IN THE HIGH COURT OF JUDICATURE AT MADRAS Dated : 30-06-2011 CORAM THE HONOURABLE MR.JUSTICE R.S.RAMANATHAN S.A.No.51 of 2001 Bhaskaran : Appellant/Plaintiff vs. 1.Lakshmi 2.Raja Bi 3.Masthan Bi 4.Pani Bi :Respondents 1 to 4/D3 to 6 5.Manicka Mudaliar :5sth Respondent/1st Defendant Prayer: This second appeal is filed under section 100 of the Civil Procedure Code, against the judgment and decree made in A.S.No.71 of 1998 dated 3.11.1999 on the file of the IV Additional Judge, City Civil Court, Madras reversing the judgment and decree made in O.S.No.876 of 1986, dated 29.11.1996 on the file of the XV(in charge of XIV) Assistant Judge, City Civil Court, Madras. For Appellant : Mr.R.Thiagarajan For R1 to R4 : Mr.R.Singaravelan JUDGMENT The plaintiff who was successful in the trial Court and unsuccessful in the First Appellate Court is the appellant. 2.The appellant/plaintiff filed a suit for declaration that the sale of the schedule property by the 1st defendant acting on behalf of the plaintiff as guardian of the plaintiff in favour of the respondents 2 and 3 is abinitio void and not binding on the plaintiff/appellant and for permanent injunction restraining the respondents from alienating the suit property. 3.The case of the plaintiff was that the suit property originally belonged to his paternal grant father Ponnuswamy Mudaliar and the plaintiff's father, Manicka Mudaliar was one of the three sons of Ponnuswamy Mudaliar and other two sons were Balasundara Mudali and Shamugasundara Mudaliar. The said Ponnuswamy Mudaliar executed a registered settlement deed, dated 04.04.1929 settling the https://hcservices.ecourts.gov.in/hcservices/ plaint schedule property and other properties in favour of the petitioner's father, Manicka Mudaliar to be enjoyed by him during his life time and thereafter, the son born to the father of the plaintiff shall take the property and if there were more than one son, then all of them shall take the property absolutely and in case, no sons were born to the father of the plaintiff, then the daughters born to the father of the plaintiff shall take the property absolutely and in the event of no daughters, then the property shall be taken by Balasundara Mudaliar and Shanmugasundara Mudaliar, who are the sons of Ponnuswamy Mudaliar. 4.According to the plaintiff, his father Manicka Mudaliar, who was the 1st defendant was given life estate in the suit property and after his death, the property shall be enjoyed by the male issues born to him and being the son of Manicka Mudaliar, the 1st defendant got vested interest over the properties. While so, the 1st defendant, the father of the plaintiff/appellant, acting for himself and as guardian of the plaintiff, executed a sale deed, dated 16.08.1979 in favour of the defendants for discharging some debts without getting permission from the Court and therefore, the sale is void abinitio and not binding on the plaintiff and the father of the plaintiff has no right to sell the property, which belongs to the plaintiff. 5.It is further stated that the father of the plaintiff also applied for permission from the court and that was refused and despite the same, the property was sold by the 1st defendant without any legal necessity or for the benefit of the minor and hence, the suit is filed for declaration that the sale is abinitio void and not binding on the plaintiff and also for injunction. 6.The father of the plaintiff/appellant viz., the 1st defendant remained ex-parte and the suit was contested by the other defendants. It was contended that the sale in favour of the defendants was for legal necessity and the father of the plaintiff, after obtaining permission from the Court in O.P.No.189 of 1970, on the file of the Principal City Civil Court, Madras, created a mortgage deed in favour of Egmore Benefit Society Ltd., and he also borrowed a sum of Rs.5,000/- from one Ari Muthu for paying dues to the Egmore Benefit Society Ltd., and the property was brought to sale by Egmore benefit Society Limited and to get good price for the property and as the property was in a dilapidated condition and the tenants were not paying the rent regularly and with a view to safe guard the interest of the minor viz., the plaintiff, the property was sold to the defendants and therefore, the sale is for legal necessity and it is binding on the plaintiff. 7.The trial Court held that the sale in favour of the defendants was not for legal necessity and not for the benefit of the plaintiff https://hcservices.ecourts.gov.in/hcservices/ and the City Civil Court refused to grant permission for the sale of the property by the father of the plaintiff in O.S.No.152 of 1979 and even thereafter, the property was sold by the father of the plaintiff and hence, the sale is not binding on the plaintiff and decreed the suit. 8.The First Appellate Court allowed the appeal holding that Manicka Mudaliar was given life estate under settlement deed and Manicka Mudaliar was alive, when the sale was executed by him and only after the death of Manicka Mudaliar, the plaintiff/appellant can claim right over the property and therefore, during the life time of Manicka Mudalidar, the sale executed by Manicka Mudaliar in favour of other defendants is valid and dismissed the suit. Aggrieved by the same, this second appeal is filed. 9.The following substantial questions of law were framed at the time of admission:- 01.Whether the sale made by the first respondent in contravention of section 8(2) and 8(3) of the Hindu Minorities Act is void? 02.Whether the lower appellate court failed to note when the competent court has rejected the permission O.P.No.152 of 1979, whether the respondents are bona fide purchaser for value when such a permission has been negatived by the competent court? 03.Whether the alienation is not contrary to the specific restrain in the settlement deed in favour of the settlee as extracted in paragraph No. 15 of the appellate court Judgment? 10.It is submitted by the learned counsel appearing for the appellant, Mr.R.Thiyagarajan that a reading of the settlement deed would make it clear that the plaintiff got vested interest over the property and his father, Manicka Mudaliar was given only life estate and once vested interest was conferred on the plaintiff/appellant, he became the owner of the property and Manicka Mudaliar, his father can only enjoy the property during his life time and even assuming that Manicka Mudaliar as the legal guardian of the plaintiff minor was entitled to sell the property, as per the provision of section 8 of the Minor and Guardianship Act, he was not entitled to sell the property without getting permission from the Court and in this case, he sought for permission in O.S.No.152 of 1979 and that was refused as evident by Ex.A3 and even thereafter, he sold the property to other defendants. He further submitted that the sale was also not for any legal necessity and the recitals of consideration would also https://hcservices.ecourts.gov.in/hcservices/ prove the same. Hence, the sale is liable to be set aside as the plaintiff is the owner of the property. 11.On the other hand, the learned counsel appearing for the respondents submitted that under the settlement deed, the plaintiff did not get any vested interest and he got only contingent interest and the sale is for the benefit of the minor and if the property had not been sold, the property would have been sold for a lower price in pursuance to the action taken by the Egmore Benefit Society Limited while enforcing the mortgage and it was also clearly stated that the property was in a dilapidated condition and there was no fund to renovate the property and no income was forthcoming and therefore, in order to safe guard the interest of the minor, a sum of Rs.5,000/- was deposited in the minor's name and hence, the sale is valid. 12.Heard both sides 13.According to me, the substantial questions of law No.2 and 3 framed by this Court, at the time of admission, cannot be considered as substantial questions of law, in the light of the judgments of the Hon'ble Supreme Court reported in 2009(1) LW 1 in the case of State Bank of India & others vs. S.N.Goyal, (2006)5 SCC 545 in the case of Hero Vinoth (Minor) vs. Seshammal and 2008(4) Scale 300 in the case of Kashmir Singh vs. Harnam Singh & another. 14.In the judgment reported in (2006)5 SCC 545, in the case of Hero Vinoth (Minor) vs. Seshammal and in 2008(4) Scale 300 in the case of Kashmir Singh vs. Harnam Singh & another, the Hon'ble Supreme Court has laid down the principles relating to section 100 CPC as follows:- (i)An inference of fact from the recitals or contents of a document is a question of fact. But the legal effect of the terms of a document is a question of law. Construction of a document involving the application of any principle of law, is also a question of law. Therefore, when there is misconstruction of a document or wrong application of a principle of law in construing a document, it gives rise to a question of law. (ii)The High Court should be satisfied that the case involves a substantial question of law, and not a mere question of law. A question of law having a material bearing on the decision of the case (that is, a question, answer to which affects the rights of parties to the suit) will be a substantial question of law, if it is not covered by any specific provisions of law or settled legal principle emerging from binding precedents, and, involves a debatable legal issue. A substantial question of law will also arise https://hcservices.ecourts.gov.in/hcservices/ in a contrary situation, where the legal position is clear, either on account of express provisions of law or binding precedents, but the court below has decided the matter, either ignoring or acting contrary to such legal principle. In the second type of cases, the substantial question of law arises not because the law is still debatable, but because the decision rendered on a material question, violates the settled position of law. (iii)The general rule is that High Court will not interfere with the concurrent findings of the courts below. But it is not an absolute rule. Some of the well-recognized exceptions are where (i)the courts below have ignored material evidence or acted on no evidence; (ii)the courts have drawn wrong inferences from proved facts by applying the law erroneously; or (iii)the courts have wrongly cast the burden of proof. When we refer to “decision based on no evidence”, it not only refers to cases where there is a total dearth of evidence, but also refers to any case, when the evidence, taken as a whole, is not reasonable capable of supporting the finding.” 15.Further in the judgment reported in 2008(4) Scale 300, in the case of Kashmir Singh vs. Harnam Singh & another held as follows:- “A.After the amendment, a second appeal can be filed only if a substantial question of law is involved in the case. The memorandum of appeal must precisely state the substantial question of law involved and the High Court is obliged to satisfy itself regarding the existence of such a question. It satisfied, the High Court has to formulate the substantial question of law involved in the case. The appeal is required to be heard on the question so formulated. However, the respondent at the time of hearing of the appeal has a right to argue that the case in the court did not involve any substantial question of law. The proviso to the section acknowledges the powers of the High Court to hear the appeal on a substantial point of law, though not formulated by it with the object of ensuring that no injustice is done to the litigant where such a question was not formulated at the time of admission either by mistake or by inadvertence. B.It has been noted time and again that without insisting for the statement of such a substantial question of law in the memorandum of appeal and formulating the same at the time of admission, the High Courts have been issuing notices and generally deciding the second appeals without https://hcservices.ecourts.gov.in/hcservices/ adhering to the procedure prescribed under Section 100 of the Code. It has further been found in a number of cases that no efforts are made to distinguish between the question of law and a substantial question of law. In exercise of the powers under this section in several cases, the findings of fact of the first appellate court are found to have been disturbed. It has to be kept in mind that the right of appeal is neither a natural nor an inherent right attached to the litigation. Being a substantive statutory right, it has to be regulated in accordance with law in force at the relevant time. The conditions mentioned in the section must be strictly fulfilled before a second appeal can be maintained and no court has the power to add or to enlarge those grounds. the second appeal cannot be decided on merely equitable grounds. The concurrent findings of facts will not be disturbed by the High Court in exercise of the powers under this section. Further, a substantial question of law has to be distinguished from a substantial question of fact. C.The question of law raised will not be considered as a substantial question of law, if it stands already decided by a larger Bench of the High Court concerned or by the Privy Council or by the Federal Court or by the Supreme Court. Where the facts required for a point of law have not been pleaded, a litigant should not be allowed to raise that question as a substantial question of law in second appeal. Mere appreciation of facts, the documentary evidence or the meaning of entries and the contents of the documents cannot be held to be raising a substantial question of law. But where it is found that the first appellate court has assured jurisdiction which did not vest in it, the same can be adjudicated in the second appeal, treating it as a substantial question of law. Where the first appellate court is shown to have exercised its discretion in a judicial manner, it cannot be termed to be an error either of law or of procedure requiring interference in second appeal. D.The phrase “substantial question of law', as occurring in the amended Section 100 is not defined in the Code. The word substantial, as qualifying “question of law” means of having substance, essential, real, of sound worth, important or considered. It is to be understood as something in contradistinction with – technical, of no substance or consequence, or academic merely. However, it is clear that the legislature has chosen important not to qualify the scope of “substantial question of law” by https://hcservices.ecourts.gov.in/hcservices/ suffixing the words “of general importance” as has been done in many other provisions such as Article 133(1)(a) of the Constitution. The substantial question of law on which a second appeal shall be heard need not necessarily be a substantial question of law of general importance. E.To be “substantial” a question of law must be debatable, not previously settled by law of the land or a binding precedent, and must have a material bearing on the decision of the case, if answered either way, insofar as the rights of the parties before it are concerned. To be a question of law “involving in the case” there must be first a foundation for it laid in the pleadings and the question should emerge from the sustainable findings of fact arrived at by court of facts and it must be necessary to decide that question of law for a just and proper decision of the case. An entirely new point raised for the first time before the High Court is not a question involved in the case unless it goes to the root of the matter. It will, therefore, depend on the facts and circumstance of each case whether a question of law is a substantial one and involved in the case, or not; the paramount overall consideration being the need for striking a judicious balance between the indispensable obligation to do justice at all stages and impelling necessity of avoiding prolongation in the life of any lis.” 16.Considering the principles laid down by the Hon'ble Supreme Court in the above judgments, in my opinion, the substantial questions of law No.2 and 3 framed at the time of admission, cannot be treated as substantial questions of law and the only substantial question of law that arises for consideration is the 1st substantial question of law. Further, by answering 1st substantial question of law, the answer to the other substantial question of law will also be covered. 17.In this case, we will have to see whether there was legal necessity and the nature of interest, the plaintiff/appellant has got in the suit properties. If the plaintiff/appellant got vested interest in the suit property, he became the absolute owner of the property and the sale by his father as guardian without permission of the Court and not for legal necessity is not pending on the plaintiff/appellant. 18.A reading of the clause in the settlement deed as stated supra would make it clear that the plaintiff got vested interest over the suit properties. It has been stated clearly in the settlement deed that the plaintiff's father Manicka Mudaliar shall enjoy the https://hcservices.ecourts.gov.in/hcservices/ property for his life time and after his life time, his male children shall enjoy the property and if there were no male children, the property shall be enjoyed by his female children and when there were no children born to Manicka Mudaliar, the property shall be taken by the brothers of Manicka Mudaliar. Therefore, the interest that was created in favour of the plaintiff was a vested interest with a defeasance clause that in the event of no male children born to Manicka Mudaliar, the property shall be taken by the female children. Further, Manicka Mudaliar has also accepted that the appellant has got vested interest over the suit properties and in the sale deed he has stated so. Hence, I hold that the plaintiff has got vested interest in the suit property and therefore, he became the absolute owner of the property. 19.The next question arises for consideration is whether the sale by the father of the plaintiff as guardian in favour of the other defendants is binding on the plaintiff. 20.It is admitted that Manicka Mudaliar, the father of the plaintiff, created a mortgage in favour of Egmore Benefit Society Limited, after obtaining permission from the Court and thereafter, he sought for permission to sell the property and that was refused. Nevertheless, he sold the property to the defendants and the recitals of consideration would also make it clear that the sale was not for any legal necessity. As per the sale deed Ex.B1, the sale consideration was Rs.35,000/- and out of Rs.35,000/-, a sum of Rs.5,000/- was paid to Ari Muthu, the debtor of Manicka Mudaliar and various debts availed by Manicka Mudaliar were discharged and a sum of Rs.1272.15/- was paid towards corporation tax and a sum of Rs.5268.50/- was deposited in the minor account. Therefore, out of the total sale consideration of Rs.35,000/-, 1/7th was deposited in the minor's account and the remaining amount was utilized for the discharge of the loan available by Manicka Mudaliar. Hence, it cannot be contended that the sale is for legal necessity of the minor. 21.Under section 8 of the Indian Minor and Guardianship Act, a minor's property cannot be sold without getting permission of the court and the legal guardian is also not entitled to sell the property except for the benefit of the minor and for legal necessity. 22.In this case, having regard to the recitals of consideration stated in Ex.B1, it cannot be stated that the sale was for any legal necessity or for the benefit of the minor and the sale was only to discharge the loan availed by the 1st defendant, the father of the plaintiff/appellant. 23.Further, the permission sought for by the father of the plaintiff/appellant to sell the property in O.P No.152 of 1979 was https://hcservices.ecourts.gov.in/hcservices/ also rejected and under these circumstances, the sale by the 1st defendant, the father of the plaintiff, in favour of the other defendants is not valid and not binding on the plaintiff and the plaintiff has filed the suit within a period three years for declaration that the sale is void abinitio and not binding on them. 24.Hence, the 1st substantial question of law is answered in favour of the appellant that the sale by the father of the plaintiff/appellant in contravention of section 8(2) and 8(3) of the Indian Minor and Guardianship Act is not valid and not binding on the appellant. 25.In the result, the second appeal is allowed and the judgment and decree of the trial Court is restored. No costs. Sd/ Asst.Registrar //True Copy// Sub.Asst.Registrar er To 1.The XV Assistant Judge, City Civil Court, Chennai. 2.IV Additional Judge, City Civil Court, Madras. 3.The Section Officer, V.R.Section, High Court, Madras. S.A.No.51 of 2001 rk(co) pmk.5.7.2012 https://hcservices.ecourts.gov.in/hcservices/