THOMAS P.JOSEPH & Ors. v. Sreedevi (2004 [1] KLT 323) held that thetransaction is only voidable at

THOMAS P.JOSEPH, J.====================================R.S.A. No. 1200 of 2010 ====================================Dated this the 24th day of September, 2012J U D G M E N TAppellant-plaintiff filed O.S. No.321 of 1995 of the Munsiff'sCourt, Manjeri for partition of the plaint B schedule items 1 to 3claiming that the said properties belonged to the latePanjankutty, his father and others and that after the death of father, the said items are partible. He also claimed that at a time when he was 10 years old, his mother, as his guardian (after the death of his father) entered into certain transactions which are abinitio void and hence not binding on him.

Respondents 4 and 5-defendants 4 and 5 contended that the suit is time barred as it is not filed within three years of the appellant attaining majority.

The trial court granted a decree in favour of the appellant holding that the transactions entered into by the natural guardian of the appellant without permission of the court is void.

The contesting respondents challenged that judgment and decree in the Additional District Court (Adhoc - I), Manjeri in R.S.A. No.1200 of 2010 -: 2 :-A.S. No.5 of 1998. Learned District Judge, referring to the decisions in Vishwambhar and Others v.Laxminarayanan ([2001] 6 SCC 163) and RamdasMenon v. Sreedevi (2004 [1] KLT 323) held that the transaction is only voidable at the instance of the appellant, he ought to have avoided the transaction in the manner known to law within three years of his attaining majority, that is not done and hence the suit is barred by limitation. Accordingly the suit was dismissed. That judgment and decree are under challenge in this Second Appeal.

The learned counsel for the appellant pointed out thata Division Bench of this Court in Santhosh Kumar v.Varghese (1987 [2] KLT 27) has held that any transaction in violation of sub-sec. (3) of Section 8 of the Hindu Minority and Guardianship Act, 1956 (for short, “the Act”) is void and hence itis not necessary to assail such transaction. Instead, the minor on his attaining majority can ignore such transaction and claim substantive relief.

That is not the position of law as it stands and as declared by the Supreme Court in Vishwambhar and R.S.A. No.1200 of 2010 -: 3 :-Others v. Laxminarayanan and followed by the FullBench of this Court in Ramdas Menon v. Sreedevi. TheSupreme Court, referring to sub-secs. (3) and (4) of Sec.8 of the Act has declared that a transaction in violation of sub-sec. (3) is only voidable at the instance of the minor and not void. The FullBench of this Court, relying on the said decision has held that alienation if any (in violation of Sec.8(3) of the Act) has to be challenged and without setting aside the alienation, no relief can be obtained. There should be a prayer to set aside the alienation effected by the natural guardian without the court's sanction. Theplaintiff cannot merely ignore the sale deed.

I must also notice the distinction between an alienation made by a de facto guardian of the minor under Sec.11 of the Act and by a natural guardian in violation of sub-sec. (3) of Sec.8 of the Act. Under Sec.11 of the Act, the de factoguardian has no power to deal with the property of the minor while under Sec.8, the natural guardian has a right, the only limitation being that he has to obtain sanction of the court concerned. Section 8(3) is clear that any transaction in violation of the said provision, i.e., without obtaining sanction of the court is only 'voidable' at the instance of the minor or by any person R.S.A. No.1200 of 2010 -: 4 :-claiming under him.