IN THE HIGH COURT OF JUDICATURE OF MADRAS DATED: 30..07..2008 CORAM: THE HONOURABLE MR. JUSTICE G.RAJASURIA A.S.No.350 of 1996 and C.M.P.No.3421 of 2007 Ammaniammal ... Appellant/Plaintiff Vs. 1. M.Palanisamy 2. M.Arumugham 3. Ravuthayammal 4. Lakshmi 5. Sellammal 6. Saraswathi 7. K.Ramaswamy 8. Valliammal 9. Palaniammal 10.P.Palanisamy (died) 11.K.Muthuswamy 12. Rasammal 13. Lakshmi 14. Nirmala Devi 15. P.Jagadeesh .. Respondents/Defendants (Defendants 1,3, 5 and 6 exparte in the trial Court and hence given up) R.Rs 12 to 15 have been brought on record as Lrs of the deceased 10th respondent as per order of Court deceased 24.07.2001 in CMP No. 15535/1997 by PSDJ Appeal against the judgment and decree of the learned Principal Subordinate Judge and passed in O.S.No.603 of 1989 dated 29.11.1994. For appellant :: Mr.A.K.Kumarasamy For Respondents :: Mr. M.M.Sundresh for R2 Mr.N.Manokaran for RR7 to 15 4th Respondents :: N.A https://hcservices.ecourts.gov.in/hcservices/ JUDGMENT This appeal is focussed as against the judgment and decree dated 29.11.1994 passed by the learned Principal Subordinate Judge, Erode in dismissing the suit in O.S.No.603 of 1989, which was filed by the plaintiff as against the defendants seeking partition. For convenience sake, the parties are referred to here under according to their litigative status before the trial Court. 2. Niggard and bereft of details, the case of the plaintiff as stood exposited from the averments in the plaint would run thus: One Moola Gounder and his wife Sellammal (fifth defendant) had two sons, viz., the defendants 1 and 2 and three daughters, viz., the plaintiff and defendants 3 and 4. The suit property described in the schedule of the plaint belonged to the said joint family comprised of Moola Gounder and his two sons, viz., D1 Palanisamy and D2 Arumugam. Moola Gounder died on 28.12.1971 intestate; consequently, his 1/3 rd share in the suit properties devolved upon his wife D5 and his four children, viz., the plaintiff and Defendants 1 to 4 and they have been in joint possession of the suit property. Consequently, the suit for partition has come to be filed. Such joint possession and cultivation of the suit property causes great hardship whereupon the plaintiff demanded partition which ended in a fiasco. On 01.12.1989, she ascertained from defendants 1 and 2 that they were having no intention of partitioning the property whereupon she reliably learnt that defendants 1 and 2 were making arrangements to alienate the suit properties to D6. Subsequently, she came to know that defendants 1 and 2 sold certain portions of the suit properties in favour of defendants 7 to 11 and such sales are void and not binding on the plaintiff. Hence the suit. 3. Per contra, gain saying and controverting, denying and refuting the allegations/averments in the plaint, the second defendant filed the written statement, the warp and woof of it would run thus: The joint possession as alleged in the plaint by the plaintiff is false. On 10.03.1972 itself, the plaintiff and the defendants 3 to 5 jointly executed a registered release deed in favour of defendants 1 and 2 relinquishing all their rights in the schedule mentioned properties. At that time, since the plaintiff was a minor her mother represented her in the release deed. On behalf of second defendant D1 acted as guardian and accepted the release deed. After D2 attained majority, D1 and D2 effected the partition on 24.04.1980 vide partition deed and ever since such partition, D1 and D2 are enjoying their respective shares in the suit property independently. The defendants 1 and 2 were responsible for giving the plaintiff in marriage by providing her with seer from out of D1 and D2's earnings. Similarly one other sister was also given in marriage by them. The https://hcservices.ecourts.gov.in/hcservices/ respective husbands of the plaintiff and D4, signed as attesting witnesses to the partition deed dated 24.04.1980. Hence the suit is untenable. 4. The fourth defendant was having no objection for decreeing the suit as prayed for by the plaintiff and in fact she prays for partition and for allotment of her share. 5.The seventh defendant filed the written statement, which was adopted by D8 to D11 in support of the statement filed by D2. He would also contend that the sale deed dated 15.12.1985 executed by D2 in his favour relating to a portion of the suit property is valid. The fact remains that D7 to D10 purchased various portions of the suit properties as per sale deeds dated 15.12.1985 and as per them they are the bona fide purchasers for valuable consideration. Accordingly, they prayed for the dismissal of the suit. 6. The plaintiff filed the reply statement setting out the averments the pith and marrow of them would run thus: The plaintiff was a minor on the date of the alleged release deed said to have been executed by her mother who had no authority to release the share of the plaintiff. In fact, till the second defendant filed his written statement and counter the plaintiff was not aware of such release deed. The said release deed is nothing but a fabricated one created by the defendants 1 and 2 to deceive the rights of the plaintiff and no consideration was passed under the said document and the plaintiff did not derive any benefit from the transaction. Under such circumstances, the release deed is a void one and the mother of the plaintiff had no right to relinquish the share of the plaintiff without the permission obtained from the Court. The alleged attestation of the partition deed by the husband of the plaintiff is having no binding effect on the plaintiff and the plaintiff's husband was a village rustic, who is not an educated person but he could sign only. Those release deed and partition deed were never acted upon. The patta, chitta and cultivation accounts are still standing in the name of the deceased Moola Gounder, the father of the plaintiff. Accordingly, the plaintiff prayed for decreeing the suit. 7. Challenging and impugning the averments in the reply statement, D2 also filed additional written statement, the nitty gritty of it would run thus: The release deed being a voidable document, the plaintiff should have filed a suit to get the release deed set aside, within a period of three years from the date of attainment of majority by her. The release deed was not a void document as alleged by the plaintiff. The plaintiff's husband attested the partition deed after knowing the contents. The release deed and the partition deed were acted upon https://hcservices.ecourts.gov.in/hcservices/ and several documents emerged thereafter in the form of sale deeds in favour of third parties relating to various portions of the suit properties. The suit is also bad for non-joinder of the alienees. Accordingly, they prayed for the dismissal of the suit. 8. The trial Court framed the relevant issues. During the trial, the plaintiff examined herself as PW1 and Exs.A1 to A15 were marked. On behalf of the defendants, D.Ws.1 to 4 were examined and Exs.B1 to B15 were marked. 9. Ultimately, the trial Court dismissed the suit as against the plaintiff. Being aggrieved by and dissatisfied with the judgment and decree of the trial Court, the appellant/ plaintiff preferred this appeal on the following grounds among others: (i) The judgment and decree of the trial court are against law, weight of evidence and all probabilities of the case. (ii) Ex.B1 the release deed is a void document but the trial Court erroneously held that it is a voidable document. Since Ex.B1 is a void document, the question of limitation is not an embargo for the plaintiff to seek partition. (iii) The trial Court failed to note that Ex.B1, the release deed is bad in view of Section 8 of the Hindu Minority and Guardianship Act, 1956. (iv) The plaintiff did not attest the partition deed Ex.B4 and the alleged attestation by the plaintiff's husband would not bind her. (v) The trial Court erroneously held that the suit was barred by limitation ignoring the fact that release deed was a void document. (vi) The trial Court failed to note that the release deed was not for the welfare of the minor. Accordingly, the appellant/plaintiff prayed for setting aside the judgment and decree of the trial Court and for decreeing the original suit. 10. The respondents/defendants filed C.M.P.No.3421 of 2007 under Order 41 Rule 27 of Civil Procedure Code seeking permission to adduce additional evidence in the form of additional documents. Tersely and briefly, the contention of the defendants/respondents is that pending suit, the original defendant No.1, who remained ex parte executed the sale deed dated 07.06.2006 in favour of a third party relating to his https://hcservices.ecourts.gov.in/hcservices/ share in the suit property, which he obtained under the partition deed under Ex.B4; consequently, the plaintiff by way of buttressing the sale deed executed the consent deed dated 02.01.2007. Highlighting the aforesaid emergence of two deeds during the pendency of the appeal, the defendants would contend that the plaintiff has become legally disentitled to prosecute further the appeal as she virtually had given a go bye to her case. Whereas the learned counsel for the plaintiff would submit that such a consent deed was executed by the plaintiff without prejudice to her right to be asserted in this appeal. 11. It is therefore clear, from the rival contention, that those two documents are necessary documents for the disposal of this appeal as it is axiomatic that subsequent developments during the pendency of the litigation could be taken note of by the Court for effective disposal of the case. Here those two deeds are having prima facie relevance to the disposal of the appeal and hence, I am of the considered opinion that those two deeds could be allowed to be marked on the side of the respondents/defendants as Exs.B16 and B17 in continuation of the exhibits already marked on the defendants side before the trial Court. 12. The points for consideration are as to:- (1) Whether Ex.B1 the release deed is a void or voidable document? (2) Whether the suit is barred by limitation? (3) Whether the subsequent conduct of the plaintiff would non-suit her? (4) Whether there is any infirmity in the judgment and decree of the trial Court? 13. The point Nos.1 to 3 are taken together for discussion as they are inter-linked and inter-woven with each other. The legal concepts void or voidable have been the subject matter of discussion and adjudication in various cases. But, in this case, the distinction between the two gained prominence that the adjudication of Ex.B1, the release deed dated 10.03.1972 as void or voidable would ultimately decide the fate of the case of the party concerned. 14. The learned counsel for the plaintiff would advance his arguments to the effect that the mother of the plaintiff had no legal capacity to represent the then minor plaintiff after the death of Moola Gounder in Ex.B2 for releasing the then minor plaintiff's share in the suit property, which constituted the undivided co-parcenery property. The eldest male member Palanisamy was the deemed kartha having control over the suit property and in such a case, the wife of Moola Gounder and the mother of the then minor plaintiff had no right https://hcservices.ecourts.gov.in/hcservices/ to release on behalf of the minor Ammaniammal's her share in the suit property in favour of the said kartha, viz., Palanisamy. 15. Per contra, the learned counsel appearing for the first defendant/respondent would contend that after the death of Moola Gounder, his wife and mother of the plaintiff Ammaniammal was the natural guardian of the minor and hence, she had the right to represent the minor in Ex.B1 and release the then minor's share for a consideration of Rs.2,000/- and that in no way it could be termed as void and at the most, Ammaniammal, could have within a period of three years from the date of her attainment of her majority filed a suit for getting set aside Ex.B1, the release deed. But, she did not do so. On the other hand, she filed the suit only in the year 1989, so to say, long after the expiration of the said limitation period. According to the learned counsel for the first defendant as on the date of emergence of Ex.B1 dated 10.03.1972, the said Ammaniammal was 17 years old and obviously, she attained majority in the year 1973 and within three years from thereafter, so to say, during the year 1976, she should have filed the suit for getting set aside Ex.B1, if at all she had any grievance over it, but she did choose to file the suit only in the year 1989. In this factual matrix, it is just and necessary to find out as to whether Ex.B1 is a void document or voidable document. If it is a void document, the entire contention of the learned counsel for the first defendant would crumble to the ground but on the other hand, if it is found to be a voidable document, then the plaintiff would have no case at all. 16. The learned counsel for the plaintiff cited the decision of this Court reported in 1998(2) MLJ 173 (T.M.Krishnamoorthy Pillai vs. Mangalam). An excerpt from it would run thus: "7. The question as to whether the alienation by a defacto guardian of the minor's property without the prior permission of the competent court is void transaction and the period of limitation within which the minor, in such circumstances, could seek for relief, was not a matter, which was res integra even before the latest pronouncement relied upon for the first respondent-plaintiff, came to be rendered. The decisions in Mayilswami Chettiyar v.Kaliammal, (1969) I MLJ 177, Angammal v.Balasubramanian, (1980) 1 MLJ 242, Sundaramoorthy v.Shanmugam Nadar, (1980) 1 MLJ 486 and Muthalu Ammal v.A.V.Amudham, (1977) 2 MLJ 215, which were relied upon by the courts below bear ample testimony to the same. Subsequent to the above series of judgments, the Apex Court in Pannilal v.Rajinder Singh and another (1994)1 L.W.40 and Kallathil Sreedharan v.Komath Pandyala Prasanna (1997) 1 MLJ 61 (S.C.) and Govindaraju Padyyachi, P and another v. V.V.O.Malavaraya Nayanar and others, (1997) 3 L.W.586 https://hcservices.ecourts.gov.in/hcservices/ rendered by a learned single Judge of this Court, though reiterated the same principles, would indicate that there was no scope for even entertaining any doubts about the correctness of the legal principles applied to the case on hand by the learned Judges, who decided the cases in the courts below. Realising the series of hostile decisions staring against the plea of the appellant, the learned senior Counsel placed strong reliance upon the decisions of the Apex Court in Jijabai v.Pathankhan, AIR 1971 SC 315 and Mayilswami Chettiar's case (1969) 1 MLJ 177 of a learned Single judge of this court and tried to urge that on the facts found in this case, the other series of judgments will have no application and the present case would very much deserve the application of the principles laid down in those two decisions. 8. The decisions in Jijabai's case, AIR 1971 S.C.315 is one where the Apex Court specifically found as a fact that though the father was alive, he had fallen out with the mother of the minor daughter and was separated for several years without taking any interest in the affairs of the minor, who was in the keeping and care of the mother and therefore, in such peculiar circumstances, the father should be treated "as if non-existent and therefore, the mother could be considered as the natural guardian of the minor's person as well as property" and consequently had power to bind the minor by granting lease of her land in the course of proper management of the property. In Mayilswami Chettiar's case, (1969) 1 MLJ 177, a learned Single judge of this Court expressed the view that even where there is a father for the minors alive, the mother can, acting as de facto guardian, of the minors alienate their property for necessity and that the father having attested the mortgage deed, should be deemed to have acquiesced in the mortgage and the alienation would be valid, if it is for necessity. Such decision came to be rendered by the learned single Judge, as could be seen from a perusal of the judgment, without any reference to the embargo placed on the powers of the de facto guardian under the provisions of the Hindu Minority and Guardianship Act, 1956, apparently influenced by the principles governing such a question under the old Hindu Law and that too prior to the coming into force of the Hindu Minority and Guardianship Act, 1956 and therefore, can be of no assistance for the appellants in this case. The decisions of this Court in Angammal's case (1980) 1 MLJ 242 and Sundaramoorthy' s case (1980) 1 MLJ 486, https://hcservices.ecourts.gov.in/hcservices/ brought about the distinctions between the law governing a case prior to and after the coming into force of the Hindu Minority and Guardianship Act and there is no scope for applying cases decided without specific reference to the 1956 Act. The observation made in that context on the impact of participation by the father could not be availed of in a case, where there is absolutely no possibility for a de facto guardian to convey or alienate the rights or interests of a minor without prior sanction obtained from a competent Court. 9. The decision in Jijabai's case, AIR 1971 SC 315 on which strong reliance has been placed by the learned Senior Counsel for the appellant had been considered by the Apex Court in Panni Lal's case AIR 1971 SC 40 and the application of the principles to the restricted situation in respect of which it was rendered, has been pointed out subsequently by the Supreme Court itself. On facts the case on hand cannot be said to be one, where the natural guardian father, had abandoned the minor's interest or left the family once and for all to lead to a presumption as to the natural guardian became non-existent and the mother could be elevated and placed on the pedestal of a natural guardian to deal with the minor's property. That the father was also in the family very much and it is only by nomination, the mother became the de facto guardian, and that, therefore,the mother could not be raised to the level of natural guardian is obvious from the facts found in this case, which renders, in my view, the ratio of the decision in Jijabai's case, AIR 1971 SC 315 wholly inapplicable to the case on hand. 10. The next question that looms large for consideration as to the impact and legal effect of attestation by the father. In my view, the factum of attestation by the father to a transaction, which is otherwise void in law, has no legal consequence at all for the reason that such attestation does not have the effect of rendering the alienation indisputably made by the de facto guardian to be really that of the natural guardian in the course of proper and due exercise of the powers of such natural guardian. In any event, in my view, the significance of attestation in law is only to estop the attestor to the document from denying the contents of the document, that too, if the contents of the same and the legal implication of the attestation are shown to have been well within https://hcservices.ecourts.gov.in/hcservices/ the knowledge of the attestor at the time of making such attestation and not help to make the attestor the real execution of the document itself. Consequently, in my view, the factum of attestation by the father does not give any sanctity to the transaction so as to make it his own document and so as to dispense with the statutory requirement of obtaining sanction from the competent court before alienation by the de facto guardian and to take the transaction outside the purview of the mandatory prohibition contained in Sec.11 of the Hindu Minority and Guardianship Act. 11. The further question that requires to be considered is about the period of limitation within which the plaintiff should have instituted the suit whether Art.60 of the Schedule to the Limitation Act applies or Art.65 of the Schedule to the Limitation Act enures to the benefit of the plaintiff to seek for recovery of possession. Art.60 has relevance and application only when a relief to set aside a transfer of the property made by the guardian of a ward is sought for in any proceedings. Indisputably the relief sought for in this case is not one such for the obvious reason that the alienation covered under Ex.B1 has been held to be a void transaction, which, finding and declaration in law does not require to be disturbed or set aside. If that be the position, the plaintiff is entitled to recover possession of the properties and as held concurrently by both the courts below, the suit filed within a period of twelve years from the date of possession by the alienee under the void transaction, when only it can be said to become adverse to the plaintiff, is well within the period of limitation provided under Art.65 of the Schedule to the Limitation Act, and the suit claim cannot be said to have been barred." A perusal of the cited decision would amply make the point clear that this Court in the said judgment discussed all the relevant earlier precedents in extenso and arrived at the conclusion that execution of a transfer deed alienating the property of the minor by a person other than the natural guardian would be void. No doubt, in the cited case of this Court, the father was alive and he also attested the document of alienation executed by the mother of the minor on behalf of the minor, nonetheless, this Court held that inasmuch as the person other than the natural guardian cannot represent the minor in alienating minor's share of property. It is therefore, clear that the ratio decidendi of the decision of this Court cited supra is that any document of alienation by a person other than the natural guardian on behalf of the minor would be void and not voidable. https://hcservices.ecourts.gov.in/hcservices/ 17. The factual evidence, available on record should be analysed in depth. Indubitably and incontrovertibly, the father of the minor, Moola Gounder died and thereafter alone Ex.B1 emerged. In such a case, the core question arises as to whether Moola Gounder's wife Sellammal-D5 could be taken legally as the natural guardian of the then minor Ammaniammal, the plaintiff herein. At this juncture, it is just and necessary to refer to Section 6 of the Hindu Minority and Guardianship Act, 1956 and it is extracted here under for ready reference: "6. Natural guardians of a Hindu Minor:- The natural guardians of a Hindu minor, in respect of the minor's person as well as in respect of the minor's property (excluding his or her undivided interest in joint family property), a) in the case of a boy or an unmarried girl- the father, and after him, the mother; provided that the custody of a minor who has not completed the age of five years shall ordinarily be with the mother; b) in the case of an illegitimate boy or an illegitimate unmarried girl – the mother, and after her, the father; c) in the case of a married girl – the husband; Provided that no person shall be entitled to act as the natural guardian of a minor under the provisions of this section - a) if he has ceased to be a Hindu, or b) if he has completely and finally renounced the world becoming a hermit (vanaprastha) or an ascetic (yati or sanyasi)" (emphasis supplied) It is therefore crystal clear from the mere perusal of that there is an abysmal difference between guardian for the person of the minor and guardian for the property of the minor. 18. Section 6 of the said Act,