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Judgment
A. Ramamurthi, J.—The plaintiff, who lost in both the courts below is the appellant.
The case in brief is as follows:- The plaintiff filed a suit for delivery of possession of the suit property and also for accounts and future profits.
The plaintiff is the owner of the schedule mentioned property as she got the same under Deed of Settlement on 26.10.1959 executed by her father
when she was then a minor. She was placed in possession and her mother acting as guardian and patta was also changed in her name. They were
paying kist due for the property. The father of the plaintiff is alive. The plaintiff understands that her mother acting as guardian had unauthorisedly
entered into an agreement of sale of the property on 03.04.1973 with the 1st defendant. The said act of the mother is void ab initio. The father of
the plaintiff is her natural guardian during her minority. When her father is alive, her mother will be at best a de facto guardian and she is not entitled
to deal with the property of the minor or agree to convey the property. The said agreement does not convey any title to the 1st defendant and the
plaintiff continues to be the owner of the suit property. She belongs to an affluent family of the Zamindar of Pappanad and there was no need or
necessity to sell any of her properties and there was no benefit to her. Even if any amounts are said to have been paid by the 1st defendant, the
said payments were not received by the plaintiff and the 1st defendant is not entitled to any relief. Relying on the void agreement, the 1st
respondent attempted to trespass into the property in or about 1973 and forcibly entered into the property in 1975. The plaintiff''s father, her
natural guardian filed a suit for permanent injunction to restrain the 1st defendant from entering into the properties in O.S.No.188 of 1975 and the
defendant also contested the suit on the basis that he is in possession of the same. The plaintiff understands that the 1st defendant relying upon
some collusive correspondence and other records created with the help of Village officers in support of his contention. The suit O.S.No.188 of
1975 was withdrawn by her father. The 2nd defendant was appointed as Receiver by the Court and he was collecting the rents and profits. Now,
the 1st defendant had taken the property on lease from the Receiver. The plaintiff is entitled to recover possession of the property besides profit
for three years prior to the suit. Since the 1st defendant is setting up some right in the third defendant, he was impleaded as a party. Hence the suit.
The 1st defendant denied the averments in the plaint. The father of the plaintiff admittedly settled the suit property in favour of the minor. To make
the gift complete it was the mother who has been designated and described in the document as a guardian. The plaintiff cannot go back to say that
the minor''s mother did never act as guardian even to accept gift under the settlement deed. There is no averment in the plaint that the minor''s
mother acted without the knowledge of the plaintiff''s father. The plaintiff living with her parents has been well looked after and provided for. There
is no question of the plaintiff having been prejudiced by anybody acting against her interest. The plaintiff''s father is a Zamindar with extensive
properties and has been evading clutches of law by putting his properties under Benami transaction with ulterior motive to avoid Land Ceiling Act,
Wealth Tax Act, etc. There was no need for settlement of the father''s property to the only daughter, the plaintiff. It was the father, who has been
acting through and right through and with his knowledge, consent and concurrent the minor''s mother was described as a guardian and she entered
into an agreement to sell the property to the 3rd defendant. He agreed to purchase the property for a price of Rs.1,05,866/= and an advance of
Rs.23,000/= was received. Later, a sum of Rs.45,000/= was paid on 05.08.1973 and another sum of Rs.10,000/= was paid on 12.10.1973; thus
a total sum of Rs.78,000/= was paid by him and received by the plaintiff''s mother acting as guardian as suggested by the plaintiff''s father, the de
jure guardian living with and under the roof of the plaintiff''s father jointly. The transaction though in the name of the minor''s mother as guardian, it
is really and practically one by the plaintiff''s father as the natural guardian. Now, the plaintiff having been benefited through the natural guardian,
cannot question the same. The 1st defendant was put in physical possession of the properties. By a notice dated 08.05.1974, the plaintiff''s mother
again styling as guardian has sent a registered notice through the counsel. The allegation that the father of the plaintiff was in possession is false. The
suit is devoid of merit and is liable to be dismissed. The sale agreement is by the plaintiff''s father in fact and hence the plaintiff is not entitled to
recover possession.
The trial court framed five issues and on behalf of the plaintiff, P.W.1 was examined and Exs.A-1 to A-5 were marked and on the side of the
defendants, D.Ws.1 to 4 were examined and Exs.B-1 to B-13 were marked. The trial court dismissed the suit and aggrieved against this, the
plaintiff preferred A.S.No. 42 of 1988 on the file of Sub Court, Pattukottai and the learned Judge after hearing the parties dismissed the appeal
and aggrieved against this, the plaintiff has come forward with the present second appeal.
At the time of admission of the second appeal, this Court framed the following substantial questions of law for consideration:
(1) Whether the contentions of the contesting defendants/respondents that the Settlement Deed in Ex.A-1 executed in favour of the appellant is a
benami transaction would be a bar under the Benami Transaction (Prohibition) Act 1988 ?
(2) Whether the agreement of sale executed under Ex.B-2 executed by the mother of the appellant, who was then a minor, during the life time of
the natural father is void ?
(3) Whether the courts below erred in law in applying Section 53(A) of the Transfer of Property Act, when the alleged agreement of sale is void-
in-law ?
Heard the learned Senior Counsel for the parties.
It is admitted that the suit property originally belonged to Pappanad Zamindhar and the plaintiff is the only daughter. Ex.A-1 is the registration
copy of the settlement deed dated 26.10.1959 executed by the father in favour of the plaintiff, who was then a minor, describing the mother as a
guardian. The settlement deed came into force and it was also accepted and patta was also transferred in the name of the plaintiff under Ex.A-2
and kist was also paid under Ex.A-3. This being so, the plaintiff''s mother acting as a guardian for the minor, entered into an agreement of sale with
the 1st defendant under Ex.B-2 dated 03.04.1973. The 1st defendant is now admittedly in possession and enjoyment of the property. Now, the
plaintiff has filed the suit alleging that her father is alive and he is the natural guardian. This being so, the mother, who was only a de facto guardian,
has no right to enter into any agreement to sell the property to the 1st defendant and the transaction will be void under law. There was no necessity
to sell the property and the agreement of sale was also not for the benefit of the minor.
The learned senior counsel for the appellant/ plaintiff contended that the courts below ought to have held that the sale agreement Ex.B-2 is a
void transaction and not a voidable one. The mother of the appellant has no right to execute Ex.B-2 on behalf of the appellant since she was not
the natural guardian. She had also not obtained any permission from a Court of law as contemplated under the Hindu Minority and Guardianship
Act to convey the property. The courts below after having held that father of the appellant is an affluent Zamindhar ought to have held that there
was no necessity for the property of the minor to be sold even assuming without admitting that the mother of the appellant had the right to agree to
sell the property. The courts failed to see that any payment made either to the mother of the appellant or to the father of the appellant in pursuance
of Ex.B-2 would not be binding on her who was then a minor. The courts below ought not to have held that Ex.A-1 is only a benami transaction
and the appellant''s father alone continues to be the owner of the property. The Gift has become complete as admitted by the 1st defendant in his
written statement. The conclusion of the courts below that Ex.B-2 was actually entered into by the plaintiff''s father with the 1st defendant is
incorrect. If the property really belonged to the appellant''s father, nothing prevented him to enter into any sale agreement with him.
Section 4 of Hindu Minority and Guardianship Act, 1956 (hereinafter referred to as ''The Act'') refers to a natural guardian. A guardian
appointed by the Will of the minor''s father or mother, a guardian appointed or declared by court, and a person empowered to act as such by or
under any enactment relating to any court of wards. Section 6 of the Act relates to Natural guardians of a Hindu minor and it reads as follows:
Natural guardians of a Hindu minor:- The natural guardians of a Hindu minor, in respect of the minor''s person as well as in respect of the minor''s
property (excluding his or her undivided interest in joint family property), are-
(a) in the case of a boy or an unmarried girl-the father, and after him, the mother: Provided that the custody of a minor who has not completed the
age of five years shall ordinarily be with the mother;
(b) in the case of an illegitimate boy or an illegitimate unmarried girl - the mother, and after her, the father;
(c) in the case of a married girl - the husband:
Provided that no person shall be entitled to act as the natural guardian of a minor under the provisions of this section-
(a) if he has ceased to be a Hindu, or
(b) if he has completely and finally renounced the world by becoming a hermit (vanaprastha) or an ascetic (yari or sanyasi).
Explanation: In this section, the expressions ''father'' and ''mother'' do not include a step-father and a step mother.
Section 8 of the Act relates to powers of natural guardian and section 8(1), (2) and (3) are extracted as follows:-
Powers of natural guardian:- (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 realization, 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 term exceeding five years or for a term 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 of
the minor or any person claiming under him.
Section 11 relates to De facto guardian not to deal with minor''s property and it reads as follows:-
After the commencement of this 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 of the minor"".
The learned senior counsel for the respondent contended that Ex.B-2 transaction will be a voidable one. The mother is also competent to act
as a natural guardian for the minor daughter and under the circumstance, if the plaintiff is aggrieved by the transaction, she ought to have filed a suit
to set aside the document; but no such relief has been sought for presently. In short, the suit filed by the plaintiff is not maintainable under law.
There is also a concurrent finding by the courts below and unless there is substantial question of law, no interference is called for. The respondent
also would be entitled to get benefit u/s 53(A) of Transfer of Property Act. An agreement of sale will fall u/s 8(1) of the Act. Even if Article 60 of
the Limitation Act does not apply residuary, Article 113 will apply as also the court fee has to be paid u/s 40 of the Court Fees Act. It is only for
disposal of the immovable property of the minor, for which permission is necessary or can be obtained u/s 8(4) of the Act. An Agreement of sale
as such it does not create an interest in immovable property and therefore does not amount to disposal of the property and hence, no permission is
necessary. If the action of the guardian does not result in disposal of the property, such an action cannot be challenged at all. In any event, the
agreement of sale not being void and the payment of consideration of Rs.78,000/= has been paid, admittedly there should be a decree for refund
of the said amount along with interest.
Ex.B-2 is the impugned document in the case. According to the learned senior counsel for the appellant, during the lifetime of the father, who
being the natural guardian of the plaintiff, the mother has no right whatsoever to enter into an agreement and as such, by virtue of section 11 of the
Act, it is a void document under law. If the appellant is able to establish that it is a void document under law, then it is not necessary for the
appellant/plaintiff to set aside the same and she can ignore the document. However, if the respondent is able to establish that Ex.B-2 is a voidable
document, then naturally the appellant has to seek the relief of setting aside the document. Under the circumstance, the moot question relevant to
be considered in the case is whether the mother can act as a natural guardian even during the life time of the father. A bare reading of section 6
only indicates that in the case of a boy or an unmarried girl, the father and after him the mother. There is also a proviso to section 6 and if there is a
disqualification, no person should be entitled to act as the natural guardian of the minor. But the learned senior counsel for the respondent relied on
Ms. Githa Hariharan and Another Vs. Reserve Bank of India and Another, for the principle that the mother can act as a natural guardian of minor
even when father is alive. The word ''after'' in section 6(a) has to be read as meaning ''in the absence of father'' to make the section consistent with
constitutional safeguard of gender equality. It was further observed as follows:-
In all situations where the father is not in actual charge of the affairs of the minor either because of his indifference or because of an agreement
between him and the mother of the minor (oral or written) and the minor is in the exclusive care and custody of the mother or the father for any
other reason is unable to take care of the minor because of his physical and/or mental incapacity, the mother, can act as natural guardian of the
minor and all her actions would be valid even during the life time of the father, who would be deemed to be ''absent'' for the purposes of section
6(a) of the Act......... This phrase on a cursory reading, does give an impression that the mother can be considered to be natural guardian of the
minor only after the lifetime of the father. If the section is so understood the section has to be struck down as unconstitutional as it undoubtedly
violates gender equality, one of the basic principles of our Constitution. It is well settled that if on one construction a given statute will become
unconstitutional limits, the Court will prefer the latter on the ground that the Legislature is presumed to have acted in accordance with the
Constitution and courts generally lean in favour of the constitutionality of the statutory provisions.....If the father is wholly indifferent to the matters
of the minor even if he is living with the mother or if by virtue of mutual understanding between the father and the mother, the latter is put exclusively
in charge of the minor, or if the father is physically unable to take care of the minor either because of his staying away from the place where the
mother and the minor are living or because of his physical or mental incapacity, in all such like situations, the father can be considered to be absent
and the mother being a recognised natural guardian, can act validly on behalf of the minor as the guardian. Such an interpretation will be the natural
outcome of harmonious construction of Sections 4 and 6 of the Act, without causing any violence to the language of section 6(a)"".
The decision of the Apex Court has been followed in Jagannathan,K. ..vs.. A.M.Vasudevan Chettiar 2001 (2) CTC 641 a Bench decision of
this Court also. Relying upon these aforesaid two decisions, the learned senior counsel for the respondent strenuously contended that the mother
also can act as a natural guardian even during the life time of the father and as such, the transaction will be a voidable one. In the decision of the
Apex Court, the facts clearly disclosed that the mother was actually managing the affairs of the minor daughter, who was under her care and
protection, and the father was not taking any interest in the affairs of the minor and it was as good as if he was non-existent so far as the minor was
concerned. Where the father was alive but had fallen out with the mother of the minor child and was living separately for several years without
taking any interest in the affairs of the minor, the only conclusion that can be drawn is that the mother can also act as a natural guardian even during
the life time of the father under certain contingencies. But so far as the present case is concerned, there is nothing on record to show that the father
was acting against the interest of the minor or he is living away from the minor and he is not looking after the welfare of the minor and the minor
was exclusively under the control of the mother. No doubt, in the Settlement deed, the father had described the mother as a guardian for the minor
child. When the father is executing a settlement deed, he cannot put himself as a guardian for the minor child also and it was only under such
circumstance, the mother has been described as a guardian for the then minor plaintiff. In fact, patta was also transferred in the name of the plaintiff.
Now, the case of the respondent is that the settlement deed itself has not come into effect and the property continued to be the property of the
settlor. There is absolutely no material to come to such a conclusion. The respondent further stated that the father of the plaintiff was physically
present when the negotiations took place and the advance money was also paid only with him. If that be so, nothing prevented the respondent from
taking the signature of the father of the plaintiff in any one of the documents. The absence of any such thing on the part of the respondent would
only lead to a conclusion that only for the purpose of this case, it has been stated that the father of the plaintiff was present when the negotiations
took place and also at the time of payment of money. In fact, notice was issued on behalf of the minor by the mother calling upon the respondent to
pay the balance of money. A reply has been sent as if there was some cloud in title relating to the property.
It is seen from section 8(3) of the Act 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. Section 8(2) also discloses that the natural guardian shall
not, without the previous permission of the Court, mortgage or charge, or transfer by sale, gift, exchange or otherwise, any part of the immovable
property of the minor. There is absolutely no evidence to show that there was any necessity for the mother to enter into an agreement of sale under
Ex.B-2. It is the admitted case of the parties that the father of the plaintiff was the Zamindhar of Pappanadu and he was not in dire necessity of any
money to convey the property. The evidence adduced in the case clearly stated that the father was hale and healthy and both the father and mother
were living under one and same roof along with the plaintiff and the father had also no adverse interest against the minor or the family and under the
circumstance, the mother is not competent to act as a natural guardian of the minor. Hence, I am of the view that Ex.B-2 is only a void document
and it can be ignored by the plaintiff.
The learned senior counsel for the respondent relied on Suryaprakasam ..vs..Gangaraju AIR 1956 AP 33 relating to the power of a guardian
as follows:
He can only function within the doctrine of legal necessity or benefit. The validity of the transaction is judged with reference to the scope of his
power to enter into a contract on behalf of the minor. Even then personal liability arising out of the guardian''s contract is the liability of the minor''s
estate only"".
Reliance is also placed on Sinaya Pillai ..vs.. Munisami Ayyan (Vol.22 Madras 289), that a mortgage by guardians on estate of minor and
when the guardian had not obtained sanction of the Court as directed by section 29 of the Guardian and Wards Act, the mortgage so executed
was not void but only voidable and the defendant was entitled to avoid the mortgage but only on the condition of restoring any benefit received by
him thereunder to the person from whom it was received.
This decision is relied on for the alternative relief put forward by the learned counsel for the respondent that in case, if the Court comes to the
conclusion that Ex.B-2 is a void document, then the appellant should be directed to deposit the advance amount of Rs.78,000/= received, with
interest to the court. In fact, the learned senior counsel for the appellant also stated that he had already advised the appellant to pay the amount and
there may not be any difficulty in paying the advance amount already received; but so far as the interest is concerned, no interest is payable since
the respondent alone is in possession and enjoyment of the property and hence, he cannot claim any interest.
The learned counsel for the respondent also claimed that the respondent is entitled to claim benefit u/s 53(A) of Transfer of Property Act. No
doubt, by virtue of Ex.B-2, it appears that the possession had been given to the respondent and once if the court comes to the conclusion that it is
a void transaction, naturally the respondent is not entitled to take shelter u/s 53(A) of the Transfer of Property Act. It is also necessary to state that
the plaintiff has filed the suit within one year on her attaining majority. The respondent had gone to the extent of questioning the settlement deed
executed by the father on the ground that it was executed only to get away from the Land Ceiling Act. It is not necessary to go into the question at
this stage relating to the truth and validity of the settlement deed. The learned senior counsel for the respondent also contended that neither the
plaintiff nor the parents have gone into the box and P.W.1 is only a person looking after the affairs. The examination of any witness on the side of
the appellant is absolutely unnecessary. As adverted to, the main question relates to whether Ex.B-2 is a void or voidable document. In my view,
both the courts below have not properly appreciated the evidence and not applied the correct legal position. A perusal of the judgment of the trial
court indicates that since the parents of the plaintiff are residing in one and the same roof, without the knowledge of the plaintiff''s father Ex.B-2
could not have been executed by the mother. Similarly, in respect of the notice sent by the mother of the plaintiff, it is stated that it could have been
sent only on the advice of the father of the plaintiff. Apart from that, it is further stated that Ex.B-2 is an agreement entered into between the
plaintiff''s father and the defendant. It is not known on what basis the trial court came to such a conclusion in the absence of any signature on the
part of the plaintiff''s father in any of the document. Similarly, the lower appellate court also has committed a serious mistake in applying the legal
provisions. The lower appellate court in para 14 of the judgment stated that although Ex.B-2 was executed by the mother, it can be construed as a
document executed by the father. This would only indicate that the conclusion of the lower appellate court is based on mere surmise and
conjecture. The substantial question of law involved in the case is that Ex.B-2 is a void document since the respondent had failed to establish that
the father, natural guardian, was acting against the interest of the minor. In fact, while appointing any person as a guardian, the welfare of the minor
has to be taken up for paramount consideration. In the present case, it has not been established that the father was acting against the welfare of the
minor and under the circumstance, the mother, being de facto guardian, has no right whatsoever to enter into any agreement of sale; more so,
without any necessity or benefit for the then minor. Both the courts below have committed an error in applying the legal position and the conclusion
was arrived at on improper and irrelevant materials. The finding is a perverse one and is liable to be interfered with. However, the respondent has
parted with a sum of Rs.78,000/= towards the sale consideration and under justice and equity, the appellant has to be directed to deposit the said
amount into the Court within a reasonable time.
For the reasons stated above, the Second appeal is allowed and the judgment and decree of the courts below are set aside and the suit is
decreed, directing the defendant to deliver the suit property to the plaintiff in a period of three months. In other respects, the suit is dismissed. The
appellant is also directed to deposit the sum of Rs.78,000/= to the credit of the suit in a period of three months, failing which, the respondent will
be entitled to claim interest at 9% per annum. However, there will be no order as to costs.