Paragraph numbers below are the court’s original numbering, recovered from the source text.
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.”
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 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 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 any part of the immoveable MURUGAN & ORS. v. KESAVA GOUNDER (DEAD) THR. LRS. [ASHOK BHUSHAN, J.] 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 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. 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 thatthe 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 the plaintiffs without seeking prayer for setting aside the sale deeds was, thus, not properly framed and could not have been decreed. MURUGAN & ORS. v. KESAVA GOUNDER (DEAD) THR. LRS. [ASHOK BHUSHAN, J.] 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 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 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: “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 MURUGAN & ORS. v. KESAVA GOUNDER (DEAD) THR. LRS. [ASHOK BHUSHAN, J.] claiming under him by 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 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 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 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. MURUGAN & ORS. v. KESAVA GOUNDER (DEAD) THR. LRS. [ASHOK BHUSHAN, J.]
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 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: “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 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.” MURUGAN & ORS. v. KESAVA GOUNDER (DEAD) THR. LRS. [ASHOK BHUSHAN, J.] 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 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. Divya Pandey Appeal dismissed.