Gunnama Reddiar vs Bolachi Reddiar and Another

Ramamurti, J.—This is an appeal against the order passed by the learned District Judge, Tiruchirappalli, remanding the suit Original Suit No.

134 of 1959, to the District Munsif''s Court of Kulitalai, directing the latter to dispose of the suit, in the light of the directions contained in the order

under appeal.

The Appellant filed the suit claiming specific performance of an agreement of sale, exhibit A-1, dated 1st January 1959, entered into between

him and the first Defendant under which the latter had agreed to sell properties (involved in the suit) to the Plaintiff for a sum of Rs. 4,600 and had

also received a sum of Rs. 100 as advance. The Plaintiff came to know that the first Defendant and his divided brothers, the second Defendant,

were acting in collusion with a view to defeat the rights of the Plaintiff and thereupon the Plaintiff issued a notice to the Defendants on 12th January

1959, to which, however the Defendants sent no reply. The suit for specific performance was resisted by the first Defendant on the ground that the

Plaintiff, of his own accord gave up the agreement of sale and it was by common consent of parties cancelled. The second Defendant, however,

raised the plea that under a registered sale deed, exhibit B-3, dated 9th January 1959, he had purchased the suit properties for a sum of Rs. 4,000

this sale deed having been executed by the first Defendant and his wife, the latter representing the minor sons of the first Defendant. The second

Defendant''s main contention was that he was a bona fide purchaser in good faith, and for valuable consideration without any knowledge

whatsoever of the earlier agreement of sale in favour of the Plaintiff.

The learned District Munsif came to the conclusion that the plea of the first Defendant that the Plaintiff''s agreement of sale had been cancelled,

or that the Plaintiff had given up his rights there under was absolutely false and dishonest. He also came to the conclusion that the second

Defendant was acting in active collusion with the first Defendant, and that the sale in favour of the second Defendant was a fraudulent one, and

ante-dated brought about to defeat the claims of the Plaintiff. He also came to the conclusion that the second Defendant had not made any

payment under exhibit B-3, his sale deed. In this view the learned District Munsif decreed the Plaintiff''s suit.

Thereupon the Defendants preferred the appeal. Before the learned District Judge the Appellants accepted the findings of the trial Court on the

essential questions of fact and did not advance any arguments contrary thereto. The second Defendant however raised that point before the lower

appellate Court that the agreement of sale in favour of the Plaintiff would not bind the interests of the minor son of the first Defendant, and,

therefore, the. Plaintiff was not entitled to claim specific performance. As this new aspect which was raised before the lower appellate Court was

not raised in the trial Court, the learned District Judge remanded the matter for a consideration of this aspect of the case.

I have no hesitation in holding that this order or remand is wholly unjustified on the facts of the instant case. A bare perusal of paragraph 8 of the

judgment of the trial Court regarding the case of the second Defendant as to whether he paid any consideration, the part played by him and the

dishonest means resorted to by both the Defendants acting in active collusion with a view to defeat the rights of the Plaintiff, leave no room for

doubt that the sale-deed in favour of the second Defendant was sham and nominal transaction and the second Defendant acquired no title

whatsoever and that it was purely a make believe affair. In the written statement of the second Defendant who claims to be a bona fide purchaser

for valuable consideration he has not mentioned as to when he paid the price originally it was mentioned in the sale deed that Rs. 4,000 shall be

paid before the Sub-Registrar at the time of the registration but an interlineations was made that Rs. 4,000 was received outside the Registrar''s

office. The sale deed, exhibit B-3 recites that the money was paid on 9th January 1959 itself while the second Defendant, however, claims to have

paid the entire Rs. 4,000 a week after the execution of the sale deed, and that too after the receipt of the notice issued by the Plaintiff asserting

rights under his agreement of sale. When further pressed in cross examination, the second Defendant claimed to have paid this Rs. 4,000 twenty

days after the execution of the sale deed, exhibit B-3. It is clear that the second Defendant did not pay a pie for the sale deed. It does not require

very much of an imagination to draw the irresistible inference that no title was ever intended to be conveyed to the second Defendant, and that the

sale deed has been purposely and designedly ante-dated as a result of collusion between the Defendants and that the second Defendants is an

obliging name lender.

As observed earlier these findings of the learned District Munsif were not canvassed before the lower appellate Court but were accepted by the

contesting Defendants. In this situation, and setting of facts, I am wholly unable to understand as to what was the necessity for an order of remand.

Learned Counsel for the Appellant did not controvert the position that under Hindu Law when a managing member enters into an agreement of

sale, it is not necessary that he should be described as such in the agreement of sale. No plea nor an issue has been raised touching the binding

nature of the agreement of sale on the interests of the minors. The District Judge should not have entertained a plea and remanded the suit for

disposal on a point not raised. Further it is settled law that a subsequent purchaser of the interests of a minor cannot impeach the title of a prior

alienee of the minor''s interests on the ground that the prior alienation would not bind the interests of the minor, the reason being the right to

impeach the guardian''s alienation is a purely personal right of the minor and would not pass on to the subsequent purchaser.

It is sufficient to refer to a decision of Bench of this Court in Palani v. Vanjiakkal ILR (1956) Mad. 1062 in which after a consideration of the

entire case law, the Bench has held that it is settled law that the alienation made by a guardian is voidable at the instance of the minor, and that the

same can be challenged either by a suit through a next friend during the minority or by the minor himself on attaining of majority within the period of

limitation allowed by law, and that the right to avoid such a transfer is a personal privilege, and that the minor and minor alone can exercise that

personal privilege. Learned Counsel for the Respondents accepted this position but, however, contended that this principle would not apply where

the prior transaction is not a completed sale but an executor agreement of sale. I see no force in this contention, because the principle is that the

right to avoid is only a personal privilege and would not pass on to the purchaser. In other words, the subsequent purchaser does not get a right to

avoid the alienation which is purely a personal privilege of the minor. It is unnecessary to pursue this aspect further because in the first place the

sale deed in favour of the second Defendant was a sham and nominal one, and secondly no such plea was raised in the trial Court. Seeing that the

second Defendant was clearly guilty of fraud and dishonest conduct, and that he has been set up by the first Defendant, the learned District Judge

should have seen the obvious justice of the Plaintiff''s claim and held that this is clearly not a case for permitting the second Defendant to raise any

such plea. If the Plaintiff''s agreement of sale, to be followed by execution of a regular sale-deed, in favour of the Plaintiff, should turn out to be

invalid in any future proceeding at the instance of the sons as not binding upon the interests of the minors, it is purely a concern of the Plaintiff and

not that of the second Defendant. I, therefore, set aside the decision of the learned District Judge.

The suit is decreed as prayed for. Learned Counsel for the Appellant states that his client has already deposited Rs. 4,500 (the balance of the

sale price) in the trial Court. On the facts of the instant case and in view of the conduct of the first Defendant, I am of opinion that the Plaintiff is

entitled to protection by way of indemnity in respect of any future claim that may be made in regard to the sale transaction. I, therefore, direct that

the sum of Rs. 4,500 which is deposited in the trial Court shall be invested either in the National Savings Certificates or Government bonds in the

names of the minor sons of the first Defendant, represented by their mother as guardian and the said sum shall not be payable till the minor sons of

the first Defendant attain majority. The first Defendant shall be directed to execute the sale-deed in favour of the Plaintiff and in default of

compliance, the Plaintiff will be entitled to -have the sale-deed executed as per the provisions of the Code of Civil Procedure. The Plaintiff will be

entitled to his full costs in all the Courts from the second Defendant, who is mainly responsible for this litigation. The first Defendant shall bear his

own costs in the Courts below. No leave.