Case: MURUGAN  Vs. KESAVA GOUNDER (DEAD) THR LRS AND ORS

legal necessity is not relevant in the case of such invalid transfer. A transferee of such an alienation does not acquire any interest in the property. Such an invalid transaction is not required to be set aside by filing a suit or judicial proceeding. The minor, on attaining majority, can repudiate the transfer in any manner as and when occasion for it arises. After attaining majority if he/she transfers his/her interest in the property in a lawful manner asserting his/her title to the same that is sufficient to show that the minor has repudiated the transfer made by the “de facto guardian/manager”.”31. The above observations were made by this Court in the context of Section 11 of the Act, 1956. Section 11 of the Act contains a statutory prohibition on “de facto guardian” of the minor from disposing of the property of the minor. The transfer made by de facto guardian is, thus, void and can be repudiated in any manner. It is well settled that it is not necessary for a minor or any person claiming under him to file a suit for setting aside a void deed. A void deed can be ignored. The above observations cannot be held to be applicable to transfer made by a natural guardian under Section 8(3) of the Act.32. We may notice one more judgment of this Court relied on by the learned counsel for the appellants that is G. Annamalai Pillai vs. District Revenue Officer and others, (1993) 2 SCC 402. The question which arose for consideration in the said case has been noticed in paragraph 1 of the judgment in following words:“1. The short question for consideration in this appeal is whether lease deed in dispute, which was voidable in terms of Section 8(3) of the Hindu Minority and Guardianship Act, 1956 (the Act) when validly avoided, was effective from the date of the lease deed so as to make the transaction void and unenforceable from the very inception.”33. The land in dispute was owned by one Janarthanan. His father, Purushothaman executed a registered lease deed in favour of appellant on 12.12.1971 on which date the owner was minor. The appellant filed application before Tehsildar to be registered as a tenant which was contested by Janarthanan. Janarthanan contended that his father has no right or title to deal with land and lease by his father is in contravention of Section 8 of Hindu Minority and Guardianship Act, 1956. Tehsildar held that there was no valid lease which order was confirmed by the High Court against which judgment appeal was filed. In paragraphs 5 and 6 following has been laid down:"5. We have heard learned counsel for the parties. We have been taken through the orders of the Revenue authorities, judgment of the learned Single Judge and of the Division Bench of the High Court in writ appeal. The Division Bench of the High Court, in a lucid judgment, answered the question — posed by us in the beginning — in the affirmative and against the appellant-Annamalai Pillai on the following reasoning:“We have already seen that clause (3) of Section 8 of the Hindu Minority and Guardianship Act, 1956, specifically makes the transaction voidable. The lease executed by the guardian in this case is prohibited and in that sense it was without any authority. On the legal efficacy and the distinction between valid, void and voidable agreements, we find the following passage in Salmond on Jurisprudence, Twelfth Edition at page 341:‘… A valid agreement is one which is fully operative in accordance with the intent of the parties. A void agreement is one which entirely fails to receive legal recognition or sanction, the declared will of the parties being wholly destitute of legal efficacy. A voidable agreement stands midway between these two cases. It is not a nullity, but its operation is conditional and not absolute. By reason of some defect in its origin it is liable to be destroyed or cancelled at the option of one of the parties to it. On the exercise of this power the agreement not only ceases to have any efficacy, but is deemed to have been void ab initio. The avoidance of it relates back to the making of it. The hypothetical or contingent efficacy which has hitherto been attributed to it wholly disappears, as if it had never existed. In other words, a voidable agreement is one which is void or valid at the election of one of the parties to it.’This distinction has also been judicially noticed in the Privy Council judgment reported in Satgur Prasad v. Harnarain Das and in the Division Bench judgment in S.N.R. Sundara Rao and Sons, Madurai v. CIT. The Division Bench held, following the said Privy Council judgment as follows:‘When a person, who is entitled to dissent from the alienation, does so, his dissent is in relation to the transaction as such and not merely to the possession of the alienee on the date of such dissent.The effect of the evidence is, therefore, to get rid of the transaction with the result that in law it is as if the transaction had never taken place.’We have, therefore, no doubt that when the fifth respondent avoided the lease executed by his father, the fourth respondent, the lease became void from its inception and no statutory rights, could, therefore, accrue in favour of the appellant herein.”6. We agree with the reasoning and the conclusions reached by the Division Bench of the High Court and as such this appeal has to be dismissed.”34. Learned counsel for the appellants relying on the above decision contends that sale by Balaraman when has been avoided by release deed it became void from the very beginning. There can be no quarrel to the proposition laid down in G. Annamalai Pillai vs. District Revenue Officer and others(supra). In the present case there having been no repudiation of sale deed on behalf of minor, the question of voidable sale deed becoming void does not arise.

Decision (1 = appeal accepted, 0 = rejected): 0

Explanation:
0[ds]7. The trial court has held that suit has been filed within time relying on Article 65 whereas the Appellate Court as well as the High Court relied on Article 60 and held that suit was barred by time.Article 60(b)(ii) refers to a suit when a ward dies before attaining majority. The present is a case where Palanivel died on 11.02.1986 before attaining majority, his date of birth being 16.07.1978, the limitation to avoid instrument made by guardian of the ward is 03 years from the death of ward when he dies before attaining majority. This Court had occasion to consider Articles 60 and 65 of the Limitation Act in reference to alienation made by a de-facto guardian of a minor. In the case of Madhukar Vishwanath Vs. Madahav and Others, (1999) 9 SCC 446, the maternal uncle of the appellant has executed a sale deed. The appellant after becoming major on 22.08.1966 filed a suit on 07.02.1973 praying that transferors be required to deliver the possession of the property. On behalf of appellant, Article 65 was relied for the purposes of limitation. This Court held that it is Article 60 and not Article 65, which is applicable.Now, coming to Article 65, on which reliance has been placed by learned counsel for the appellants. The said period of limitation is available when suit is filed for possession of immovable property on any interest therein based on title. The present is a case where by registered sale deeds the property was conveyed by the father of the minor was eonominee party. Thus, when sale deed was executed by Balaraman he purported to convey the right of the minor also. The sale deeds being voidable and not void, plaintiffs cannot rely on Article 65. We, thus, are of the view that first Appellate Court and the High Court has rightly held that limitation for suit was governed by Article 60 and the suit was clearly barred by time.12. It is important to find from the sale deed what was conveyed. This we say, as appellant has a case that the father of the minor was given a life estate and after his death alone the minor was to get a right. In this regard we may notice the distinction between a vested right and a contingent right. Vested right is the subject matter of Section 19 of the Transfer of Property Act whereas a contingent interest is dealt with Section 21 of the Transfer of Property Act. Since the life estate followed by an absolute right is created by a will, the relevant provision is Section 119 of the Indian Succession Act, 1925.. In the present case, there is no dispute that sale deeds executed by Balaraman on behalf of himself and his minor son Palanivel were executed without obtaining permission of the Court.The alienations, which were voidable, at the instance of minor or on his behalf were required to be set aside before relief for possession can be claimed by the plaintiffs. Suit filed on behalf of the plaintiffs without seeking prayer for setting aside the sale deeds was, thus, not properly framed and could not have beene release deed has been brought on the record as Annexure P-1. A perusal of the release deed does not indicate that there is any reference of alienation made by Balaraman in favour of the defendants. There being no reference of the alienation made by Balaraman on behalf of minor, there is no occasion to read release deed as repudiation of the claim on behalf of the minor. Section 8(3) gives a right to the minor or any person claiming under him, the relevant words in Section 8(3) arethe instance of the minor or any person claiming under, alienation made on behalf of the minor can be avoided by minor or any person claiming under him. In event, minor dies before attaining majority, obviously, his legal heirs will have right to avoid the alienation.We have noticed above that sub-section (3) of Section 8 refers to a disposal of immovable property by a natural guardian in contravention of sub-section (1) or sub-section (2) as voidable. When a registered sale deed is voidable, it is valid till it is avoided in accordance with law. The rights conferred by a registered sale deed are good enough against the whole world and the sale can be avoided in case the property sold is of a minor by a natural guardian atthe instance of the minor or any person claiming underhim. A document which is voidable has to be actually set aside before taking its legal effect.person entitled to avoid such a sale is either the minor or any person claiming under him. This Court held that either the minor, or his legal representative in the event of his death, or his successor-in-interest claiming under him by reason of transfer inter vivos, must bring action within the period prescribed for such a suit, i.e. three years.28. This Court time and again held that setting aside of a sale which is voidable under Section 8(3) is necessary for avoiding a registered sale deed. We may, however, not to be understood that we are holding that in all cases where minor has to avoid disposal of immovable property, it is necessary to bring a suit. There may be creation of charge or lease of immovable property which may not be by registered document. It may depend on facts of each case as to whether it is necessary to bring a suit for avoiding disposal of the immovable property or it can be done in any other manner. We in the present case are concerned with disposal of immovable property by natural guardian of minor by a registered sale deed, hence, we are confining our consideration and discussion only with respect to transfer of immovable property by a registered deed by a natural guardian of minor.29. The Limitation Act, 1963 has been enacted by the Parliament after the enactment of Hindu Minority and Guardianship Act, 1956. Article 60 of the Limitation Act, 1963 which provides for limitationrelating to decrees andThe Limitation Act contemplates suit to set aside a transfer of property made by the guardian of a ward for which limitation is contemplated as three years. Article 60 of the Limitation Act although provides for a limitation of a suit but also clearly indicates that to set aside a transfer of property made by the guardian of a ward a suit is contemplated.The above observations were made by this Court in the context of Section 11 of the Act, 1956. Section 11 of the Act contains a statutory prohibition onof the minor from disposing of the property of the minor. The transfer made by de facto guardian is, thus, void and can be repudiated in any manner. It is well settled that it is not necessary for a minor or any person claiming under him to file a suit for setting aside a void deed. A void deed can be ignored. The above observations cannot be held to be applicable to transfer made by a natural guardian under Section 8(3) of the Act.The land in dispute was owned by one Janarthanan. His father, Purushothaman executed a registered lease deed in favour of appellant on 12.12.1971 on which date the owner was minor. The appellant filed application before Tehsildar to be registered as a tenant which was contested by Janarthanan. Janarthanan contended that his father has no right or title to deal with land and lease by his father is in contravention of Section 8 of Hindu Minority and Guardianship Act, 1956. Tehsildar held that there was no valid lease which order was confirmed by the High Court against which judgment appeal was filed.Learned counsel for the appellants relying on the above decision contends that sale by Balaraman when has been avoided by release deed it became void from the very beginning. There can be no quarrel to the proposition laid down in G. Annamalai Pillai vs. District Revenue Officer and others(supra). In the present case there having been no repudiation of sale deed on behalf of minor, the question of voidable sale deed becoming void does not arise.