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2009 DIGILAW 2222 (MAD)

Dominic Irudayaraj v. Pramila

2009-07-08

R.S.RAMANATHAN

body2009
Judgment :- The plaintiff, who lost in the lower Court is the appellant herein. 2. The case of the plaintiff is that the suit schedule property was purchased in his favour under a sale deed dated 07.02.1969 and his paternal uncle Arockiasamisithan, represented him as guardian in that sale deed and the plaintiff was in possession of the same and without his knowledge and without any legal necessity the property was sold on 23.01.1980 by Arockiasamisithan and his wife Arockia mary acting as guardian of the plaintiff to one Josephine Ammal and thereafter, in the year 1982, the defendant purchased the property from Josephine Ammal. The plaintiff was born on 24.04.1968 and on the date of sale in favour of Josephine Ammal, he was a minor and the sale was not made after getting necessary permission from the competent Court and therefore, the sale in favour of Josephine Ammal is void ab initio and neither Josephine Ammal nor the defendant derived any title to the property and therefore, after attaining majority on 24.04.1987 the suit was filed by the plaintiff for declaration of his title to the suit property and for recovery of possession. 3. The plaintiff contended that the suit was filed on 21.08.2007 within 12 years from the date of attaining majority and from the date of sale in favour of Josephine Ammal and therefore, the suit is filed in time. 4.The defendants contested the suit stating that without impleading her vendor, the suit is not maintainable. The sale in favour of Josephine Ammal was validly executed by the legal guardians of the plaintiff Arokiyasamisithan and his wife Arokiya mary As admittedly, the plaintiff was under the care and custody of Arokiyasamisithan and the sale was for necessity of the minor and hence, the sale is valid. It was further contended that even the suit property was purchased in the name of the plaintiff only by Arokiyasamisithan as guardian of the plaintiff and therefore, it cannot be contended by the plaintiff that Arokiasamisithan had no power to execute the sale deed and as the sale was executed by him for the benefit of the minor and maintenance and educational expenses, the sale is binding on the minor and without filing the suit for setting aside the sale deed, a suit for declaration is not maintainable and the suit is also barred by limitation. 5. 5. During the trial on the side of the plaintiff, the plaintiff was examined himself as P.W.1 and on the side of the defendant, the defendant was examined himself as D.W.1 and the plaintiff marked 8 documents and on the side of the defendants 15 documents were marked. 6.The trial judge on the basis of the pleadings framed the following issues: 1 Whether the plaintiff is entitled to declaration of title over the suit property? 2.Whether the plaintiff is entitled to claim mense profit from the defendants? 3.To what relief the plaintiff is entitled to? 7. While discussing Issue No. I the lower Court also dealt with the plea of limitation though no separate issue was raised and held that the sale by Arockiasamisithan was only a voidable one and it is not a void transaction and the plaintiff without praying for setting aside the same within three years from the date of attaining majority cannot file a suit for declaration and the suit is barred by time and therefore, the plaintiff is not entitled to declaration as prayed for. 8. Having held that the plaintiff is not en-titled to declaration the remaining two issues were also decided against the plaintiff and the suit was dismissed. Aggrieved over the same, this appeal is filed by the plaintiff. 9. The point for consideration in this appeal are: 1.whether the sale by Arockiasamisithan in favour of Josephine Amoral is a voidable one or void ab-initio? 2.Whether the suit filed by the plaintiff for declaration is barred by limitation? 10. If the sale by Arockiasamisithan as guardian of the plaintiff is a voidable one, it is open to the plaintiff to challenge the same within three years from attaining majority by filing a suit. If the sale by the guardian Arockiasamisithan is void, then the plaintiff can file a suit either within 12 years from the date of transaction or within three years after attaining majority, which is latter. Therefore, we will have to find out whether the sale by guardian is void or voidable. The parties are Christians and therefore, they are governed by Guardians and Wards Act, 1890. Under Section 4(2) of the Guardians and Wards Act, guardian is defined, which means a person having the care of a person of a minor or his property or both of his person and property. The parties are Christians and therefore, they are governed by Guardians and Wards Act, 1890. Under Section 4(2) of the Guardians and Wards Act, guardian is defined, which means a person having the care of a person of a minor or his property or both of his person and property. Therefore, under Guardians and Wards Act, 1890, any person, who is having care of the person can be declared as Guardian. 11. Under Hindu and Mohemeed law, guardians can be either natural guardians/de jure or de-facto. So far as Christians are concerned, there is no categorization of natural guardian or de jure or de facto guardians under the Guardians and Wards Act. Therefore, under the Guardians and Wards Act, the guardian need not be the father or mother and any person can be the guardian of the minor and the only criteria is that he must be having the care of the person of the minor or of his property. 12. Therefore, the question of de-jure guardian or de-facto guardian, which would arise for consideration in every case and the effect of transactions made by those guardians are not relevant so far as the guardian governed under the Guardians and Wards Act 1890. 13. The reason is in other acts the sale by a de-facto guardian, when the de-jure guardian was alive is ab-initio void and the minor can ignore the transaction and file the suit for declaration within 12 years from that sale. 14. In the case of de-jure guardian, transactions are not void, but voidable and when the transaction is for the necessity or benefit of the minor, it is binding on the minor and even if the minor wants to question the trans-action, he has to do so within a period of 3 years from the date of attaining majority by filing a suit for setting aside the transaction as the said transaction was only voidable and not void. 15.Under Article 60 of the Limitation Act, 3 years period is prescribed by the Ward, who has attained majority to set aside a trans-action of the property made by the Guardian of the Ward. The word guardian in Article 60 means only dejure or lawful or natural guardian and this is explained in the judgment re-ported in 1951(1)MLJ 3265 Palaniappa Goudan vs. Nallappa Goundan, Pichai Goun-dan and Balammal, Article 44 (New Article 60). The word guardian in Article 60 means only dejure or lawful or natural guardian and this is explained in the judgment re-ported in 1951(1)MLJ 3265 Palaniappa Goudan vs. Nallappa Goundan, Pichai Goun-dan and Balammal, Article 44 (New Article 60). The word `"guardian" in Article 44 (New Article 60) of the Limitation Act must be interpreted as meaning only a lawful or de-jure guardian and not as including a de- facto manager of the property of a Hindu minor, what-ever may be the effect of an alienation by a de- facto guardian or manager under Hindu Law. The law regards the minor as being a party to the alienation through his guardian and Article 44 allows only a period of three years for setting aside the transfer on attaining majority. But if a de-facto manager of a minors estate improperly alienates his property, the alienation is one to which the minor is not a party through his legally authorised representative and does not require to be set aside within the period limited by Article 44. The setting aside of the transaction is not a condition precedent to the minor recovering the property from the alience and the minor can sue for possession of the property within the period limited by Article 142 or Article 144. 16. Further the judgment reported in AIR 2001 SCC 2607,in the case of Viswambhar and others vs. Laxminarayana (Dead) through Lrs., and another, it has been held that when a minor filed a suit against his guardian on attaining majority, but did not pray for setting aside the sale and such prayer was sought to be made subsequently after a lapse of 3 years of attaining majority, the suit would be barred by limitation. 17. In this case, as the parties are Christians, they are governed by Guardians and Wards Act 1890 and as stated supra there is no de-jure and de-facto guardian under that Act and once a person was having a care of the minor or his property is entitled to act as a guardian of the minor irrespective of the fact that he is not the father or mother of the minor. Any transaction by such guardian is only voidable and the minor can question the same after attaining majority only by filing a suit by setting aside the transaction within a period of 3 years from the date of attaining majority. 18. Any transaction by such guardian is only voidable and the minor can question the same after attaining majority only by filing a suit by setting aside the transaction within a period of 3 years from the date of attaining majority. 18. Bearing these principles in mind, we will have to see whether the sale by Arockiasamisithan and his wife acting as guardian of the plaintiff, who was minor at that time is void or voidable. 19. The learned counsel appearing for the appellant/plaintiff, Mrs. N. Krishnaveni, submitted that father of the plaintiff was alive at the time of sale by Arokiasamisithan and his wife as guardians of the minor and there-fore, when the father was alive the sale by Arokiasamisithan and his wife is only a void transaction as they are not natural or de-jure guardian and they can be only de-facto guardian and therefore, the sale transaction made by them was void and not voidable and if it is a void one then the suit is within time. In support of her arguments, she cited the following judgments: (i) 2002(1) SCC 178 = 2002-4-L.W. 330 in the case of Madhegowda (dead) by Lrs. vs. Ankegowda (dead) by Lrs and others, (ii)1980(1)MLJ 486= (1980) 93 L.W. 268 in the case of Sundaramoorthy and another vs. Shanmugha Nadar and others. (iii)1976(2)MLJ 128 = (1976) 89 L.W. 35 S.N. in the case of Ranganatha Gounder and another vs. Kuppuswami Naidu and others. (iv) 1998(1) CTC 306 in the case of T.M. Krishnamoorthy Pillai vs. Mangalam. (v)AIR 1938 Madras 950 in the case of Mukkamala Hanurnayamma vs. Kasineni Lakshmidevamma and another. (iv)AIR 1938 Madras 677 in the case of G.M.Kasim Ali and others vs. Ratna Manikka Mudaliar and others. 20. On the other-hand, Mr. (iv) 1998(1) CTC 306 in the case of T.M. Krishnamoorthy Pillai vs. Mangalam. (v)AIR 1938 Madras 950 in the case of Mukkamala Hanurnayamma vs. Kasineni Lakshmidevamma and another. (iv)AIR 1938 Madras 677 in the case of G.M.Kasim Ali and others vs. Ratna Manikka Mudaliar and others. 20. On the other-hand, Mr. K. Govindarajan, learned counsel for the respondent contended that the sale by Arokiasamisithan and his wife was only voidable transaction as Arokiasamisithan acted as a guardian of the minor and purchased the property by contributing his funds in the name of the minor and it is also admitted by the plaintiff that he was brought up in the care of the Arokiasamisithan till he attained 16 years of age and therefore, Arokiasamisithan can be described as a guardian as per the definition of Guardians and Wards Act and hence, the sale by Arokiasamisithan and his wife are only a voidable and without praying for a declaration to set aside the said transaction within a period 3 years from the date of attaining majority, the suit is not maintainable. 21. The learned counsel appearing for the respondents Mr. K. Govidarajan, also relied upon the following judgments AIR 1934 Madras 605 = (1934) 40 L.W. 406 in the case of (Kaveripakkarn) Bangarammal vs. Lydia Kent and others & 1999(9) SCC 446 , in the case of Madhukar Vishwanath vs. Madhao and others. 22. As stated supra as the parties are governing by the provisions of Guardians and Wards Act, we will have to see whether Arokisamisithan comes within the definition of guardian as per that Act. If he is a guardian under that Act, the sale will be a voidable only and not void. In that case, the suit as framed by the plaintiff without a prayer for setting aside the said transaction and filed after three years from the date of attaining majority is not maintainable. 23. To appreciate that fact we will have to find out whether the said Arockiasamisithan was having the custody of the minor or his property to enable him to come within the definition of Guardian under the Guardians and Wards Act. It is admitted by the plaintiff that the property was purchased in his name, by Arockiasamisithan as his guardian, the said Arockiasamisithan after purchasing the said property constructed a house, out of his own funds. 24. It is admitted by the plaintiff that the property was purchased in his name, by Arockiasamisithan as his guardian, the said Arockiasamisithan after purchasing the said property constructed a house, out of his own funds. 24. It is further admitted by the plaintiff that he was brought up by his paternal uncle Arockiasamisithan and till he was 16 years, he was brought up by Arockiasamisithan in his house. He further admitted that Arockiasamisithan or his wife never acted against his interest and as Arockiasamisithan had no issues, he was brought up by him in the house of, Arockiasamisithan. Therefore, it is seen from the evidence of P.W.1, the plaintiff was brought up by Arockiasamisithan as Arockiasamisithan had no issues, the plaintiff lived in the house of Arockiasamisithan, till he was 16 years old. During those period, the parents of the plaintiff did not care for the plaintiff and the plaintiff was under the care and custody of the said Arockiasamisithan. Therefore, Arockiasamisithan comes within the definition of Guardian under the Guardians and Wards Act as he was having the care of the plaintiff and custody of the property purchased in the name of the plaintiff by him and as such, he is legally entitled to act as the guardian of the plaintiff during his minority. When the said Arockiasamisithan acted as guardian of the plaintiff he sold the property to Josephine Ammal under the registered sale deed dated 23.01.1980 and a perusal of the recitals in that sale deed also made it clear that the sale was for the maintenance and necessities of the plaintiff. The plaintiff also did not deny in the plaint that the sale is not for his benefit or for his maintenance. Therefore. the sale in favour of Josephine Amoral is for the benefit of the minor and as Arockiasamisithan was the guardian of the plaintiff as per the definition of the act, he was entitled to sell the property as guardian and the sale is not void ab initio, but only voidable and as per Article 60 of the Limitation Act, the sale has to be set aside within the period of 3 yeas from the date of attaining majority. But in this case admittedly, the plaintiff became major on 24.04.1981 and he filed the suit only on 21.08.1997 and therefore, the suit is barred by limitation. 25. But in this case admittedly, the plaintiff became major on 24.04.1981 and he filed the suit only on 21.08.1997 and therefore, the suit is barred by limitation. 25. Further being a voidable transaction, the plaintiff has to pray for setting aside the transaction and without a prayer for setting aside the same, the suit is also not maintainable. 26. The judgments relied upon by the learned counsel appearing for the appellant are relating to transactions by a de-facto guardian under the Hindu Minor Guardianship Act. Under Section 11 of the Hindu Minor Guardianship Act, any alienation by the de-facto guardian is prohibited. Therefore, all those judgments relied upon by the learned counsel appearing for the appellant that the sales are void and hence, there is no need to set aside the transaction and the suit within a period of 12 years from the date of execution is maintainable. In this case, as stated supra, Arockiasamisithan, is a guardian as defined under Guardian and Wards Act, therefore, he is entitled to deal with the property and the transaction made by such guardian can be questioned only by the minor, within a period of three years from the date of attaining majority, by filing a suit for setting aside the said transaction as the sale by the guardian is only voidable at the instance of the minor. 27. As a matter of fact, the judgment reported in AIR 1934 Madras 605= (1934) 40 L.W. 406 in the case of (Kaveripakkam) Bangarammal vs. Lydia Kent and others, it is made clear that the word guardian has used, is of general import and covers the caste of Christian mother as a de-facto guardian and it has been held that alienation by a mother is not void, but voidable at the instance of the Ward. 28. Similarly, in the judgment reported in 1999(9) SCC 446 , in the case of Madhukar Vishwanath vs. Madhao and others, it was held that Article 60 applies even in the case of alienation by de-facto guardian and without filing a suit for declaration that the alienation was bad in law, the suit is not maintainable. 29.The decisions reported in A.I.R.1934 Madras 605 in the case of (Kaveripakkam) Bangarammal vs. Lydia Kent and others & 1999 (9) SCC 446 , in the case of Madhukar Vishwanath vs. Madhao and others, supports the stand taken by me, as stated supra. 29.The decisions reported in A.I.R.1934 Madras 605 in the case of (Kaveripakkam) Bangarammal vs. Lydia Kent and others & 1999 (9) SCC 446 , in the case of Madhukar Vishwanath vs. Madhao and others, supports the stand taken by me, as stated supra. 30.Therefore, the lower was perfectly right in dismissing the suit and the appeal is dismissed and the judgment and decree of the lower Court is confirmed. No order as to costs.