IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.L.JOSEPH FRANCIS WEDNESDAY, THE 10TH JUNE 2009 / 20TH JYAISHTA 1931 AS.No. 357 of 1997() -------------------- OS.10/1996 of SUB COURT, HOSDRUG .................... APPELLANT/IST DEFENDANT ------------------------------------------- PADINHARE VEETIL MADHAVI, 46 YEARS D/O. KORACHAM VEETIL RAMAN AND PARU CULTIVATOR, R/AT MUTHUCHARAL OF BELOOR VILLAGE, HOSDRUG TALUK P.O. IRIYA, VIA. ANANDASHRAM. BY ADV. SRI.KODOTH SREEDHARAN RESPONDENTS/PLAINTIFF & 2ND DEFENDANT: ------------------------------------------------------------------ 1. PACHIKARAN VEETIL BALAKRISHNAN ` S/O. LATE KUNHIRAMAN, R/AT MANDENGANAM OF BELOOR VILLAGE HOSDRUG TALUK, P.O. ATTENGANAM. 2. PACHIKARAN VEETIL NARAYANI W/O. KUNHIRAMAN, KANNOTH HOUSE R/AT KANNOTH, P.O. KANHIRADUKKAM PERIYA VILLAGE. BY ADV. SRI.S.V.BALAKRISHNA IYER, SENIOR ADVOCATE SRI.P.B.KRISHNAN THIS APPEAL SUITS HAVING BEEN FINALLY HEARD ON 4/06/2009, THE COURT ON 10.6.2009 DELIVERED THE FOLLOWING: ORDER ON C.M.P.NO.3084/97 IN A.S. 357 OF 1997 DISMISSED 10.6.2009 SD/- M.L. JOSEPH FRANCIS, JUDGE M.L. JOSEPH FRANCIS, J. - - - - - - - - - - - - - - - - - - - - - - A.S.No. 357 of 1997 - - - - - - - - - - - - - - - - - - - - - - Dated this the 10th day of June, 2009 JUDGMENT This appeal is filed by the first defendant in O.S.No. 10 of 1996 on the file of the Sub Court, Hosdurg. Respondents 1 and 2 are the plaintiff and the second defendant in that suit. It was a suit for setting aside the Sale Deed executed by the guardian of a minor and for partition. 2. The case of the plaintiff is briefly as follows. The plaintiff's father, late Kunhiraman Nair, was holding properties jointly with his sister Karthiyayani. On his death, his half right over the said properties devolved upon the plaintiff and his mother, the second defendant, who are his only heirs and legal representatives. Plaintiff was a minor when his father died. Thereafter, in a suit for partition filed by the plaintiff's mother against A.S.No. 357 of 1997 2 Karthiyayani, the half share of the plaintiff and his mother was allotted to them jointly as per a partition decree in O.S.No. 123 of 1978 of the Munsiff Court, Hosdrug. The plaintiff's mother was holding the said property for and on behalf of the plaintiff also since the plaintiff was a minor. 3. The suit properties consisting of two items contain improvement and was more than sufficient to meet the need of the plaintiff and his mother, the 2nd defendant. The first defendant purchased the property from the plaintiff's mother on 29.8.1980. The plaintiff's mother had executed the document for herself and on behalf of the minor plaintiff. Plaintiff's right was purported to be transferred under the document. It was sold for a consideration of Rs.6,000/- It is recited in the document that Rs.4,000/- was received by her in advance, which was used for clearing the debts of the plaintiff's father and Rs.2,000/- received at the time of execution of the document was paid towards consideration for purchasing another property in the name of the plaintiff. A.S.No. 357 of 1997 3 4. According to the plaintiff, the alienation by his mother was wrongful and injurious to him and for meagre consideration. The plaintiff's father had no debts and there was no necessity to sell the property. He also pleaded ignorance about the purchase of the property in his name and also stated that he is not in possession of the same. The alienation by the mother is void in law and liable to be set aside and the suit was filed within 3 years from 5.2.1992, when the plaintiff attained majority. The plaintiff therefore prayed for setting aside the sale deed No.3527 of 1980 dt.29.8.1980 in favour of the first defendant in respect of the plaintiff's half right over the property and for surrender of possession of his share which relief on 6.11.1996 was got amended as one for partition of his share as per order in I.A.no. 645 of 1996. 5. The appellant/first defendant resisted the suit raising the following contentions. It is admitted that the first defendant had purchased the property from the 2nd defendant as per a registered A.S.No. 357 of 1997 4 Sale Deed dt.29.8.1980. But the sale deed was executed for the then minor plaintiff's benefit also and the consideration recited in the document is correct and reasonable. The first defendant is a bonafide purchaser. Out of the total consideration paid, an extent of 1.50 acres of property with improvements in R.S.370 of Periya Village at a place called Kannoth was purchased in the name of the plaintiff and the plaintiff is in possession of the same. It is incorrect to state that he has not seen the property. The alienation is not void and was in the better interest of the minor plaintiff. To clear of Kunhiraman Nair's debt the sale was necessary. Alternatively, it was also contended that the first defendant has effected valuable improvements in the property on the bonafide belief that she is the exclusive owner and is entitled to the value of the same. Besides, it was also contended that the suit is barred by limitation, since the plaintiff was aware of the sale long back and the plaintiff has filed the suit in collusion with the second defendant. A.S.No. 357 of 1997 5 6. After amendment of the plaint, an additional statement was filed to the effect that the plaintiff's right, if any, is barred by averse possession and limitation. By way of an amendment to the written statement it was also contended that in case the court finds that the sale deed No.3527/80 is voidable and liable to be set aside, the 1st defendant is entitled to the value of improvements in the plaintiff's share, since she was making improvements on the bonafide belief and that the property exclusively belongs to her. It was also contended that the first defendant is entitled to the property purchased as per Deed No. 3528/80 since the sale consideration for that was paid by the appellant and the plaintiff is liable to restore that benefit and to compensate the appellant in the event of a decree for setting aside the document. The first defendant therefore prayed for dismissal of the suit. The second defendant plaintiff's mother remained ex parte. 7. In the Sub Court, PWs. 1 and 2 and DWs. 1 to 4 were examined. Exts.A1 to A5 and B1 were marked. The learned A.S.No. 357 of 1997 6 Sub Judge, on considering the evidence, decreed the suit and a preliminary decree for partition was passed in the following manner. “Ext.A1 sale is set aside as far as the plaintiff's half share is concerned. The plaint schedule property will be divided into two equal shares and the plaintiff and 1st defendant are entitled to one such share each. The 1st defendant has not paid court fee and if she pays court fee at the time of final decree, she will be allotted her share separately. The plaintiff is entitled to future profits from the date of the plaint till delivery of possession the quantum of which will be decided at the time of passing final decree. The first defendant is liable for such profits. The cost of sharers shall come out of the estate. The plaintiff is at liberty to move the court for passing final decree. Addl. Issue No.6 with regard to value of improvements is left open for consideration at the time of passing final decree.” Against that judgment and decree the first defendant filed this appeal. A.S.No. 357 of 1997 7 8. The plaintiff filed cross objection challenging the finding on Addl. Issue No.6 to the effect that the question of compensation for the value of improvements made by the first defendant will be considered at the final decree stage. 9. Heard the learned counsel for the appellant and the first respondent. 10. The plaint schedule Item No.1 property has an extent of 2.5 acres, comprised in Re-survey 103 of Beloor Village and the extent of plaint schedule Item No.2 property is 45 cents, comprised in R.S. 110/1 of the same Village. The plaintiff is the son of Kunhiraman Nair and the second defendant. The plaint schedule properties originally belonged to Kunhiraman Nair and his sister Karthiyayani jointly. After his death, his half share devolved upon the plaintiff and his mother, who is the second defendant, Narayani. As per partition decree in O.S.No.123 of 1978 on the file of the Munsiff Court, Hosdurg the plaint schedule properties were allotted to the share of the plaintiff and second defendant. There is no dispute that the first defendant A.S.No. 357 of 1997 8 purchased that property as per Sale Deed No.3527/80 of S.R.O. Hosdurg dt.29.8.1980. The second defendant executed that Sale Deed for herself and also as the guardian of the plaintiff, who was then a minor, aged 7 years. Ext.A1 is the copy of that Sale Deed. It is also an admitted fact that the second defendant sold the share of the plaintiff over the plaint schedule properties without obtaining previous permission of the Court. 11. The main prayer in the suit is to set aside the Sale Deed No.3527/80 of S.R.O. Hosdurg dt. 29.8.80 in respect of the plaintiff's share over the plaint schedule properties. The second prayer in the plaint is to partition the plaint schedule properties into two equal shares and allot one such share to the plaintiff with mesne profits. The main question to be considered is whether the original of Ext.A1 Sale Deed is void or voidable. The Hon'ble Supreme Court in Vishwambhar v. Laxminarayan ((2001) 6 SCC 163) held that : “ sale effected without taking permission of the court under Section 8(2) of the Hindu Minority A.S.No. 357 of 1997 9 and Guardianship Act, 1956 was voidable at the instance of the plaintiffs and the plaintiffs were required to get the alienation set aside if they wanted to avoid the transfer and recover the property from the purchasers. If a prayer for setting aside the alienation is not made, then the suit seeking possession would not be maintainable.” 12. In Nagappan v. Ammasai Gounder ((2004) 13 SCC 480) the Hon'ble Supreme Court held that : “Reading Section 8 itself shows that the sale made by the natural guardian in contravention of sub-sections (1) and (2) is voidable at the instance of the minor. If the requirement of law is to have the alination set aside before making any claim in respect of the property sold then a suit without such a prayer would be of no avail.” 13. In view of that position of law, it is clear that the original of Ext.A1 Sale Deed is voidable at the instance of the A.S.No. 357 of 1997 10 plaintiff as it was executed by the natural guardian in contravention of sub-sections (1) and (2) of Section 8 of the Hindu Minority and Guardianship Act, 1956. 14. Article 60 of the Limitation Act prescribes a period of 3 years for setting aside a transfer of property made by the guardian of a ward, by the ward, who has attained majority and the period is to be computed from the date when the ward attains majority. In the present case, the date of birth of the plaintiff is 5.2.1974, which is evident from Ext.A4, extract of admission register. The plaintiff attained majority on 5.2.1992. He gets three years period to file the suit from the date of his attaining majority, i.e. on or before 5.2.1995. The present suit was originally filed on 5.4.1994. Therefore, the suit is not barred by limitation. 15. The learned counsel for the appellant submitted that even though the suit for setting aside the Sale Deed was filed on 5.4.1994, the prayer for partition was incorporated only on 6.11.1996 and therefore that prayer is barred by limitation. That A.S.No. 357 of 1997 11 argument cannot be accepted in view of the fact that it is only an ancilliary relief and no specific period is prescribed in the Limitation Act for the relief of partition by a co-owner. 16. In Ext.A1, copy of sale Deed No.3527/80 dt.29.8.80, it is stated that the total consideration of the plaint schedule properties is Rs.6,000/- It is stated in the document that the first defendant purchaser already paid Rs.4,000/- to the second defendant in order to discharge the debts of her husband, Kunhiraman Nair and for the expenses of the minor plaintiff and the balance of sale consideration of Rs.2,000/- was paid by the first defendant for purchasing the property in R.S. 370 in the name of minor plaintiff from Kuttiyan. Ext.B1 is the copy of the Sale Deed No.3528/80 dt.29.8.80 executed by Kuttiyan in the name of minor plaintiff in respect of 1 acre 50 cents in R.S. 370. In that document the second defendant is shown as guardian of minor plaintiff. In Ext.B1, the sale consideration shown is Rs.2,000/- and it is stated in that document that the sale consideration was received from the sale consideration of Ext.A1. A.S.No. 357 of 1997 12 From Exts.A1 and B1 it is evident that originals of those documents were executed on the same day, one after the other. The learned counsel for the appellant submitted that if the original of Ext.A1 Sale Deed is set aside, the property covered by the original of Ext.B1 Sale Deed has to be returned to the first defendant. 17. Under Section 33 of the Specific Relief Act, on adjudging the cancellation of an instrument, the court may require the party, to whom such relief is granted, to make any compensation to the other which justice may require. The learned counsel for the appellant invited my attention to the decision reported in Chacko v. Sreeja (1991 (1) KLT 191), in which it was held: “In cancelling the documents, the plaintiff need only surrender benefits received as justice may require. Such benefit required by the justice is the actual benefit received under the impugned transaction, which is avoided. It may not be conducive to justice to allow the minor to have A.S.No. 357 of 1997 13 double advantage by avoiding the transaction and at the same time retaining its benefits. “Benefit” or 'advantage' referred to in Ss. 64 and 65 of the Contract Act, do not relate to profit derived from the investment of the benefit. Sometimes the investment may result in loss also. In a given case, the benefit may be only the actual consideration and its interest. But, where the consideration for the impugned transaction itself is the purchase of another property in the name of the minor, that property must be taken as the benefit derived by the minor and it must be directed to be returned. Value of properties might have gone up and return of the consideration in money alone may work out injustice to the defendant purchaser and undue gain to the minor.” 18. Therefore, the legal position is that whether the Sale Deed is void or voidable, the minor seeking to set aside it cannot claim interference of a Court of law without making restitution. The law is clear that if a person sells or mortgages another's property having no legal or equitable right to do so and that other A.S.No. 357 of 1997 14 benefits by transaction the latter cannot have it set aside without making restitution to the person whose money has been applied for the benefit of the estate. The principle of restitution in such cases is based on the equitable maxim “he who seeks equity must do equity”. No person, who is entitled to avoid a transaction ought to be allowed to do so in such a manner as to enable him to recover the property which would be otherwise lost to him and at the same time to keep the money or other advantages which he has obtained under it. Therefore, if a transfer by a guardian is set aside, as having been made without previous permission of the Court, equity requires that the minor should restore to the transferee any benefit he may have received under the transfer before the minor can take the benefit of any decree in his favour. 19. In the present case, the plaintiff is not prepared to give back the property covered by original of Ext.B1 Sale Deed, which was purchased in his name utilising the portion of sale consideration given by the first defendant while purchasing the plaint schedule properties as per the original of Ext.A1 Sale A.S.No. 357 of 1997 15 Deed. Therefore, the plaintiff is not entitled to get a decree to set aside the original of Ext.A1 Sale Deed and partition the plaintiff's half share. In view of the above aspects of the matter, I find that the learned Sub Judge is not justified in decreeing the suit. 20. In the result, this appeal is allowed. The judgment and decree in O.S.No. 10 of 1996 on the file of the Sub Court, Hosdurg is set aside and that suit is dismissed without cost. The cross objection filed by the first respondent is also dismissed. The parties are directed to suffer their respective cost in this appeal. (M.L. JOSEPH FRANCIS) Judge tm