U. Palanisamy vs K. Thangavelu and U. Krishnasamy

R.S. Ramanathan, J.—The unsuccessful first Defendant is the Appellant.

The suit was filed by the first Respondent herein for partition and separate possession. The case of the first Respondent was that the suit

property is the ancestral property and the Appellant is the paternal uncle and the second Respondent is his father and all of them constitute a joint

Hindu Family and the first Respondent has got 1/4 share in the suit property by birth and without any legal necessity, his father executed a release

deed dated 25.2.1976 releasing his share as well as the first Respondent''s share in the property in favour of the Appellant and the said release

deed is not binding on the first Respondent and he is entitled to 1/4 share in the property and therefore, filed the suit for partition. It is also stated in

the plaint that the second Respondent, his father, was addicted to alcohol and was having all vices and taking advantage of the weakness of the

second Respondent, the Appellant colluded with the second Respondent with the intention of misappropriating the joint family properties, and

obtained the release deed in his favour.

The second Respondent herein, father of the first Respondent remained absent and was set ex parte and the Appellant filed statement denying

the allegations made in the plaint and stated that the release deed was validly executed by the kartha of the family and it is binding on the first

Respondent and the release deed is a valid one and the first Respondent was a party to the said document and without a prayer to set aside the

release deed, the suit for partition is not maintainable and the suit is also barred by limitation as the suit was not filed within three years from the

date of attaining majority by the first Respondent.

The Trial Court held that the suit is not barred by limitation and Article 60 of the Limitation Act will not apply to the facts of the case and the

release deed executed by the second Respondent in favour of the Appellant is not valid in law and therefore, the Plaintiff is entitled to the relief of

partition.

The first appellate court also confirmed the judgment and decree of the Trial Court. Aggrieved by the same, the second appeal is filed.

At the time of admission of the second appeal, the following substantial question of law was framed:

Whether, in the absence of any specific relief for declaration of the release deed, Ex.A8 as null and void, can the suit be maintainable in view of the

Full Bench decisions of this Court in Mir Ghulam Hussain Sahib Vs. Ayesha Bibi and Others,

Mr. N. Jothi, learned Counsel for Mr. N. Manoharan, learned Counsel for the Appellant submitted that both the courts below erred in

decreeing the suit without recognising the principles of law laid down by the Honourable Supreme Court and in contravention of the provisions of

the Hindu Minority and Guardianship Act (HMG Act). Mr. N. Jothi, learned Counsel for the Appellant submitted that u/s 8(3) of the HMG Act,

any transaction of minor''s interest by the natural guardian without permission of the court is voidable and being a voidable transaction, it has to be

set aside within a period of three years from the date of attaining majority by the minor and in this case, admittedly, the suit was filed after the

expiry of three years from the date of attaining majority by the first Respondent and the first Respondent has not prayed the relief of declaration

that the release deed is not binding on him and therefore, in the absence of any prayer for setting aside the transaction, the suit is not maintainable

and as the suit was filed after the period of three years from the date of attaining majority, the suit is barred by limitation as per Article 60 of the

Limitation Act.

The learned Counsel Mr. N. Jothi also relied upon the following judgments of the Supreme Court in support of his contention.

1) (1999) 9 SCC 446 Madhukar Vishwanath v. Madhao and Ors.

2) Nangali Amma Bhavani Amma v. Gopalakrishnan Nair (2004) 8 SCC 785

3) Nagappan v. Ammasai Gounder (2004) 13 SCC 480

On the other hand, Mr. S.V. Srinivasan, learned Counsel for the first Respondent submitted that the second Respondent has no authority to

execute the release deed in favour of the Appellant and the release deed is not binding on the first Respondent and therefore, there is no need to

set aside the transaction and the suit for partition is sufficient and that would indicate that the minor has not accepted the release deed and had

chosen to ignore the same by filing the suit. In support of his contention, the learned Counsel relied upon the following judgments

1) Thiruvenkada Gounder (died), Rajambal, T. Dharman and Unnamalai Vs. Ammaiappan @ Kothandaraman and Others,

2) Brammagiri Vs. Sivasubramaniam and Ayyasamy,

3) Athiappa Gounder v. Mohan 1995 (I) MLJ 357.

The question that has to be considered in this second appeal is whether the alienation of the minor''s share by the father in respect of ancestral

property is void or voidable. Admittedly, the property is the ancestral property in the hands of the second Respondent and therefore, the first

Respondent, being the son of the second Respondent, is entitled to 1/4 share in the suit property. But, during the minority of first Respondent, his

father, the second Respondent released his share as well as the first Respondent''s share in favour of the Appellant for valuable consideration and

therefore, we will have to see whether the release deed executed by the second Respondent is valid in law. The Honourable Supreme Court in the

judgment reported in Sri Narayan Bal and others Vs. Sridhar Sutar and others, has held as follows:

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

need 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.

Therefore, as per the above judgment, the provisions of Section 8 of the HMG Act will have no application and the kartha is competent to

enter into any transaction and it is binding on the minor.

Further, as per Section 8(3) of the HMG Act, any alienation by the natural guardian without permission of the court is voidable. In the

judgment reported in (1999) 9 SCC 446 Madhukar Vishwanath v. Madhao and Ors. , the Honourable Supreme Court held that the transaction is

only voidable and it has to be set aside within three years from the date of attaining majority as per Article 60 of the Limitation act. In the judgment

reported in 2004 (13) SCC 480, the Honourable Supreme Court relied upon the judgment in Vishwambhar and Others Vs. Laxminarayana

(Dead) through L.Rs. and Another, and held that any alienation by a natural guardian in contravention of Sub-Sections 1 and 2 of Section 8 is

voidable at the instance of the minor and it has to be set aside by the minor before claiming any right in the property. In the judgment reported in

2004 (8) SCC 785 (cited supra), the Honourable Supreme Court has held that the transaction by the natural guardian without permission of the

court is only voidable and the suit must be filed by the minor within the time prescribed by Article 60 of the Limitation Act. Therefore, from the

above judgments of the Honourable Supreme Court, it is made clear that even assuming that the transaction entered into by the natural guardian

without the permission of the court, is for legal necessity, it is open to the minor to set aside the said transaction as it is only voidable.

In the judgment reported in Baljinder Singh v. Rattan Singh (2008) 16 SCC 785, the Honourable Supreme Court discussed the meaning of

void and voidable and quoted with approval, the decision reported in Government of Orissa Vs. Ashok Transport Agency and Others, and has

held as follows:

Voidable act'' is that which is a good act unless avoided, e.g., if a suit is filed for declaration that a document is fraudulent and/or forged and

fabricated, it is voidable as the apparent state of affairs is the real state of affairs and a party who alleges otherwise is obliged to prove it. If it is

proved that the document is forged and fabricated and a declaration to that effect is given, a transaction becomes void from the very beginning.

There may be voidable transaction which is required to be set aside and the same is avoided from the day it is so set aside and not any day prior to

it. In cases, where legal effect of a document cannot be taken away without setting aside the same, it cannot be treated to be void but would be

obviously voidable.

Therefore, when the transaction is voidable, it is required to be set aside and therefore, without a prayer for setting aside the said transaction,

the suit for partition is not maintainable.

Though in the judgments reported in Brammagiri Vs. Sivasubramaniam and Ayyasamy, , this Court has held that a suit for partition by the

minor on attaining majority is maintainable, the law laid down in those judgments may not be correct having regard to the law laid down by the

Supreme Court referred to above. Further, in those two judgments, the learned Judges have not discussed about Article 60 or the right of the

minor to file a suit for partition without a prayer for setting aside the same. As the Supreme Court has laid down that in respect of the transaction

entered into by a natural guardian and father without permission from court, the minor must pray for setting aside the transaction and in view of the

decisions reported in Mir Ghulam Hussain Sahib Vs. Ayesha Bibi and Others, : 1956 2 MLJ 411 (FB) : 2000 (2) CTC 154 and as per Article 60

of the Limitation Act, the suit ought to have been filed within three years from the date of attaining majority by the minor.

In this case, it is not in dispute that the suit was filed after three years from the date of attaining majority. Hence, the suit is also barred by

limitation as per Section 60 of the Limitation Act. Hence, the substantial question of law is answered in favour of the Appellant. The suit filed by the

first Respondent for partition without prayer for setting aside the transaction is not maintainable and the judgment and decree of both the courts

below are set aside.

In the result, the second appeal is allowed. No cost. The connected miscellaneous petitions are closed.

C.M.P. No. 1953 of 2009 is filed to receive additional documents. According to me, those documents will not help the court to give a judgment

on the merits of the case and no proper explanation was also given for the non-production of those documents before the courts below. Hence, the

application is dismissed.