Takhat Singh vs Deolal

T.S. Doabia, J.

The plaintiffs had one half share in agricultural holding located in survey Nos. 142, 146, 153 and 252 in village Armaya, Tehsil Chachoda. District Guna. The other one half share was in the name of the Gaja uncle of plaintiffs 1 and 2, It is alleged that plaintiffs executed a sale-deed on 11th of August, 1967, This is registered sale-deed executed by plaintiffs 2 and 3, Plaintiff No. 3 acted as guardian of plaintiff No. 1 as he was a minor at that time.

On 20th July, 1976, the plaintiffs/ respondents filed a suit for cancellation of sale-deed executed on 11th of August, 1967. They pleaded that the sale-deed executed is void and it does not affect their rights. It was stated that plaintiff Nos. 1 and 2 wore minor at the time of alleged sale. Plaintiff No. 3 was a widow. It is further stated that the uncle of plaintiffs No. 1 and 2 Gaja had obtained a loan from the defendant and as he was unable to repay the amount, the defendant forcibly caught hold of the plaintiffs and took them to Guna and got the sale-deed executed with regard to one half share of their property. It was stated in the plaint that the sale deed has been executed without consent and consideration was not paid. It was further stated that the plaintiffs were given a threat and with a view to protect their life and liberty they migrated to Kota. On attaining majority, they returned to the village. Inquiries were made from the Patwari. They were informed that a sale-deed was got executed on 11th of August, 1967. They accordingly filed a suit and denied the execution. The suit was filed on the following grounds :-

(i) Sale-deed was executed by them without their free Will and they were not a consenting party to the same,

(ii) The plaintiffs No. 1 and 2 were minors at the time of executing the sale and the sale would not be binding on them.

The defendant controverted the allegations and pleaded that the suit is barred by limitation. As noticed above, the trial Court dismissed the suit, but the first appellate Court had decreed the same. This decision is challenged by the defendant.

The fact that the plaintiff No. 1 was minor at the time when the deed in question was executed is not disputed. The sale-deed has mentioned the age of Deo Lal as 15 years. Gopilal is stated to be 25 years old. It has been mentioned that sale-deed was executed on behalf of Deo Lal by his mother.

It is settled proposition of law that property belonging to a minor cannot be sold by the natural guardian unless and until there is a prior permission from the Court under the Hindu Minority and Guardianship Act, 1956. Thus the case is required to be looked from two angles. One is with regard to sale made by the mother for and on behalf of her minor son and the other is of sale of her own share and her other share.

5A. So far as sale of the share of the minor is concerned, this on the face of it is in contravention of Section 8 of the Hindu Minority and Guardianship Act, 1956. This Section reads as under :-

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 change, 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) of sub-section (2), is voidable at the instance of the minor or any person claiming under him.

(4) No Court shall grant permission to the-natural guardian to do any of the acts mentioned in sub-section (2) except in case of necessity or for an evident advantage to the minor.

(5) The Guardians and Wards Act, 1890 (8 of 1890), shall apply to and in respect of an application for obtaining the permission of the Court under sub-section (2) in all respects as if it were an application for obtaining the permission of the Court u/s 29 of that Act, and in particular -

(a) proceedings in connection with the application shall be deemed to be proceedings under that Act within the meaning of section 4A thereof;

(b) the court shall observe the procedure and have the powers specified in sub-section (2), (3) and (4) of section 31 of that Act; and

(c) an appeal shall lie from an order of the court refusing permission to the natural guardian to do any of the acts mentioned in sub-section (2) of this section to the Court which appeals ordinarily life from the decisions of that Court.

(6) in this section "Court" means the City Civil Court or a District Court or a Court empowered u/s 4-A of the Guardians and Ware;, Act, 1890 (8 of 1890), within the local limits of whose jurisdiction the immovable property in respect of which the application is made is situate, and where the immovable property is situate within the jurisdiction of more than one such Court, means the Court within the local limits of whose jurisdiction any portion of the property is situate.

A hare reading of the above provision indicates that sale made by the mother without obtaining permission of the Court cannot be sustained. The substantive law governing the minor as noticed above is contained in Section 8 of the Hindu Minority and Guardianship Act, 1956. Sub-section (2) of Section X provides that the natural guardian shall not without the previous permission of the court mortgage or change or transfer by sale, gift, exchange or otherwise any part of the immovable property of the minor. Whereas, sub-section (3) provides that any disposal of the immovable property by natural guardian in contravention of sub-section (2) is voidable at the instance of a minor or a person claiming under him. The question is, does this provision requires a minor who wants to avoid the alienation made by his guardian in contravention of sub-section (2) to get it set aside from the Court by filing a suit, and as to what is the limitation in this regard.

The general position of law is that Limitation Act neither confers a right nor an obligation to file a suit if none exists under the substantive law. It only provides a period of limitation for filing a suit. The Privy Council in Himnath Chatterji v. Mohunt Mathoor Mohan Goswami, 1893 IA. 183 observed:

The intention of the law of limitation is not to give a right where there is not one but to interpose a bar after a certain period to a suit . to enforce an existing right.

A Division Bench of the Madras High Court in CTN Narayana Chettiar. v. V.S.V. Lakshmartan Chettiar, AIR 1915 Mad. 1196 held:

The Limitation Act merely prescribes within what periods the suit must be brought and can not be construed as of it self creating an obligation to sue where none exists.

The position as it existed before the enforcement of Hindu Minority & Guardianship Act, 1956 was noticed by the Privy Council in Hanooman Prasad v. Mussumat Babooee, 1856 (6) Moo. Ind. App. 393. While enunciating the Law as the subject, it was observed:

The power of the manager for an infant heir to charge an estate not his own, is under the Hindu law, a limited and qualified power. It can only be exercised rightly in a case of need or for the benefit of the estate. The actual pressure on the estate, the danger to be averted, or the benefit to be conferred upon it, in the particular instance is the thing to be regarded.

See also the two other decisions of the Privy Council reported as Mata Din v. Abed All 1912 ILR 34 All. 213 and Luchmesvar Singh v. Chairman of the Darbhanga Municipality, 1891 ILR 18 Cal. 99. Thus before the Act of 1956 the alienation made by a natural guardian was neither void or voidable. The minor could only avoid it by getting it set aside by the Court on the proof that neither there was any need for the alienation nor it was for the benefit of the estate.

It would also be useful to quote Trevelyan''s on Minors, Edn. 5 page 202. The passage reads as under :-

A transaction which is voidable at the instance of the minor may be repudiated by any act or omission of the late minor, by which he intends to communicate the repudiation, or which has the effect of repudiating it, for instance, a transfer of land by him avoids a transfer of the same land made by his guardian before he attained the age of majority. It is not necessary that he should bring a suit, but a suit to set aside the acts of his guardian during the minority amounts of course to an express repudiation.

A Division Bench of the Patna High Court in Jagdamba Prasad Lalla and Another Vs. Anadi Nath Roy and Others, made the following observations :-

The next question is whether the minor has avoided the deed of release. There is some confusion in the minds of the litigants that it is necessary for a minor either to institute a suit on coming of age to avoid the transaction entered into by his guardian on his behalf or that some other guardian or next friend of the minor must institute a suit to avoid the transaction which was entered into by another guardian. The minor can avoid the transition in a variety of ways, for instance, by dealing with or transferring the very property which has been dealt with by the guardian on his behalf and which transactions he does not choose to ratify.

See also Nagendra Nath Ghose Vs. Mohini Mohan Bose and Others, wherein it was held:

Where immovable property belonging to a minor is sold by his certificated guardian for consideration but without the permission of the District Judge, and the same property is subsequently sold by the certificated guardian but without the permission of the District Judge/the second sale does not purport to transfer a mere right to sue within Section 6, Transfer of Property Act, and it is not necessary for the second vendor expressly to seek to set aside the sale by suit brought within the period prescribed by Article 91. He is entitled to sue for possession of the property on a declaration that the previous sale is not binding on him and his suit will be governed by Art. 120, and further the second vendee can get the possession of the same on his reimbursing the first vendee.

The view expressed by V.R. Krishna Iyer, J. (as he then was) in Iruppakkatt Veettil Viswanathan''s wife Santha Vs. Deceased Kandan''s L.Rs. Wife Cherukutty and Others, is as under :-

Transfer of minor''s property by his natural guardian without sanction of the Court is voidable at the instance of the minor and he can avoid it by his conduct without a suit.

Thus in a suit by a minor for possession of his property sold by the natural guardian in contravention of Section 8(2) of the Act would be governed by Article 65 and not 60 of the Limitation Act. The sale in this case was made on 20.7.1967 and suit was filed in July, 1976. This is within the period of limitation.

So far as sale by other two plaintiffs is concerned, it has been brought on the record that the sale deed was executed under coercion. The consideration was not paid before the Sub-Registrar. The deed was got executed at Guna and not at Chachoda, which is a Tehsil headquarter. This is a factor to he taken into consideration.

Merely because a document has been registered would not debar the person concerned to contend that he never intended to execute such a document. In this regard reference may be made to a Division Bench judgment of Madras High Court in Doraiswami Vs. Rathnammal and Others, wherein it was held that the plea that signatures were obtained by misrepresentation can always be taken and this plea is not in consistent with the provisions of Evidence Act, 1872 or the Indian Registration Act, 1908.

Reference may again be made to a decision of the Orissa High Court in Chandhala Bewa Vs. Madhab Panda and Others, A suit for declaration of title and possession impugning certain documents executed by the plaintiff who was an old illiterate lady of a village was filed. It was held that in order such a document might be enforced against the lady the defendant vendee must prove that the documents were read over and explained to her and that she knew the nature of the transaction. The evidence on record was held to be unsatisfactory to prove execution and it was held that the title did not pass to the vendee. Again in Md. Aftabuddin Khan and Others Vs. Smt. Chandan Bilasini and Another, the subject-matter of the transaction was sale by a Hindu widow. A suit by her for declaration that the sale was not binding on her as she was suffering from dotage and lost her power of understanding was held to be maintainable. In the present case it has been brought on the record that the sale-deed was executed under coercion. Again consideration was not paid before the Sub-Registrar. The deed was not executed at Guna and not at Chachoda. A large tract of land has been sold for a paltry amount of Rs. 900/- . The mother of the plaintiff was an illiterate widow. As such the finding recorded by the lower appellate Court is correctly recorded.

There is no scope for interference. This second appeal is dismissed with no order as to costs.