Dhanasekaran vs Manoranjithammal and Others

S. Nainar Sundaram, J.—This appeal has to be allowed on legal point taken before me. The plaintiff, who is the appellant in this appeal, is

the son of one Rajamanicka who died in March, 1960. The first defendant is his widow as well as the mother of the plaintiff. Impeaching a sale

dated 2.8.1961, marked in the case as Exhibit B-4, effected by the first defendant for herself and on behalf of the plaintiff, who was then a minor,

in favour of the second defendant, who was the younger brother of Rajamanicka, the plaintiff laid the suit for partition, and separate possession of

his three-fourth share in the suit properties. The first defendant remained ex parte. The substance of the defence of the second defendant, who died

pending the suit and whose legal representatives were brought on record in the suit itself, was that the sale was for binding necessities. The Court

below did not countenance the case of the plaintiff and dismissed the suit and that is how the plaintiff is before this Court by way of this appeal.

There is no need to investigate as to whether the sale was not for binding necessities and was tainted with vitiating circumstances as contended

by the plaintiff, because the complaint, now legitimately put forth by Mr. A.V. Dhanakoti, learned Counsel for the appellant is that no sanction of

Court was obtained by the first defendant, as contemplated u/s 8 (2) of the Hindu Minority and Guardianship Act 32 of 1956, hereinafter referred

to as the Act, for the alienation under Exhibit B-4 and hence, it is voidable at the instance of the plaintiff. That the plaintiff was entitled to three-

fourth share in the suit properties is the finding rendered by the Court below. That finding is not being, impeached before me by any process

known to law. If this is so, on the date of the alienation, namely 2.8.1961, the Act was in force and there was the mandate of Section 8 (2) of the

Act requiring obtaining of sanction of Court for such sale and Section 8 (3) of the Act lays down that an alienation in contravention of Section 8 (2)

is voidable at the instance of the minor-in the present case the plaintiff-who has subsequently become a major. There is no dispute that such

sanction was not obtained. It is well settled that once a transfer is shown to be voidable at the instance of the minor, who may have become a

major subsequently, it is voidable without any enquiry as regards the terms of the transfer as to whether it was for binding necessity or for any other

binding purposes.

Section 8 (2) lays down in specific and explicit terms that the natural guardian shall not, without the previous permission of the Court, indulge in

and effect any of the alienations set out in Sub-clauses (a) and (b). Section 8 (3) is categoric leaving no room for any argument that any disposal of

immovable property by a natural guardian in contravention of Section 8 (2) is voidable at the instance of the minor. The field and sphere of

argument that such an alienation is for binding necessities and should be upheld are no longer available. When the inhibition is of the statute and it is

plain and unambiguous, it is not open to sustain an alienation done in contravention of it by still investigating and finding out justifying factors

therefor.

In Sinaya Pillai v. Munisami Ayyar ILR (1899) Mad. 289 : (1899) 9 M.L.J. 64, in a case under similar provisions, Sections 29 and 30 of the

Guardians and Wards Act VIII of 1890, hereinafter referred to as Act VIII of 1890, a Bench of this Court, in spite of the fact that the necessity

had been urgent, the terms of the deed were fair and the money had been duly applied, held that the transaction was voidable.

In AIR 1925 633 (Oudh) , a Bench of the Oudh Chief Court counternanced that u/s 30 of Act VIII of 1890, an alienation without permission of

Court is voidable and there is no need for further enquiry as to whether the terms were favourable to the minors or not. This ratio has been

adopted by a subsequent pronouncement of another Bench of the same Court in Mohan Lal v. Mohammed Adil AIR 1926 Oudh. 88. In my view

also, as expressed above, this ratio should govern. The very object behind Section 8 (2) and (3) is to recast the restrictions on the powers of the

natural guardian of a Hindu minor, more or less on the lines of similar restrictions in Act VIII of 1890. It must also be noted that in the present

case, there is no claim for refund from the quandom minor of any tangible benefit alleged to have been received by him.

If this is the legal consequence that should How on the admitted facts of the present case, then, the alienation by the first defendant under Exhibit

B-4 in respect of the three-fourth share of the plaintiff cannot be sustained and has got to be ignored.

In the said circumstances, the appeal is allowed, the judgment and decree of the Court below are set aside; and there will be a decree in the suit,

declaring that the alienation under Exhibit B-4 is not binding on the three-fourth share of the plaintiff in the suit properties and further, there will be a

preliminary decree in the suit for partition and separate possession of the plaintiff''s three-fourth share in the suit properties. In the peculiar

circumstances of the case, I direct the parties to bear their respective costs throughout. Respondents 2 to 9 who are the legal representatives of the

deceased second defendant, shall pay the Court fee due to the State both in the suit as well as in this appeal.