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Talari Erappa Vs. Muthyalappa - Court Judgment

LegalCrystal Citation
SubjectFamily;Property
CourtKarnataka High Court
Decided On
Case NumberSecond Appeal No. 908 of 1965
Judge
Reported inAIR1972Kant31; AIR1972Mys31; (1971)2MysLJ164
ActsHindu Minority and Guardianship Act, 1956 - Sections 11; Hindu Law
AppellantTalari Erappa
RespondentMuthyalappa
Appellant AdvocateP.R. Srinivasan, Adv.
Respondent AdvocateB. Subbiah and ;M.C. Narayana Reddy, Advs.
DispositionAppeal dismissed
Excerpt:
- karnataka transparency in publicprocurements act, 1999.[k.a. no. 29/2000]. section 9: [anand byareddy, j]tender for establishing state-wide area network - constitution of tenders accepting authority multi-member committee (nsc) appointed for procurement entity discharging function to examine recommendations received from governments consultants received from governments consultants on implementation of state wide area network (kswan), to consider-recommendations of consultant on preparation of tender documents and detailed evaluation criterion in respect of same as well as to examine selection of bidder nsc also discharged function to recommend to government final bidder for network held, such committee shall be deemed to be tender accepting authority. appointment of technical..........aged about 20 years.during his minority, the 5th defendant narayanappa claiming himself as a de facto guardian of the plaintiff sold allthe items of the suit schedule properties to defendants 1 to 4. we are concerned in this appeal only with the sale of item no. 1 in favour of defendant 2 under exhibit d-4 dated 5-2-1959 after the coming into force of the hindu minority and guardianship act, 1956 (hereinafter referred to as the act).3. the trial court decreed the claim of the plaintiff in respect of all the suit items except item no. 1. aggrieved by that decision, the plaintiff preferred r. a. no. 178 of 1965 and defendants 1 and 4 preferred r. a. no. 30 of 1965 on the file of the district judge, tumkur, the main questions involved in the case were:--i) whether the 5th defendant sold.....
Judgment:

Honniah, J.

1. This appeal arises out of a suit filed by the plaintiff for a decree declaring his title to the suit schedule properties, for recovery of possession from the defendants and for recovery of mesne profits from the date of suit till the date of delivery of the suit schedule properties to him.

2. The facts that have given rise to this appeal are briefly thus: The plaintiff is a Hindu governed bv the law of Mithakshara. The plaint schedule properties originally belonged to one Singarappa. paternal grand-father of the plaintiff and after his death, his son Peddanna, Hanumanthappa. Karappa, Honnurappa, Vasanthappa (father of the plaintiff) succeeded to the properties and held the same as joint family properties. The plaintiff's father and his brothers lived as members of a joint Hindu.family. The other brothers of Vasanthappa died issueless leaving behind them Vasanthappa and the plaintiff as the only surviving co-parceners. The plaintiff's father was in possession and enjoyment of the suit schedule properties till his death in 1948 and thereafter the plaintiff succeeded to the properties as the whole surviving coparcener. At that time the plaintiff was a minor and on the date of the suit, he was aged about 20 years.

During his minority, the 5th defendant Narayanappa claiming himself as a de facto guardian of the plaintiff sold allthe items of the suit schedule properties to defendants 1 to 4. We are concerned in this appeal only with the sale of item No. 1 in favour of defendant 2 under Exhibit D-4 dated 5-2-1959 after the coming into force of the Hindu Minority and Guardianship Act, 1956 (hereinafter referred to as the Act).

3. The trial court decreed the claim of the plaintiff in respect of all the suit items except item No. 1. Aggrieved by that decision, the plaintiff preferred R. A. No. 178 of 1965 and defendants 1 and 4 preferred R. A. No. 30 of 1965 on the file of the District Judge, Tumkur, The main questions involved in the case were:--

i) Whether the 5th defendant sold the suit schedule properties to other defendants for legal necessity and benefit of the plaintiff?

ii) Whether the alienations were binding on the plaintiff?

iii) whether the plaintiff ratified the acts of the 5th defendant, and if so, is he estopped from bringing the suit? On the first question, both the courts came to the conclusion that the 5th defendant, had not sold the properties for legal necessity and benefit of the plaintiff. On the question of ratification, the lower appellate court disagreeing with the trial court came to the conclusion that the ratification evidenced by the agreement Exhibit D-5 dated 23-7-1961, was vitiated by fraud and undue influence. In the above view, the lower appellate court dismissed the appeal of defendants 1 and 4 and allowed the appeal of the plaintiff. As against this. defendant-2 has preferred this second appeal.

4. This second appeal has been referred to a Division Bench by Jagannatha Shetty. J., on the ground that it involves a substantial question of law regarding interpretation of Section 11 of the Act.

The trial Court came to the conclusion that defendant-5 was not an ileumson-in-law of the family and as such could not be considered as a de facto guardian of the plaintiff who was a minor then- The finding of the lower appellate court on this question is also the same.

5. Even assuming as contended by Mr. Srinivasan for defendant 2 that defendant-5 was in an ileumson-in-law of the family and a de facto guardian of the plaintiff, in view of the provisions contained in Section 11 of the Act he could not have disposed of or dealt with the properties of the plaintiff when he was a minor on the ground that he was a de facto guardian of the minor. Mr.Srinivasan however contended that in view of the agreement Exhibit D-5 dated 23-7-1961 executed by the plaintiff, after he attained majority, agreeing to re-purchase item No. 1 for a sum of Rs. 2,500/-, i. e. for the same amount that defendant 2 paid under the sale deed exhibit D-4, the sale under Exhibit D-4 effected by defendant-5 in favour of defendant 2 stood ratified, and therefore, the plaintiff could not impeach it- Section 11 of the Act provides that after the commence- ment of this Act no person shall be entitled to dispose of or deal with the property of a Hindu minor merely on the ground of his or her being a de facto guardian of the minor. From the wording of the section, it is clear that it brings about material change in the law relating to de facto guardians under Hindu Law- In view of the prohibition contained in the express terms that after the commencement of this Act no person has right or authority to dispose of minor's property as de facto guardian or such minor, any transfer purporting to be on behalf of the minor made by a de facto guardian is void ab in-itio. If that is the legal position, the question is whether the minor after attaining majority can validate the same by ratifying it either expressly or by necessary implication.

6. Mr. Srinivasan relies upon two decisions in support of his contention that the minor can ratify the alienations made by a de facto guardian during his minority after he attains majority. The first decision is the one reported in Panchu v. Hrishikesh Ghose. : AIR1960Cal446 . That was a case which related to an alienation prior to the Act came into force. In that case the alienation had been made by the de facto guardian for the benefit of the minor. After reviewing a number of decisions, the learned Judge came to the conclusion that an alienation by a de faco guardian made for legal necessity or for the benefit of a minor could not be impeached on the ground that the alienation was made by a person who was merely a de facto guardian. In the course of the judgment, the learned. Judge observed that a sale by a de facto guardian of a minor which was not made for legal necessity or for the benefit of the minor was not binding on the minor and when the alienation by de facto guardian was for legal necessity or for the benefit of the minor, it could be ratified by the minor on his attaining majority. The other case to which reference was made is one reported in Kailash Chandra v. Rajani Kanta, (AIR 1945 Pat 298).

In this case it was held as follows :--

'.....the distinction between thepowers of the two classes of guardianlies in the fact that while the de iureguardian is under the law clothed withauthority to deal with the minor s property, the de facto guardian is not clothed with similar authority, though if the latter alienates the minor's property for his benefit, the court will uphold the transaction. In the case of an alienation by a de jure guardian, not for the benefit of the minor the guardian acts in excess of his authority derived under the law, whereas in the case of a similar alienation by a de facto guardian, his act is wholly unauthorised. In the latter case, however, the minor may choose to ratify the transaction, though it is not binding on him.

7. To that extent the alienation is voidable. This case is also one decided before the coming into force of the Act. Therefore neither of them is of any assistance to the appellant. As the law stands after the coming into force of the Act under no circumstances a de facto guardian can transfer the minor's property merely on the ground of his being a de facto guardian. If in those circumstances. defendant-5 claiming himself to be a de facto guardian alienated the properties of the minor plaintiff after the coming into force of the Act, the transfers are void and if that be so, the question is whether void transactions could be ratified by a minor after he attains majority. The effect of the transaction being void is that no title passes to the alienee and the minor continues to be the owner of the property even after such transfer. Under Exhibit D-5. according to Mr. Srinivasan, the plaintiff agreed to purchase item No. 1 from defendant 2 for a sum of Rs. 2,510/-. being the amount defendant 2 is said to have paid under Exhibit D-4 as consideration. The position is that the plaintiff by entering into such an agreement was intending to buy his own property. In that event, it cannot be said that the agreement is supported by consideration much less such an agreement could validate the alienation made by a de facto guardian during the minority of the plaintiff. A ratification in law implies that the person who ratifies had the authority when the transfer took place to authorise the transaction and being a minor he was not competent to authorise such an act and if that be so, he cannot validate it by ratifying it subsequently when he attains maiority. The view taken by us is supported by the Full Bench decision of the Lahore High Court in Govind Ram v. Piram Ditta (AIR 1935 Lah 561 (FB)), wherein it was held that subsequent ratification by a person on attaining the age of majority of a transaction which was originally null and void by virtue of the fact that he entered into it while still a minor, does not form a valid contract on which a suit ran be maintained; since the contract entered Into by the minor during his minority isa nullity and unenforceable at law, no question therefore, of its ratification arises and the consideration which passed under the earlier contract cannot be imported into the contract into which the minor entered on attainment of majority. Therefore whatever may be the position before the Act came into force, there cannot be any doubt that after the coming into force of the Act. in view of the provisions of Section 11 of the Act, a minor on attaining majority cannot validate a sale by a de facto guardian by ratification. Even otherwise in this case the lower appellate court found that Exhibit D-5 on which reliance is placed was obtained by defendant 2 by exercising undue influence and fraud. That being a finding of fact, in second appeal this court will be reluctant to interfere with that finding unless it is manifestly perverse. We do not find any reason to interfere with the finding of the lower appellate court in this regard.

8. For the reasons stated above, this appeal fails and it is accordingly dismissed with costs.


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