Parameswaran Pillay vs Bhavani Amma

Pareed Pillay, J.—Defendants 1 to 3 are the Appellants. The suit is for, cancellation of Ext.A1 sale deed dated 20.6.1966 Ext.A1 was executed by the 4th Defendant to Defendants 1 to 3. Plaintiff is the daughter of the 4th Defendant. Cancellation is sought on the ground that Ext.A1 is not supported by consideration and necessity and also on the ground that mother was not competent to alienate the property.

Plaintiff obtained the property under Ext.B1 partition dated 18.2.1957. Plaintiff was a minor at the time of partition. Plaintiff came to know of Ext.A1 i.e. 1976. Defendants resisted the suit on the ground that the suit is barred by limitation, that Plaintiff�s mother was competent to execute the sale deed and that in fact the sale deed was executed on account of minor''s necessity and also for proper consideration. It is also stated that with the amount of Ext.A1 sale consideration another property was purchased as per Ext.B2 in the name of the Plaintiff.

The trial Court decreed the suit stating that mother of the Plaintiff, the de facto guardian, was incompetent to alienate the property. This has been confirmed by the Sub Judge.

u/s 8 of the Hindu Minority and Guardianship Act, 1956 father is the natural guardian and only is the absence of father the mother can be the guardian. The question that arises for consideration in whether the mother of a minor can alienate his property when his father is alive overlooking the provisions of the Nair Act.

Hindu Minority and Guardianship Act, 1956 extends to the whole of India except the State of Jammu and Kashmir, Section 5 provides that save as otherwise expressly provided under the Act, any text rule of interpretation of Hindu Law or any custom or usage as part of that law in force immediately before the commencement of this Act, shall cease to have effect with respect to any matter for which provision is made in this Act. Therefore, the provisions of the Nair Act cannot have any application. There is express provision in the Hindu Minority and Guardianship Act as to how property of minors has to be dealt with. u/s 11 there is absolute prohibition to deals with the property of the minors by a de facto guardian. Section 11 interdicts the de facto guardian from dealing with the property of the minors. The section makes it clear that after the commencement of the 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. Section 6 provides that the natural guardian of a Hindu minor in respect of his person as well as property excluding his or her undivided interest in the joint family property or in the case of a boy or an unmarried girl in the father and after him the mother. In the case in hand at the time of Ext.A-1 father of the minor Plaintiffs was alive. Thus the indubitable position is that natural guardian was Plaintiff�s father at the time of Ext.A-1 Section 8 of the Act enumerates the powers of a natural guardian. Section 8(2) specifically prohibits the natural guardian from alienating property of minors without the permission of the Court. Section 8(3) states that any disposal of immovable property by a natural guardian in contravention of Sub-section (1) or Sub-section (2) is voidable at the instance of the minor or any person claiming under him u/s 11 there is total prohibition for a de facto guardian to deal with the property of minors. As there is total prohibition as provided u/s 11 the alienation effected by Plaintiff�s mother is void. If Ext.A-1 is void it does not confer any title on the Defendants. If so Plaintiff can recover the property on the strength of her title.

Contention of the Appellants is that the document is only voidable and therefore the suit is barred by limitation. It has been held in 1978 KLT 532 (Ayyappan (sic) v. Antony) that the power of disposal of the minor''s property is only with (sic) guardian and not with a de-facto guardian and therefore the mother''s (sic) is void. As Ext.A-1 is a void transaction, there is no merit in the contention that the suit is barred by limitation.

It is contended that the father was an attestor in Ext.A-1 and therefore it has to be presumed that he was aware of the alienation made by the mother. Merely because father has attestor Ext.A-1 it cannot be given any validity. In AIR 1972 Mys 31 it is held as follows:

As the law stands after the coming into force of the Act, under no circumstances a de-facto guardian can transfer the minor''s property merely on the ground of his being a de facto guardian. After coming into force of the Act, in view of the provisions of Section 11 of the Act, a minor on attaining majority cannot validate a sale by a de facto guardian by ratification.

It has been held in P.T. Chathu Chettiar Vs. Kariat Kunnummal Kanaran, that where the father is alive and is not disqualified to act as the guardian of the minor it is incompetent for the mother to interpose herself as the guardian of the minor and any alienation of the minor''s property by her acting as his guardian is destitute of legal effect and there is no need for the minor to sue for the cancellation of the sale.

It is next contended that even assuming that the sale is void the lower courts ought to have applied the equitable principles contained in Section 35 of the Transfer of Property Act, Section 33 of the Specific Relief Act and Section 64 of the Indian Contract Act. As Ext.B-2 property was not purchased exclusively in the name of the Plaintiff, I find no substance in the above contention.

There is not evidence that regarding Ext.A1 property Plaintiff had only undivided interest in joint family property and therefore the contention that her mother as legal guardian could alienate the property is not tenable. Ext.A1 clearly shows item 2 in Ext.A1 belonged to the Plaintiff exclusively. Contention that Article 60 of the Limitation Act is applicable and so the suit is barred by limitation is also devoid of merit.

The Second Appeal is dismissed. No costs.