REPORTABLE IN THE SUPREME COURT OF INDIA

 CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO.1782 OF 2019 (arising out of S.L.P. (C) No. 21091 of 2010)

MURUGAN & ORS.    ...APPELLANTS  

Vs.

KESAVA GOUNDER (DEAD)  THR. LRS. AND ORS.     ...RESPONDENTS  

J U D G M E N T

ASHOK BHUSHAN, J.

This is the plaintiff’s appeal challenging the

judgment of Madras High Court dismissing the second

appeal filed by the plaintiffs-appellants.    

2. Brief facts of the case are:-

2.1 The  suit  property  belongs  to  one  Petha

Gounder.  Petha Gounder had two sons namely

Kannan  and  Balaraman  and  three  daughters.

Sengani Ammal was wife of Petha Gounder.  On

17.05.1971  Petha  Gounder  executed  a  Will

bequeathing life interest to his sons Kannan

and Balaraman and thereafter to the two male 1

heirs of his both the sons, who were to take

the  property  absolutely.  Will  further

stipulated that in event, there is no male

heir to one of his sons, the male heirs of

other  son  will  take  the  property.   Petha

Gounder died on 28.11.1971 leaving behind his

wife, two sons Balaraman and Kannan and three

daughters.   Petha  Gounder’s  wife  Sengani

Ammal died on 02.02.1982. Balaraman had one

son namely Palanivel.  

2.2 Balaraman on his behalf as well as on behalf

of his minor son had sold Item Nos.1 to 3 of

the suit properties by registered Sale Deed

dated 15.12.1981.  Balaraman also sold Item

No.6 and a portion of Item No.7 by two Sale

Deeds  dated  30.03.1981  and  31.03.1981  in

favour of the first defendant.  Balaraman had

sold  Item  No.  6  in  favour  of  the  second

defendant  by  registered  Sale  Deed  dated

29.03.1982.   Balaraman  died  in  1983  and

Kannan died on 02.12.1984. Balaraman’s wife

was  Lakshmi.  The  plaintiffs  are  sons  of

Kannan.  Palanivel, the son of Balaraman died

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on  11.02.1986  while  still  a  minor.

Palanivel’s mother Lakshmi Ammal executed a

registered Release Deed dated 24.03.1986 in

favour of the plaintiffs for a consideration.

The  plaintiffs  filed  suit  No.229  of  1992

praying for following reliefs:- “VI. The  plaintiffs  therefore  pray that the Hon’ble Court may be pleased to:-

(a) Declare that the plaintiffs are entitled to the suit properties;

(b) Direct the Defendants to deliver possession  of  the  suit properties  failing  which  order delivery  of  possession  through process of court;

(c) Direct the Defendants to pay the cost of the suit and

(d) Grant such other reliefs as the Hon’ble  Court  may  deem  fit  in the circumstances of the case.”

2.3 The plaintiffs’ case in the plaint was that

Balaraman had no authority to execute Sale

Deed on behalf of his minor son Palanivel and

the  Sale  Deeds  executed  by  Balaraman  were

void.  The plaintiffs being sons of Kannan

are entitled for declaration and possession

of the properties from the defendants.  It 3

was further pleaded that validity of the Will

dated  17.05.1971  has  been  upheld  by  the

Subordinate Judges Court, Cuddalore in O.S.

No. 447 of 1973.   

2.4 The defendant filed written statement.  The

defendant’s case was that Balaraman, in order

to  discharge  his  debts  and  for  family

necessity executed sale deed for himself and

on behalf of his minor son on 15.12.1981.

The sale deed binds the minor Palanivel.  The

release  deed  executed  by  Lakshmi  Ammal  on

24.03.1986  will  confer  no  right  to  the

plaintiffs.  The suit is barred by limitation

since the suit has not been filed within 03

years from the date of death of Palanivel

i.e. 11.02.1986. The suit as framed is not

maintainable.  The  defendants  are  not  in

illegal  possession.  The  defendants  are

bonafide  purchasers  for  value.   The

plaintiffs cannot file suit for declaration

without praying for setting aside the sale

deeds.   

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2.5 The trial court framed ten issues.  Issue

No.7  was  “Whether  the  suit  is  barred  by

limitation?”.  Issue No.8 was “Whether the

plaintiffs  are  entitled  to  seek  for

declaration  of  title  in  respect  of  suit

properties?”.  Issue No.9 was “Whether the

plaintiffs are entitled to seek for recovery

of  possession?”.  The  trial  court  while

deciding Issue No.7 held that suit is not

barred by limitation.  Trial court held that

plaintiff  having  filed  the  suit  as

reversioner, Article 65 of the Limitation Act

will apply.  As per Article 65, period for

limitation is 12 years, hence suit was within

time.  The Will dated 17.05.1971 was held to

be a valid Will. The sale deeds executed by

Balaraman are voidable.  On release deed, the

trial court held that Lakshmi Ammal had no

right in the suit properties, as such the

plaintiffs do not derive any new right from

the release deed.  Trial court held that it

is  not  necessary  to  decide  the  truth  and

validity  of  the  release  deed  dated

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24.03.1986. The trial court further held that

there  was  no  necessity  to  file  the  suit

seeking a prayer to set aside the sale deeds

separately  since  those  sale  deeds  are

voidable and they can be ignored.  It was

held that plaintiffs are competent to recover

possession from the defendants.  Trial court

vide its judgment and decree dated 13.08.1997

decreed the suit.   

2.6 The defendants aggrieved by the judgment of

the trial court filed appeal.  The Principal

District  Judge  vide  its  judgment  dated

31.08.1999 allowed the appeal dismissing the

suit.  Appellate  Court  held  that  since

Palanivel died on 11.02.1986, the suit should

have been filed to set aside the sale deeds

and for possession within 03 years from his

death.  The suit filed in 1992 was barred by

limitation.  The Appellate Court relied on

Article 60 of the Limitation Act.  Aggrieved

against the judgment of the First Appellate

Court, the plaintiffs filed second appeal in

the High Court.  High Court vide its judgment

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dated 21.04.2010 dismissed the second appeal.

High Court had framed following substantial

questions of law for consideration:-

“i)   Whether  the  Learned  First  Appellate

Judge  is  correct  in  holding  that  the

release deed Ex.A-15 dated 24.03.1986, is

not avoiding the transfers by sales under

Exs. A-9=B-9, A-10=B-7, A-11=B-2 and A-

12=B-9, executed by the natural guardian

late Balaraman, of the properties belong

to the deceased minor Palanivel?

ii) Whether the sale deeds executed by late

Balaraman, the natural guardian of minor

Palanivel, of the properties of the minor

are valid in law when the said sale deeds

were  executed  in  gross  violation  of

Section 8(2)(a) of the Hindu Minority and

Guardianship  Act,  especially  when  the

mother,  who  claimed  under  the  minor

avoided  the  sale  immediately  on  the

demise of the minor?

iii)Whether first appellate Judge is correct

in  holding  that  the  suit  is  not

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maintainable,  since  the  suit  was  not

filed to set aside the sales within three

years from the date of demise of minor

Palanivel?

2.7 The High Court held that alienations made by

Balaraman can be construed only as a voidable

alienations  and  not  void  alienations.  High

Court held that plaintiffs suit ought to have

been filed within 03 years as per Article 60

of  the  Limitation  Act.  All  substantial

questions of law were decided in favour of

the  defendants-respondents.   High  Court

dismissed  the  second  appeal.   Aggrieved

against the judgment, this appeal has been

filed.            

3. Shri  V.  Prabhakar,  learned  counsel  for  the

appellants  in  support  of  the  appeal  contends  that

Article 60 of the Limitation Act shall not apply and

the suit was rightly held to be governed by Article

65 by the trial court, which was well within time.

It  is  submitted  that  the  option  to  repudiate  the

action on behalf of the minor having been exercised

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by mother of the minor, the sale deed executed by

Balaraman become void from its inception.  Sale deeds

executed by Balaraman were without permission of the

Court  and  were  without  legal  necessity,  hence  was

rightly repudiated by his mother Lakshmi Ammal.  On

the  strength  of  repudiation  of  the  alienation  by

Lakshmi Ammal, the sale deeds become void and there

was no necessity for praying for setting aside the

sale deeds and suit for declaration and possession

was fully maintainable.  Article 60 would have been

applicable only if the suit was filed for setting

aside the sale deeds.   

4. Ms. V. Mohana, learned senior counsel appearing

for the respondents refuting the submissions of the

counsel  for  the  appellants  contends  that  suit  was

clearly  barred  by  time,  it  having  been  not  filed

within 03 years from the date of death of the minor.

It  is  further  submitted  that  release  deed  dated

24.03.1986 cannot be accepted as repudiation of the

sale deeds.  It is submitted that without praying for

setting  aside  the  sale  deeds,  the  decree  of

possession  could  not  have  been  claimed  by  the

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plaintiffs.  Limitation was governed by Article 60 of

the Limitation Act.

5. Learned counsel for the parties have relied on

various  judgments,  which  shall  be  referred  to  and

considered  while  considering  the  submissions  in

detail.  

6. From the submissions of the learned counsel for

the parties and pleadings on record, following are

the  issues,  which  arise  for  consideration  in  this

appeal:-

(i) Whether the suit filed by the plaintiffs-

appellants was barred by limitation?

(ii) Whether without praying for setting aside

the sale deeds executed by Balaraman, the

suit  for  declaration  and  possession  was

maintainable?

(iii) Whether  the  plaintiffs  can  successfully

contend that by execution of release deed

dated  24.03.1986  by  Lakshmi  Ammal,  sale

deeds  executed  by  Balaraman  were

successfully repudiated?

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Issue No. 1

7. The trial court has held that suit has been filed

within  time  relying  on  Article  65  whereas  the

Appellate Court as well as the High Court relied on

Article 60 and held that suit was barred by time.

Part IV of the Limitation Act, which deals with suits

relating  to  “Decrees  and  instruments”  contains

Articles 59 and 60.  Article 60 is as follows:- “_________________________________________________   Description of suit    Period of    Time from which

      Limitation  period begins to run  __________________________________________________________

60 To  set  aside  a transfer  of  property made by the guardian of a ward-

(a)by  the  ward  who has  attained majority.

(b)by  the  ward's legal representative-

            Three years When the ward attains majority.

i) When the ward dies within  three  years from  the  date  of attaining majority.

  Three years When the ward attains majority.

ii)  When  the  ward dies    before attaining majority.”

  Three years When the ward dies.

8. Article 65 is contained in Part V (suits relating

to immovable properties), which is as follows:-

“65. For possession of immovable       Twelve Years   When the possession of    property or any interest therein                            the defendant becomes based on title.                                                        adverse to the plaintiff.

Explanation.- For the purposes  of this article-

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(a) Where  the  suit  is  by  a remainderman,  a reversioner (other than a landlord)  or  a  devisee, the  possession  of  the defendant  shall  be deemed  to  become adverse  only  when  the estate  of  the remainderman, reversioner or devisee, as the  case  may  be,  falls into possession;

(b) where  the  suit  is  by  a Hindu or Muslim entitled to  the  possession  of immovable  property  on the death of  a  Hindu or Muslim  female,  the possession  of  the defendant  shall  be deemed  to  become adverse  only  when  the female dies;

(c) where  the  suit  is  by  a purchaser  at  a  sale  in execution  of  a  decree when  the  judgment- debtor  was  out  of possession at the date of the  sale,  the  purchaser shall  be deemed to be a representative  of  the judgment-debtor  who was out of possession.”

9. Article 60(b)(ii) refers to a suit when a ward

dies before attaining majority.  The present is a

case  where  Palanivel  died  on  11.02.1986  before

attaining  majority,  his  date  of  birth  being

16.07.1978, the limitation to avoid instrument made

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by guardian of the ward is 03 years from the death of

ward when he dies before attaining majority.  This

Court had occasion to consider Articles 60 and 65 of

the Limitation Act in reference to alienation made by

a  de-facto  guardian  of  a  minor.   In  the  case  of

Madhukar Vishwanath Vs. Madahav and Others, (1999) 9

SCC  446,  the  maternal  uncle  of  the  appellant  has

executed a sale deed.  The appellant after becoming

major  on  22.08.1966  filed  a  suit  on  07.02.1973

praying that transferors be required to deliver the

possession of the property.  On behalf of appellant,

Article 65 was relied for the purposes of limitation.

This Court held that it is Article 60 and not Article

65, which is applicable.  Paragraph No. 4 and 5 of

the  judgment  are  relevant,  which  are  quoted  as

below:-

“4.                 XXXXXXXXX

That  the  defendant,  Baburao  Madhorao Puranik,  was  the  appellant’s  de  facto guardian  had  been  established  and, therefore, the disposal by him of the said property was void. Being void, it was open to  the  appellant  to  file  the  suit  for possession  of  the  said  property  and  the period  for  limitation  for  such  suit  was prescribed by Article 65.

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5. ……………………Even if the suit was entertained as pleaded, no decree for possession could have been passed without first finding that the alienation was not for legal necessity and was, therefore, bad in law. To such a suit  the  provisions  of  Article  60  apply. Article 60 relates to a suit to set aside a transfer of property made by the guardian of  a  ward  by  the  ward  who  has  attained majority and the period prescribed is three years commencing on the date on which the ward attains majority………………………”

10. This Court in  Narayan Vs. Babasaheb and Others,

(2016)  6  SCC  725 again  had  occasion  to  consider

Article 60 of the Limitation Act.  In the above case,

this  Court  held  that  a  suit  by  minor  for  setting

aside the sale of his property by his guardian is

governed by Article 60 of the Limitation Act.  In

Paragraph Nos. 25 and 26, following was laid down:-

“25. A close analysis of the language of Article 60 would indicate that it applies to  suits  by  a  minor  who  has  attained majority  and  further  by  his  legal representatives  when  he  dies  after attaining majority or from the death of the minor. The broad spectrum of the nature of the suit is for setting aside the transfer of immovable property made by the guardian and consequently, a suit for possession by avoiding  the  transfer  by  the  guardian  in violation of Section 8(2) of the 1956 Act. In essence, it is nothing more than seeking to  set  aside  the  transfer  and  grant consequential relief of possession.

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26. There cannot be any doubt that a suit by  quondam  minor  to  set  aside  the alienation of his property by his guardian is governed by Article 60. To impeach the transfer  of  immovable  property  by  the guardian,  the  minor  must  file  the  suit within the prescribed period of three years after attaining majority.”

11. Now, coming to Article 65, on which reliance has

been placed by learned counsel for the appellants.

The said period of limitation is available when suit

is filed for possession of immovable property on any

interest therein based on title.  The present is a

case where by registered sale deeds the property was

conveyed by the father of the minor was eonominee

party. Thus, when sale deed was executed by Balaraman

he purported to convey the right of the minor also.

The  sale  deeds  being  voidable  and  not  void,

plaintiffs cannot rely on Article 65.  We, thus, are

of the view that first Appellate Court and the High

Court has rightly held that limitation for suit was

governed  by  Article  60  and  the  suit  was  clearly

barred by time.   

12. It is important to find from the sale deed what

was conveyed. This we say, as appellant has a case

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that the father of the minor was given a life estate

and after his death alone the minor was to get a

right. In this regard we may notice the distinction

between a vested right and a contingent right. Vested

right  is  the  subject  matter  of  Section  19  of  the

Transfer  of  Property  Act  whereas  a  contingent

interest is dealt with Section 21 of the Transfer of

Property Act. Since the life estate followed by an

absolute right is created by a will, the relevant

provision  is  Section  119  of  the  Indian  Succession

Act, 1925. Section 119 reads as follows:

“119.  Date  of  vesting  of  legacy  when payment  or  possession  postponed.—Where  by the terms of a bequest the legatee is not entitled  to  immediate  possession  of  the thing bequeathed, a right to receive it at the  proper  time  shall,  unless  a  contrary intention  appears  by  the  Will,  become vested  in  the  legatee  on  the  testator’s death,  and  shall  pass  to  the  legatee’s representatives if he dies before that time and without having received the legacy, and in  such  cases  the  legacy  is  from  the testator’s  death  said  to  be  vested  in interest.  

Explanation.—An intention that a legacy to any person shall not become vested in interest  in  him  is  not  to  be  inferred merely from a provision whereby the payment or  possession  of  the  thing  bequeathed  is postponed,  or  whereby  a  prior  interest therein is bequeathed to some other person, or whereby the income arising from the fund

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bequeathed  is  directed  to  be  accumulated until the time of payment arrives, or from a  provision  that,  if  a  particular  event shall happen, the legacy shall go over to another person.”  

It is relevant that we notice illustration No.(iii)

which reads as follows:

“(iii) A fund is bequeathed to A for life, and after his death to B. On the testator’s death  the  legacy  to  B  becomes  vested  in interest in B.”

Therefore, the absolute right bequeathed in favour of

Palanivel  became  vested  in  him  upon  the  death  of

Petha Gounder.

Issue No.2

13. In the present case, there is no dispute that

sale deeds executed by Balaraman on behalf of himself

and  his  minor  son  Palanivel  were  executed  without

obtaining permission of the Court.  Section 8 of the

Hindu  Minority  &  Guardianship  Act,  1956,  which  is

relevant is as follows:-

8.  Powers  of  natural  guardian.-  (1)  The natural  guardian  of  a  Hindu  minor  has power,  subject  to  the  provisions  of  this section, to do all acts which are necessary or reasonable and proper for the benefit of the  minor  or  for  the  realisation, protection  or  benefit  of  the  minor's estate;  but  the  guardian  can  in  no  case bind the minor by a personal covenant.  

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(2) The natural guardian shall not, without the previous permission of the court,-  

(a) mortgage or charge, or transfer by sale, gift, exchange or otherwise any part of the immovable property of the minor or  

(b) lease any part of such property for a term exceeding five years or for a term  extending  more  than  one  year beyond the date on which the minor will attain majority.  

(3) Any disposal of immovable property by a natural  guardian,  in  contravention  of subsection  (1)  or  sub-section  (2),  is voidable at the instance of the minor or any person claiming under him.  

(4) No court shall grant permission to the natural  guardian  to  do  any  of  the  acts mentioned in sub-section (2) except in case of necessity or for an evident advantage to the minor.  

(5) The Guardians and Wards Act, 1890 (8 of 1890), shall apply to and in respect of an application for obtaining permission of the court under sub-section (2) in all respects as if it were an application for obtaining the permission of the court under section 29 of that Act, and in particular-  

(a) proceedings in connection with the application  shall  be  deemed  to  be proceedings under that Act within the meaning of section 4A thereof.  

(b)  the  court  shall  observe  the procedure  and  have  the  powers specified  in  sub-sections  (2),  (3) and (4) of section 31 of that Act; and  

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(c) an appeal shall lie from an order of the court refusing permission to the natural  guardian  to  do  any  of  the acts mentioned in sub-section (2) of this section to the court to which appeals  ordinarily  lie  from  the decisions of that court.  

(6) In this section, "Court" means the city civil court or a district court or a court empowered under section 4A of the Guardians and Wards Act, 1890 (8 of 1890), within the local  limits  of  whose  jurisdiction  the immovable property in respect of which the application is made is situate, and where the  immovable  property  is  situate  within the  jurisdiction  of  more  than  one  such court,  means  the  court  within  the  local limits of whose jurisdiction any portion of the property is situate.”

14. This  Court  time  and  again  has  considered  the

cases  of  alienation  by  natural  guardian  in

contravention of Section 8 and Section 8(2) of the

1956  Act.   This  Court  held  that  sale  deed  in

violation of Section 8(1) and 8(2) is a voidable sale

deed.   Voidable  has  been  defined  in  Black’s  Law

Dictionary, Tenth Edition as under:-  

“Valid  until  annulled;  esp.,  (of  a contract)  capable  of  being  affirmed  or rejected  at  the  option  of  one  of  the parties.  This term describes a valid act that may be voided rather than an invalid act  that  may  be  ratified.”

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15. Salmonds  on  Jurisprudence,  Twelfth  Edition  has

noticed  the  distinction  between  Valid,  Void  and

Voidable in following passage:-

“… A valid agreement is one which is fully  operative  in  accordance  with the  intent  of  the  parties.  A  void agreement is one which entirely fails to  receive  legal  recognition  or sanction,  the  declared  will  of  the parties  being  wholly  destitute  of legal efficacy. A voidable agreement stands  midway  between  these  two cases. It is not a nullity, but its operation  is  conditional  and  not absolute. By reason of some defect in its  origin  it  is  liable  to  be destroyed or cancelled at the option of one of the parties to it. On the exercise of this power the agreement not only ceases to have any efficacy, but is deemed to have been void ab initio. The avoidance of it relates back  to  the  making  of  it.  The hypothetical  or  contingent  efficacy which has hitherto been attributed to it wholly disappears, as if it had never  existed.  In  other  words,  a voidable  agreement  is  one  which  is void or valid at the election of one of the parties to it.”

16. This  Court  in  Dhurandhar  Prasad  Singh  Vs.  Jai

Prakash University and Others, (2001) 6 SCC 534 had

noted the distinction between Void and Voidable. In

Paragraph No. 22, following has been laid down:-

“22. Thus  the  expressions  “void  and voidable” have been the subject-matter of

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consideration  on  innumerable  occasions  by courts. The expression “void” has several facets.  One  type  of  void  acts, transactions, decrees are those which are wholly without jurisdiction, ab initio void and for avoiding the same no declaration is necessary, law does not take any notice of the  same  and  it  can  be  disregarded  in collateral  proceeding  or  otherwise.  The other  type  of  void  act,  e.g.,  may  be transaction against a minor without being represented  by  a  next  friend.  Such  a transaction is a good transaction against the whole world. So far as the minor is concerned, if he decides to avoid the same and  succeeds  in  avoiding  it  by  taking recourse  to  appropriate  proceeding  the transaction  becomes  void  from  the  very beginning. Another type of void act may be which is not a nullity but for avoiding the same a declaration has to be made. Voidable act  is  that  which  is  a  good  act  unless avoided, e.g., if a suit is filed for a 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 a 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.”

17. In Vishwambhar and Others Vs. Laxminarayan (Dead)

Through LRs. and Another, (2001) 6 SCC 163, which was

21

a  case  of  challenge  to  alienation  without  Court’s

sanction  and  without  legal  necessity,   this  Court

held  that  the  alienation  by  natural  guardian  was

voidable.  In the above case, the mother, natural

guardian of two minors has executed the sale deed

before  they  attained  majority.   Minors  after

attaining majority had filed suit pleading that sale

deeds  are  not  binding  and  operative  on  the  legal

rights of plaintiff, and prayed that the said sale

deeds be set aside to the extent of their share and

the suit for possession of the land be decreed. In

the  above  case,  after  considering  Section  8  this

Court  held  that  sale  deeds  were  voidable  at  the

instance of the plaintiff.  This Court further held

that if the plaintiffs were required to have the sale

deeds set aside before making any claim in respect of

suit  properties  sold  then  a  suit  without  such  a

prayer was of no avail to the plaintiffs.  Following

was held in Paragraph No.9:-

“9.  …………………………………The question is, in such circumstances, are the alienations void or voidable?  In  Section  8(2)  of  the  Hindu Minority and Guardianship Act, 1956, it is laid  down,  inter  alia,  that  the  natural guardian  shall  not,  without  previous permission of the court, transfer by sale

22

any part of the immoveable property of the minor.  In  sub-section  (3)  of  the  said section, it is specifically provided that any  disposal  of  immoveable  property  by  a natural guardian, in contravention of sub- section (2) is voidable at the instance of the minor or any person claiming under him. There is, therefore, little scope for doubt that the alienations made by Laxmibai which are  under  challenge  in  the  suit  were voidable at the instance of the plaintiffs and the plaintiffs were required to get the alienations  set  aside  if  they  wanted  to avoid  the  transfers  and  regain  the properties  from  the  purchasers.  As  noted earlier in the plaint as it stood before the amendment the prayer for setting aside the sale deeds was not there, such a prayer appears  to  have  been  introduced  by amendment  during  hearing  of  the  suit  and the  trial  court  considered  the  amended prayer and decided the suit on that basis. If in law the plaintiffs were required to have the sale deeds set aside before making any  claim  in  respect  of  the  properties sold, then a suit without such a prayer was of  no  avail  to  the  plaintiffs.  In  all probability, realising this difficulty the plaintiffs  filed  the  application  for amendment  of  the  plaint  seeking  to introduce the prayer for setting aside the sale deeds. Unfortunately, the realisation came  too  late.  Concededly,  Plaintiff  2 Digamber attained majority on 5-8-1975 and Vishwambhar, Plaintiff 1 attained majority on 20-7-1978. Though the suit was filed on 30-11-1980 the prayer seeking setting aside of  the  sale  deeds  was  made  in  December 1985.  Article  60  of  the  Limitation  Act prescribes  a  period  of  three  years  for setting aside a transfer of property made by the guardian of a ward, by the ward who has attained majority and the period is to be  computed  from  the  date  when  the  ward attains  majority.  Since  the  limitation

23

started  running  from  the  dates  when  the plaintiffs attained majority the prescribed period  had  elapsed  by  the  date  of presentation  of  the  plaint  so  far  as Digamber is concerned. Therefore, the trial court rightly dismissed the suit filed by Digamber. The judgment of the trial court dismissing the suit was not challenged by him. Even assuming that as the suit filed by one of the plaintiffs was within time the entire suit could not be dismissed on the ground of limitation, in the absence of challenge against the dismissal of the suit filed by Digamber the first appellate court could not have interfered with that part of the decision of the trial court. Regarding the suit filed by Vishwambhar, it was filed within the prescribed period of limitation but  without  the  prayer  for  setting  aside the  sale  deeds.  Since  the  claim  for recovery  of  possession  of  the  properties alienated could not have been made without setting aside the sale deeds the suit as initially  filed  was  not  maintainable.  By the date the defect was rectified (December 1985)  by  introducing  such  a  prayer  by amendment  of  the  plaint  the  prescribed period  of  limitation  for  seeking  such  a relief had elapsed. In the circumstances, the amendment of the plaint could not come to the rescue of the plaintiff.”

18. To the same effect is the judgment of this Court

in Madhegowda (dead) by LRs. Vs. Ankegowda (dead) by

LRs. and Others, (2002) 1 SCC 178, where in Paragraph

No. 25, following has been held:-

“25.……………………The  minor,  on  attaining majority, can repudiate the transfer in any manner as and when occasion for it arises.

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After  attaining  majority  if  he/she transfers his/her interest in the property in a lawful manner asserting his/her title to the same that is sufficient to show that the minor has repudiated the transfer made by the “de facto guardian/manager”.

19. This Court further held in  Nangali Amma Bhavani

Amma Vs. Gopalkrishnan Nair and Others, (2004) 8 SCC

785 that the alienation made in violation of Section

8(2) is voidable, holding it to be void would not

only be contrary to the plain words of the statute

but  would  also  deprive  the  minor  of  the  right  to

affirm  or  ratify  the  transaction  upon  attaining

majority.  Following was held in Paragraph No.8:-

“8. In view of the express language used, it  is  clear  that  the  transaction  entered into  by  the  natural  guardian  in contravention  of  sub-section  (2)  was  not void but merely voidable at the instance of the minor. To hold that the transaction in violation of Section 8(2) is void would not only be contrary to the plain words of the statute but would also deprive the minor of the  right  to  affirm  or  ratify  the transaction  upon  attaining majority…………………………….”  

20. 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

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the  plaintiffs  without  seeking  prayer  for  setting

aside the sale deeds was, thus, not properly framed

and could not have been decreed.   

Issue No.3

21. The question is as to whether by execution of the

release  deed  dated  24.03.1986  in  favour  of  the

plaintiffs, there was repudiation of the alienation

made by Balaraman.  The release deed 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 Balaraman in favour

of the defendants.  There being no reference of the

alienation  made  by  Balaraman  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) 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

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attaining majority, obviously, his legal heirs will

have right to avoid the alienation.  22. The submission raised by the learned counsel for

the  respondents  is  that  for  avoiding  sale  of

immovable property of a minor as contemplated under

sub-section (3) of Section 8, the minor or any person

claiming under him has to bring an action i.e. to

file a suit within the limitation prescribed.  

23. Learned counsel for the appellants has refuted

the submission and contended that the avoidance of a

sale of immovable property by a minor can be in any

manner. It is submitted that it is not necessary for

minor or the person claiming on his behalf to bring a

suit for avoiding a sale deed.      

24. We  have  noticed  above  that  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

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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.

This Court in Gorakh Nath Dube vs. Hari Narain Singh

and  others,  (1973)  2  SCC  535,  while  making

distinction between void and voidable document held:

“5………We think that a distinction can be made between cases where a document is wholly or partially  invalid  so  that  it  can  be disregarded by any court or authority and one where it has to be actually set aside before it  can  cease  to  have  legal  effect.  An alienation  made  in  excess  of  power  to transfer  would  be,  to  the  extent  of  the excess of power, invalid. An adjudication on the  effect  of  such  a  purported  alienation would be necessarily implied in the decision of a dispute involving conflicting claims to rights  or  interests  in  land  which  are  the subject-matter  of  consolidation proceedings……”

25. In Amirtham Kudumbah vs. Sarnam Kudumban, (1991)

3 SCC 20,  this Court had occasion to consider the

provisions of Section 8(3) of the Hindu Minority and

Guardianship Act, 1956. The facts of the case have

been noticed in paragraph 5 which is to the following

effect:

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“5. The relevant facts are that the suit property belonged to one Veerammal. She had a  daughter  by  name  Kaliammal.  Veerammal died  shortly  after  she  purchased  the property  in  1948.  She  left  behind  her husband  Kandayya  and  their  daughter Kaliammal. Subsequently, Kandayya married a second time when his daughter Kaliammal was a  minor.  She  thereupon  left  her  father’s house  and  resided  with  her  maternal grandfather  who  protected  and  maintained her. During her minority, Kandayya sold the property  on  October  29,  1959  to Jainulavudeen.  On  April  25,  1966, Jainulavudeen in turn sold the property to the  defendant-appellant.  Subsequently,  on May 26, 1966 the plaintiff obtained a deed of sale of the suit property in his favour from  Kaliammal  who  had  by  then  attained majority.  The  plaintiff  thereafter instituted the present suit (O.S. No. 491 of 1968) against the appellant to set aside the transfer of property made by Kandayya and for recovery of its possession.”

26. One of the questions which came for consideration

in the above case was that “whether a transferee from

a minor after he attained majority, can file a suit

to  set  aside  the  alienation  made  by  the  minor’s

guardian or the said right is one to be exercised

only by the minor? A person entitled to avoid such a

sale is either the minor or any person claiming under

him. This Court held that either the minor, or his

legal representative in the event of his death, or

his  successor-in-interest  claiming  under  him  by

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reason  of  transfer  inter  vivos,  must  bring  action

within the period prescribed for such a suit, i.e.

three years. Following is laid down in paragraph 9:

“9. The effect of this sub-section is that any disposal of immovable property by a natural  guardian  otherwise  than  for  the benefit  of  the  minor  or  without  obtaining the  previous  permission  of  the  court  is voidable. A person entitled to avoid such a sale  is  either  the  minor  or  any  person claiming under him. This means that either the  minor,  or  his  legal  representative  in the event of his death, or his successor-in- interest  claiming  under  him  by  reason  of transfer  inter  vivos,  must  bring  action within  the  period  prescribed  for  such  a suit,  i.e.  three  years  from  the  date  on which the minor died or attained majority, as the case may be. In the present case, the suit  was  brought,  as  found  by  the  courts below,  within  three  years  after  the  minor attained majority.”

27. In Vishwambhar and others vs. Laxminarayan(Dead)

through  LRs.  and  another  (supra) this  Court  has

observed that if in law the plaintiffs were required

to have the sale deeds set aside before making any

claim in respect of the properties sold, then a suit

without  such  a  prayer  was  of  no  avail  to  the

plaintiffs.

28. This Court time and again held that setting aside

of a sale which is voidable under Section 8(3) is

30

necessary  for  avoiding  a  registered  sale  deed.  We

may,  however,  not  to  be  understood  that  we  are

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. We in the present

case  are  concerned  with  disposal  of  immovable

property by natural guardian of minor by a registered

sale deed, hence, we are confining our consideration

and  discussion  only  with  respect  to  transfer  of

immovable property by a registered deed by a natural

guardian of minor.   

29. 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 31

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.  

30. We may notice a judgment of this Court reported

in Madhegowda (Dead) by LRs. vs. Ankegowda (Dead) by

LRs. and others, (2002) 1 SCC 178. This Court in the

above case had occasion to consider Section 11 of the

Hindu  Minority  and  Guardianship  Act,  1956.  In  the

above case sister of a minor acting as guardian sold

immovable property by registered sale deed. In the

above  reference  this  Court  had  made  following

observations:

“25………Undoubtedly Smt Madamma, sister of the minor, is not a “guardian” as defined in Section 4(b) of the Act. Therefore, she can only be taken to be a “de facto guardian” or more appropriately “de facto manager”. To a transfer in such a case Section 11 of the Act  squarely  applies.  Therefore,  there  is little scope for doubt that the transfer of the  minor’s  interest  by  a  de  facto guardian/manager  having  been  made  in violation of the express bar provided under the section is per se invalid. The existence or  otherwise  of  legal  necessity  is  not relevant  in  the  case  of  such  invalid transfer. A transferee of such an alienation

32

does  not  acquire  any  interest  in  the property. Such an invalid transaction is not required to be set aside by filing a suit or judicial proceeding. The minor, on attaining majority, can repudiate the transfer in any manner as and when occasion for it arises. After attaining majority if he/she transfers his/her interest in the property in a lawful manner asserting his/her title to the same that is sufficient to show that the minor has repudiated the transfer made by the “de facto guardian/manager”.”

31. The above observations were made by this Court in

the context of Section 11 of the Act, 1956. Section

11 of the 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. The above observations cannot be held to

be applicable to transfer made by a natural guardian

under Section 8(3) of the Act.  

32. We may notice one more judgment of this Court

relied on by the learned counsel for the appellants

that  is  G.  Annamalai  Pillai  vs.  District  Revenue

33

Officer and others, (1993) 2 SCC 402. The question

which arose for consideration in the said case has

been  noticed  in  paragraph  1  of  the  judgment  in

following words:

“1. The  short  question  for  consideration  in this appeal is whether lease deed in dispute, which was voidable in terms of Section 8(3) of the Hindu Minority and Guardianship Act, 1956 (the Act) when validly avoided, was effective from the date of the lease deed so as to make the transaction void and unenforceable from the very inception.”

33. The land in dispute was owned by one Janarthanan.

His father, Purushothaman executed a registered lease

deed in favour of appellant on 12.12.1971 on which

date  the  owner  was  minor.  The  appellant  filed

application before Tehsildar to be registered as a

tenant  which  was  contested  by  Janarthanan.

Janarthanan contended that his father has no right or

title to deal with land and lease by his father is in

contravention  of  Section  8  of  Hindu  Minority  and

Guardianship Act, 1956. Tehsildar held that there was

no valid lease which order was confirmed by the High

Court  against  which  judgment  appeal  was  filed.  In

paragraphs 5 and 6 following has been laid down:

34

“5. We have heard learned counsel for the parties.  We  have  been  taken  through  the orders of the Revenue authorities, judgment of  the  learned  Single  Judge  and  of  the Division Bench of the High Court in writ appeal.  The  Division  Bench  of  the  High Court,  in  a  lucid  judgment,  answered  the question — posed by us in the beginning — in  the  affirmative  and  against  the appellant-Annamalai Pillai on the following reasoning:

“We have already seen that clause (3) of Section  8  of  the  Hindu  Minority  and Guardianship Act, 1956, specifically makes the  transaction  voidable.  The  lease executed by the guardian in this case is prohibited  and  in  that  sense  it  was without  any  authority.  On  the  legal efficacy  and  the  distinction  between valid,  void  and  voidable  agreements,  we find the following passage in  Salmond on Jurisprudence,  Twelfth  Edition  at  page 341:

‘… A valid agreement is one which is fully operative in accordance with the intent of the parties. A void agreement is one which entirely fails to receive legal  recognition  or  sanction,  the declared  will  of  the  parties  being wholly destitute of legal efficacy. A voidable  agreement  stands  midway between these two cases. It is not a nullity,  but  its  operation  is conditional and not absolute. By reason of  some  defect  in  its  origin  it  is liable to be destroyed or cancelled at the option of one of the parties to it. On  the  exercise  of  this  power  the agreement not only ceases to have any efficacy,  but  is  deemed  to  have  been void  ab  initio.  The  avoidance  of  it relates back to the making of it. The hypothetical  or  contingent  efficacy

35

which has hitherto been attributed to it  wholly  disappears,  as  if  it  had never  existed.  In  other  words,  a voidable agreement is one which is void or valid at the election of one of the parties to it.’

This  distinction  has  also  been judicially  noticed  in  the  Privy  Council judgment  reported  in  Satgur  Prasad v. Harnarain  Das and  in  the  Division  Bench judgment  in  S.N.R.  Sundara  Rao  and  Sons, Madurai v.  CIT.  The  Division  Bench  held, following the said Privy Council judgment as follows:

‘When  a  person,  who  is  entitled  to dissent from the alienation, does so, his dissent is in relation to the transaction as such and not merely to the possession of  the  alienee  on  the  date  of  such dissent. The  effect  of  the  evidence  is,

therefore, to get rid of the transaction with the result that in law it is as if the transaction had never taken place.’

We have, therefore, no doubt that when the fifth respondent avoided the lease executed by  his  father,  the  fourth  respondent,  the lease became void from its inception and no statutory  rights,  could,  therefore,  accrue in favour of the appellant herein.”

6. We  agree  with  the  reasoning  and  the conclusions reached by the Division Bench of the High Court and as such this appeal has to be dismissed.”

34. Learned counsel for the appellants relying on the

above decision contends that sale by Balaraman when

has been avoided by release deed it became void from

36

the very beginning. There can be no quarrel to the

proposition  laid  down  in  G.  Annamalai  Pillai  vs.

District  Revenue  Officer  and  others(supra).  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.  

35. We are, thus, of the considered opinion that 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 Balaraman set

aside.  We,  thus,  conclude  that  the  sale  deeds

executed by Balaraman were not repudiated or avoided

within the period of limitation as prescribed by law.

Issue No.3 is answered accordingly.   

36. In view of the foregoing discussions, we do not

find  any  merit  in  this  appeal.  The  appeal  is

dismissed accordingly.

......................J.                              ( ASHOK BHUSHAN )

......................J.                              ( K.M. JOSEPH )

New Delhi,  February 25, 2019.          

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