R. Munuswamy and Another vs N. Jayammal and Another

Kailasam, J.—The Plaintiffs who lost in both the Courts are the Appellants herein. One Rajagopal Chettiar died on 5th July 1956 leaving behind him his wife, the first Defendant, his two sons, Plaintiffs 1 and 2, and three daughters, Defendants 2 to 4. Defendant 5 is the alienee from the mother. The mother, the first Defendant, alienated the properties in dispute on 7th November 1956 for a sum of Rs. 700 in favour of the fifth Defendant for the purpose of discharging pre-existing mortgages and to defray the funeral expenses of her husband. The suit was filed by Plaintiffs land 2, the sons, on 4th July 1967 praying for partition of the family properties left by Rajagopal and for possession of one-third share belonging to them. The Courts below dismissed the suit on the ground that the suit was barred by limitation. It is admitted that Plaintiffs 1 and 2 had attained majority long prior to three years before the date of the filing of the suit. There could, therefore, be no dispute that the suit is barred by limitation under Article 60 of the Limitation Act of 1963.

The learned Counsel for the Appellants submits that, after the coming into force of the Hindu Minority and Guardianship Act, 1956, it is not necessary for the minors to have the sale effected by their mother and guardian set aside, for Section 8(2) of that Act forbids the natural guardian from transferring any property without the previous permission of the Court. It is stated that if any such transfer is effected without the permission of the Court, it could be avoided by a minor at any time on his own volition that article 60 has no application and that the minor can claim possession of the property without any other prayer. Sub-sections (1), (2) and (3) of Section 8 of the Act may be extracted:

(1) The natural guardian of a Hindu minor has power, subject to the provisions of this section to do all acts which are necessary or reasonable and proper for the benefit of the minor or for the realisation, protection or benefit of the minor''s estate; but the guardian can in no case bind the minor by a personal covenant.

(2) The natural guardian shall not, without the previous permission of the Court, (a) mortgage or charge or transfer by sale, gift, exchange or otherwise any part of the immovable property of the minor, or (b) lease any part of such property for a turn extending more than one year beyond the date on which the minor will attain majority

(3) Any disposal of immovable property by a natural guardian, in contravention of Sub-section (1) or Sub-section (2), is voidable at the instance by of the minor or any person claiming under him.

A reading of Sub-sections (1) to (3) of section would make it clear that a contravention by a natural guardian of the requirements of Sub-section (1) or Sub-section (2) would make the sale voidable at the instance of the minor or any person claiming under him. The natural guardian can effect a transfer of the property for the benefit of the minor. If such a transfer has been effected without the permission of the Court making the minor a eo nomine party to the transaction, the transfer is a voidable one which can be avoided at the instance of the minor, or any person claiming under him. There is no justification for the argument that a minor need not avoid a transfer at all.

Article 60 of the Limitation Act provides that the period of limitation for setting aside a transfer of property made by the guardian of a ward is three years by the ward from the date the ward attains majority. This provision of the Limitation Act is specifically applicable to a transfer of a property made by the guardian of the ward. We do not see any basis for the contention that after the Hindu Minority and Guardianship Act came into force, there is no necessity for a minor to set aside the sale if the sale has been effected in his name by his mother and guardian without the permission of the Court. In support of this contention, the leaned counsel relied on the decision of the Supreme Court in Abdul Shukoor Saheb v. Papa Rao (1964) 1 M. L. J. 49 (S.C).That case related to a transaction u/s 3(1) of the Transfer of Property Act. The creditor-decree-holder sought to set aside transfer on the ground that it was fraudulent. The learned Judges of the Supreme Court observed that Section 53(1) of the Transfer of Property Act rendered the transaction voidable at the instance of the creditors if the transfer was effected with the particular intent specified. It is also pointed out that the statute does not prescribe any particular method of avoidance. The Supreme Court referred to with approval the following observations of the Madras High Court in Ramasami Chettiar v. Mallappa Reddi. 39 M.L.J. 350 (F.B.).

If the creditor knowing of the transfer applies for attachment, the application is sufficient evidence, of his intention to avoid it; if he only hears of the transfer when a claim petition is preferred under Order 21, Rule 58 , and still maintains his right to attach, that again is a sufficient exercise of his option to avoid and entitle him to succeed in the subsequent suit under rule 63.

The above decision of the Supreme Court would not in any way advance the argument of the learned Counsel for the Appellants that a minor who is a to nomine party to a sale by the guardian need not have the sale aside within the time prescribed under Article 60(a) of the Limitation Act.

The relief asked for in the plaint is for partition between the Plaintiff and Defendants 1 to 4 of the plaint schedule property and for awarding 2/6th share to the Plaintiffs and for decree for separate possession of the share allotted to them. The Plaintiffs will not be entitled to any relief unless they get a declaration that the sale is not binding on them. Being a voidable transaction, and they being eo nomine parties to the transaction the Plaintiffs will have to seek to set aside the sale. That being so, they cannot ask for the relief of possession and contend that they have got twelve years period for seeking relief. The Plaintiffs cannot be allowed to get over the law of limitation by omitting the proper and necessary relief.

We see no grounds for interfering with the conclusion arrived at by the Courts below. The appeal is dismissed with costs.