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Hiralal Dayaram Patil Vs. Bhikari Sampat Shinde - Court Judgment

LegalCrystal Citation
SubjectFamily
CourtMumbai High Court
Decided On
Case Number First Appeal No. 402 of 1963
Judge
Reported in(1971)73BOMLR481
AppellantHiralal Dayaram Patil
RespondentBhikari Sampat Shinde
Excerpt:
hindu late - guardian--natural guardian entering into transaction relating to minor's property whether void-whether minor can repudiate personal liability under transaction not initially void and under which minor takes advantage.;under hindu law a transaction relating to a minor's property entered into by a natural guardian on behalf of the minor is not void ab initio even though such transaction may impose personal liability on the minor. it can be avoided by the minor on attaining majority if he can establish that the guardian had exceeded his authority, i.e. by establishing that the transaction was not one for legal necessity, nor for the minor's benefit. but if a transaction by a guardian is not initially void and the minor concerned on attaining majority chooses to take advantage.....chitale, j.1. this is an appeal by defendants nos. 1 to 8 against the decree passed by the civil judge, senior division, jalgaon, against them for rs. 10,500 with future interest and costs.2. the facts admitted before us are as follows :one sampat ganpat shinde was the father of plaintiffs nos. 1 to 8 and 5 to 11, and husband of plaintiffs nos. 4 and 12. one daulat shimpi obtained two decrees against sampat, one of them was a mortgage decree for rs. 10,000 (exh. 45) and the other one was a money decree for rs. 7,000 (exh. 46). sampat agreed not to dispose of his properties until the two decrees were satisfied. on july 12, 1949 sampat sold s. nos. 74 and 84/1 at kekatnimbhore to defendants nos. 1 and 2 minors by their guardian their natural father-defendant no. 3. the sale-deed is at exh......
Judgment:

Chitale, J.

1. This is an appeal by defendants Nos. 1 to 8 against the decree passed by the Civil Judge, Senior Division, Jalgaon, against them for Rs. 10,500 with future interest and costs.

2. The facts admitted before us are as follows :

One Sampat Ganpat Shinde was the father of plaintiffs Nos. 1 to 8 and 5 to 11, and husband of plaintiffs Nos. 4 and 12. One Daulat Shimpi obtained two decrees against Sampat, one of them was a mortgage decree for Rs. 10,000 (exh. 45) and the other one was a money decree for Rs. 7,000 (exh. 46). Sampat agreed not to dispose of his properties until the two decrees were satisfied. On July 12, 1949 Sampat sold S. Nos. 74 and 84/1 at Kekatnimbhore to defendants Nos. 1 and 2 minors by their guardian their natural father-defendant No. 3. The sale-deed is at exh. 39. The consideration for the sale-deed was Rs. 24,912, which was made up by the amounts due under the said two decrees and some other consideration. After purchase defendants Nos. 1 and 2 paid the amount due under the mortgage-decree, but they did not pay the amount due under the money-decree (exh. 46) mentioned above. Daulat Shimpi, therefore, filed execution proceedings- Darkhast No. 48 of 1949-to execute the money decree mentioned above. He sought execution by sale of S. No. 90 measuring 11 acres and 36 gunthas. The amount sought to be recovered was Rs. 8,815, On June 27,1959 Sampat died and the present plaintiffs are his heirs. The plaintiffs in order to satisfy the money decree by compromise sold 8 acres and 36 gunthas out of S. No. 90 and thus fully satisfied the said money-decree. Necessary sanction by the Court for this sale was obtained. The order in that respect is at exh. 74. The sale-deed was executed on November 21,1961, which is at exh. 49, and on November 27,1961 the darkhast was disposed of showing the said money-decree as fully satisfied. We may mention here that defendant No. 4 is a subsequent transferee in respect of S. No. 74 from defendants Nos. 1 and 2, minors by their guardian their natural father defendant No. 3. Defendant No. 4 is defendant No. 3's wife's sister. On January 23, 1962 the plaintiffs filed the present suit to recover Rs. 10,500 with future interest at 6 per cent, per annum and costs from the defendants; they prayed for a charge on the lands S. No. 74 and 84/1 at Kekatnimbhore, The substance of the allegations in the plaint is that defendants Nos. 1 and 2 failed to satisfy the money-decree, exh. 46, although they agreed to do so under the terms of the sale-deed exh. 89. The plaintiffs, therefore, had to spend Rs. 10,500, which they seek to recover by the present suit. The plaintiffs allege in the plaint that the transaction of purchase of the land by exh. 39 was for the benefit of the family of the defendants, the family actually received benefit thereof and that is why defendant No. 3 who was the manager of the family is also liable. Defendant No. 4, as stated above, was joined as the subsequent transferee.

3. The suit was contested by the defendants on various grounds. In view of the arguments advanced by Mr. Shrikhande on behalf of the appellants-defendants Nos. 1 to 3 the only material defences for the purpose of this appeal is that the sale-deed, exh, 39, imposes personal liability on the minor vendees defendants Nos. 1 and 2, the natural guardian of these minors had no legal right to impose such liability, hence the plaintiffs have no legal right to recover the loss sustained by them on account of the failure to discharge such a liability imposed on the minors. Defendant No. 3 is in no case liable, because he is not a party to the sale-deed, he merely acted as the guardian of defendants Nos. 1 and 2. In any case, the plaintiffs would not be entitled to recover Rs. 10,500, at best they would be entitled to Rs. 7,281 the amount shown to be due under the said money-decree in the sale-deed, exh. 39.

4. We may mention here that the point, viz. the sale-deed, exh. 39, imposes personal liability on the minors, hence the plaintiffs are not entitled to recover anything on account of the minors' failure to discharge such liability, was not taken in the trial Court. All the same, we have allowed Mr. Shrikhande to argue that point, since no further facts are necessary and it is a point of law which can be argued on the facts which are already on record.

5. The learned trial Judge relied on the decision of this Court in Ammanibai v. Anant (1930) 33 Bom. L.R. 186, and decreed the plaintiffs' claim, over-ruling the defendants' contentions. The present appeal is preferred against this decision of the trial Court.

6. Mr. Shrikhande for the appellants-defendants Nos. 1 to 3 contends that the sale-deed, exh. 39, obviously imposes personal liability on the minors, inasmuch as by that sale-deed defendants Nos. 1 and 2, who were minor purchasers, undertook to pay Rs. 7,281, the amount due under the money-decree, exh. 46, mentioned above. Defendant No. 3, though the father of defendants Nos. 1 and 2 and thus the natural guardian, had no authority to impose such personal liability on the minors, hence the plaintiffs cannot rely on the relevant covenant in the sale-deed and sue to recover the loss sustained by them (plaintiffs) on account of the failure of defendants Nos. 1 and 2 to carry out the said covenant in the said sale-deed. According to Mr. Shrikhande, this is a case of absence of authority for the guardian, and not a case of exceeding the authority by the guardian. Before dealing with this contention advanced by Mr. Shrikhande, we must mention here that defendants Nos. 1 and 2 by their written statements, exhs. 15 and 20, did not repudiate the transaction evidenced by the sale-deed, exh. 39, they claim to be the owners of the property purchased by the sale-deed, exh. 39, but they deny that they are liable to meet the plaintiffs' claim on account of their failure to carry out the above-mentioned covenant in the sale-deed, exh. 39. Mr Shrikhande relies on the decision of this Court in Keshav v. Balaji : AIR1932Bom460 . This was a case in which a minor was sought to be made liable on a pro-note executed by the guardian appointed by the Court. After referring to relevant authorities, Rangnekar J. observed (p. 999):.It is unnecessary to refer in detail to these decisions. But the principle which seems deducible from them is that although a guardian can under certain circumstances sell or charge his ward's estate or property, he cannot bind him personally by a simple contract debt, nor can he bind his estate except by a document purporting to bind it. The observations of that learned author Trevelyan in his well-known book on Law of Minors are also to the same effect. In my opinion it is too late in the day to contest the position that a guardian cannot personally bind his ward by contract which does not purport to bind his estate.

In our opinion, these observations do not help the defendants. Even these observations make it clear that in certain circumstances the guardian can sell or charge his ward's estate or property, although he cannot bind the minor personally by a simple contract debt. As already pointed out, this was a case in which pro-note was renewed by the guardian of a minor. This was not a case of a transaction relating to the estate of the minor. Rangnekar J. after referring to Hunooman-persaud Panday v. Mussumat Babooee M. Koonweree (1856) 6 M.I.A. 393. and Raman Chettiar v. Tirugnanasambandam Pillai I.L.R.(1926) Mad. 217 relied upon by the appellant in that case, pointed out the distinction between 'a simple contract debt' and 'documents purporting to bind minor's estate', for example cases in which the estate of the minor was sold, mortgaged or charged for a debt incurred for legal necessity.

7. Mr. Shrikhande further relies on Shankar v. Nathu (1932) 84 Bom. L.R. 1001. On facts, it is a still worse case. In this case the District Judge had directed the guardian not to incur any loan without the Court's permission. In spite of this direction to the guardian, he borrowed some amount for the minor's business and later on the guardian was convicted for misappropriation. After referring to the Privy Council decision in Waghela Rajsanji v. Shekh Masludin and one more case, Baker J. observes (p. 1004):.It is, therefore, established law, and has been held by this Court in many subsequent cases that a minor cannot be bound personally by a contract entered into by a guardian which does not purport to charge his estate, and this promissory note, therefore, cannot bind the ward personally, nor does it purport to charge his estate.

This decision also does make a distinction between personal liability imposed on a minor without reference to a transaction relating to minor's property and a transaction relating to such property. This decision also, therefore, does not support Mr. Shrikhande's contention.

8. Reference was then made to the Privy Council decision in Mohori Bibee v. Dhurmodas Ghose (1903) L.R. 80 IndAp 114 : 5 Bom. L.R. 421. This decision holds that contracts by minors are wholly void. It is, however, important to note that in this case the minor himself not represented by a guardian entered into a contract, falsely representing that he was a major. Thus on facts the Court found that in fact the contract was entered into by a minor who was in law not competent to contract, hence the contract was wholly void. In the present case, there is undoubtedly a transaction entered into by a natural guardian of the minors-defendants Nos. 1 and 2 and obviously that will have to be considered on a different footing. The question whether the liability in question could be imposed on the minors, defendants Nos. 1 and 2, would depend upon whether their guardian had authority to enter into a transaction relating to their property. Mr Shrikhande for the appellants has not urged before us that a natural guardian has no authority whatsoever to enter into a transaction relating to minor's property on behalf of the minor. He, however, contends that even in such a transaction a guardian has no authority to impose personal liability on the minor cencerned. In our opinion, this is not a correct approach to the question at issue. The question for consideration is whether a natural guardian can on behalf of the minors purchase property. In our opinion, he has authority to do so, although such authority is not unbridled, it is a limited one. In this respect, we may refer to the commentary of Sir Dinshaw Mulla in his treatise 'Transfer of Property Act' 5th ed., p. 81. The relevant observations are :

A minor is in English law disqualified to be a transferee of a legal estate in land but not of an equitable interest in land or other property, but in India although a minor's contract is void, yet a minor is not disqualified to be a transferee, and a minor may be a purchaser or a mortgagee. But neither the guardian of a minor nor his manager is competent to bind the minor or his estate by a contract for the purchase of immovable property but a lease to a minor is void, as a lease imports a covenant by the minor to pay rent and other reciprocal obligations.

These observations make it clear that a minor may be a purchaser, although his guardian cannot bind the minor or his estate by a mere contract of purchase. A minor is not bound to perform specifically the contract entered into by his guardian. In this respect, we may refer to the decision of Allahabad High Court in Narain Das v. Musammat Dhania I.L.R (1915) All. 154, In that case, one Musammat Dhania and others executed a sale-deed in favour of Suraj Bhan, a minor. The executants i.e. the vendors refused to get the sale-deed registered, but it was compulsorily registered by the order of the District Registrar. Suraj Bhan then sued to recover possession of the property sold, expressing his willingness to pay the unpaid consideration. The trial Court, as well as the first appellate Court dismissed the suit, treating it as one for specific performance. The first appellate Court relied upon the Privy Council decision in Mir Sarwarjan v. Fakhruddin Mahomed Chowdhuri I.L.R (1911) 39 Cal. 232: 421(14) Bom. L.R. 5. The High Court, however, held that the said decision was not applicable to the facts of the case, it was not a suit for specific performance, but it was a suit for recovery of possession on the claim of title acquired under the sale-deed. The High Court laid stress on the fact that the sale-deed was executed and registered. The High Court pointed out that the Transfer of Property Act does not declare a minor to be incompetent to purchase property. A number of decisions were referred to and it was held that a minor was not disqualified from purchasing property (see page 160).

9. Mr. Shrikhande further referred to the decision of this Court in Nagindas Gokuldas v. Bhimrao Damu [1943] Bom. 117 : 44 Bom. L.R. 894. This decision also clearly brings out the distinction between a transaction relating to immovable property of a minor and a transaction or a contract imposing mere personal liability on a minor. In this case, the Court refused to extend the decision of the Full Bench in Tulsidas v. Vaghela Raisingji I.L.R. (1932) Bom. 40 : 34 Bom. L.R. 1483 to cover the case of a promissory note passed by a de facto guardian, even though the amount was borrowed for antecedent debt of the father,

10. In our opinion, the material question for consideration is whether the transaction evidenced by the sale-deed, exh. 39, can be said to be a void transaction or a voidable transaction. In other words, can it be said that the transaction of purchase was wholly unauthorised hence void, or it was a transaction voidable at the option of the minors concerned. In our opinion, if it is clear that minors are not disqualified from purchasing property, it is difficult to hold that purchase of property on behalf of the minors by their guardian who has authority, though limited, can be said to be void altogether. In this respect, we may refer to the decision of the Privy Council in Srikakulam Subrahmanyam v. Kurra Subba Rao , In that case, agreement of sale was entered into on behalf of the minor by his natural mother acting as the guardian. On execution of the agreement of sale, the intending purchasers were put in possession. The minor even before attaining majority filed a suit to recover possession of the land agreed to be sold. At page 120 of the report, their Lordships observe :.The position of the minor under such a contract is discussed in the following passage, with which their Lordships agree, in Pollock and Mulla's Indian Contract and Specific Relief Acts, 7th ed., p. 70: 'A minor's agreement being now decided to be void, it is clear that there is no agreement to be specifically enforced; and it is unnecessary to refer to former decisions and distinctions, following English authorities which were applicable only on the view now overruled by the Judicial Committee'. The learned authors are here referring to the decision in Mohori Bibee v. Dhurmodas Ghose already cited. They continue; 'It is, however, different with regard to contracts entered into on behalf of a minor by his guardian or by a manager of his estate. In such a case it has been held by the High Courts of India, in cases which arose subsequent to the governing decision of the Judicial Committee, that the contract can be specifically enforced by or against the minor, if the contract is one which it is within the competence of the guardian to enter into on his behalf so as to bind him by it, and, further, if it is for the benefit of the minor. But if either of these two conditions is wanting, the contract cannot be specifically enforced at all'.

After making these observations their Lordships held on facts that as both the conditions mentioned in these observations were satisfied, the agreement to sell was binding on the minor. Their Lordships further observed that if the said two conditions were fulfilled, there was no reason why specific performance of the agreement to sell should not be granted. In our opinion, these observations make it abundantly clear that if a guardian of a minor acting on behalf of the minor enters into a transaction relating to the minor's property the transaction cannot be said to be void, but it is merely voidable at the option of the minor on the ground that it was not for legal necessity, or that it was not for his benefit. One can visualise several cases where purchase of property for a minor can be said to be for his benefit. Several decisions have, however, made it clear that the expression 'benefit' does not include speculative benefit. So also a transaction effected merely with a view to increase minor's immediate income cannot be said to be for the benefit of the minor. See Sir Dinshaw Mulla's Hindu Law, 13th Ed. 528. Thus it is clear that a natural guardian, in fact any guardian having authority to deal with minor's property, can purchase property for and on behalf of the minor if such purchase is for the benefit of the minor or his estate. If a natural guardian who has authority to deal with his minor's property enters into a transaction and purchases property for the minor, such transaction cannot in our opinion be said to be void, even though such transaction may impose personal liability on the minor. It is true that the minor on attaining majority can repudiate such a transaction and thereby refuse to accept the personal liability imposed on him by that transaction. From that, however, it does not follow that the minor can refuse to discharge the personal liability imposed on him even while taking advantage of the transaction which imposed personal liability on him.

11. We may refer to the decision of this Court in Vijaykumar v. Gokulchand (1964) 68 Bom. L.R. 891, In this case, the question for consideration was whether a contract entered into by a natural guardian (the father of the minor) to purchase a shop can be specifically enforced, if it was for the benefit of the minor. The suit was filed by the guardian during the minority of his son who was mentioned as the purchaser in the agreement of sale. It is true that the decision deals mainly with the extent of the power of the natural guardian, but in that respect Mr. Justice Paranjpe observes (p. 894): .When admittedly the powers of a natural guardian, namely, the father, over the property of his minor son are much wider than the powers of an ordinary manager or a guardian of a minor's property, the earlier Privy Council decision would not preclude the natural father from entering into an agreement so as to bind the minor.

The learned Judge then referred to the decision of the Privy Council in Srikakulam Subrahmanyam v. Kurra Subba Rao, In view of the above-quoted observations of the Privy Council, it is in our opinion quite clear that a transaction like the one in the present case cannot be said to be altogether void, because if it was void, the question of specific performance thereof would not arise. Such a transaction must, therefore, be held to be voidable at the option of the minor concerned.

12. We may also refer to the decision of this Court in Popat Namdeo v. Jagu Pandu (1968) 70 Bom. L.R. 450. That was a case in which the minor sought to have declaration that the sale-deed executed on his behalf by his guardian was brought about by fraud and without adequate consideration. In the alternative, specific performance of a subsequent agreement to reconvey dated December 24, 1954 was sought. The plaintiff's contention that the sale-deed was brought about by fraud and was without adequate consideration was overruled and the only question that remained for consideration was whether the agreement to reconvey dated December 24, 1954 in favour of the minor represented by the guardian could be specifically enforced. Mr. Justice Palekar relying on the decision of the Privy Council in Srikakulam Subrahmanyam v. Kurra Subba Rao held that specific performance of the agreement to reconvey in favour of the minor could be granted. After referring to several decisions Mr. Justice Palekar agreed with the view taken by Andhra Pradesh High Court in Suryaprakasam v. Gangaraju A.I.R. [1956] And 33. With regard to the doctrine of mutuality, Mr. Justice Palekar observes (p. 464):.The doctrine of mutuality was invoked because the minor's contract under the Indian Contract Act was a void contract, but when it is clear that a minor's contract entered into by a guardian for legal necessity or for the benefit of the estate is a valid contract, the doctrine of mutuality has no place. The reason is that the want of capacity of the minor has been supplied by the guardian and, therefore, the contract which would have been otherwise void has now become valid, provided of course the guardian acts within his authority permitted by Hindu law. This proposition would as much apply to a contract for purchase as to a contract for sale. Therefore, on principle, if Mir Sarwarjan's case cannot be invoked in order to defeat a contract of sale of the property of a minor, it cannot be invoked to defeat a contract for purchase on behalf of the minor, provided the guardian is acting within his authority.... Conversely, therefore, if the law now is that the minor's contract for sale entered into by his guardian is enforceable by or against him, the contract for purchase on behalf of the minor is equally enforceable. Thirdly, there is no principle of law which prevents a Hindu minor from being a transferee of property.

We are in agreement with the view expressed by Palekar J. by the above observation.

13. We may also refer to the Full Bench decision of Andhra Pradesh High Court in Subrahmanyam v. Gangaraju. The main judgment is by Subba Rao C. J. After referring to the various decisions the learned Judge observes (p. 39) :

Under Hindu law, as I have already indicated in a different context, a guardian has legal competency to enter into a contract on behalf of a minor for necessity or for the benefit of the estate. In the case of contract coming within the four corners of that doctrine no question of invalidity arises. It is valid at the time of inception and if either of the parties can enforce the contract against the other at the time it was entered into, the test of mutuality is also satisfied.

The learned Judge then proceeds to consider the Privy Council decision in Mir Sarwarjan v. Fakhruddin Mahomed Chowdhuri and refers to the following observation of the Privy Council (p. 39) :

'Their Lordships entertain no doubt that it was within the powers of the mother as guardian to enter into the contract of sale of November 29, 1935, on behalf of the respondent for the purpose of discharging his father's debts, and that, if the sale had been completed by the execution and registration of a deed of sale, the respondent would have been bound under Hindu law'.

The learned Judge rightly points out that this is a clear statement of law recognising the right of guardian to enter into a contract to sell for a purpose binding on the minor's estate. The learned Judge then refers to Ramalingam v. Babanambal Animal : AIR1951Mad431 , and observes (p. 40) :

The learned Judge did not express his final opinion in the case of agreement of sale by a guardian on behalf of a minor as obviously he could not do so contrary to the decisions of the Full Bench and Division Bench of the Madras High Court. I have carefully gone through the judgment. I entirely agree with the view expressed by him. I would go further and hold that there cannot be any essential distinction between a contract of sale and contract of purchase, The difference is only one of degree.

With respect we agree with the view expressed by the above observations. With regard to enforcement against a minor, the learned Judge observes (p. 41) :

Further it cannot be laid down as an inflexible rule that under no circumstances the personal liability of a minor can be enforced against him. If that was so even in the case of a sale or mortgage executed by a guardian on behalf of a minor for necessity or for the benefit of the estate, there would be personal obligations to be enforced against the minor under certain contingencies. If any of the covenants incorporated in the sale deed are broken by a guardian or the statutory covenants embodied in Section 55, Transfer of Property Act are not carried out, it cannot be contended that they could not be enforced against the guardian representing the minor.

After the sale deed was executed if the guardian did not pay the consideration certainly the vendor could recover the money from the estate of the minor. If the title was defective, the estate of the minor would be liable for damages. But the learned counsel of the respondents contends that the said obligations and liabilities would arise only after a valid transfer deed is executed and that they have [no] bearing in a case where the competency of the guardian to enter into a contract itself is questioned.

While I appreciate the distinction, the fact remains that a minor under Hindu law is not completely immune from the enforceability of personal obligations against him. If he was liable after the sale deed was executed by the guardian I do not see any justification for holding that the obligation to execute a sale deed is not binding on him. All the Courts have held consistently relying upon the decision in If uncomanpersaud Panday v. Mussumat Babooee M. Koonweree that the guardian of a minor can alienate his property or charge it for necessity or for the benefit of the estate.

These observations make it clear that a transaction entered into by a natural guardian on behalf of a minor is not void ab initio; it can be avoided by the minor if he (minor) can establish that the guardian had exceeded his authority, i.e. by establishing that the transaction was not one for legal necessity, nor for the minor's benefit. If a contract by a guardian is not initially void and the minor concerned on attaining majority chooses to take advantage under that contract, but repudiates his liability under the same contract, there seems to be no principle of law, nor of equity under which he can do so. On attaining majority it is open to the minor to repudiate the transaction as a whole, but if he chooses to take advantage under the transaction, he cannot in that case repudiate his personal liability under the same transaction. There is no provision of law, nor any principle on which he can approbate and reprobate in this manner.

14. We may also refer to the Full Bench decision of Madras High Court in Sitarama v. Venkatarama [1956] Mad. 99. In that case on January 29, 1983 certain property was purchased by two brothers, one of whom was a minor; the other brother, though not the legal guardian, acted as guardian for the minor brother. On the same date an agreement to reconvey the properties to the vendors, after the minor brother attains majority, on any date between June 1 and 80, 1947 was entered into. In the suit for specific performance of the agreement to reconvey, the contention that the agreement to reconvey was not binding on the brother who was a minor and that specific performance of the agreement to reconvey cannot be decreed was over-ruled. At page 121 of the report the following observation appears :

Therefore, in the present case, if the second defendant does not want to have the advantage of the purchase, he can disclaim the purchase and claim the consideration paid for it, but he will not be allowed to approbate and reprobate at the same time. As, in my view, the contract cannot be bifurcated, it has specifically to be enforced, and the second defendant cannot repudiate the liability to reconvey, at the same time retaining to himself the advantage gained by the purchase.

This conclusion was arrived at after referring to earlier decisions including the Privy Council decision in Mir Sarwarjan v. Fakhruddin Mahomed Chowdhuri. This Full Bench decision over-rules the view of Vishwanath Shastri J. that principle of mutuality enunciated by Lord Macnaghten in Mir Sarwarjan's case cannot be applied to a case where the contract was by the guardian for purchase of property on behalf of the minor.

15. Lastly, we may refer to the Full Bench decision of this Court in Fakirappa Limanna v. Limanna Bin Mahadu I.L.R. (1919) 44 Bom. 742 :22 Bom. L.R. 680. That was a case in which the question for consideration was whether a minor or a person claiming under him can ignore a transaction entered into on behalf of the minor and claim possession of the property sold or whether it was necessary to have the sale set aside before possession could be claimed. One Nana was the owner of the property. He died leaving behind his wife Sidubai and a minor son Omanna. After Nana's death Sidubai purporting to act as the natural guardian of Omanna sold the equity of redemption (the property was already mortgaged) to the defendant's father in 1891. Omanna attained majority in 1894-95 and died in 1901 leaving behind his widow Gopika. Sidubai died in 1906 and Gopika died in 1908. The plaintiff Limanna as the next reversioner sued to recover possession. On these facts, it was urged on behalf of the reversionary-plaintiff that the sale in question effected by the guardian on behalf of the minor being void could be ignored and suit to recover possession could be filed without a prayer to have the sale set aside. This contention was negatived and it was held that the sale could not be ignored, the plaintiff must get it set aside before possession can be recovered. In this respect the observations of Shah J. are material (p. 766) :.On a further consideration lam satisfied that the necessity for suing to set aside a sale does not depend so much upon the question whether the onus lies upon the plaintiff or the defendant in the first instance, but upon the question whether the sale is by a person wholly unauthorised or by a person who is authorised only under certain circumstances to alienate the property or in other words whether the sale is null and void or only voidable if the person interested seeks to avoid it. If the latter is the case, the persons concerned should sue to have it set aside if there is any Article of the Limitation Act applicable to such a suit. In the present case Article 44 applies, and therefore the necessity of suing to set aside the sale is establish under the circumstances.

16. Mr. Shrikhande for the appellants contends that the question whether a transaction entered into by a natural guardian on behalf of a minor imposing personal liability is void or voidable did not directly arise in this case. It is true that the question did not arise in that particular form; nonetheless if the Court had taken the view that a transaction by a natural guardian on behalf of the minor was void as contended by the plaintiff in that case, the Court could not come to the conclusion that the sale had to be set aside before possession could be awarded. In fact the above observations of Shah J. make it abundantly clear that the Court did take the view that the particular transaction was voidable, and not void, hence the suit was held to be barred under Article 44 of the limitation Act.

17. For reasons indicated above, we are of the opinion that the transaction evidenced by the sale-deed, exh. 39, was not a void transaction, it was only a voidable transaction which defendants Nos. 1 and 2 on attaining majority could repudiate and have it declared void on proper grounds. Defendants Nos. 1 and 2 have not, however, chosen to do so. They, on the other hand, claim title under the said sale-deed. Thus if they have chosen to abide by the contract embodied in the sale deed, exh. 39, in our opinion there is no principle of law on which they can while accepting the transaction repudiate the liability under that transaction. This view is accepted by the Andhra Pradesh High Court in the decision mentioned above and we are in entire agreement with that view. In our opinion, therefore, defendants Nos. 1 and 2 cannot contend that the personal liability imposed on them by the sale-deed exh. 89, viz. the liability to pay Rs. 7,281 the amount due under the money-decree, exh. 46, cannot be enforced against them.

18. [The rest of the judgment is not material to this report].


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