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P.T. Chathu Chettiar Vs. Kariat Kunnummal Kanaran - Court Judgment

LegalCrystal Citation
SubjectFamily
CourtKerala High Court
Decided On
Case NumberS.A. No. 404 of 1978
Judge
Reported inAIR1984Ker118
ActsHindu Minority and Guradianship Act, 1956 - Sections 6, 8, 8(2), (3) and 11
AppellantP.T. Chathu Chettiar
RespondentKariat Kunnummal Kanaran
Appellant Advocate V. Radhakrishna Menon and; P.J. Joy, Advs.
Respondent Advocate T.L. Viswanatha Iyer,; P.S Narayanan,; K.S. Menon an
DispositionAppeal dismissed
Cases ReferredSantha v. Cherukutty
Excerpt:
- - b2, though not in terms referred to as the guardian of plaintiffs 1 and 2, should be 'considered',as one where he has acted on their behalf as well. ' it was not contended by the appellant before me, nor was such a contention taken before the courts below that this is, however, an exceptional case, where the mother can be treated as the 'natural guardian' by the court and did act as the natural guardian of the minors and it was as good as if the father was nonexistent',though alive, so far as the minors are concerned, coming within the rule laid down by the supreme court in the decision in jijabai vithalrao gajre v......who appeared for the appellants, contended that the junction of the 1st defendant, who is the natural guardian of plaintiffs 1 and 2 in ext. b2, though not in terms referred to as the guardian of plaintiffs 1 and 2, should be 'considered', as one where he has acted on their behalf as well. if ext. b2 document is so construed, it is a document executed by the natural guardian. in such a case, such a document executed by a natural guardian even in the absence of previous permission of court under section 8(2) of the hindu minority and guardianship act 1956 (act 32 of 1956) is only 'voidable' under section 8(3) thereof at the instance of the minors, and in this view of the matter, in the absence of a prayer or relief to set aside ext. b2 document, the suit itself is not maintainable.....
Judgment:

K.S. Paripoornan, J.

1. The legal representatives of P. T. Chathu Chettiar, two in number, who are additional appellants 2 and 3, are the appellants in the second appeal. Deceased Chathu Chettiar wasthe second defendant in O. S. 95 of 1960 in the Munsiffs Court, perambra. The respondents to the second appeal are plaintiffs Nos. 1 and 2 and the 1st defendant in the suit. The 1st defendant in the suit is one Peruvana Changaran, father of plaintiffs 1 and 2. On 8-3-1947 Changaran aforesaid, the 1st defendant and one Kelappan obtained the plaint property in 'kanam kuzhikkanom' right. Kelappan's right was later got assigned by Ammalu, mother of the plaintiffs 1 and 2 on their behalf on 24/25-3-1955, evidenced by Ext. B1. The father of plaintiffs 1 and 2, 1st defendant in the suit, Changaran, and the plaintiffs' mother Ammalu for and on behalf of and as the guardian of plaintiffs 1 and 2, executed an assignment deed in favour of deceased P. T. Chathu Chettiar, the 2nd defendant on 12-11-1958 in respect of a portion of the plaint property. The original document is Ext. B2 and the certified copy thereof is Ext. A1 in the case. Alleging that Ammalu, their mother, is not competent to represent the plaintiffs and execute an assignment deed in respect of their half share in the plaint property, the plaintiffs filed the present suit for partition and separate possession of their half share in the plaint item after ignoring Ext. B8 (Ext. A1) in favour of the 2nd defendant in respect of a portion of the plaint property. The plaintiffs alleged that their mother, Ammalu was incompetent to represent them who were minors on the date of Ext. B2. that the transfer was not for the benefit of the plaintiffs, nor was it supported by consideration and the same is void ab initto and will not bind the half share of the plaintiffs in the suit property. The 2nd defendant, according to the plaintiffs, did not get any right under the document, Ext. B2. On the date of the suit, the 1st plaintiff had attained majority and he filed the suit on his behalf and as guardian of the 2nd plaintiff (minor) for partition and separate possession of their half share.

2. The 2nd defendant-alienee raised various contentions. According to him Ammalu is a necessary party to the suit, that Ext. 52 assignment deed is supported by consideration and necessity, that the consideration received as per Ext. B2 was utilised for the benefit of the plaintiffs, that the plaintiffs have no right over the property which is in his possession in view of the assignment, that the suit is filed at the instance of the1st defendant, father, and his wife (mother of the plaintiffs) and that, it is not maintainable and in case it is found that partition has to be allowed the amount paid by him should be made a charge on the half share belonging to the 1st defendant and he should also be made liable for the consideration paid as per Ext. B2 deed.

3. The learned Munsiff decreed the suit in part. The learned Munsiff adverted to the 'fact that Ammalu, the mother of the plaintiffs, was not the legal guardian at the time of Ext. B2 and in view of Section 11 of Hindu Minority and Guardianship Act such a document is void ab initio and will not bind the minors. He also found that in Ext. B2 deed the plaintiffs' father had hot joined as the guardian of the minor children (plaintiffs). Notwithstanding the above, according to the Munsif, the junction of the 1st defendant (father) in Ext. B2 should be 'considered' as one on his own behalf and as the guardian of the plaintiffs (minors) though it was not mentioned in the deed that the father had joined as the guardian of the minors. In this view of the matter, the learned Munsiff held that in so far as there is no prayer to set aside Ext. B2, it cannot be simply ignored by the plaintiffs and so the plaintiffs are bound by Ext. B2 and not entitled to & share on partition regarding the properties covered by Ext. B2. Excluding the properties covered by Ext. B2 a preliminary decree for partition of one half share in the other properties was decreed by the learned Munsiff, According to the learned Munsiff,. Ext. B2 document is only voidable and so should he set aside. In appeal by the plaintiffs as A. S. 231 of 1974, the learned Subordinate Judge, Badagara took the view that the mother was only a dc facto guardian of the plaintiff, if at all, and that in view of the decision of this court in Santha v. Cherukkutti (1972 Ker LT 1051 : (AIR 1972 Ker 71)) the minors can void the document Ext. B2 by their conduct and that there is no need to file a suit for avoiding the transfer, that they can treat Ext. B2 as void without the assistance of the court, that intention has been made clear in this case in the plaint and so, the view of the learned Munsiff that the plaintiff should have asked for cancellation of Ext. B2 cannot be sustained as correct. In this view of the matter, the appeal was allowed and in modificationof the decree passed by the trial Court, the suit was decreed lor partition and separate possession of the plaintiffs' half share in the suit property. The other matters were left open to be decided in appropriate proceedings.

4. The second defendant filed this second appeal against the aforesaid judgment and decree of the learned Subordinate Judge, Badagara. After the filing of the appeal, the 2nd defendant (appellant) died and his legal representatives were impleaded as additional appellants 2 and 3 as per order dated 6-10-1978. The following two questions were formulated as substantial questions of law arising for consideration in this appeal at the time of admission :

(i) Whether Ext. B1, the assignment deed which is executed jointly by the father and mother of the plaintiffs is void or voidable?

(ii) Even if the said deed is void, are the plaintiffs entitled to ignore the same, since possession of the property has passed to the alienee and obtain relief without paying the required court-fee?

5. Mr. Radhakrishnan, learned counsel who appeared for the appellants, contended that the junction of the 1st defendant, who is the natural guardian of plaintiffs 1 and 2 in Ext. B2, though not in terms referred to as the guardian of plaintiffs 1 and 2, should be 'considered', as one where he has acted on their behalf as well. If Ext. B2 document is so construed, it is a document executed by the natural guardian. In such a case, such a document executed by a natural guardian even in the absence of previous permission of court under Section 8(2) of the Hindu Minority and Guardianship Act 1956 (Act 32 of 1956) is only 'voidable' under Section 8(3) thereof at the instance of the minors, and in this view of the matter, in the absence of a prayer or relief to set aside Ext. B2 document, the suit itself is not maintainable and should have been dismissed. The plaintiffs cannot simply ignore or avoid Ext. B2 document, as it is not void in law.

6. On the other hand Mr. Subramoniam, learned counsel who appeared on behalf of the respondents, contended that the property belonged to the 1st defendant and the plaintiff. Ext. B2 was executed for a portion of the plaint property by the 1st defendant, who was a co-owner on his behalf and by the mother of the plaintiffs acting as guardianand on behalf of plaintiffs 1 and 2. The 1st defendant did not execute the document as the guardian of the plaintiffs. Though he was an executant of Ext. B2, he purported and did convey only his interest in the plaint scheduled property. On the other hand, though the 1st defendant was a party and also one of the executants in Ext. B2, it was the mother of the plaintiffs who was described and acted as the guardian of the plaintiffs. When the father is alive, the mother is only a de facto guardian. Such purported alienation or disposal of the minors' property by the de facto guardian is void ab initio and the alienee will not acquire any title to the property. Since the document is void ab initio, it need not be set aside. It can be ignored or disaffirmed and it has been so done in this caste by the plaintiffs. A prayer to set aside the document, and a relief on that score, is unnecessary. The view taken by the trial Court that the junction of the 1st defendant in Ext. B2 should be taken to be one as acting as guardian of the plaintiffs also, is unwarranted on the terms of Ext. B2. The 1st defendant did not do so and it cannot, by any stretch of reasoning or imagination, be treated In that fashion. The learned Subordinate Judge was right in his view that Ext. B2 need not be set aside or cancelled and can be avoided by mere conduct. The learned appellate Judge was justified in his view in holding that the plaintiffs are entitled to a decree for partition for their half sharp in the whole plaint item ignoring Ext. B2 assignment deed in favour of the 2nd defendant.

7. A reference to the crucial passages in Ext. B2 and also advertence to Section 8 (1), (2) and (3) and Section 11 of the Hindu Minority and Guardianship Act (Act 32 of 1956) will he useful to understand the real scope of the controversy raised in this case. The relevant portion in Ext. B2 reads as follows : (Matter in vernacular omitted -- Ed.)

Section 8(1), (2) and (3) and Section 11 of Act 32 of 1956 read thus

'8. (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 immoveable 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.'

'11. After the commencement 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 the de facto guardian of the minor.'

8. It is evident from the recitals in Ext. B2, (extracted in para 7 above) that the 1st defendant executed the document on his behalf only and not as representing or acting as guardian of the plaintiffs. In the same document, it is the mother of the plaintiffs, Ammalu, who has purported to act as the guardian of the plaintiffs. Under Section 6 of the Hindu Minority and Guardianship Act in the case of a boy, his father is the natural guardian. It is only when the father is disqualified or is no more, the mother will become the natural guardian. Whenthe father is alive and is not disqualified to act as the guardian of the minor, it is incompetent for the mother to interpose herself as the guardian of the minors. Any alienation or disposal of the property by the mother acting as the guardian of the minors is unauthorised and is totally devoid of any effect. Section 11 of the Hindu Minority and Guardianship Act interdicts that 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 the de facto guardian of the minor. In the light of the clear recitals in Ext. B2 and the interdiction contained in Section 11 of the Act the conclusion is inevitable that the disposal of the plaintiff's share in the plaint property by the mother in this case wantotally unjustified and unauthorised. If at all it is only an alienation by a de facto guardian. I agree with my learned brother, Kader, J., in his observationsin Ayyappan v. Antony (1978 -Ker LT 532 at page 538), to the following effect :

'Under the Hindu Minority and Guardianship Act the father of the minor children is the natural guardian of the minors and it is only in the absence of the father or when he is disqualified to become the natural guardian that the mother is the natural guardian. Under Section 11 of the Act, no person shall be entitled to dispose of or deal with the property of a minor and the power of disposal of the minor's property is only with the natural guardian. This Court in Thomas v. Gopala Pillai (1968 Ker LT 388), while considering some of the relevant provisions of the Act held that, by virtue of Sections 6, 8 and 11 of the Hindu Minority and Guardianship Act, the natural guardian of a Hindu minor boy is firstly the father and after him the mother; that the power of disposal of the minor's property is only with the natural guardian and not with a de facto guardian and that the mother's alienation is, therefore, void and that the person who did not get any such right under such a void document has no locus standi to challenge a document executed by the minor's father, Ext. D1 was executed by the mother of, the minors, at a time when the father of the minors wag alive and was not disqualified and therefore, Ext. D1 is void.........'

The decision 'Devineni Suseela v. Sivaramaiah (1976 (1) Andh WR 423) takes the same view. To similar effect is the decision of G. K. Misra, J. in Daneyi Gurumurthy v. Raghu Podhan (AIR 196' Ori 68) wherein the learned Judge said : 'Thus an alienation by a de facto guardian is void ab initio. He is incompetent under the statute to make an alienation on behalf of the minor. The alienee from the de facto guardian would be a rank trespasser.'

N. R. Raghavachariar on Hindu Law, Principles and Precedents, 7th Edn. (1980) Vol. II at pages 1150 and 1151 observes as follows :

'.........any alienation by the de factoguardian of the minor's property is on the same footing as that of any ad hoe guardian and is invalid and not binding on the minor even if it is beneficial to the interests of the minor, and the alienee cannot justify the alienation on the ground that it is for the necessity or benefit of the minor. Such an alienationis void altogether and there is no need to have it set aside at the instance of the minor.'

It was not contended by the appellant before me, nor was such a contention taken before the courts below that this is, however, an exceptional case, where the mother can be treated as the 'natural guardian' by the court and did act as the natural guardian of the minors and it was as good as if the father was nonexistent', though alive, so far as the minors are concerned, coming within the rule laid down by the Supreme Court in the decision in Jijabai Vithalrao Gajre v. Pathankhan (AIR 1971 SC 315) and so I need not consider the matter from that angle. There is no pleading or proof to that effect.

9. On the short ground that in Ext. B2 the 1st defendant's father who is the natural guardian did not convey the property belonging to the plaintiffs and also did not act as their guardian, the 2nd defendant's defence to the suit, that in the absence of a prayer to cancel the document or to set aside the document the suit is not maintainable, should be rejected and in so far as, in Ext. B2, the minors were represented by their mother (de facto guardian) at a time when their father (natural guardian) was alive, has to be held to be void and the plaintiffs are entitled to ignore the same and obtain possession and the judgment of the learned Subordinate Judge should be affirmed. I hereby do so.

10. However, I shall advert to the other submissions made by the appellant's counsel. It was contended that the junction of the 1st defendant, father, who is the natural guardian of the minors, even in the absence of description as such, is sufficient to infer or conclude that in Ext. B2 the father, natural guardian, acted on behalf of the minors also. A close reading of Section 8(2) read along with Section 8(3) of the Hindu Minority and Guardianship Act, will negative any such plea being put forward. Section 8(2) taken along with Section 8(3) predicates that the natural guardian shall not without the previous permission of the court, dispose of any part of the immoveable property of the minor. It also enjoins that (any such) disposal by a natural guardian in contravention of the mandate specified in Sub-section (2), is voidable at the instance of the minor. It is only a disposal of the immovable property of a minor by a natural guardian which is rendered voidable at the Instance of the minor. Here the natural guardian has not disposed of any immovable property of the minor at all. So the question as to whether Ext. B2 is only voidable and so the plaintiffs should take proceedings to cancel or void it, in view of the language contained in Section 8(3) of the Act does not arise for consideration on the facts of this case. Even considering that the junction of the 1st defendant (father) in Ext. B2 should be considered as a case where he had joined (acted) as the guardian of plaintiffs also, there may be difficulty to accept the contention of the appellants that Ext. B2 is only voidable and the plaintiffs should have taken proceedings to cancel or set aside the document. In Prabhakaran Pillai v. Kumara Pillai (1971 Ker LT (SN) 32, S. A. 683 of 1969) Justice Sri V. R Krishna Iyer, as he then was, construed Sections 8(2) and 8(3) of the Act and held as follows

'Section 8(2) lays down in express terms that the natural guardian cannot without the previous sanction of the court, transfer by sale the immovable property of a minor. The words of the provision are mandatory and any transaction in contravention of the provision must suffer the consequence of voidness subject to Sub-section (3) under which it is open to the minor to take the benefit and affirm the transaction or repudiate the alienation by avoiding it. Sub-section (3) cannot be violated without vesting in the minor a right to treat the transaction void. The minor is entitled to avoid the transfer effected by the guardian without the previous permission of the court even if the transaction is found to be beneficial and when he thus avoids it, it becomes a nullity.'

The learned Judge affirmed the said view in the later decision reported in Santha v. Cherukutty (1972 Ker LT 1051) at page 1057 (AIR 1972 Ker 71) (at p. 75). The learned Judge observed as follows

'In the present case, however, we are concerned with a specific statute, namely, Section 8 of the Hindu Minority and Guardianship Act, 1956. It is indisputable that no sanction of the court was taken for the alienation in the present case by the mother acting as the guardian of the minor and, therefore, there is a plain violation of Section 8(2) of the Act. Consequently, Section 8(3) is attracted and the disposal of the property, even though by a natural guardian becomes voidable at the instance of the minor. Should this process of avoidance be effected by a suit to set aside the alienation, or is it enough if the minor repudiates the transaction by his own act? I have considered this question in an unreported decision in S. A. No. 683 of 1969 and the view (1971 Ker LT (SN) p. 32) expressed by me there, which, after all the arguments on both side. I am not inclined to change, is that when a minor is entitled to avoid a transfer effected by his guardian on the ground of absence of permission of the court, it becomes a nullity on his unilateral act. He can merely avoid it by his conduct and there is no need to file a suit for avoiding the transfer. Section 8 (2) and (3) read :

'8 (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.'

From the language of this provision, read in the light of 1962 Ker LT 81. It follows that the alienation in question is voidable at the minor's instance; rather he can treat it as void without the assistance of the court.

9. Once the obligation to institute a suit to set aside the transfer is not there, the decree can be executed by the minor and so, in the present case, the view taken by the courts below that the execution proceedings cannot be instituted by the minor without first getting the sale set aside is untenable.' I should at once indicate that a different note has been struck by a learned single Judge of the Madras High Court in Narasimham Naidu v. S. Ayilu Naidu (1971-1 Mad LJ 228 (1)). Therein the learned Judge has held that the sale deed executed by a natural guardian without the previous permission of the court 'is voidable and not void'. So also the majority Judges in the Full Bench decision reported in Surta Singh v. Pritam Singh (AIR 1983 Puni & Har 114) after an exhaustive consideration of the relevant case law, dissented from the decision of Krishna Iyer, J. reported in Santha v. Cherukutty (1972 Ker, LT 1051 : AIR 1972 Ker 71). As to whether an alienation by a natural guardian without the previous permission of the court is void ab initio, or is only voidable, seems to be a matter on which there is 'sharp cleavage of judicial opinion'. It may be necessary, in an appropriate case, to consider the matter in greater detail and it may have to be considered by a larger bench Since for the disposal of this second appeal, it is not necessary to adjudicate that matter, I am not expressing any view on this moot question.

11. In the result, the second appeal is dismissed with costs throughout.


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