Govindan Kurup v. Bhaskara Pillai — 1961 DIGILAW 419 (KER)

Judgment :- 1. The Second Appeal is by the 1st defendant in a suit for the redemption of a mortgage after setting aside an alienation. The property originally belonged to one Madhava Kurup and was outstanding on a mortgage of 1105 M.E. Madhava Kurup died leaving his widow, the 2nd defendant, and his six children, the plaintiffs, who were all minors at the time of his death. The 2nd defendant executed the sale deed, Ext. A, in 1117 M.E. for self and as guardian of the minors in favour of the 1st defendant for 300 fanams regarding the equity of redemption of the property. By the said document, the 1st defendant was directed to pay off the mortgage amount of 200 fanams under Ext. B, the mortgage of 1105 M.E. The document further recited that the 2nd defendant had already taken 100 fanams on a promissory note from the 1st defendant, which was also shown as part of the consideration for Ext. A. The result was that on the date of Ext. A no cash consideration passed. In pursuance of the direction contained in Ext. A the 1st defendant redeemed Ext. B and recovered possession of the property. The plaintiffs alleged in the plaint that Ext. A was not supported by consideration or by binding necessity and therefore, the document was liable to be set aside on payment of the mortgage money and value of improvements due to the 1st defendant. The 1st defendant, on the other hand, contended that the sale deed was fully supported by consideration and binding necessity and therefore, the document was not liable to be avoided by the minors. He further contended that, at any rate, the sale regarding the share of the 2nd defendant, namely one-seventh, was not liable to be set aside. He had another contention that the suit having been brought more than three years after the attainment of majority by the first three plaintiffs, the suit was barred by limitation under Art.44 of the Limitation Act regarding the shares of plaintiffs 1 to 3. He had another contention that the suit having been brought more than three years after the attainment of majority by the first three plaintiffs, the suit was barred by limitation under Art.44 of the Limitation Act regarding the shares of plaintiffs 1 to 3. In the result the 1st defendant contended that the sale deed was not liable to be set aside at all; if it were liable to be avoided, it was only to be set aside regarding the three shares of plaintiffs 4 to 6 and it could not be set aside regarding the shares of plaintiffs 1 to 3 and the 2nd defendant. Both the lower courts concurrently held that there was no consideration for the sale, the courts having found that the alleged consideration of 100 fanams based on a previous promissory note was false. The result was they concurrently held that no consideration passed under Ext. A. The trial court held further that Ext. A was a void transaction as there was no consideration. Consistent with that view it granted a decree in favour of the plaintiffs declaring Ext. A as void; allowing redemption of the plaint property on deposit of the mortgage amount of 200 fanams and value of improvements, Rs. 202-10-6; allowing Rs. 30/- as damages; and also granting mesne profits at the rate of Rs. 50/- per annum from the date of deposit of the mortgage amount and the value of improvements. 2. The 1st defendant appealed to the lower appellate court, which also held that Ext. A was a void transaction as it was without consideration. The lower appellate court further agreed with the trial court that the Article applicable was not Art.44 but was either Art.142 or Art.144 of the Limitation Act, under which the plaintiffs had time for 12 years to bring the suit. But it held that the plaintiffs were entitled to recovery of possession of only their 6 out of 7 shares with mesne profits etc. at the rate allowed by the trial court. It also held that the 1st defendant was entitled to the 2nd defendant's share absolutely. In Second Appeal the 1st defendant questions the correctness of the aforesaid decision of the lower appellate court. 3. The first contention raised by the learned advocate of the appellant is that the decision of the lower courts, that the transaction covered by Ext.A was void, is incorrect. In Second Appeal the 1st defendant questions the correctness of the aforesaid decision of the lower appellate court. 3. The first contention raised by the learned advocate of the appellant is that the decision of the lower courts, that the transaction covered by Ext.A was void, is incorrect. According to the learned counsel the transaction is only voidable, which the plaintiffs could have avoided if they so chose. The learned advocate goes further and contends that in that case the Article applicable would be Art.44 of the Limitation Act, under which the plaintiffs had only a period of three years within which they should have brought the suit. He further elaborates his argument and urges that plaintiffs 1 to 3 became majors more than 3 years prior to the institution of the suit and therefore, their remedy was barred by limitation under Art.44 of the Limitation Act with the consequence that the plaintiffs were entitled to recover possession of only three out of seven shares on payment of the proportionate mortgage amount and value of improvements. They were also entitled only to proportionate damages and mesne profits. 4. It cannot be denied that the property belonged to Madhava Kurup and after his death his widow and children were entitled to the same as tenants-in-common, each of them having a definite one-seventh share in it. It cannot also be denied that under the Travancore Nair Act, the mother was the legal guardian of the minor children in the absence of the father. Consequently the impugned sale deed, Ext. A, was by a legal guardian for and on behalf of the minors. That means the minors were themselves eo nomine parties to the document. That being so, the case comes within Art.44 of the Limitation Act and the time thereunder for filing the suit is three years from the date of attainment of majority by the ward. This has been decided by a Division Bench of this Court in Beeyyathumma v. Moidin Haji (1958 KLT. 602), by Kumara Pillai and Vaidialingam, JJ. The learned judges held, after reviewing several decisions of several High Courts, that though a transaction by a legal guardian was not beneficial to the minors or supported by consideration or for no justifiable necessity, nevertheless, the transaction was not void, but only voidable requiring to be set aside under Art.44. 5. 602), by Kumara Pillai and Vaidialingam, JJ. The learned judges held, after reviewing several decisions of several High Courts, that though a transaction by a legal guardian was not beneficial to the minors or supported by consideration or for no justifiable necessity, nevertheless, the transaction was not void, but only voidable requiring to be set aside under Art.44. 5. The further question is whether in such a case it is necessary that the minors should set aside the transaction by a regular suit. There are authorities which lay down that the avoidance of such a transaction by the minors need not be by suit. Some of the authorities cited before me are the following. One is Pothen Ouseph v. Eipe Annamma (1951 KLT. 310), which was a case under S.53 of the Transfer of Property Act, wherein it was laid down that an unequivocal declaration to repudiate the transaction was enough and that a creditor need not file a suit to avoid a transfer which was fraudulent. The others are Chekku v. Puliyassin Parvathi alias Amma Amma (AIR. 1956 Mad. 634), Lalit Kumar Das Chaudhury v. Nagendra Lal Das (AIR. 1940 Cal. 589) and Jagdamba Prasad Balla v. Anadi Nath Roy (AIR. 1938 Patna 337). But in the case before the there is no evidence to show that there was any such prior indication by the minors showing their intention to avoid the transaction. The suit itself was to avoid the transaction, so that it could only be held that the earliest intent or attempt to avoid the transaction was only by the suit. The suit appears to have been filed more than three years after three of the plaintiffs, namely plaintiffs 1 to 3, became majors. The consequence is that the impugned transaction, being one by a legal guardian under the Travancore Nair Act, was only a voidable transaction and not a transaction ab-initio void; for, the guardian was a person authorised by law and not one legally incompetent to act on behalf of the minors, only the transaction was beyond the competence of the legally competent guardian, the transaction being without consideration or binding necessity. There is no inherent incompetence in the transaction, there being no lack of competence in the person entering into the transaction; the only defect being that the transaction was beyond the competence of the legal guardian. There is no inherent incompetence in the transaction, there being no lack of competence in the person entering into the transaction; the only defect being that the transaction was beyond the competence of the legal guardian. The transaction was therefore only voidable and it had to be avoided within the time prescribed by Art.44 of the Limitation Act. 6. The result is the decision of the lower appellate court is confirmed only with regard to the three out of the seven shires of plaintiffs 4 to 6 and the decision is set aside regarding the three shares of plaintiffs 1 to 3. The suit is decreed for recovery of possession of three out of seven shares on deposit of proportionate mortgage amount and value of improvements. The plaintiffs will also be entitled to damages and mesne profits in the same proportion. The Second Appeal is thus allowed in part and the parties are directed to bear their respective costs throughout. Partly allowed.