R. Muraliraj vs R. Ramaraj and Others

V. Kanagaraj, J.—This appeal suit is directed against the judgment and decree dated 14-9-1988 rendered in O. S. No. 195 of 1983 by the

Court of Subordinate Judge, Coimbatore thereby dismissing the suit with costs which has been filed on the part of the appellant herein for

declaration that the transfer of 1/4 share of the petitioner in the movable property under sale deed dated 9-2-1972 is void and to set aside the

transfer in support of the minor''s 1/4 share in the suit property and for costs.

Adverting to the facts as revealed in the plaint, the minor plaintiff represented by next friend and mother would submit that he is the son of the

first defendant and the suit properties were acquired by the first defendants grandfather Rangaswamy Gounder in a Court auction sale held on 10-

12-1928; that the sale was confirmed on 14-1-1929 and possession was obtained on 4-3-1929; that the properties were enjoined in common by

the joint family, comprising of Rangaswamy Gounder, his two sons Rangampa and Arumugam, the said Rangappa is the father of the first

defendant; that Rangasamy Gounder died intestate in 1942; and the suit properties were enjoyed in common by Rangappa and Arumugham; that

the first defendant''s father Rangappa also died in 1952; that the minor plaintiff was born on 22-6-1971; that Rangappa''s undivided half share

devolved on his only son the first defendant; and that the minor plaintiff acquired the right by birth and is entitled to the undivided 1/4 share in the

suit properties.

The further case of the plaintiff is that the first defendant could transfer the share of the minor plaintiff only by obtaining the leave of the Court;

that the second defendant is the cultivating tenant of the land for a long time; that the first defendant disposed of the entire half share without the

permission of the Court by sale deed dated 9-2-1972 and hence issued, the registered notice dated 12-4-1983 with no reply from the other side;

that the second defendant who purchased the same is also attempting to dispose of the entire half share that he acquired and hence, the suit for the

relief extracted supra.

In the written statement filed by the second defendant he would allege that the provisions oi Section 8(1) of the Hindu Minority and

Guardianship Act does not apply to the ancestral property; that the suit properties are not the absolute properties of the plaintiff; and hence the

plaintiff cannot file the suit; that no immonalily or improper behaviour has been alleged against the first defendant; that if at ail the plaintiff was

aggrieved, he ought to have filed the suit for partition; that only in collusion with the first defendant, the suit has been filed; that the properties now in

possession of the plaintiff and the first defendant would be many times, the value of the suit property; that this defendant was a lessee for the land

for a lease rent of Rs. 750/- per annum and since he was not able to collect the rents properly, he sold the property to this defendant for the

improvement of the other family members and to discharge the debts incurred by the family that no previous permission from the Court is

necessary; that he purchased the suit property for Rs. 35,000/- which was the proper value in the year 1972; that proper reply has been sent to

the notice; that there is no attempt made on the part of this defendant to dispose of the property; but on the contrary he has also entered into an

agreement for the purchase of the other half share of Arumugham and other members of the family that since the said Arumugham did not come

forward to do registration as agreed he filed a suit for specific performance and has obtained decree in his favour; that on account of this the entire

family joining hands with each other have come forward to file the suit on false averments; and that on such averments the second defendant would

pray to dismiss the suit with costs.

On these pleadings by parties, the trial Court having framed three issues viz.,

(1) Whether the plaintiff is entitled to the declaration that the transfer of 1/4 share in the suit property under the sale deed dated 9-2-1972 is void?

(2) Whether the sale is liable to be set aside?

(3) To what relief?

Has conducted the trial in which two witnesses have been examined on the part of the plaintiff as P.Ws. 1 and 2 of whom P.W. 1 is none else than

the N.F. guardian-mother of the minor plaintiff. On the part of the defendants, the second defendant himself would get into the box and deposed as

D.W. 1 the sole witness on his side. So far as the oral evidence is concerned, they would speak to the effect of the averments of the plaint and the

written statement. For documentary evidence five documents have been marked as Exs. A. 1 to A. 5 in support of the plaintiffs case. Ex. A-1 is

the sale deed dated 9-2-1972 executed by the first defendant in favour of the second defendant; Ex.A.2 dated 22-6-1971 is the birth register

extract of the plaintiff; Ex.A.3 dated 12-4-1983 is the copy of the notice sent by the plaintiffs advocate to the defendant and Exs. A.4 and A. 5

both dated 15-4-1983 are the postal acknowledgment signed by the first and second defendants, respectively. So far as the documentary

evidence submitted on the part of the defendants are concerned, Ex.B. 1 dated 23-12-1975 is the registration copy of the partition deed executed

in between the first defendant and three others; Ex.B.2 dated 9-5-1983 is the legal notice sent by the second defendant''s counsel to the plaintiff

and Ex.B.3 dated 10-5-1983 is the postal acknowledgment.

With these evidence placed on record, the trial Court on the facts and circumstances encircling the whole case as pleaded by parties, and in

appreciation of the evidence would ultimately arrive at a conclusion to dismiss the suit wth costs and dismissed the same accordingly. Aggrieved,

the unsuccessful plaintiff has come forward to prefer the above appeal suit on certain grounds as brought forth in the grounds of appeal.

During arguments, learned Counsel for the appellant besides giving the facts concerned with the suit, right from the time of purchase of the same

by the first defendant''s grandfather down to the sale of the property in favour of the second defendant, would further submit that the minor plaintiff

was born on 22-6-1971 and the suit property had been sold in favour of the second defendant in the year 1972 by the first defendant bequeathing

the entire half share which includes the minor''s share also; that next friend and mother examined herself and depose to the effect of the entitlement

of the minor; that with regard to the 1/4th share in the whole property, the father was not entitled to dispose of since being the share of the minor

u/s 8(2) of the Hindu Minority and Guadianship Act; that there was no necessity to sell the property also; that it is the contention of the defendant

that a male child which was born between Manimekalai and another Ramarajan on 22-6-1971 died on the same day and they are in no manner

connected to the suit property; that there had been a partition in the year 1975 between the first defendant and his paternal uncle''s children,

wherein absolutely, there is no mention of the minor and, therefore, the lower Court concluded that the minor was not born prior to the sale

transaction; that in consideration of such version of the defence, the trial Judge concluded that the sale of the suit property for the amount of Rs.

35,000/- was only for the advantage of the family; that whether the first defendant is entitled to sell the share of the minor is the only point for

determination; that the lower Court saying that the plaintiff failed to prove that there was no legal necessity to sell the suit property and hence would

decide the case in favour of the defendants.

At this juncture learned Counsel would cite two judgments reported respectively in Periyanayagam v. Rajendran (1988) 101 MLW 198: AIR

1990 NOC 8 and the other one reported in Sundari Ammal Vs. Thilakavathi Ammal and Others, : So far as the first of the two judgments cited by

the learned Counsel is concerned, it is held therein :

Under Section 6 of the Act, Pachamuthu, the father, was the natural guardian of the minors with respect to their person as well as their property.

Section 8(1) of the Act sets out in general the scope of the powers of a natural guardian, subject to the other provisions of that section. Section

8(1) of the Act, however, imposes a restriction upon the powers of a natural guardian in matters relating to mortgage, charge, transfer by sale, gift,

exchange or otherwise, or lessee of the property of the minor for a term exceeding five years or for a term extending more than one year beyond

the date on which the minor will attain majority. With reference to the transactions above-referred, the natural guardian shall not, without the

previous permission of the Court, proceed with them. Section 8(3) of the Act declares the effect of the contravention of Sub-section (2) of Section

8 of the Act and states that any disposal of immovable property by a natural guardian, in contravention of Sub-section (1) or Sub-section (2) of

Section 8 of the Act, is voidable at the instance of the minor or any person claiming under him. The other provisions of Section 8 of the Act are not

necessary for purposes of this case. It is thus seen that there is a statutory declaration regarding the voidable nature of the transactions entered into

by a natural guardian, namely, the father without permission from the Court with reference to sales, exchange, gift, lease etc., already referred to.

On the facts of the present case, it is seen that the sale under Ex.B. 1 was not effected by Pachahamuthu with the permission of the Court. It is,

therefore, follows that the sale in favour of the appellant is rendered voidable u/s 8(2) of the Act.

In the second judgment cited above, it is held therein Sundari Ammal Vs. Thilakavathi Ammal and Others, :

An alienation by the Manager of a joint family even without legal necessity is voidable and not void. The provisions of Sections 6, 8, 9 and 12 say

that the transaction is only voidable and not void if it has been indulged without obtaining the permission of the Court. Merely on the ground of

existence of the words in Section 6 of the Act that ''excluding his or her undivided interest in joint family property in the preamble portion of that

section, does not mean that under the pretence and guise, a father can alienate the property of the minor without obtaining the permission of the

Court and say he is following the old Hindu Law. The old Hindu Law of course was available by way of custom and usage because they were

olden days where people gave respect to the custom and usage and that is why Hindu Law was only on the custom and usage and it is Shruti,

Smriti and Sadachara. We are in modern days. In these days, we always want to have the right by law. Strict letters of law can only govern the

relationship of parties including the parents, sons and daughters. Daughters have been given equal shares by means of Hindu Succession Act when

the father dies intestate. Under the circumstance, when such an inroad has been introduced into the Hindu Law or usage and custom, it is but

necessary that we have to strictly follow the section, with a bearing on the old Hindu Law in interpreting the Sections especially Sections 6, 8, 12

of the Act in the instant case before us.

Citing the relevant paragraphs from the above two judgments, learned Counsel would further pointed out that the transaction is only voidable

and not void, that the judgment of the lower Court is erroneous and would pray to allow the appeal setting aside the same.

In reply, learned Senior Counsel appearing on behalf of the respondents would also cited the judgment reported in Sri Narayan Bal and others

Vs. Sridhar Sutar and others, : where in it is held (at p. 2372 of AIR) :

With regard to the undivided interest of the Hindu minor in joint family property, the provisions afore-culled are beads of the same string and need

to be viewed in a single glimpse, simultaneously in conjunction with each other. Each provision, and in particular Section 8, cannot be viewed in

isolation. If read together the intent of the Legislature in this beneficial legislation becomes manifest. Ordinarily the law does not envisage a natural

guardian of the undivided interest of a Hindu minor in joint family property. The natural guardian of the property of a Hindu minor, other than the

undivided interest in joint family property, is alone contemplated u/s 8, whereunder his powers and duties are defined. Section 12 carves out an

exception to the rule that should there be no adult member of the joint family in management of the joint family property, in which the minor has an

undivided interest, a guardian may be appointed; but ordinarily no guardian shall be appointed for such undivided interest of the minor. The adult

member of the family in the management of the joint Hindu family property may be a male or a female, not necessarily the Karta. The power of the

High Court otherwise to appoint a guardian, in situations justifying, has been preserved. This is the legislative scheme on the subject. u/s 8 a natural

guardian of the property of the Hindu minor, before he disposes of any immovable property of the minor, must seek permission of the Court. But

since there need be no natural guardian for the minor''s undivided interest in the joint family property, as provided under Sections 6 and 12 of the

Act, the previous permission of the Court u/s 8 for disposing of the undivided interest of the minor in the joint family property is not required. The

joint Hindu family by itself is a legal entity capable of acting through its Karta and other adult members of the family in management of the joint

Hindu family property. Thus Section 8 in view of the express terms of Sections 6 and 12, would not be applicable where a joint Hindu family

property is sold/ disposed of by the Karta involving an undivided interest of the minor in the said joint Hindu family property. The question posed

at the outset therefore is so answered.

The suit is of the year 1983, that the existence of the minor on the date of sale should be strictly proved on the part of the plaintiff; that there is

no pleading to that effect at all; the minor is said to have been born on 22-6-1971; the property was sold on 9-2-1972 and the suit has been filed

seven years later. As per the Municipal records, the parents of the child born on that day were coolies and the said child died the next day, and,

therefore, the lower Court did not at all believe that it was the minor plaintiff who was born according to the records on 22-6-1971 and dismissed

the suit altogether.

Learned counsel for the respondent pointed out that valid conclusions have been arrived at by the lower Court on proper evidence and would

ultimately pray to dismiss the appeal with costs.

In consideration of the pleadings by the parties having regard to the materials placed on record, and upon hearing the learned Counsel for both,

the only point that arises for consideration is whether the lower Court was right in dismissing the suit filed by the appellant for declaration and for

setting aside the transfer by sale dated 9-2-1972.

The case of the plaintiff is that the suit property is ancestral one and the first defendant''s father is entitled to half share and hence he has got 1/4

share in the suit property that without the permission from the Court the first defendant has no right to sell the suit property. But he has sold the

same in favour of the second defendant as per the sale deed dated 9-2-1972; that the plaintiff was born as early as on 11-6-1971 itself; and,

therefore, he is entitled to get 1/4 share in the suit property; that it is not proper on the part of the first defendant to sell his share also by alienation

and, therefore, would not only pray to declare the entitlement of the 1/4 share of the appellant but also to hold that the sale deed dated 9-2-1972

is void and to set aside the same in respect of such share of the minor plaintiff and for costs.

On the other hand the second defendant the purchaser of the suit property would submit that at the time of his purchase the minor plaintiff was

not at all born; that there was no question of getting permission from the Court since he was not at all in existence; that the sale was for proper

consideration; that he had entered into an agreement for the purchase of the other half share belonging to the first defendant''s brother and since he

did not come forward to do the registration, the second defendant filing a suit for specific performance in the same Court has also obtained decree

in his favour; that out of malice and ill-will and to obtain wrongful gains having sold the property in his favour for valid consideration the whole

family joining hands with each other has come forward claiming the suit property, 7 years after the sale of the same.

The trial Court having assessed the pleadings by parties in the proper manner, and further having framed proper issues for determination of the

suit, and with due opportunity for parties to be heard in full and in appreciation of the evidence placed on record, remarking that it is the claim of

the defendant who examined himself as D.W. 1 that the plaintiff was not born on the date of the sale of the suit property under Ex.A.-l, that the

birth extract produced in Ex.A.-2 dated 22-6-1972 in proof of the birth of the plaintiff has been sought to be proved through P.W. 2 who does

not know either the plaintiff or the first defendant and in the records he has stated that on the date of the registration, the parents were residing at

Sundarapuram, whereas the evidence of P.W. 1 is to the effect that she was not residing at Sundarapuram at any point of time but only at

Machampalayam; that further under Ex. A-2 it is stated that the parents were coolies; that the parents of the minor plaintiff are agriculturists and

business people; and, therefore, accepting such bare facts brought to fold, the lower Court unhesitantly arrived at the conclusion that Ex.A-2 is not

connected to the plaintiff but someone else and would ultimately hold that the plaintiff is not entitled to the relief sought for and no other evidence

nor circumstances worth believing and placing reliance has been brought in evidence to the effect of the existence of the minor plaintiff at the time of

Ex.A-1 sale deed coming into existence and, therefore, in considering the above circumstances, the trial Court has held that the plaintiff is not

entitled to any relief sought for and would ultimately dismiss the suit with costs of the second defendant.

There is absolutely no evidence contra to the line of arguments and decision taken on the part of the lower Court put forth so far as the

arguments of the appellant pertaining to the lower Court having not considered them properly in spite of such evidence having been placed on

record. Even in appeal no additional materials have been placed for consideration so far as the existence of the minor plaintiff at the time of Ex.A-2

sale deed coming into existence is concerned. While the case is decided on such point, concluding that the minor plaintiff was not in existence at the

time of the execution of the sale deed under Ex.A-1, the other questions raised regarding the right of the first defendant to sell the suit property as a

whole or that of the minor, which has been sold or regarding the permission from the Court to be obtained or considering the other points brought

forth for consideration, do not arise at all, and therefore, there is no room for this Court to cause its interference into the well considered and well

merited judgment passed by the trial Court in dismissing the suit with costs of the second defendant.

In the above circumstances, this Court so far as the only point framed is concerned, is left with no choice but to answer that the lower Court

was right in its decision to arrive at to dismiss the suit, thus deciding the same in favour of the second defendant. No other legal infirmity or

inconsistency has also been brought forth so far as the judgment and decree passed by the lower Court is concerned, so as to be validly

considered and, therefore, the only course that is open for this Court is to decline to interfere with the judgment of the trial Court as it is sought for

on the part of the appellant in the above appeal suit.

In the result, the above appeal suit fails and the same is dismissed wth costs of the respondent/second defendant. The judgment and decree

dated 14-9-1988 rendered in O.S. No. 195 of 1983 by the Court of subordinate Judge coimbatore is hereby confirmed.