T.M. Krishnamoorthy Pillai vs Mangalam

The second defendant in O.S.No. 320 of 1980 on the file of the Court of District Munsif, Valangaiman at Kumbakonam, who lost before both

the Courts below, is the appellant in the above second appeal.

The said suit has been filed for recovery of possession of the suit properties on the claim made by the plaintiff that the sale in favour of the

second defendant - appellant under a registered sale deed dated 31.7.1979 marked as Ex.B-4 is void and non est in the eye of law and therefore,

the plaintiff is entitled to recover possession, the suit having been presented within twelve years from the date of such alienation. The farther case of

the plaintiff was that on 22.8.1968, Lakshmi Ammal, the mother, sold under Ex.B-1 item No.1 of ''B'' schedule properties to her another son,

Venkataraman, which alientation was not for the benefit of the plaintiff or her sister and that it is also bit by section 11 of the Hindu Minority and

Guardianship Act and consequently, the subsequent sale by the said purchaser in favour of the second defendant also does not have the

consequence of conveying lawful title.

Defendants 1 and 3 were absent and set ex parte and the 4th defendant submitted to a decree. It is the second defendant, who filed a written

statement contending that the settlement deed dated 11.5.1934 is a void document, that the default clause incorporated in the settlement deed is

invalid, as also the subsequent partition and if at all, the alienation in question is questionable only by defendants 3 and 4 and not bythe plaintiff and

that inasmuch as the allenation by the mother was for the purpose of celeberating the marriage of the plaintiff, it was for the necessities of the then

minor plaintiff and consequently, the suit not having been filed as envisaged under Artile 60 of the Schedule to the Limination Act within three years

from the date of attaining majority, the suit claim is barred and that the provisions of the Hindu Minority and Guardianship Act has no application to

the case on hand.

The learned trial Judge, after conclusion of the trial and considering the respective claim of parties on the basis of the materials placed on record,

came to the conclusion that by virtue of section 11 of the Hindu Minority and Guardianship Act, while the 4th defendant, father, was alive, the

mother as a de facto guardian, cannot alienate the properties of the minor without the sanction of the Court and therefore, the same was void and

as such, the plaintiff''s claim was sustained and the suit came to be decreed also holding that the suit has been filed within the period of limitation

prescribed under Article 65 of the Schedule to the Limitation Act, 1963, which alone applied to the case an hand. Aggrieved, the second

defendant filed A.S.No.60 of 1983 before Sub-Court, Kumbakonam. The learned subordinate Judge also concurred with the view expered as

also the conclusions arrived at by the learned trial Judge and dismissed the appeal. It may be pointed out here that both the Courts below, apart

from finding the necessary factual issues in favour of the plaintiff, have applied the principles of law as laid down in several decisions of this Court

as indicated in the judgments of the Courts below. Not satisfied, the second defendant has pursued the matter before this Court by filing the above

second appeal.

The learned Senior Counsel for the appellant, Mr. T.R. chandramouli, while elaborating the substantial questions of law formulated at the time of

admission of the appeal, contended that the sale under Ex.B-1 is not void document and that in any event inasmuch as the said sale was effected

by the de facto guardian, namely, the mother, in the absence of any active interests shown by the further in the affairs after family or to administer

the estate of the minor, and by his father participation in the sale transaction by attesting the document the transaction stood rendered legal for all

purposes and the provisions contained in the Hindu Minority and Guardianship Act, particularly section 11, will have no application to such a

transaction. Argued the learned Senior counsel further that the period of limitation applicable to vindicate the rights of the plaintiff only, in such

circumstances, would be as provided under Article 60 and not Article 65 as held by the Courts below and consequently, the judgments and

decrees of the Courts below are liable to be set aside.

Per contra, Mr. N. Varadarajan, learned counsel appearing for the first respondent-plaintiff, while adopting the reasons assigned by the Courts

below, urged that there are in any number of subsequent decisions of this Court as also of the Apex Court, approving the principles of law applied

by the Courts below in this case and consequently, no patent error of law or perversity of approach can be attributed to vitiate the concurrent

judgments of the Courts below to warrant interference in this second appeal and that the appeal does not merit acceptance in my hands.

The question as to whether the alienation by a de facto guardian of the minor''s property without the prior permission of the competent Court is

void transaction and the peiod of limitation within which the minor, in such circumstances, could seek for relief, was not a matter, which was res

integra even before the latest pronouncement relied upon for the first respondent -plaintiff, came to be rendered. The decisions in Mayilswami

Chettiar v. Kaliammal1969 I MLJ. 177 Angammal v. Balasubramanian, 1980 (I) MLJ. 242 Sundaramoorthy v. Shanmagam Nadar1980 (I) MLJ.

486 and Muthalu Ammal v. A.V. Amudham1977 (II) MLJ. 215 which were relied upon by the Courts below bear ample testimony to the same.

Subsequent to the above series of judgments, the apex Court in Pannilal v. Rajinder Singh and anothe1994 (I) L.W. 40 and Kallathil Sreedharan

v. Komath Pandyala Prasanna1997 (I) MLJ. 61 (S.C.) and Govindaraju Padyyachi, P. and another v. V.V.O. Malavaraya Nayanar and others,

1997 L.W. 586 rendered by a learned single Judge of this Court, though reiterated the same principles, would indicate that there was no scope for

even entertaining any doubts about the correctness of the legal principles supplied to the case on hand by the learned Judges, who decided the

cases in the Courts below-Realising the series of hostile decisions staring against the plea of the appellant, the learned Senior Counsel placed

strong reliance upon the decisions of the of the Apex Court in Jijabai Vithalrao Gajre Vs. Pathankhan and Others, and Mayilswami Chettiar''s

case, 1969 (I) MLJ. 177 of a learned single Judge of this Court and tried to urge that on the facts found in this case, the other series of judgments

will have no application and the present case would very much deserve the application of the principles laid down in those two decisions.

The decisions in Jijabai Vithalrao Gajre Vs. Pathankhan and Others, is one where the Apex Court specifically found as a fact that though the

father was alive, he had fallen out with the mother of the minor daughter and was living separately for several years without taking any interest in the

affairs of the minor, who was in the keeping and care of the mother and therefore, in such peculiar circumstances, the father should be treated ""as if

non-existent and therefore, the mother could be considered as the natural guardian of the minor''s person as well as property"" and consequently,

had power to bind the minor by granting lease of her land in the course of proper management of the property. In Myilswami Chettiar''s case,

1969 (I) MLJ. 177, a learned single Judge of this Court expressed the vies that even where there is a father for the minors alive, the mother can,

acting as de facto guardian, of the minors alienate their property for necessity and that the father having attested the mortgage deed, should be

deemed to have acquiesced in the mortgage and the alienation would be valid, if it is for necessity. Such decision came to be rendered by the

learned single Judge, as could be seen from a perusal of the judgment, with out any reference to the embargo placed on the powers of the de facto

guardian under the provisions of the Hindu Minority and Guardianship Act, 1956, apparently influenced by the principles governing such a question

under the old Hindu Law, and that tool prior to the coming into force of the Hindu Minority arid Guardianship Act, 1956, and therefore can be of

no assistance for the appellants in this case. The decisions of this Court in Angammal''s case, 1980 (I) MLJ. 242 and Sundaramoorthy''s case,

1980 I MLJ. 486, brought about the distinctions between the law governing a case prior to and after the coming into force of the Hindu Minority

and, Guardianship Act and there is no scope for applying cased decided without specific reference to the 1956 Act. The observation made in that

context on the impace of participation by the father could not be availed of in a case, where there is absolutely no possibility for a de facto guardian

to convey or alienate the rights or interests of a minor without prior sanction obtained from a competent Court.

The decision in Jijabai Vithalrao Gajre Vs. Pathankhan and Others, , on which strong reliance has been placed by the learned Senior Counsel

for the appellant had been considered by the Apex Court in Panni Lal''s case, AIR 1971 SC. 40 and the application of the principles to the

restricted situation in respect of which it was rendered, has been pointed out subsequently by the Supreme Court itself. On facts the case on hand

cannot be said to be one, where the natural guardian father, had abandoned the minor''s interest or left the family once and for all to lead to a

presumption as to the natural guardian became non-existent and the mother could be elevated and placed on the pedestal of a natural guardian to

deal with the minor''s property. That the father was also in the family very much and it is only by nomination, the mother became the de facto

guardian and that, therefore, the mother could not be raised to the level of natural guardian, is obvious from the facts found in this case, which

renders, in my view, the ratio of the decision in Jijabai Vithalrao Gajre Vs. Pathankhan and Others, is wholly inapplicable to the case on hand.

The next question that looms large for consideration as to the impact and legal effect of attestation by the father. In my view, the factum of

attestation by the father to a transaction, which is otherwise void in law, has no legal consequence at all for the reason that such attestation does not

have the effect of rendering the alienation indisputably made by the de facto guardian, to be really that of the natural guardian in the course of

proper and due exercise of the powers of such natural guardian. In any event, in my view, the significance of attestation in law is only to estop the

attestor to the document from denying the contents of the document, that too if the contents of the same and the legal implication of the attestation

are shown to have been well within the knowledge of the attestor at the time of making such attestation and not help to make the attestor, the real

executant of the document itself. Consequently, in my view, the factum of attestation by the father does not give any sanctity to the transaction so

as to make it his own document and so as to dispense with the statutory requirement of obtaining sanction from the competent Court before

alienation by the de facto guardian and to take the transaction outside the purview of the mandatory prohibition contained in section 11 of the

Hindu Minority and Guardianship Act.

The further question that requires to be considered is about the period of limitation within which the plaintiff should have instituted the suit -

whether Article 60 of the Schedule to the Limitation Act applies or Article 65 of the Schedule to the Limitation Act enures to the benefit of the

plaintiff to seek for recovery of possession. Article 60 has relevance and application only when a relief to set aside a transfer of the property made

by the guardian of a ward is sough for in any proceedings. Indisputably the relief sought for in this case is not one such for the obvious reason that

the alienation covered under Ex.B-1 has been held to be a void transaction, which, finding and declaration in law does not require to be disturbed

set aside. If that be the position, the plaintiff is entitled to recover possession of the properties and as held concurrently by both the Courts below,

the suit filed within a period of twelve years from the date of possession by the alienee under the void transaction, when only it can be said to

become adverse to the plaintiff, is well - within the period of limitation provided under Article 65 of the Schedule to the Limitation Act, and the suit

claim cannot be said to have been barred.

The second appeal, therefore, fails and shall stand dismissed. There will be no order as to costs.