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

2. Brief facts of the caseThe suit property belongs to one Petha Gounder. Petha Gounder had two sons namely Kannan and Balaraman and three daughters. Sengani Ammal was wife of Petha Gounder. On 17.05.1971 Petha Gounder executed a Will bequeathing life interest to his sons Kannan and Balaraman and thereafter to the two male heirs of his both the sons, who were to take the property absolutely. Will further stipulated that in event, there is no male heir to one of his sons, the male heirs of other son will take the property. Petha Gounder died on 28.11.1971 leaving behind his wife, two sons Balaraman and Kannan and three daughters. Pethawife Sengani Ammal died on 02.02.1982. Balaraman had one son namely Palanivel.2.2 Balaraman on his behalf as well as on behalf of his minor son had sold Item Nos.1 to 3 of the suit properties by registered Sale Deed dated 15.12.1981. Balaraman also sold Item No.6 and a portion of Item No.7 by two Sale Deeds dated 30.03.1981 and 31.03.1981 in favour of the first defendant. Balaraman had sold Item No. 6 in favour of the second defendant by registered Sale Deed dated 29.03.1982. Balaraman died in 1983 and Kannan died on 02.12.1984.wife was Lakshmi. The plaintiffs are sons of Kannan. Palanivel, the son of Balaraman died on 11.02.1986 while still a minor.mother Lakshmi Ammal executed a registered Release Deed dated 24.03.1986 in favour of the plaintiffs for a consideration. The plaintiffs filed suit No.229 of 1992 praying for followingThe plaintiffs therefore pray that theCourt may be pleasedDeclare that the plaintiffs are entitled to the suit properties;(b) Direct the Defendants to deliver possession of the suit properties failing which order delivery of possession through process of court;(c) Direct the Defendants to pay the cost of the suit and(d) Grant such other reliefs as theCourt may deem fit in the circumstances of thecase in the plaint was that Balaraman had no authority to execute Sale Deed on behalf of his minor son Palanivel and the Sale Deeds executed by Balaraman were void. The plaintiffs being sons of Kannan are entitled for declaration and possession of the properties from the defendants. It was further pleaded that validity of the Will dated 17.05.1971 has been upheld by the Subordinate Judges Court, Cuddalore in O.S. No. 447 of 1973.2.4 The defendant filed written statement. Thecase was that Balaraman, in order to discharge his debts and for family necessity executed sale deed for himself and on behalf of his minor son on 15.12.1981. The sale deed binds the minor Palanivel. The release deed executed by Lakshmi Ammal on 24.03.1986 will confer no right to the plaintiffs. The suit is barred by limitation since the suit has not been filed within 03 years from the date of death of Palanivel i.e. 11.02.1986. The suit as framed is not maintainable. The defendants are not in illegal possession. The defendants are bonafide purchasers for value. The plaintiffs cannot file suit for declaration without praying for setting aside the sale deeds.2.5 The trial court framed ten issues. Issue No.7 wasthe suit is barred byIssue No.8 wasthe plaintiffs are entitled to seek for declaration of title in respect of suit. Issue No.9 wasthe plaintiffs are entitled to seek for recovery of. The trial court while deciding Issue No.7 held that suit is not barred by limitation. Trial court held that plaintiff having filed the suit as reversioner, Article 65 of the Limitation Act will apply. As per Article 65, period for limitation is 12 years, hence suit was within time. The Will dated 17.05.1971 was held to be a valid Will. The sale deeds executed by Balaraman are voidable. On release deed, the trial court held that Lakshmi Ammal had no right in the suit properties, as such the plaintiffs do not derive any new right from the release deed. Trial court held that it is not necessary to decide the truth and validity of the release deed dated 24.03.1986. The trial court further held that there was no necessity to file the suit seeking a prayer to set aside the sale deeds separately since those sale deeds are voidable and they can be ignored. It was held that plaintiffs are competent to recover possession from the defendants. Trial court vide its judgment and decree dated 13.08.1997 decreed the suit.2.6 The defendants aggrieved by the judgment of the trial court filed appeal. The Principal District Judge vide its judgment dated 31.08.1999 allowed the appeal dismissing the suit. Appellate Court held that since Palanivel died on 11.02.1986, the suit should have been filed to set aside the sale deeds and for possession within 03 years from his death. The suit filed in 1992 was barred by limitation. The Appellate Court relied on Article 60 of the Limitation Act. Aggrieved against the judgment of the First Appellate Court, the plaintiffs filed second appeal in the High Court. High Court vide its judgment dated 21.04.2010 dismissed the second appeal. High Court had framed following substantial questions of law forWhether the Learned First Appellate Judge is correct in holding that the release deed Ex.A-15 dated 24.03.1986, is not avoiding the transfers by sales under Exs. A-9=B-9, A-10=B-7, A-11=B-2 and A- 12=B-9, executed by the natural guardian late Balaraman, of the properties belong to the deceased minor Palanivel?ii)Whether the sale deeds executed by late Balaraman, the natural guardian of minor Palanivel, of the properties of the minor are valid in law when the said sale deeds were executed in gross violation of Section 8(2)(a) of the Hindu Minority and Guardianship Act, especially when the mother, who claimed under the minor avoided the sale immediately on the demise of the minor?iii)Whether first appellate Judge is correct in holding that the suit is not maintainable, since the suit was not filed to set aside the sales within three years from the date of demise of minorThe High Court held that alienations made by Balaraman can be construed only as a voidable alienations and not void alienations. High Court held that plaintiffs suit ought to have been filed within 03 years as per Article 60 of the Limitation Act. All substantial questions of law were decided in favour of the defendants-respondents. High Court dismissed the second appeal. Aggrieved against the judgment, this appeal has been filed.

Reasoning:
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.