B1 was not effected by the father with the permission of the Court. It therefore, follows that the sale in favour of the appellant is rendered voidable under S.8(2) of the Act (Hindu Minority and Guardianship Act)." (para 4) "Even though Ex.B1 is statutorily declared to be a voidable transaction, there must be some manifestation, by an act or omission, of an unequivocal intention, on the part of the minors or the erstwhile minors, avoiding or repudiating the transaction for, only then, such evidence will result in rendering the transaction void since its inception." (para 5)" The above citations are not applicable to the case, since as per the dictum of the Apex Court in the case reported in 2001 (3) CTC 316 (SC) = 2001 (6) SCC 163 (Vishwambhara Vs. Laxminarayana (dead), the voidable document ought to have been set aside by the party concerned. 18. It is pertinent to note a Division Bench decision of this Court reported in 1993 (2) MLJ 428 (Sridharan Vs. Arumugam), wherein, it was held as follows: "In so far as the documents in which the minor children are made parties, they are bound in law to pray for setting aside the same. Without such prayer, the suit is not sustainable in relation to those documents." (para 6) 19. It is worthwhile to notice a decision of another Division Bench of this Court reported in 2001 (2) CTC 641 (Jagannathan,K. Vs. A.M.Vasudevan Chettiar), wherein, it was held as follows: "27. There is no dispute that even under Ex.A-4, the plaintiff who was a minor at the relevant time, was made eo nomine party. In such a circumstance, as rightly contended, he has to pray for cancellation of the earlier partition expressly or impliedly by paying necessary court-fees, in this regard, it is useful to refer a Full Bench decision of this Court in Sankaranarayana Vs. Kandasamia, AIR 1956 Mad. 670. The following conclusion of Their Lordships is https://hcservices.ecourts.gov.in/hcservices/ relevant:- (para 23) "There is no doubt whatever that a transaction entered into by a guardian relating to the minor's properties is not void and if the minor does not sue to set it aside within three years of his attaining majority it becomes valid under Article 44, Limitation Act. In such a case the minor is deemed to be a party to the transaction. But where the document is executed by a manager of the family and it is not binding on the family, the minor or any other member can ignore the transaction and recover possession of the property. To such a case section 7(v), Court-Fees Act will apply. We are here not concerned with decrees to which the minor is eo nomine a party. Our answer to the first question is that if the minor is eo nomine a party to a sale deed or other document of alienations, he must sue for the cancellation of the document under Section 7(iv- A), Court-Fees Act and it is not enough if he applies for possession under Section 7(v) of the Act and to the second question our answer is that there can be no distinction whether the father as guardian of the minor and not as the manager of the joint family executes the deed. Even in that case also the document has to be set aside." Admittedly, the plaintiff/appellant herein, who was a minor eo nomine party did not question the said partition and he filed the suit only for partition and separate possession of his 1/9th share in the suit properties. In such a circumstance, on this ground also the claim of the plaintiff is liable to be rejected." 20. Learned counsel for the first respondent/D1 relied on the following decisions: (a) 2001 (3) MLJ 15 (Balu alias Balakrishnan Vs. Minor B.Sasikumar): "The plaintiff being an eo nomine party, should have sought for setting aside the alienations or should have sought for cancellation of the alienations as well as the encumbrances which he has miserably failed. Therefore, insofar as the first plaintiff is concerned, his failure to seek for cancellation of the mortgage deed and sale deed is fatal to his claim." (b) 2001 (3) CTC 316 (SC) = 2001 (6) SCC 163 (Vishwambhara Vs. Laxminarayana (dead) : https://hcservices.ecourts.gov.in/hcservices/ "9. On a fair reading of the plaint, it is clear that the main fulcrum on which the case of the plaintiffs was balanced was that the alienations made by their mother- guardian Laxmibai were void and therefore, liable to be ignored since they were not supported by legal necessity and without permission of the competent court. On that basis, the claim was made that the alienations did not affect the interest of the plaintiffs in the suit property. The prayers in the plaint were inter alia to set aside the sale deeds dated 14-11-1967 and 24-10-1974, recover possession of the properties sold from the respective purchasers, partition of the properties carving out separate possession of the share from the suit properties of the plaintiffs