MURUGAN & Ors. v. KESAVA GOUNDER (DEAD) THR. LRS & Ors.

Guardianship Act, 1956 is a voidable sale deed. The alienations, which were voidable, at the instance of minor or on his behalf were required to be set aside before relief for possession can be claimed by the plaintiffs. Suit filed on behalf of the plaintiffs without seeking prayer for setting aside the sale deeds was, thus, not properly framed and could not have been decreed. [Paras 13, 14, 20] [370-F; 372-A; 375-G-H]

1.4 The release deed dated 24.03.1986 has been brought on the record as Annexure P-1. A perusal of the release deed does not indicate that there is any reference of alienation made by ‘B’ favour of the defendants. There being no reference of the alienation made by ‘B’ on behalf of minor, there is no occasion to read release deed as repudiation of the claim on behalf of the minor. Section 8(3), 1956 Act gives a right to the minor or any person claiming under him, the relevant words in Section 8(3) are “at the instance of the minor or any person claiming under him.” Thus, alienation made on behalf of the minor can be avoided by minor or any person claiming under him. In event, minor dies before attaining majority, obviously, his legal heirs will have right to avoid the alienation. Sub-section (3) of Section 8 refers to a disposal of immovable property by a natural guardian in contravention of sub-section (1) or sub-section (2) as voidable. When a registered sale deed is voidable, it is valid till it is avoided in accordance with law. The rights conferred by a registered sale deed are good enough against the whole world and the sale can be avoided in case the property sold is of a minor by a natural guardian at the instance of the minor or any person claiming under him. A document which is voidable has to be actually set aside before taking its legal effect. [Paras 21, 24] [376-A-C; 376-F-G]

1.5 Supreme Court time and again held that setting aside of a sale which is voidable under Section 8(3) is necessary for avoiding a registered sale deed. Court may, however, not to be understood that it is holding that in all cases where minor has to avoid disposal of immovable property, it is necessary to bring a suit. There may be creation of charge or lease of immovable property which may not be by registered document. It may depend on facts of each case as to whether it is necessary to bring a suit for avoiding disposal of the immovable property or it can be done in any other manner. The Limitation Act, 1963 has been enacted by the Parliament after the enactment of Hindu Minority and Guardianship Act, 1956. Article 60 of the Limitation Act, 1963 which provides for limitation “suits relating to decrees and instruments”. The Limitation Act contemplates suit to set aside a transfer of property made by the guardian of a ward for which limitation is contemplated as three years. Article 60 of the Limitation Act although provides for a limitation of a suit but also clearly indicates that to set aside a transfer of property made by the guardian of a ward a suit is contemplated. [Paras 28, 29] [378-E-H; 379-A]

1.6 Section 11 of the 1956 Act contains a statutory prohibition on “de facto guardian” of the minor from disposing of the property of the minor. The transfer made by de facto guardian is, thus, void and can be repudiated in any manner. It is well settled that it is not necessary for a minor or any person claiming under him to file a suit for setting aside a void deed. A void deed can be ignored. [Para 31] [379-G]

1.7 In the present case there having been no repudiation of sale deed on behalf of minor, the question of voidable sale deed becoming void does not arise. In the present case it was necessary for the person claiming through minor to bring an action within a period of three years from the date of the death of the minor to get sale deed executed by ‘B’ set aside. The sale deeds executed by ‘B’ were not repudiated or avoided within the period of limitation as prescribed by law. [Paras 34, 35] [382-B, C]