IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 02.02.2010 CORAM: THE HONOURABLE MS.JUSTICE R.MALA S.A.No.215 of 2003 Natarajan .. Appellant / Plaintiff Vs. Paramasivam .. Respondent / Defendant Second Appeal against the judgment and decree dated 8.11.2002 in A.S.No.3 of 2002 on the file of the Principal District Judge at Villupuram, against the judgment and decree dated 30.11.2001 in O.S.No.65 of 1999 on the file of the Principal District Munsif Court at Villupuram. For appellant : Mr.V.Raghavachari For respondent : Mr.N.Suresh JUDGMENT The Second Appeal is filed by the plaintiff against the judgment and decree dated 8.11.2002 in A.S.No.3 of 2002 on the file of the Principal District Judge at Villupuram, reversing the judgment and decree dated 30.11.2001 in O.S.No.65 of 1999 on the file of the Principal District Munsif Court at Villupuram. 2. The averments in the plaint are as follows: The suit property originally belongs to the joint family of one Thirunavukkarasu, son of Subburayal Naidu and his three brothers, namely Sathiya Babu, Govindaraju and Nagaraju, in which the said Thirunavukkarasu, as the eldest member of the family, was the Manager. They have sold the suit property to the plaintiff for Rs.2,500/- on 22.9.1986 and he is in possession and enjoyment of the same. The said Thirunavukkarau executed the sale deed for himself and as eo-nominee for the then minor brothers, namely Govindaraju and Nagaraju. The minors, after attaining the majority, have not protested before the time prescribed for the same. The plaintiff also prescribed title by adverse possession as having been in open, continuous, hostile and uninterrupted possession and enjoyment of the same for more than the statutory period of 12 years. Patta also stands in his name. Since it is vacant site, no tax has been levied. The defendant has no right, title or interest in the suit property, but as hostile neighbour, has began to threaten the plaintiff's https://hcservices.ecourts.gov.in/hcservices/ peaceful possession and enjoyment. Hence, the plaintiff was constrained to file suit for declaration of title to the suit property and for permanent injunction and prayed for a decree. 3. The gist and essence of the written statement filed by the defendants are as follows: The property belongs to one Thirunavukkarasu, Sathiya Babu, Govindaraju and Nagaraju. The said Thirunavukkarasu was in fact not the Manager as alleged by the plaintiff. The sale deed in favour of the plaintiff cannot be valid in law. At that time, Govindaraju and Nagaraju were not minors and so, Thirunavukkarasu cannot act on their behalf. The plaintiff is not in possession and enjoyment of the suit property. He has not prescribed title by adverse possession. Govindaraju and Nagaraju conveyed their interest in the property in favour of the defendant on 9.2.1999 for valuable consideration by means of a registered sale deed. The defendant is entitled to the property on the basis of conveyance and as such, it is not correct to state that the plaintiff is entitled to the property. The plaintiff is not in possession of the property. The Court fee paid is not correct. He prayed for dismissal of the suit. 4. The trial Court, after considering the averments both in the plaint and in the written statement, has framed three issues, and considering the oral evidence of P.Ws.1 and 2 and D.Ws.1 and 2 and Exs.A-1 to A-8 and Exs.B-1 to B-4, decreed the suit as prayed for in the plaint. Against that, the defendant preferred appeal. The first appellate Court, after considering the arguments of both counsel, had framed three points for determination and allowed the appeal and set aside the judgment and decree of the trial Court. Against that, the plaintiff has preferred this Second Appeal. 5. At the time of admission of the Second Appeal, the following substantial questions of law were framed for consideration: "(i) Whether the lower appellate Court was right in dismissing the suit on the basis of Ex.B-3 and Ex.B-4, when the same remain unsubstantiated? (ii) Whether the lower appellate Court was right in presuming that the birth extracts under Ex.B-3 and Ex.B-4 relate to the vendors of the defendant? (iii) Whether the lower appellate Court was right in dismissing the suit when more than 12 years had lapsed from the date of sale to the date of filing of the suit? (iv) Whether the lower appellate Court was right in relying upon Section 8 of the Hindu Minority and Guardianship Act, when the property is a joint family property? (v) Whether the lower appellate Court was right in dismissing the suit when more than three years had lapsed from the date of majority of the vendors of the defendant?" https://hcservices.ecourts.gov.in/hcservices/ 6. The appellant as plaintiff filed the suit for declaration of title and injunction stating that the suit property originally belonged to the joint family of one Thirunavukkarasu, son of Subbarayal Naidu and Subbarayal Naidu is having four sons. The eldest son is Thirunavukkarasu and he is the "kartha" of the family, from whom the appellant-plaintiff purchased the suit property on 22.9.1986 and from that date onwards, he is in possession and enjoyment. The respondent-defendant attempted to interfere with his possession. Hence, he prayed for declaration of title and injunction. 7. Resisting the suit, the respondent-defendant filed written statement stating that on the date of Ex.A-1, dated 22.9.1986, Govindaraju and Nagaraju are not minors and Thirunavukkarasu is not the "kartha" of the family and he has no right to execute the sale on behalf of the other co-owners. Per contra, he purchased the property from the said Govindaraju and Nagaraju on 9.2.1999 and from that date onwards, the respondent-defendant is in possession and enjoyment of the property. Hence, he prayed for dismissal of the suit. 8. The trial Court, after framing necessary issues, decreed the suit as prayed for in the plaint. Against that, the respondent- defendant preferred appeal. The first appellate Court set aside the judgment and decree of the trial Court and allowed the appeal. Against that, the present Second Appeal has been filed by the plaintiff. 9. Learned counsel for the appellant-plaintiff would contend that the suit property was originally owned by the joint family of Thirunavukkarau, son of Subbarayal Naidu and the said Thirunavukkarau as "kartha" of the family, was in possession and enjoyment of the same. The said Thirunavukkarasu executed the sale deed in favour of the plaintiff, as per Ex.A-1. From that date onwards, the appellant- plaintiff is in possession. Patta has been changed. House tax receipts stand in the name of the appellant-plaintiff. He is in possession and enjoyment of the property. All of a sudden, in 1999, the respondent-defendant attempted to interfere in plaintiff's possession. The respondent-defendant claims title under Ex.B-1, dated 9.2.1999, which came into existence after 12 years from the date of Ex.A-1, dated 22.9.1986. The appellant-plaintiff has prescribed title by adverse possession. The right of the appellant-plaintiff's predecessor-in-title has been extinguished as per Section 27 of the Limitation Act. 10. Learned counsel for the appellant-plaintiff relied upon the decision of this Court reported in 2002 (3) CTC 211 = MANU/TN/1084/2002 (C.Anthonysamy Vs. V.Rajagopal Padayachi and another), stating that the suit is barred by limitation. As soon as the minor attained majority, the suit ought to have been filed within three years from the date of the minor attaining the majority or 12 https://hcservices.ecourts.gov.in/hcservices/ years from the date of sale, whichever is earlier. Learned counsel for the appellant-plaintiff also relied upon the decision of the Supreme Court reported in 2006 (5) SCC 353 (Prem Singh Vs. Birbal) to show that the document which is void, is liable to be set aside. Learned counsel for the appellant-plaintiff also relied upon the decision of the Supreme Court reported in 2009 (6) SCC 194 = MANU/SC/0238/2009 (Sneh Gupta Vs. Devi Sarup and others) to show that when once the deed is void, the decree based on compromise is required to be set aside, if compromise resulted in grant of decree. Since the plaintiff in the present case, has not filed any suit for cancellation of Ex.A-1, he has not filed the suit for recovery of possession and hence, the respondent-defendant is not entitled to get right over the property. Learned counsel for the appellant-plaintiff prayed for allowing the Second Appeal. 11. Per contra, learned counsel for the respondent-defendant would contend that as per Section 4 of the Hindu. and Minority and Guradianship Act, the brother is neither the natural guardian, nor de-jure guardian and so, he is not entitled to execute the sale deed on behalf of the minor without permission of the Court. He also relied upon the decision of the Supreme Court reported in 2002 (1) MLJ 169 (SC) (Madhegowda Vs. Ankegowda) and argued that if the document is void, it need not be set aside and not barred by limitation. Learned counsel further urged that the appellant- plaintiff has not prescribed title by adverse possession, since he is claiming title only on the basis of Ex.A-1 and his possession is only on the basis of Ex.A-1 and he is not enjoying the property adverse to the interest of the true owner. Hence, the appellant-plaintiff has not prescribed title by adverse possession. Learned counsel for the respondent-defendant also relied upon the decision of this Court reported in 2008 (7) M.L.J. 275 (Veerasekaran Vs. Devarasu) and the decision of the Supreme Court reported in 2008 (15) SCC 673 (Ranganayakamma Vs. K.S.Prakash) and prayed for dismissal of the Second Appeal. Substantial questions of law (i), (ii) and (iv): 12. The suit property originally belongs to Dharmasivam Naidu, S/o Kuppusamy Naidu. He had two daughters, by name Valli Ammal and Saroja Ammal. He executed a settlement deed in favour of his daughters Valli Ammal and Saroja Ammal under Ex.B-2, dated 7.6.1952. Thirunavukkarasu, Sathiya Babu, Govindaraju and Nagaraju are the children of Valliammal and Subburayal Naidu. Thirunavukkarau, on behalf of his minor brothers, Govindaraju and Nagaraju and the other brother Sathiya Babu, executed a sale deed in favour of the appellant-plaintiff under Ex.A-1. On the basis of Ex.A-1 only, the appellant-plaintiff has come forward with the suit for declaration of title and injunction. https://hcservices.ecourts.gov.in/hcservices/ 13. It is pertinent to note that the suit property is not a joint family property. It is a separate property, since the vendor of the appellant-plaintiff and the vendor of the respondent-defendant succeeded to the property on the maternal side. Any property derived or inherited from the female line or through the maternal grandparents are collateral and cannot be termed as the character of joint family. So, the suit property is not joint family property. Moreover, there is no evidence to show that the suit property, an extent of 353 Sq.M. = 5 cents in Re-Survey No.74/6 comprised in house-site patta No.67, situated in Arasalpuram Village in Villupuram Taluk, has been joint family property. As already stated, as per Ex.B-2, the suit property has been settled in favour of Valliammal. So, the suit property is only a separate property of Valliammal and so, the four brothers, as heirs, inherited the property from their mother and so, it is not the joint family property. The burden is upon the appellant-plaintiff to prove that the property is joint family property, but he has not let in any oral evidence, except the ipse-dixit of the appellant-plaintiff and the vendor has not been examined before this Court. So, I am of the opinion that the suit property is a separate property of the vendor of both the appellant- plaintiff and the respondent-defendant. 14. The said Thirunavukkarasu, as guardian, executed Ex.A-1 in favour of the appellant-plaintiff on behalf of his minor brothers. In this connection, it is appropriate to consider the relevant provisions of the Hindu Minority and Guardianship Act, which reads as follows: "Section 4 : Definitions.--In this Act,-- (a) "minor" means a person who has not completed the age of eighteen years; (b) "guardian" means a person having the care of the person of a minor or of his property or of both his person and property, and includes-- (i) a natural guardian, (ii) a guardian appointed by the Will of the minor's father or mother, (iii) a guardian appointed or declared by a Court, and (iv) a person empowered to act as such by or under any enactment relating to any Court of Wards; (c) "natural guardian" means any of the guardians mentioned in section 6." "Section 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 https://hcservices.ecourts.gov.in/hcservices/ (excluding his or her undivided interest in joint family property) are-- (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). Explanation.--In this section, the expressions "father" and "mother" do not include a step-father and step- mother." "Section 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 the 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. (3) Any disposal of immovable property by a natural guardian, in contravention of sub-section (1) or sub-section https://hcservices.ecourts.gov.in/hcservices/ (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, 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 section 29 of that Act, and in particular-- (a) proceedings in connection with the application shall be deemed to be proceedings under that Act within the meaning of section 4-A thereof; (b) the Court shall observe the procedure and have the powers specified in sub-sections (2), (3) and (4) of section 31 of that Act; and (c) 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) of this section to the Court to which appeals ordinarily lie from the decisions of that Court. (6) In this section, "Court" means the City Civil Court or a District Court or a Court empowered under section 4-A of the Guardians and Wards Act, 1890, within the local limits of whose jurisdiction the immovable property in respect of which the application is made is situate, and where the immovable 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." 15. As per Section 6 read along with Section 8 of the Hindu Minority and Guardianship Act, I am of the opinion that the brother Thirunavukkarasu is not a natural guardian for his minor brothers. Moreover, as per Section 8(2) of the Hindu Minority and Guardianship Ship, the natural guardian shall not, without the previous permission of the Court, mortgage or charge, or transfer by sale, gift, exchange or otherwise, any part of the immovable property of the minor. In the present case, the vendor the appellant-plaintiff, namely Thirunavukkarasu, is not the natural guardian. Without permission from the Court, he is not entitled to sell the property to anybody. So, the first appellate Court in its judgment, dealt with https://hcservices.ecourts.gov.in/hcservices/ the same elaborately and came to the conclusion that as per Sections 4 and 6 of the Hindu Minority and Guardianship Act, the brother Thirunavukkarasu is not the natural guardian. As per Section 8 of the Hindu Minority and Guardianship Act, the said Thirunavukkarasu is not empowered to alienate the property without the permission of the Court. 16. Section 11 of the Hindu Minority and Guardianship Act deals with "de-facto guardian not to deal with minor's property", which reads as follows: "Section 11: De facto guardian not to deal with the minor's property.--After the commencement of this Act, no person shall be entitled to dispose of, or deal with, the property of a Hindu minor merely on the ground of his or her being the de facto guardian of the minor." 17. Thirunavukkarasu, the brother of Govindaraju and Nagaraju, is neither the natural guardian, nor de-jure guardian, or guardian appointed by a Court of law. So, he is only a de-facto guardian. But as per Section 11 of the Hindu Minority and Guardianship Act, he is not entitled to dispose of or deal with the property of a Hindu minor, merely on the ground of himself being the de-facto guardian of the minor. The de-facto guardian can neither be guardian appointed by a Court of law, nor the testamentary guardian. So, as per Section 11 of the Hindu Minority and Guardianship Act, Thirunavukkarasu is not a competent person to execute the sale on behalf of the minor brothers Govindaraju and Nagaraju. 18. Substantial questions of law (i) and (ii) have been raised in respect of Exs.B-3 and B-4 that the birth certificates of Govindaraju and Nagaraju. As per Exs.B-3 and B-4, on the date of execution of Ex.A-1, they are major. But in Ex.A-1, they were described as minors. If they are major as per Exs.B-3 and B-4, the other co-owners are not competent to deal with the property in respect of the share of the other major co-owners. If Exs.B-3 and B-4 are not genuine documents, then as per Ex.A-1, they are minors and in such circumstances, as per Sections 4, 6 and 11 of the Hindu Minority and Guardianship Act, the said Thirunavukkarasu is only de-facto guardian and is not having any right to alienate the property of the minor brothers without proper permission from the Court of law. Admittedly, no permission has been obtained by Thirunavukkarasu, the vendor of the appellant-plaintiff before execution of Ex.A-1 for alienation of the property. 19. This Court has to decide as to whether Exs.B-3 and B-4 are true and genuine documents. It is true that the names of the male children have not been mentioned in Exs.B-3 and B-4, but the parents' name and address had been given. The first appellate Court, in its jugment, in paragraph 11, has come to the correct conclusion that https://hcservices.ecourts.gov.in/hcservices/ Exs.B-3 and B-4 relate to the brothers of Thirunavukkarasu, who are the children of Subburayal Naidu and Valliammal. There is no evidence on this point. So, Exs.B-3 and B-4 only relate to Govindaraju and Nagaraju. Ex.A-1 sale deed has been executed on 22.9.1986 and on the date of Ex.A-1, the vendors of Ex.B-1 are major. Hence, Exs.B-3 and B-4 relate to Govindaraju and Nagaraju, who are the vendors under Ex.B-1, i.e. the vendors of the respondent-defendant. The substantial questions of law (i), (ii) and (iv) are answered accordingly. Substantial questions of law (3) and (5): 20. Learned counsel for the appellant-plaintiff would contend that if the Court comes to the conclusion that Ex.A-1 sale deed is void, it ought to have been set aside. But without setting aside Ex.A-1 sale deed, it was executed and so, no right is conferred on the respondent-defendant. To substantiate the same, learned counsel for the appellant-plaintiff relied on the decision of the Supreme Court reported in 2009 (6) SCC 194 (cited supra) and a decision of this Court reported in 2002 (3) C.T.C. 211 (cited supra). 21. The second limb of argument in this aspect is that Ex.A-1 sale deed was executed on 22.9.1986 and that as per Ex.B-1, Govindaraju and Nagaraju executed the sale deed in favour of the respondent-defendant only on 9.2.1999, i.e. after 12 years of Ex.A-1 and so, the suit is barred by limitation. To substantiate the same, the decision reported in 2002 (3) C.T.C. 211 (cited supra) was relied on and the learned counsel for the appellant-plaintiff submitted that the respondent-defendant ought to have filed the suit for setting aside the sale deed within the period of limitation. Learned counsel for the appellant-plaintiff further urged that the claim of the respondent-defendant is barred by limitation, since the vendors of the respondent-defendant ought to have filed the suit within three years from the date the minor attained majority or within 12 years from the date of execution of Ex.A-1, whichever is earlier. To substantiate the same, the decision of the Supreme Court reported in 2006 (5) SCC 353 (Prem singh Vs. Birbal) was relied on and the relevant portion of 2006 (5) SCC 353 (cited supra) is as follows: "13. Article 59 of the Limitation Act applies specially when a relief is claimed on the ground of fraud or mistake. It only encompasses within its fold fraudulent transactions which are voidable transactions." "15. Section 31 of the Specific Relief Act, 1963 thus, refers to both void and voidable documents. It provides for a discretionary relief." "16. When a document is valid, no question arises of its cancellation. When a document is void ab initio, a decree for setting aside the same would not be necessary as the same is non est in the eye of law, as it would be a nullity." (emphasis supplied) https://hcservices.ecourts.gov.in/hcservices/ "18. Article 59 would be attracted when coercion, undue influence, misappropriation or fraud which the plaintiff asserts is required to be proved. Article 59 would apply to the case of such instruments. It would, therefore, apply where a document is prima facie valid. It would not apply only to instruments which are presumptively invalid. (See Unni v. Kunchi Amma (ILR (1891) 14 Mad 26) and Sheo Shankar Gir v. Ram Shewak Chowdhri (ILR (1897) 24 Cal 77)." 22. Learned counsel for the respondent-defendant would further contend that as per Sections 4,6,8 and 11 of the Hindu Minority and Guardianship Act, since the property is inherited from the maternal side and it is a separate property, the brother Thirunavukkarasu is neither the natural guardian, nor de-jure guardian and he is only de- facto guardian as per Section 11 of the Hindu Minority and Guardianship Act and hence, he is not entitled to alienate the property. So, Ex.A-1 is void document and need not be set aside. 23. Learned counsel for the respondent-defendant would contend that even if the Court comes to the conclusion that Exs.B-3 and B-4 are not true, since the property is inherited from the maternal side, it is separate property and the brother, namely Thirunavukkarasu, is not the guardian for the minor brothers. As per Section 11 of the Hindu Minority and Guardianship Act, the de-facto complainant has no right to alienate the property without the permission of the Court. In such circumstances, Ex.A-1 sale deed is void. Learned counsel for the respondent-defendant relied upon the decision of the Supreme Court reported in 2002 (1) M.L.J. 169 (SC) (cited supra) and 2008 (15) SCC 673