Pushpa v. Chandran

13.2.1998 in dismissing the suit. The appellants 1 and 2 herein werethe defendants 2 and 3 and the respondents 1 and 2 were the plaintiffand the first defendant respectively before the trial Court. Theappellants 3 and 4 are the legal representatives of the deceasedsecond appellant. For convenience, the status of parties before thetrial Court is adopted in this judgment.

The case of the plaintiff as stated in the plaint before thetrial Court would be follows: The suit property belonged to the plaintiff. Originally, the suitproperty belonged to Boomi Achari. Boomi Achari died in the year1972. The first defendant is the wife and the second defendant is thedaughter of Boomi Achari. In respect of the suit property, BoomiAchari had executed a settlement in favour of the first defendant on16.2.1965 which came into force after his death. The first defendantwas given with life estate and the vested remainder was settled tothe second defendant when she was minor. After the death of BoomiAchari, the first defendant became the guardian of the seconddefendant who was a minor. The first defendant is entitled toalienate the life estate to whomsoever concern and as a guardian ofthe second defendant, she can alienate the property for legalnecessity and for the maintenance of the minor. The first defendanthad executed a sale deed in favour of the plaintiff for dischargingthe outstanding mortgaged debt and also for the maintenance of theminor second defendant. The said sale deed executed by the firstdefendant in favour of the plaintiff would also bind the seconddefendant. If the second defendant wanted to question the executionof the said sale deed executed by the first defendant in favour ofthe plaintiff, she could have taken action within 3 years afterattaining majority but the second defendant did not take any actionand therefore, the alienation done by the first defendant has becomeabsolute. The second defendant had encroached into the suit propertyin the year 1994 and even though, a notice has been sent by theplaintiff to hand over possession, the second respondent has neitherhanded over possession nor replied to the notice. Hence, the suit hasbeen filed by the plaintiff for declaration of his title and forrecovery of possession of the suit property, as he was the purchaserof the suit property .

The case of the defendants 2 and 3 before the trial Court asseen from the written statement would be as follows: The suit filed by the plaintiff is not maintainable. Thesettlement deed executed by the father, Boomi Achari was clearlyintended that his wife / first defendant to enjoy the property tillher life time and after her life time, the absolute right of the saidproperty would devolve upon the second defendant. Therefore, thevested remainder on the second defendant when she was minor, cannotbe disturbed by the first defendant, since Boomi Achari, father has https://hcservices.ecourts.gov.in/hcservices/ expressly barred the alienation by the first defendant. Suchsettlement executed by Boomi Achari is known to the plaintiff andothers. The sale deed executed by the first defendant in favour ofthe plaintiff did not come into force at any point of time, since thesuit property was in continuous possession of the second defendant. The plaintiff was never found in in possession of the suit property. The plaintiff is not entitled for the relief asked for. Therefore, the suit has to be dismissed with costs.

On the above pleadings, the trial Court had framed necessaryissues and had entered trial. After appraising the evidence, thetrial Court had come to the conclusion of dismissing the suit filedby the plaintiff. The aggrieved plaintiff preferred an appeal beforethe Sub-Court, Tindivanam in A.S.No.49 of 1998 challenging thejudgment and decree passed by the trial Court and the same wastransferred to the file of the Additional District and Fast TrackCourt-I, Tindivanam and was renumbered as A.S.No.51 of 2002. Afterhearing both parties, the first appellate Court had come to theconclusion of setting aside the judgment and decree passed by thetrial court and allowed the appeal and consequently, the suit filedby the plaintiff was decreed. The aggrieved defendants 2 and 3 havefiled the present second appeal challenging the judgment and decreepassed by the first appellate Court in reversing the judgment anddecree passed by the trial Court.

On admission of this appeal, this Court had formulated thefollowing substantial questions of law for being considered for thedisposal of this appeal. "1. Whether the natural guardian (D-1)having joined a third party (D-4) and living withthe 4th defendant without a marital relationshipwill take away her right of guardianship over theminor, 2nd defendant who was under the care andprotection of her uncle?2. Is not the alienation by a guardian whohas ceased to be a guardian, of the minor'sproperty ab-initio void and therefore theerstwhile minor need not set aside sale?3. Is not the restriction against thealienation of the minor's property who has beengiven the property absolutely after the life timeof the natural guardian, not being a restrictionto deal with the interest of the life estateowner outside the purview of Section 10 of the Transfer of Property act and therefore valid?"

Heard, Mrs.N.Mala, learned counsel appearing for theappellants/defendants 2 and 3 and Mr.R.Raja Ramani, learned counsel https://hcservices.ecourts.gov.in/hcservices/ appearing for the first respondent/plaintiff .

Learned counsel for the appellants/defendants 2 and 3 wouldsubmit in her arguments that the first appellate Court had appliedthe principle of law erroneously to land a different decision andthereby the judgment and decree passed by the trial court was setaside. He would further submit that the settlement deed executed bythe father Boomi Achari was clearly intended in favour of the firstdefendant wife to enjoy the property till her life time and after herlife time, the absolute right of the said property would devolve uponthe second defendant and such a vested remainder was on the seconddefendant, when she was a minor, cannot be disturbed by the firstdefendant since the settlor has expressly barred the alienation bythe first defendant. She would also submit in her argument that thesaid restriction imposed upon the first defendant not to alienate theproperty till her life time and to vest the remainder interestnamely, the absolute interest on the second defendant would not bein any way attracted under the provisions of Section 10 of the Transfer of Property Act. She would also submit that the concept ofsection 10 of the transfer of Property Act has been misapplied by thefirst appellate Court in a case, where there was no condition imposedto avoid the transfer perpetually. She would also submit in herargument that the first defendant/ mother was not living with thefather, even after the execution of settlement deed and she went awaywith a third party namely, the fourth defendant and the minor seconddefendant was under the care of her father for some time andthereafter, under the care of her uncle and therefore, there cannotbe any guardianship accrued to the first defendant as mother when thesecond defendant/ daughter was not under the care and protection ofthe first defendant.

Learned counsel would also submit that the evidence adduced oneither side would go to show that the first defendant was not livingwith, nor looking after the second defendant's welfare and therefore, the first defendant would not have competency to execute a sale deedin respect of the vested remainder right, which has to be enjoyedafter the life time of the first defendant in respect of the suitproperty. She would also submit that when the first defendant couldnot alienate the property as a guardian, the transaction namely, thesale executed by the first defendant in favour of the plaintiff inrespect of the suit property through Ex.A2 sale deed would be voidabinitio. She would also submit that the plaintiff was not inpossession of the suit property on the date of the suit as well asfrom the date of the alleged sale deed since it was admitted a vacantland at that time.

She would also submit that the plaintiff who has come forwardwith a case that the suit property belonged to the minor wasalienated for the necessity and welfare of the minor and ought tohave proved to get a decree in his favour. She would also submit that https://hcservices.ecourts.gov.in/hcservices/ the first appellate Court did not apply the principles of lawproperly but had simply decided that the plaintiff obtained title tothe suit property by virtue of Ex.A2 sale deed. She would also submitthat the second defendant was given with patta in Ex.B1 after thesaid property was converted as patta lands from natham lands and 2nddefendant being a vested remainder holder should be deemed to havebeen in possession and enjoyment of the said property unless thesale deed executed by the first defendant was proved to have takeneffect. She would also submit that the second defendant being inpossession need not set aside the sale in Ex.A2 as voidable within aperiod of 3 years from the date of attaining majority. She would alsosubmit that the judgment of the Honourable Apex Court reported in2011 (3) LW 48 (SC) (Rangammal v. Kuppuswami & anr.) would squarelyon the point and the dictum laid down that the minor whose propertyhas been alienated by the guardian need not file the suit within 3years to set aside the sale, when he or she is in possession of thesaid property is applicable. She would further submit that if theprinciple is applied to the present case, the second defendant whois admittedly found in possession need not file a suit to set asidethe sale Ex.A2 within three years from the date she attained the ageof majority. The main reason attributed to the first appellate Courtwas to the effect that the second defendant did not take any actionwithin 3 years to set aside the voidable document namely Ex.A2 andtherefore, she is barred from questioning the said sale deed cannotbe sustained in view of the principle laid down by the HonourableApex Court.

Learned counsel would also bring it to the notice of this Court, a judgment of this Court reported in 1979 LW 368 (Sundarammalv. Govindarajulu) for the same principle. Relying upon thosedecisions, the learned counsel for the appellants/defendants 2 and 3would insist in her argument that there was no limitation for raisingthe plea of voidable nature of transaction, in the saidcircumstances. She would also submit in her arguments that the trialCourt had considered the construction of the settlement deed Ex.A1and found that the first defendant has no right to alienate theentire property and the absolute rights in the property and had cometo the conclusion of dismissing the suit which was interfered by thefirst appellate Court without any valid reason nor supported by anylegal principle. Therefore, she would request the Court to set asidethe judgment and decree passed by the first appellate Court and torestore the judgment and decree of the trial Court and thus, toallow the second appeal.

Learned counsel for the first respondent/ plaintiff wouldsubmit in his argument that the settlement deed executed by fatherBoomi Achari in favour of defendants 1 and 2 was not disputed and thefirst defendant was given with life estate and the vested remainderwas settled to the second defendant, when she was minor. He wouldalso submit that the first defendant was entitled to alienate the https://hcservices.ecourts.gov.in/hcservices/ life estate to whomsoever and as a guardian of the second defendant, she can alienate the right of the 2nd defendant also for legalnecessity and for the maintenance of the minor. He would also submitthat accordingly, the first defendant had executed the sale deed infavour of the plaintiff for discharging the outstandings of themortgage debt and also for the maintenance of the minor seconddefendant. He would also submit in his argument that no oralevidence can be adduced against the documentary evidence inaccordance with Section 91 of the Evidence Act and therefore, theoral evidence adduced to the effect that the first defendant cannotact as a guardian for the minor second defendant, at the time ofexecution of the sale deed, cannot be sustained. He would also submitthat when the second defendant was a minor represented by the firstdefendant/ mother, as a natural guardian she executed the sale deedand such sale deed is voidable at the option of the second defendantand if the 2nd defendnt elected to question the same, she could do itwithin 3 years after attaining majority and she has to obtain adecree that the transaction was a void one. But the second defendantdid not take any action and therefore, the alienation done in Ex.A2sale deed became absolute and therefore, it cannot be set aside, atthis stage.

Learned counsel would also submit in his argument that theprinciples laid down by the Honourable Apex court reported in 2011(3) LW 48 (Rangammal v. Kuppuswami & anr.) is not applicable to thepresent case since possession was already handed over to theplaintiff. He would also submit that the second defendant could notbe in possession of the property since the first defendant is alivestill and therefore, the principles laid down in the said judgment, cannot be relevant or applied in this case. He would bring it to thenotice of the Court that possession had been handed over asmentioned in Ex.A2 sale deed and therefore, the case of the seconddefendant that she is in possession through out cannot be consideredas true. He would also submit that the documents produced in Exs.B2and B3 are purely after the suit and therefore, it cannot be reliedupon. He would also submit that the second defendant had encroachedthe property in the year 1994 and therefore, the notice has been sentby the plaintiff to hand over possession but it was neither handedover nor replied. He would also submit that the plaintiff hastherefore, asked for possession as it was encroached by the seconddefendant. He would submit in his argument that the second defendantought to have proved that the sale transaction Ex.A2 was a void oneby resorting to Court and it was not done by her. Therefore, it hasbecome a valid document and the plaintiff is entitled to a decree assought for by him.

Learned counsel for the first respondent would also cite ajudgment of this Court reported in 2011 (2) LW 151 (Murugesa Gounder& another v. Brindhavathi Ammal & others) in support of his argument. Yet another judgment of this Court is also relied upon by the learned https://hcservices.ecourts.gov.in/hcservices/ counsel for the first respondent reported in 2010 (3) CTC 502( Murugan v. Kesava Gounder). for the same principle. Learned counselfor the first respondent had also cited a judgment of the HonourableApex Court reported in 2001 (6) SCC 163 (Vishwambhar v. Laxminarayan)for the principle that when a minor's property has been transferredby the mother/ guardian, the minor should question the sale as voidand inoperative and without legal necessity, within a period of 3years after he or she attained majority under Article 60 of the Limitation Act. Placing reliance upon those judgments, learnedcounsel for the plaintiff would request the Court that the judgmentand decree passed by the First Appellate Court was well consideredand the judgment and decree of the trial Court was rightly interferedand set aside and therefore, there would not be any necessity tointerfere with the first appellate Court judgment Therefore, he wouldrequest the Court to dismiss the second appeal and thereby to confirmthe judgment and decree passed by the first appellate Court.

I have given anxious thoughts to the arguments advanced oneither side.

The suit has been filed by the first respondent /plaintifffor declaration of his title and recovery of possession of the suitproperty from the second defendant and for mesne profits. Theadmitted case of both parties would be that the suit property wasoriginally a patta land of an extent of 6 cents as detailed in theplaint schedule which was belonging to one Boomi Achari . BoomiAchari and the first defendant Sakuntala were husband and wife. Theygot a child namely second defendant. There was some dispute betweenthe said Boomi Achari and Sakuntala and therefore, the said BoomiAchari had executed a settlement deed in favour of Sakuntala, thefirst defendant in respect of the suit property to enjoy the suitproperty till her life time without any power to alienate and afterher life time, should fall upon the second defendant, who was thendaughter absolutely. Therefore, it could be seen that the firstdefendant/ wife viz., Sakuntala was given with a right to enjoy overthe said property till her death without any power of alienation andthe second defendant then minor was given with absolute right namelyvested remainder. The first defendant had subsequently sold the saidproperty to the plaintiff showing herself as the guardian of thesecond defendant in respect of the entire property. The said saledeed has been questioned as not valid by the second defendant, whereas it has been insisted by the plaintiff that the seconddefendant cannot raise any voice as to its validity as a voiddocument because it is voidable in nature and it has to be held asvoid by the court of law and the second defendant taking actionwithin 3 years period after she attained majority .

The judgment Honourable Apex Court reported in 2001 (6) SCC163 (Vishwambhar v. Laxminarayan) was relied upon by the firstrespondent/ plaintiff for the said purpose. The relevant passage https://hcservices.ecourts.gov.in/hcservices/ would be as follows: "9. .... They also held that no priorpermission of the Court was taken for the saidalienations. The question is, in suchcircumstances, are the alienations void orvoidable? In Section 8(2) of the Hindu Minorityand Guardianship Act, 1956, it is laid down, inter alia, that the natural guardian shall not, without previous permission of the court, transfer by sale any part of the immoveableproperty of the minor. In sub-section (3) of thesaid section, it is specifically provided thatany disposal of immoveable property by a naturalguardian, in contravention of sub-section (2) isvoidable at the instance of the minor or anyperson claiming under him. There is, therefore, little scope for doubt that the alienations madeby Laxmibai which are under challenge in the suitwere voidable at the instance of the plaintiffsand the plaintiffs were required to get thealienations set aside if they wanted to avoid thetransfers and regain the properties from thepurchasers. "

The said principle laid down by the Honourable Apex Court hasbeen followed in the judgment of this Court reported in 2010 (3) CTC502 ( Murugan v. Kesava Gounder). The relevant passage would be asfollows: "24. .......Therefore, the appellantschallenging the alienations made by Balaraman onhis behalf and on behalf of his minor sonPalanivel in contravention of Section 8(2) and(3) of the Hindu Minority and Guardianship Act ,1956 and seeking declaration and possession ofthe property can bring the Suit only within theprescribed period of three years from the date ofdeath of minor under Article 60(b)(ii) of the Limitation Act, 1963."

Yet another judgment of this court was also cited before me, for the following principle reported in 2011 (2) LW 151 (MurugesaGounder & another v. Brindhavathi Ammal & others) and the relevantpassage is as follows: "18. ....The law also is well settled inthis regard that if any alienation by a lifeestate holder is erroneous, then the absoluteowners/ vested remainders should filed a suitseeking for annulment of the same within three https://hcservices.ecourts.gov.in/hcservices/ years after attaining majority, but in this caseno such action was undertaken by VaithilingaGounder, the father of the plaintiff. "18. On a careful perusal of the said judgment, I could see thatthe time for taking action to set aside the voidable transaction bythe minor was within 3 years after attaining majority. Having reliedupon the said dictum, it was strenuously argued by the learnedcounsel for the plaintiff that the second defendant had missed thebus she did not take any steps to set aside the voidable transactionnamely Ex.A2 therefore, it has become absolutely valid.

Learned counsel for the appellants/defendants 2 and 3 hadcited a judgment of the Honourable Apex Court reported in 1979 LW 368(Sundarammal v. Govindarajulu) for the principle that there would notbe any question of limitation for the minor to question the voidablenature of the plaintiff's sale deed if he or she is maintainingpossession of the said property. The relevant passage would run asfollows: "...Since the first defendant is already inpossession, he is not obliged to file a suithimself to set aside the sale deed in favour ofthe plaintiff. He could wait till the plaintiffsought to evict him and then set up the voidable https://hcservices.ecourts.gov.in/hcservices/ nature of the plaintiff's sale deed, in defence, and where the first defendant is merely pleadingby way of defence the voidable nature of theplaintiff's sale deed, no question of limitationwill arise. In other words, even if a suit, whichthe first defendant might have had to fileagainst the plaintiff if the first defendant hadnot obtained possession, might be time barred in1959, that would not prevent the first defendantfrom setting up the voidable nature of theplaintiff's sale deed by way of defence. S.28 ofthe Limitation Act, 1908 which says: "At the determination of theperiod hereby limited to any personsfor instituting a suit for possessionof any property, his right to suchproperty shall be extinguished. "applied only to a plaintiff institution a suitfor possession and does not bar a defendant ofthe voidable nature of the deed even after theperiod of limitation. "

The said principle has been approved in the judgment of the Honourable Apex Court reported in 2011(3) LW 48 (SC) (Rangammal v.Kuppuswami & anr.). The relevant passage would be as follows: "14. .....when the plaintiff/respondentNo.1 pleaded that the disputed property fell intothe share of the plaintiff by virtue of the saledeed dated 24.2.1951, then it was clearly for theplaintiff/ respondent No.1 to prove that it wasexecuted for legal necessity of the appellant-while she was a minor. But, the High Court clearlytook an erroneous view while holding that it isthe defendant/ appellant who should havechallenged the sale deed after attaining majorityas she had no reason to do so since the plaintiff/respondent No.1 failed to first of all dischargethe burden that the sale deed in fact had beenexecuted for legal necessity of the minor'spredecessor mother was without permission of thecourt. It was not the defendant/ respondent whofirst of all claimed benefit of the sale deed orasserted its genuineness, hence the burden ofchallenging the sale deed specifically when she https://hcservices.ecourts.gov.in/hcservices/ had not even been dispossessed from the disputedshare, did not arise at all.15. Plethora of commentaries emerging fromseries of case laws on burden of proof which aretoo numerous to cite, lay down that when a personafter attaining majority, questions any sale ofhis property by his guardian during his minority, the burden lies on the person who upholds/ assertsthe purchase not only to show that the guardianhad the power to sell but further that the wholetransaction was bona fide. "

As per the aforesaid judgment of the Honourable Apex Court, we could see that the minor who was to defend his/ her title on avoidable transaction did not set aside the said transaction as voidwithin the time limit. She can defend her possession to the saidproperty by raising the same plea as a defence to the claim of theperson who has obtained through the said transaction when she is inpossession. No doubt, the second defendant is in possession andenjoyment of the suit property and the plaintiff has sought forrecovery of possession from the second defendant on the basis of thesale deed obtained by him from the first defendant in Ex.A2. At thisstage, the voidability of the said document Ex.A2 can be gone into asper the dictum laid down by the Honourable Apex Court. The seconddefendant is at the stage of defending her title through voidabilitysince there was no limitation for defending her right in the saidproperty.

However, learned counsel for the plaintiff submitted that thesecond defendant was in unlawful possession since she would get thepossession only after the life time of the first defendant andtherefore, the possession held by the 2nd defendant was not lawful andtherefore, the principles laid down by the Honourable Apex Court inthe aforesaid judgment, would not apply. The said arguments of thelearned counsel for the plaintiff could not be sustained for thereason that the second defendant who was then minor, entitled to avested remainder which is at the defending stage over her right givenunder Ex.A1 and therefore, the character of the possession of thesecond defendant cannot be a bar for her to defend her right over thesuit property and to plead the voidability of Ex.A1 in order todefend her right.

The principles laid down by the Honourable Apex Court in thesaid judgment would also go to show that the person who claims theright over the property namely, the plaintiff must come forward toprove that it was a valid document and it cannot be considered as avoidable document at the instance of the second defendant since he isclaiming title over the said document. Therefore, I could see thatthe plaintiff is at the burden of proving that the title deed https://hcservices.ecourts.gov.in/hcservices/ produced by him in Ex.A2 was for the benefit and welfare andmaintenance of the then minor and the second defendant was lookedafter by the first defendant as guardian for the person and property.

In the evidence produced by the plaintiff, nothing wasspoken about the discharge of the usufructuary mortgage dated23.10.1972 for a sum of Rs.400/- and the payment of Rs.100/- to thefirst defendant and the payment of Rs.800/- before the Sub-Registrarthrough acceptable evidence. No discharged mortgage deed has beenproduced. The evidence produced by the second defendant would go toshow that immediately after the execution of settlement deed by BoomiAchari in favour of the first defendant Sakuntala, she left herhusband Boomi Achari and joined with 4th defendant to lead an immorallife. It was not denied by the plaintiff that the second defendantwas left in the custody of the father Boomi Achari for some time andafter his death, she was in the custody of her uncle and wasmaintained by her uncle till she was married. Therefore, the custodyand maintenance of the second defendant with the first defendant hasnot been proved by the plaintiff. The welfare of their minor 2nddefendant was not looked after by the 1st defendant. Furthermore, ithas been established through the evidence of second defendant thatthe first defendant did not act as a guardian to consider the welfareof the minor 2nd defendant nor maintained the second defendant inorder to execute a sale deed in favour of the plaintiff. In the saidcircumstances, I could see that the plaintiff did not prove the casethat the sale deed executed by the first defendant in his favour wasdone for the benefit and welfare of the then minor, second defendant. When it is not proved by the plaintiff as per the dictum laid down bythe Honourable Apex Court in 2011 (3) LW 48 (SC) (Rangammal v.Kuppuswami & anr.), the then minor can defend her title andpossession of the suit property even though the period of limitationexpired long before. In the said circumstances, I am of theconsidered view that the questions of law framed are to be decidedonly in favour of the appellant as per the dictum laid down by the Honourable Apex court reported in 2011 (3) LW 48(SC) (Rangammal v.Kuppuswami & anr.).

In view of such decision, I am of the considered view thatthe first appellate court had wrongly applied the principles of lawin respect of Section 10 of the Transfer of Property Act as well asmisapplied the law of guardianship and was perversely misguided tointerfere with the well considered judgment of the trial Court. Therefore, the judgment and decree passed by the first appellateCourt are liable to be interfered and set aside and thus, the appealis liable to be allowed. Consequently, the judgment and decree passedby the trial Court are restored.