P.R. Shivakumar, J.@mdashThe first defendant in the suit is the appellant in the second appeal. The plaintiff in the suit is the first respondent in the second appeal and the second defendant in the suit is the second respondent in the second appeal. The suit was filed by the first respondent Vijaya arraying the appellant as the first defendant and second respondent as the second defendant for a declaration that the suit property absolutely belonged to her and for a consequential perpetual injunction restraining the defendants from interfering with her alleged peaceful possession and enjoyment of the suit property. Admittedly, the suit property, namely an extent of 50 cents of land comprised in S.No.61/1D1 in Viswanthangal Village, Tiruvannamalai Taluk, Tiruvannamalai District belonged to the appellant Paneer and one Kala by virtue of allotment of the same to their share in a partition that took place in their family during their minority. Appellant/first defendant Paneer and deceased Kala, the son and the daughter of the second respondent/second defendant Andal Ammal. As guardian for the appellant and the said Kala, who were then minors, Andal Ammal executed a sale deed in respect of the suit property in favour of Mannu Naidu, the father-in-law of Vijaya, the first respondent/plaintiff. According to the plaint allegations, after the death of Mannu Naidu, a partition in the family of Mannu Naidu was effected by a partition deed dated 22.03.2007 and the suit property having an extent of 50 cents was allotted to the share of Govindan, Son of Mannu Naidu, who is the husband of the first respondent/plaintiff Vijaya and the said Govindan, out of love and affection towards his wife (Vijaya) gifted the same to his wife by a registered settlement deed dated 22.03.2007 and handed over possession of the same to the first respondent/plaintiff.
2. The further averment made by the first respondent/plaintiff in the plaint is that from the date of purchase, namely from 20.09.1985. the property was in the possession and enjoyment of Mannu Naidu; that after the death of Mannu Naidu, his legal heirs were in possession and enjoyment of the same; that they effected partition on 22.03.2007 as aforesaid and that after the said partition and the settlement dated 22.03.2007, the plaintiff who became the absolute owner was in continuous and uninterrupted possession and enjoyment of the same. Based on the above said averments along with a further averment that the appellant and the second respondent (Defendants 1 and 2) made attempts to trespass into the suit property, the first respondent/plaintiff filed the suit praying for a declaration that the first respondent/plaintiff was the absolute owner of the suit property and for a consequential perpetual injunction to protect her peaceful possession and enjoyment of the suit property.
3. The second respondent Andal Ammal (second defendant) did not contest the case and she remained exparte. The appellant Paneer (first defendant) alone contested the suit by filing a written statement contending that his mother did not have the authority to sell the property on his behalf and on behalf of his deceased minor sister Kala; that the said sale was void ab initio and that hence, he was entitled to ignore the same and claim title to the property. It was also contended therein that even after the alleged sale, the property continued to be in possession of the appellant/first defendant and that hence, reliefs sought for by the first respondent/plaintiff should be negatived.
4. Apart from contending that the sale deed executed by the natural guardian on behalf of the minors was not void ab initio but was only voidable at the option of the minors or anybody acting on their behalf and that the limitation for filing a suit for declaring the sale null and void would expire by the lapse of three years from the date of attaining majority the first respondent/plaintiff had also contended that since no suit was filed for getting the sale deed cancelled and declared void within three years after the appellant/first defendant attained majority, the title of the plaintiff became unassailable. The first respondent/plaintiff had also taken an alternative plea that minor Kala, on whose behalf also the sale deed was executed, died before attaining majority and hence the limitation of three years would start from the date of death of minor Kala and that therefore, the sale became unassailable so far us her share was concerned. It is the further contention of the first respondent/plaintiff that even otherwise the second respondent/second defendant, being the mother of the deceased minor daughter, was her sole legal heir and that the second respondent, thus having become entitled to the share of the minor Kala, is bound by the provisions u/s 43 of the Transfer of Property Act. Based on the above said pleadings, the trial Court framed as many as 9 issues and one additional issue, which was numbered as the 10th issue and conducted trial.
5. At the conclusion of trial, the learned trial Judge pronounced a judgment incorporating a finding that the sale deed executed by the second respondent/second defendant in favour of Mannu Naidu on 20.09.1985 was void ab initio and the same would not bind the appellant herein/second defendant and also the deceased minor Kala. The learned trial Judge also rendered a finding that on the death of Kala, her share would have devolved equally upon the appellant herein and the second respondent herein, namely the brother and mother of the deceased Kala. The learned trial Judge also rendered a finding that the suit property was not proved to be in the possession and enjoyment of the first respondent/plaintiff and on the other hand, the appellant/first defendant was able to prove that the suit property was in his possession and enjoyment as contended by him. Based on the above said findings, the learned trial Judge non-suited the first respondent/plaintiff for the reliefs sought for by her in the suit and ultimately dismissed the suit without cost by judgment and decree dated 07.12.2010.
6. On an appeal preferred by the first respondent herein/plaintiff, the learned First Appellate Judge disagreed with the trial Judge in all respects, set aside the decree passed by the trial Court and granted a decree in favour of the plaintiff as prayed for. As against the judgment and decree of the appellate Court dated 04.06.2012 made in A.S. No. 5 of 2011, the present second appeal has been filed.
7. In an attempt to show that this second appeal involves substantial questions of law to be decided by this Court, Mr. Anbarasu, the learned counsel for the appellant made the following submissions:
The partition deed, under which the suit property came to be allotted to the appellant herein and his sister Kala, specifically recited that their mother, as their guardian, would not have any right of alienation. Apart from that, Section 11 of the Hindu Minority and Guardianship Act, 1956 provides a total bar for the disposal of the property of a minor by the guardian after the commencement of the said Act and hence the sale deed executed by the mother of the minors is invalid and should be taken as void ab initio. Though the learned trial Judge gave a finding that the suit property was proved to be in the possession of the appellant/first defendant, the first appellate Judge failed to advert to the question of possession while reversing the judgment and decree of the trial Court. Since the sale in question was made by the second respondent/second defendant in collusion with the predecessor in title of the first respondent/plaintiff and the same was a fraudulent transfer, the question of attraction of Section 43 of the Transfer of Property Act will not arise. The learned First appellate Judge, without properly appreciating the evidence and without proper application of mind to the statutory provisions and principles of law, chose to reverse the well considered judgment of the trial Court and hence, the decree passed by the appellate Court should be set aside and the decree passed by the trial Court should be restored.
8. By the above said submissions, learned counsel for the appellant has made an attempt to project the following questions as the substantial questions of law that have arisen in the second appeal:
1) Whether a sale made by the guardian without getting prior permission of the Court is not void ab initio?
2) Whether the lower Appellate Court has reversed the judgment and decree of the trial Court without adverting to the question of possession which was decided by the trial Court in favour of the appellant?
9. This Court paid its anxious consideration to the above said submissions made by the learned counsel for the appellant and also perused the grounds of appeal, records produced in the form of typed-set of papers which include copies of the plaint, written statement, judgments and decrees of the Courts below.
10. It is not in dispute that the suit property was not the self acquired property of either the appellant herein or the second respondent herein or her deceased daughter Kala. Admittedly, the suit property, along with other properties, belonged to their family and under a registered partition deed dated 10.08.1985 produced as Ex.B1, the properties were divided and the suit property was allotted to the share of the appellant herein/first defendant and his sister Kala. It is also an admitted fact that at the time of the said partition, both of them were minors and their mother, the second respondent/second defendant represented them as their guardian. Of course, the partition deed, in which the suit property was allotted to the share of the appellant/first defendant and his sister Kala, recites that the second respondent/second defendant herein was to act as the guardian of the minors and should manage the properties without the power of alienation and hand over the same to the minors on their attaining majority.
11. Whether such a restriction placed on the power of the person shown to be guardian will have the effect of abridging the power of the natural guardian is the question to be considered. In addition, the effect of the above said recital also deserves to be considered. A recital in the partition deed may prescribe the limitations of the powers of the guardian appointed under the deed. The same will not have the effect of taking away or abridging the powers of the natural guardian, which is recognized u/s 8 of the Hindu Minority and Guardianship Act, 1956. Of course, Section 11 of the said Act says no person shall be entitled to dispose of or deal with the property of a Hindu minor merely on the ground of her/his being the defacto guardian of the minor. A plain reading of the section will show that the section deals with the power of a de facto guardian and not a de jure guardian, much less the natural guardian. The provisions have been incorporated in the Act to discourage and prevent intermeddler who pose to be the guardian of the minors from disposing of or alienating the properties. Hence, the contention raised by the learned counsel for the appellant that the sale made by the second respondent/second defendant in favour of Mannu Naidu under the sale deed dated 20.09.1985 marked as Ex.A1 is non est and void ab initio is bound to be rejected as untenable.
12. The next contention raised by the learned counsel for the appellant is that even the natural guardian cannot alienate the property of the minor without getting the prior permission of the Court as contemplated u/s 8 of the Hindu Minority and Guardianship Act, 1956 and on that ground also, the sale made under Ex.A1 should be held to be null and void and not binding upon the minors on whose behalf the sale was made. This Court is not in a position to accept the above said contention of the learned counsel for the appellant as the answer to the said contention is found in clause 3 of the very same Section. For better appreciation, Section 8 Clause 1 to 3 are reproduced hereunder:
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 realization, protection or benefit of the minor''s estate; but the guardian can in no case bind the minor by a personal covenant.
(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 sub-section (1) or sub-section (2), is voidable at the instance of the minor or any person claiming under him.
13. A close scrutiny of the said provision will show that though Sub-clause 1 and 2 provide an embargo on the power of the natural guardian, sub-clause 3 makes any transaction made by the natural guardian on behalf of the minor in respect of the immovable properties of the minor only voidable at the option of the minor on his attaining majority or anybody acting on his behalf during his minority. Therefore, an alienation of immovable property of a Hindu minor by natural guardian is not void but is only voidable. When such a voidable transaction takes place, it must be avoided within the period of limitation. The period of limitation for avoiding a transaction made by the natural guardian in respect of the immovable property of a Hindu minor shall be three years from the date on which such minor attains majority. It does not mean that before the minor attains majority, no one can take up the cause of the minor to avoid the transaction. Admittedly, nothing was done by the appellant/first defendant within three years after his attaining majority. No one representing him also took steps to avoid the sale. So far as the share of minor Kala is concerned, she died during her minority. Hence, the limitation would have started from the date of her death provided the person claiming through her was not a minor on that date.
14. Only in order to get over the said difficulty, the appellant/first defendant seems to have taken a novel stand that on death of Kala, her share devolved upon her brother, namely the appellant herein and her mother namely, the second respondent herein, in equal proportion. As per the Hindu Succession Act, 1956 in the presence of mother, brother or sister of the unmarried woman will not be her legal heir. Since the second respondent/second defendant is alive, there is no question of the appellant/first defendant, as brother, succeeding to the property of the deceased Kala. Therefore, whatever properties that might have been owned by the deceased Kala would have devolved on her mother, namely the second respondent/second defendant. The second respondent/second defendant had executed the sale deed conveying the property of the deceased Kala also. So far as her share is concerned, the second respondent/second defendant became entitled to the same subsequently on the death of Kala by virtue of the rule of succession. Because of the acquisition of such interest in the property of minor Kala, Section 43 of the Transfer of Property Act squarely applies to the case on hand so far as the share of minor Kala is concerned. Therefore, no defect or infirmity is found in the judgment of the lower appellate Court that so far as minor Kala''s share is concerned, the second respondent/second defendant had lost her right to challenge the sale under Ex. A1 by virtue of the provisions found in Section 43 of the Transfer of Property Act.
15. Even assuming that Section 43 will not get attracted, the limitation for challenging the sale under Ex.A1 has expired long back because the same would have expired by the expiry of three years from the date of death of Kala. Admittedly. Kala died several years prior to the filing of the suit and no steps were taken by the second respondent to challenge the sale made under EX.A1. So far as the share of the Kala is concerned, till date the second respondent has not chosen to challenge the sale made under Ex.A1. Therefore, at least to the extent of 1/2 share referable to deceased Kala, the sale became unassailable.
16. Coming to the question of the sale made under Ex. A1 in respect of the share of the appellant/first defendant, this Court finds no defect, discrepancy or infirmity in the finding of the first appellate Court that the appellant/first defendant had lost his right to challenge the alienation as he had not taken steps to avoid the sale within three years after attaining majority.
17. So far as the plea of the parties regarding possession is concerned, the learned trial Judge chose to rely on the revenue records, especially the Kist receipts showing payment of Kist in respect of Patta No. 310 and gave a finding that the suit property continued to be in the possession of the appellant/first defendant. The learned First appellate Judge considered the said point and on proper re-appreciation of evidence assigned valid reasons for deferring with the finding of the trial Court. In this regard, the learned First Appellate Judge referred to the fact that a joint patta had been issued in Patta No. 310 and that after the sale under Ex.A1 took place, the name of the father-in-law of the first respondent/plaintiff was included in that joint patta. The learned First appellate Judge also referred to the Kist receipts produced by the appellant/first defendant and held that they would not establish the fact that the suit property, even after the sale in favour of Mannu Naidu, continued to be in the possession of the appellant/first defendant. The learned first appellate Judge has rendered a clear finding that the property was not proved to be in the possession of the first defendant and on the other hand, it was proved to be in the possession of the first respondent/plaintiff. Based on those clear findings of fact, the learned appellate Judge has chosen to allow the appeal and reverse the judgment of the trial Court by which the suit had been dismissed and thereby decreed the suit as prayed for. This Court finds no defect or infirmity in the said judgment of the appellate Court. Moreover, no substantial question of law is proved to be involved in the second appeal and no substantial question of law and not even a question of law has been proved to have been decided wrongly or erroneously by the lower appellate Court. There is no merit in the second appeal and the second appeal does not even merit admission. The second appeal deserves to be dismissed at the stage of admission itself. Accordingly. the second appeal is dismissed. No costs.
