IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.BHAVADASAN FRIDAY, THE 28TH MAY 2010 / 7TH JYAISHTA 1932 SA.No. 16 of 1997(B) ------------------------------ AS.219/1993 of DIST. COURT (ENQUIRY COMMR.& SPL.JUDGE), THRISSUR OS.216/1989 of MUNSIFF COURT, VADAKKANCHERRY .................... APPELLANT/4TH RESPONDENT/4TH DEFENDANT: -------------------------------------------------------------------------- VELAYUDHAN P.R., S/O.ASARI RAMAN, CHOONDAL DESOM, THALAPPILLY TALUK, THRISSUR. BY ADV. SRI.N.P.SAMUEL RESPONDENTS/APPELLANT & RESPONDENTS/PLAINTIFF AND DEFENDANTS 1 TO 3 & 5: -------------------------------------------------------------------------------------- 1. RAMACHANDRAN, S/O.POOLOTH KIZHAKKETHIL, NARAYANI AMMA, PELAKKATTU PAYYUR DESOM, CHOONDAL VILLAGE, TALAPPILLY TALUK, THRISSUR DIST. 2. NARAYANI AMMA, D/O.POOLOTH KIZHAKKETHIL AMMINI AMMA, CHOONDAL DESOM & VILLAGE, TALAPPILLY TALUK, THRISSUR DIST. 3. VIJAYALEKSHMY AMMA, D/O.POOLOTH KIZHAKKETHIL NARAYANI AMMA, CHOONDAL DESOM, TALAPPILLY TALUK, THRISSUR DIST. 4. RUGMANI AMMA, D/O.POOLOTH KIZHAKKETHIL NARAYANI AMMA, PRESENT ADDRESS RUGMANI AMMA, C/O.UNNI, AYYAPPATH HOUSE, VELLITHIRUTHI, MARATHOMKODE P.O., VIA. KUNNAMKULAM, THRISSUR DIST. SA.No. 16 of 1997(B) 5. LALITHA, D/O.ASARI APPUKUTTAN & W/O.VELAYUDHAN, CHOONDAL DESOM & VILLAGE, THALAPPILLY TALUK, THRISSUR DIST. R1 & R2 BY ADV. SRI.K.S.BABU, SMT.N.SUDHA. R5 BY ADV. SRI.P.J.AYPPACHAN. THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 21/05/2010,THE COURT ON 28/05/2010 DELIVERED THE FOLLOWING: SA.No. 16 of 1997(B) ORDER ON C.M.P. NO.30/1997 IN S.A. NO.16/1997 DISMISSED 28/05/2010. SD/- P.BHAVADASAN, JUDGE //TRUE COPY// P.S. TO JUDGE rs. P. BHAVADASAN, J. - - - - - - - - - - - - - - - - - - - - - - - - - - - S.A. No. 16 of 1997 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 28th day of May, 2010. JUDGMENT The defendant in O.S.216 of 1989 before the Munsiff's Court, Wadakkancherry, who suffered a decree at the hands of the first appellate court is the appellant. The parties and facts are hereinafter referred to as they are available before the trial court. 2. The suit was one for partition in respect of 25 cents of property comprised in Sy. No.602/1 of Choondal village. It is claimed that the property was jointly owned by the plaintiff and defendants 1 to 3. According to the plaintiff, the property was purchased in the name of the second defendant and the father, Narayanan Nair, as guardian of the present plaintiff and deceased Madhavan and third defendant, who were then minors. Madhavan died unmarried and his sole legal heir is the first defendant mother. Father of the plaintiff was S.A.16/1997. 2 also no more. Plaintiff claimed that he had attained majority. He found that the fourth and sixth respondents are in possession of certain portions of the property. They have no manner of right over the suit property. To the notice sent, they have sent a reply notice containing false allegations. The plaintiff does not wish to continue the joint possession and he seeks partition. He claims one fourth share. 3. The first defendant filed a written statement supporting the plaintiff. The second defendant resisted the suit. In her written statement, it was pointed out that the plaintiff was very sick at the time of infancy and his father had to raise money for his treatment. The suit property was therefore assigned by the father for valid consideration as they had no means to raise the funds. Plaintiff is fully aware of the same. The entire sale consideration received was utilized for the treatment of the plaintiff. After the death of Sethumadhavan, it is claimed that father and the plaintiff accompanied the second defendant to Allahabad, where her S.A.16/1997. 3 husband was employed. Pointing out that the plaintiff is not entitled to any relief, she prayed for a dismissal of the suit. The third defendant chose to remain ex-parte. 4. Defendants 4 and 5 also resisted the suit. They claimed that by virtue of Ext.B1 dated 5.5.1967 they have absolute right over the suit property. At the time when the assignment was made, the plaintiff had no manner of right over the suit property. The plaintiff has not mentioned the date on which he had attained majority. His father who was the natural guardian at the relevant time has executed the deed on his behalf also. Sale consideration was utilized for the benefit and interest of the plaintiff. They have also pointed out that without having the sale deed set aside, the plaintiff could not seek partition. In addition, they contended that they perfected title by adverse possession and limitation. They pointed out that a residential building has been put up by them and they had effected improvements in the property. In case the court found that the plaintiff is entitled to a share, they claimed value of S.A.16/1997. 4 improvements. Under those circumstances, they prayed for a dismissal of the suit. 5. The trial court raised necessary issues for consideration. The evidence consists of the testimony of P.W.1 and the documents marked as Exts. A1 to A5 from the side of the plaintiff. The defendants had D.Ws. 1 and 2 examined and Exts. B1 and B2 marked. Ext.C1 is the commission report. 6. The trial court found that the plaintiff was a minor at the time of assignment as per Ext.B1. It also formed an opinion that on attaining majority within three years the plaintiff had to assail the assignment deed. Since he has not done so his claim is barred and accordingly dismissed the suit. 7. The plaintiff carried the matter in appeal as A.S. 219 of 1993. The appellate court concurred with the trial court as regards the fact that the plaintiff was a minor at the time of execution of Ext.B1. But the court was of the opinion that the suit having been brought within 12 years of S.A.16/1997. 5 the date of assignment, the suit is not barred by limitation. Accordingly the judgment and decree of the trial court was reversed and a preliminary decree was passed. The said judgment and decree are assailed in this Second Appeal. 8. A very narrow question arises for consideration in this Second Appeal. The issue is whether the plaintiff was obliged to assail the sale deed, namely, Ext.B1, in favour of defendants 4 and 5 within three years of attainment of majority or whether he could take the aid of 12 years from the date of assignment deed to establish his claim. The trial court pointed out that the plaintiff had to set aside the sale deed within three years of attaining majority and the lower appellate court was of the opinion that he could take the aid of Article 65 of the Limitation Act. The trial court chose to dismiss the suit, while the appellate court decreed the suit. 9. Before going into the other circumstances, it is useful to refer to the statutory provisions applicable to the facts of the case. The statutory provisions applicable are Section 8 of the Hindu Minority and Guardianship Act, 1956 S.A.16/1997. 6 (Act 32 of 1956), Sections 29 and 31 of the Guardians and Wards Act, 1890 (Act 8 of 1890), Section 6 of the Limitation Act and Articles 60 and 65 of the Limitation Act. The provisions read as follows: Section 8 of the Hindu Minority and Guardianship Act, 1956 (Act 32 of 1956) reads as follows: “8. Powers of Natural guardian.- (1) The natural guardian of a Hindu minor has power, subject to the provisions of this section, to do all acts which are necessary or reasonable, and proper for the benefit of the minor or for the realization, protection or benefit of the minor's estate; but the guardian can in no case bind the minor by a personal covenant. (2) The natural guardian shall not, without previous permission of the Court, - (a) mortgage or charge, or transfer by sale, gift, exchange or otherwise, any part of the immovable property of the minor, or (b) lease any part of such property for a term exceeding five years or for a term extending more than one year beyond the date on which the minor will attain majority. S.A.16/1997. 7 (3) Any disposal of immovable property by a natural guardian, in contravention of sub-section (1) or sub-section(2), is voidable at the instance of the minor or any person claiming under him. (4) No court shall grant permission to the natural guardian to do any of the acts mentioned in sub- section (2) except in case of necessity or for an evident advantage to the minor. (5) The Guardians and Wards Act, 1890 (8 of 1890), shall apply to and in respect of an application for obtaining the permission of the Court under sub-section (2) in all respects as if it were an application for obtaining the permission of the Court under Sec. 29 of the Act, and in particular,- (a) proceedings in connection with the application shall be deemed to be proceedings under that Act within the meaning of Sec.4A thereof. (b) the court shall observe the procedure and have the powers specified in sub-sections (2), (3) and (4) of Sec.31 of that Act; and © an appeal shall lie from an order of the Court refusing permission to the natural guardian to do any of the acts mentioned in sub-section (2) S.A.16/1997. 8 of this section to the Court to which appeals ordinarily lie from the decisions of that Court. (6) In this Section, “Court” means the Civil Civil Court or a District Court or a Court empowered under Sec.4-A of the Guardians and Wards Act, 1890 (8 of 1890), within the local limits of whose jurisdiction the immoveable property in respect of which the application is made is situate, and where the immoveable property is situate within the jurisdiction of more than one such Court means the Court within the local limits of whose jurisdiction any portion of the property is situate.” Sections 29 and 31 of the Guardians and Wards Act, 1890 (Act 8 of 1890) read as follows: “29. Limitation of powers of guardian of property appointed or declared by the Court.- Where a person other than a Collector or than a guardian appointed by will or other instrument, has been appointed or declared by the Court to be guardian of the property of a ward, he shall not without the previous permission of the Court, - S.A.16/1997. 9 (a) mortgage or charge or transfer by sale, gift, exchange or otherwise, any part of the immovable property of his ward, or (b) lease any part of that property for a term exceeding five years or for any term extending more than one year beyond the date on which the ward will cease to be a minor. xxxxx xxxxx 31. Practice with respect to permitting transfers under Sec. 29.- (1) Permission to the guardian to do any of the acts mentioned in Sec.29 shall not be granted by the Court except in case of necessity or for an evident advantage t0o the ward. (2) The order granting the permission shall recite the necessity or advantage, as the case may be, describe the property with respect to which the act permitted is to e done, and specify such conditions, if any, as the Court may see fit to attach to the permission; and it shall be recorded, dated and signed by the Judge of the Court with his own hand, or, when from any cause he is prevented from recording the order with own hand, shall be taken down in writing from his dictation and be dated and signed by him. S.A.16/1997. 10 (3) The Court may in its discretion attach to the permission the following among other conditions, namely: (a) that a sale shall not be completed without the sanction of the Court; (b) that a sale shall be made to the highest bidder by public auction before the Court or some person specially appointed by the Court for that purpose, at a time and place to be specified by the Court, after such proclamation of the intended sale as the Court subject to any rules made under this Act by the High Court, directs; © that a lease shall not be made in consideration of a premium or shall be made for such term of years and subject to such rents and covenants as the Court directs; (d) that the whole or any part of the proceeds of the act permitted shall be paid into the Court by the guardian, to be disbursed therefrom or to be invested by the Court on prescribed securities or to be otherwise disposed of as the Court directs. (4) Before granting permission to a guardian to do an act mentioned in Sec.29, the Court may cause notice of the application for the permission S.A.16/1997. 11 to be given to any relative or friend of the ward who should, in its opinion receive notice thereof, and shall hear and record the statement of any person who appears in opposition to the application.” Section 6 of the Limitation Act reads as follows: “6. Legal disability.- (1) Where a person entitled to institute a suit or make an application for the execution of a decree is, at the time from which the prescribed period is to be reckoned, a minor or insane, or an idiot, he may institute the suit or make the application within the same period after the disability has ceased, as would otherwise have been allowed from the time specified therefor in the third column of the Schedule. (2) Where such person is, at the time from which the prescribed period is to be reckoned, affected by two such disabilities, or where, before his disability has ceased, he is affected by another disability, he may institute the suit or make the application within the same period after both disabilities have ceased, as would otherwise have been allowed from the time so specified. S.A.16/1997. 12 (3) Where the disability continues up to the death of that person, his legal representative may institute the suit or make the application within the same period after the death, as would otherwise have been allowed from the time so specified. (4) Where the legal representative referred to in sub-section (3) is, at the date of the death of the person whom he represents, affected by any such disability, the rules contained in sub-sections (1) and (2) shall apply. (5) Where a person under disability dies after the disability ceases but within the period allowed to him under this section, his legal representative may institute the suit or make the application within the same period after the death, as would otherwise have been available to that person had he not died. Explanation.- For the purposes of this section, 'minor' includes a child in the womb.” S.A.16/1997. 13 Articles 60 and 65 of the Limitation Act read as follows: “60.To set aside a transfer of property made by the guardian of a ward- (a) by the ward who has Three years When the ward attains attained majority; majority. (b) by the ward's legal representative- (i) when the ward dies -do- When the ward attains within three years from the date majority. of attaining majority; (ii) when the ward dies -do- When the ward dies. before attaining majority. xxxxx xxxxx 65. For possession of immovable Twelve years When the possession property or any interest therein of the defendant based on title. becomes adverse to the plaintiff. Explanation.-For the purposes of this article- (a)where the suit is by a remainderman, a reversioner (other than a landlord) or a devisee, the possession of the defendant shall be deemed to become adverse only when the estate of the remainderman, reversioner or devisee,as the case may be, falls into possession; (b)where the suit is by a Hindu or Muslim entitled to the possession of immovable property on the death of a Hindu or Muslim female, the possession of the defendant shall be deemed to become adverse S.A.16/1997. 14 only when the female dies; © where the suit is by a purchaser at a sale in execution of a decree when the judgment-debtor was out of possession at the date of the sale, the purchaser shall be deemed to be a representative of the judgment-debtor who was out of possession. 10. Section 8 of the Hindu Minority and Guardianship Act deals with the powers of natural guardian in respect of properties of the minor. The provisions which are relevant for the present purpose are Sections 8(2) and 8(3). On a reading of the provisions, it can be seen that the natural guardian shall not, without the previous sanction of the court, assign the property belonging to the minor. Section 8(3) says that if the above provision is violated, then the assignment becomes voidable at the instance of the minor. It may be noticed that Section 8 makes provision of the Guardian and Wards Act (Act 8 of 1890) applicable to the proceedings under Act 32 of 1956. Sections 29 and 31 of Act 8 of 1980 gives the procedure when a guardian applies for assignment of a minor's property. These provisions are S.A.16/1997. 15 not very relevant in the present context. It is not necessary to refer it extensively. 11. Section 6 of the Limitation Act deals with a case where the person, who is entitled to institute a suit is under a disability. As far as the provision is applicable to the present case, it could be said that going by Section 6 the plaintiff has three years period, that is till 21 years of age, to assail Ext.B1. One may remember that even going by Section 8 of Act 32 of 1956 the assignment is only voidable at the instance of the minor. Article 60 provides a period of three years to a ward to set aside the transfer made by his guardian. It is three years from the date of attainment of majority. Article 65 provides for possession of immovable property or any interest therein based on title. It provides 12 years period when the possession of the defendant becomes adverse to that of the plaintiff. It is well settled that going by Article 65, the plaintiff is able to establish title to the suit property then the plea of adverse possession and S.A.16/1997. 16 limitation will have to be established by the defendants concerned. 12. The issue that arises for consideration is whether it is obligatory on the part of the minor to have the sale deed, ie., Ext.B1 set aside or can he simply avoid it. 13. There is a clear distinction between 'void' and 'voidable'. It may be remembered that the expression 'void' itself has several facets. It may be ab initio void. It may be that the procedural requirements are not followed and hence void and such other matters. It has been held that the word 'void' has a relative rather than an absolute meaning. 'Voidable' on the other hand means that the transaction is good as long as it is not set aside. Voidable transaction cannot be treated as non-est. If the voidable transaction is not avoided through the known means of law, it remains good. One may recall that going by Section 8(3) of Act 32 of 1956 the transaction is voidable. 14. One may recollect here that Article 60 provides three years period from the date of attaining S.A.16/1997. 17 majority to have the transaction entered into by the guardian on his behalf set aside. Therefore, if as a matter of fact on a combined reading of Section 6 and Article 60 of the Limitation Act, if setting aside of the document assailed is essential, then obviously the suit filed by the plaintiff in the present case is barred by limitation. 15. The court below has chosen to rely on the decision reported in Santhosh Kumar v. Varghese (1987 (2) KLT 27). It is true that in the said decision it was held as follows: “S.8 of the Hindu Minority and Guardianship Act enumerates the powers of a natural guardian. S.8(1) reads: “The natural guardian of a Hindu minor has power, subject to the provisions of this section, to do all acts which are necessary or reasonable, and proper for the benefit of the minor or for the realization, protection or benefit of the minor's estate; but the guardian can in no case bind the minor by a personal covenant.” Sub.s.(2) of the Act prohibits the natural guardian from mortgaging, charging or transferring the S.A.16/1997. 18 minor's property without permission of the court. S.8(3) stipulates that any disposal of immovable property by a natural guardian, in contravention of sub-s. (1) or sub-s.(2), is voidable at the instance of the minor or any person claiming under him. S.8(4) mandates the court not to grant permission to the natural guardian to do any of the acts mentioned in sub-s. (2) except in case of necessity or for an evident advantage to the minor. Thus it is manifestly clear that under S.8 of the Act property of the minor can be alienated, mortgaged or leased or gifted only for his evident advantage or necessity and the court's permission is a condition precedent. Any transaction by a natural guardian of the immovable property of the minors without permission of the court will not have any legal force and would not be binding on the minors.” In the decision reported in Sreedharan v. Prasanna (1996 (2) KLT 784 (SC)) it was held as follows: “It would be obvious that sine the mandatory requirement of sanction from the Court for alienating the property of the minor, as required under S.8 of the Hindu Minority and S.A.16/1997. 19 Guardianship Act, had not been obtained, the contract of sale to the extent of the half share of the minor is void and it does not bind the minor. The Courts have rightly declined to exercise discretion on sound principle of law to protect the estate of the minor.” In the decision reported in Kunhiraman v. Vanaja (1997(2) KLT 5), it was held as follows: “We do not think that S.8(3) of the Act in any manner whittles down the scope or operation of S.892) of the Act. S. 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, S. 8(3) only indicates that the guardian who had sold his own interest alongwith that of the minor without the consent of the court or any other alienor who was suir 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 S.8(3) of the Act, according to us, is not to whittle down the scope of S.8(2) of the Act but only to clarify that the right to treat the transaction as void is available only to the minor S.A.16/1997. 20 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, S.8(3) cannot be relied on to hold that a transaction in contravention of the mandate of S.8 (2) of the Act, is only voidable and not void.” In Moidu Haji v. Kunhabdulla (1998(2) KLT 691) it was held as follows: “In the property exclusively belonged to a Mohammedan minor and the same had been alienated by a person who was not his legal guardian, the said transaction would be void and applying Art.65 of the Limitation Act and in the light of Ss.6 and 8 of the Act, the suit had to be instituted by the quondam minor within three years of his attaining majority or within 12 years of the transaction itself. The alienation effected by the Mohammedan co-owners including the defecto guardian of the minor plaintiff, has to be considered altogether void? If it were to be considered void altogether void, that is to say, as not being capable of conveying even the