Thirumalai and Another vs Goniathi Ammal and Another

S.S. Subramani, J.—Defendants 1 and 2 in O.S.No. 243 of 1979, on the file of District Munsif''s Court, Kovilpatti, are the appellants.

Plaintiff is first respondent.

Reference to parties, in this judgment will be according to their rank in the suit.

Plaintiff filed the suit for declaration that she is the absolute owner of the plaint schedule property, and for a consequential injunction against the

defendants. The property originally belonged to one Shanmugham Chettiar who executed Ex.A-1 gift deed to in favour of plaintiff on 23.8.1939

corresponding to 12.5.1115 (Tamil era). Plaintiff is the wife of third defendant Gurusamy Chettiar (2nd respondent herein) and Ex.A-1 gift deed

was executed pursuant to the assurance which the third defendant''s father had made before their marriage. It is the further case of plaintiff that ever

since the date of the gift, she is the absolute owner, and none of the defendants has any right over the same. The reason for filing the suit is that the

father of defendants 1 and 2 one Maruthappa Servai took the property in court sale conducted in S.C.No. 208 of 1953, on the file of Sub Court,

Tuticorin, on 24.2.1960, It is her case that she is not a party to the said proceedings, and third defendant has also no right over the same. Even if

any person has got any right, she (plaintiff) has prescribed title by adverse possession. On the basis of the court sale and also the delivery list,

defendants are attempting to interfere with her possession. The same is sought to be prevented by filing the suit.

In the written statement, defendant''s 1 and 2 have alleged that Ex.A-1 is void and the same has not been acted upon. The property originally

belonged to third defendant only, and they have taken the property in court sale and the property has also been delivered to them on 10.4.1960.

They also contended that ever since the date of the delivery list, Maruthappa Servai alone has enjoyed the property and thereafter defendants 1

and 2 are holding the same and even if the plaintiff had any right, the same is barred by adverse possession.

The trial court, as per judgment dated 7.11.1980, held that the plaintiff is the absolute owner of the property. It held that even though plaintiff

was a minor on the date of Ex.A-1, she was competent to receive the benefit, and the gift deed could be validly accepted by her. It also came to

the conclusion that the plaintiff herself has been dealing with the property which is the subject matter of the gift. She has been paying kist and patta

has also been changed in her name. It further came to the conclusion that plaintiff has also prescribed title by adverse possession. It was declared

that the court sale and the consequent delivery list has not affected the plaintiff''s right or possession and the defendants were restrained from

interfering with her possession. The suit was decreed as prayed for.

The matter was taken in appeal by the appellants in A.S.No. 112 of 1980, on the file of Subordinate Judge''s Court, Tenkasi. Before the lower

appellate court, an argument, was taken by the appellant that Ex.A-1 gift is void and invalid since it was executed against the Child Marriage

Restraint Act, and the court cannot recognise such transaction, the same being against public policy. The other contention raised before the trial

court was also reagitated. But the lower appellate court did not think of granting any relief to the appellants, and, as per judgment dated

31.8.1981, dismissed the appeal. The lower appellate court held that the plaintiff has absolute title and she had been in possession ever since the

date of that document and she has also prescribed title by adverse possession. It was further held that there had been a valid acceptance and the

document cannot be thrown out as void under Child Marriage Restraint Act. It held that the marriage is valid and title to the property, when the

same is claimed on the basis of Ex.A-1, cannot be taken away merely on the provisions of Child Marriage Restraint Act. The lower appellate court

also confirmed all the findings entered by the trial court and dismissed the appeal. The concurrent findings of the courts below are assailed in this

second appeal on the following substantial question of law:

Is the settlement under Ex.A-1 vitiated as being related to joint family properties and also by reason of the provisions of the Child Marriage

Restraint Act and Section 23 of the Contract Act?

Learned Counsel for appellant argued that Ex.A-1 is a void transaction ab initio and the court cannot recognise the title of plaintiff since she

claims right over the property only on the basis of the void transaction. The reason for such an argument is that plaintiff was 17 years old and a

minor when the document was accepted. Learned Counsel submitted that it goes against the provisions of the Child Marriage Restraint Act. The

further argument is that the deed itself was executed in consideration of the child marriage and when the object is unlawful, the court may not

recognise it. If title is declared on the basis of the document, it amounts to recognition of title obtained in fulfilment of an unlawful object and which

is also against public policy. It was argued that u/s 23 of the Contract Act, the document shall not be considered for any purpose. It was further

argued that even if the plaintiff gets any right, the court will not protect such right, and in such cases the court will only allow the parties to maintain

status quo.

As against the said contention, learned Counsel for first respondent submitted that the marriage of Hindu woman is always considered as a

family necessity, and under the Child Marriage Restraint Act, the marriage is never considered as null and void. Merely because child marriage is

prohibited it does not follow that the marriage would be declared invalid. Only persons who are responsible for such marriage are taken to task

under the Child Marriage Restraint Act. It was also argued that Ex.A-1 gift deed was executed subsequent to the marriage and not in

consideration for a marriage to be conducted. ,

Heard learned Counsel on both sides.

I do not think that the contention of learned Counsel for appellants could be accepted, the reason being that at the time when the gift deed

Ex.A-1 was executed, plaintiff was not a child as defined under that Act. The Act was enacted and came into force from 1.4.1930. As per the

original Act then stood, a child was defined, if a male has not completed 18 years and a female who has not completed 14 years of age. Under the

Amending Act 41 of 1949, the age of a female member was increased from 14 years to 15 years. The Act was subsequently amended under

Central Act 2 of 1978 whereby a child has been defined as a person, in the case of a male, who has not completed 21 years of age, and in the

case of a female, who has not completed 18 years of age. On the date when A-l was executed, the original Act was in force, and during that time,

the plaintiff was 17 years and, therefore, not a child. Section 6 may not also have any application here since there is no evidence regarding the age

of the husband, and it is not the case of the appellant that the plaintiff has contracted a child marriage. On the date when Exhibit A.I was executed,

law permitted the marriage of a female above 14 years of age and the same was not prohibited under Child Marriage Restraint Act.

Much reliance was placed by learned Counsel for appellants on the decision of this Court reported in Chandra Sreenivasa Rao v. Korrapatti

Raja Rama Mohana Rao and Ors. (1951) 2 M.L.J. 264 : AIR 1962 Mad. 579, That is a case of admitted child marriage. In that case, Subba

Rao, J., as he then was, was considering a question whether any act of a guardian or parent celebrating the marriage of a child is against public

policy. In that case, for the purpose of marriage of a child, loan was taken. The lender was aware that the purpose of the loan was for conducting a

child marriage. Learned Judge refused to grant relief to the plaintiff, applying the principles of Section 23 of the Indian Contract Act.

The decision reported in Mannalal Khetan and Others Vs. Kedar Nath Khetan and Others, was also relied on. paragraphs 21 and 22 of the

decision were stressed by learned Counsel for appellants. They read thus:

If anything is against law, though it is not prohibited in the statute but only a penalty is annexed the agreement is void. In every case where a statute

inflicts a penalty for doing an act, though the act be not prohibited, yet the thing is unlawful, because it is not intended that a statute would inflict a

penalty for a lawful act.

Penalties are imposed by statute for two distinct purposes: (1) for protection of the public against fraud, or for some other object of public policy;

(2) for the purpose of securing certain sources of revenue either to the State or to certain public bodies. It is clear that a penalty is imposed by

statute for the purpose of preventing something from being done on some ground of public policy, the thing prohibited, if done, will be treated as

void, even though the penalty imposed is not enforceable.

Reliance was also placed on the decision reported in Rambhau Ganjaram Vs. Rajaram Laxman and Others, , which is also a case of child

marriage wherein certain alienations were effected by a de facto guardian to discharge the debts incurred in connection with a child marriage. The

child, after she became a major, challenged the alienations, and Shah, J., as he then was, held that the alienations were invalid in view of the

provisions of Child Marriage Restraint Act.

On the date when Ex.A-1 was executed, there was no prohibition for conducting the marriage of a female above 14 years of age. Subsequent

amendment or change in law cannot affect the validity of Ex. A-1. Decision reported in (I.T.C. Ltd. v. G.J. Fernandes AIR 1989 S.C. 539 and

reliance placed on the decisions reported in Maheswar Das and Others Vs. Sakhi Dei, and Nutan Kumar and others Vs. IInd Additional District

Judge, Banda and others, , Have no bearing to the facts of the case.

The Child Marriage Restraint Act does not say as to whether a gift executed in favour of a minor is invalid. In all the cases cited by learned

Counsel for appellants, the suit was between the contracting parties, wherein one of the contracting parties challenged, the transaction itself. Here,

that is not the case. Neither the third defendant the husband nor his father is challenging the gift. Defendants 1 and 2 are only auction purchasers

and they are challenging the transaction as apposed to public policy. When the marriage is not prohibited with a female who was more than 14

years of age at the time when Exhibit A. 1 was executed, the same cannot be challenged by a third person who is an utter stranger to the contract.

An argument was also taken that since the gift was executed in consideration for the marriage, it is invalid. As I said earlier, the Child Marriage

Restraint Act does not deal with the right to immovable property. It only penalises certain persons who conduct the marriage.

In Halsubury''s Laws of India'' - Vol.6, dealing with children and young persons, in chapter 50 paragraph 16, the learned Author says:

By the provisions of the Hindu Marriage Act, 1955, a valid marriage between two Hindus can take place, apart from other conditions, where the

bridegroom has completed the age of 21 years and the bride has completed the age of 18 years. Any marriage in contravention of the age limit has

not been declared to be void or voidable but such marriages are punishable with simple imprisonment to the extent of 15 days and fine upto Rs.

1,000 or both. If the marriage of a girl has been solemnised before she attained the age of 15 years, she can repudiate the marriage after attaining

15 years but before attaining the age of 18 years, whether or not the marriage has been consummated, she can also seek divorce thereafter from

the court. There is no rule of Hindu Law which sanctions early marriage for Hindu males.

In the earlier paragraph in the same chapter viz., para 10, the learned Author says while commenting on Child Marriage Act thus:

...The object of the Act is to restrain the performance of a child marriage and the question of the validity of the marriage is beyond the scope of the

Act.

In this case, the marriage itself was conducted long before the Hindu Marriage Act came into force and except for the Child Marriage Restraint

Act as it then stood, there was no other prohibition. The argument that Exhibit A.1 was executed in consideration for a child marriage cannot be

accepted. Before marriage, an assurance was given by the father of the third defendants that he will execute a gift deed in favour of plaintiff, if she

marries the third defendant. Such a contract is not invalid in law, nor is it prohibited under any statute. Even under Dowry Prohibition Act, the

property acquired is declared as asset of the woman and she is entitled to exercise the right of ownership. Section 5 of the Dowry Prohibition Act

says that any agreement for the giving or taking of dowry shall be void. Section 6 further declares that where any dowry is received by any person

other than the woman in connection with whose marriage it is given that person shall transfer it to the woman within a particular time. On going by

the definition of the wore ''dowry'' the statement in Ex.A-1 may attract the same. But the benefit which the woman is getting is allowed to be

retained by her, by statute itself. Applying the same principle, even if the property described under Ex.A-1 is considered as one given in

consideration of Ex.A-1, she is entitled to exercise a right of ownership over the same. In this connection, it is only relevant to take into

consideration a decision of the Kerala High Court reported in Moiliakiriath Abbas Vs. Meeyanathu Kunhipathu and Another, , wherein a learned

Judge of that High Court has considered the scope of Sections 3 to 6 of the Dowry Prohibition Act and has held in para 4) that,

...the consequence is not that the transaction is invalid.... As per Section 6, the plaintiff is bound to transfer the property to the woman and he is a

trustee until such transfer for the woman. In other words, the beneficial interest in the transaction is with the woman and the plaintiff transferred is

only a trustee. That shows that the transaction does not become a void transaction. If it should be a void transaction, there is no transfer at all. The

property continues to be with the person who purported to effect a transfer. But that is not the scope of the Act. The property passes from the

giver to the taker. But the taker must hold it for the benefit, of the woman....

I do not find that Ex.A-1 transaction is prohibited under Child Restraint Act.

Both the courts below have further held that from the date of Ex.A-1, plaintiff has been in continuous possession, and even if any person had

any title, the same is lost by adverse possession. Even if Ex.A-1 is construed as void as contended by learned Counsel for appellants, in view of

that finding, plaintiff is entitled to succeed.

The question of law raised in this second appeal is found against the appellant and consequently the second appeal is dismissed.