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2020 DIGILAW 524 (MAD)

K. Rathinam v. Gopalakrishnan

2020-03-05

R.SUBRAMANIAN

body2020
JUDGMENT (Prayer: Second Appeal filed under Section 100 of C.P.C., to set aside the judgment and decree dated 09.08.2018 in A.S.No.78 of 2015 on the file of the Learned Principal District Judge of Salem, reversing the judgment and Decree dated 31.03.2015 in O.S.No.586 of 2013 on the file of the III Additional Subordinate Judge, Salem.) 1. The second defendant in OS No.586 of 2013, who managed to convince the Trial Court to dismiss a suit for partition and declaration that the Sale Deed dated 10.05.1999 executed by the first defendant in favour of the second defendant and the Mortgage Deed dated 09.02.2011 executed by the second defendant in favour of the third defendant as invalid and not binding on the plaintiff, upon the said judgment being reversed by the Appellate Court in AS No.78 of 2015 has come up with this Second Appeal. 2. The plaintiff sued for the aforesaid reliefs contending that the suit property was purchased by him along with his paternal aunt Marakkal during his minority i.e. on 16.09.1992. By virtue of the joint purchase the plaintiff was entitled to a half share in the suit property. The suit property was a vacant site and with a view to put up construction therein by borrowing from the Suramangalam Co-operative Society, the plaintiff ‘s father Mathaiyan filed GWOP No.124 of 1995, before the First Additional District Judge, Salem, seeking permission to mortgage the property with the said Co-operative Society. Though the said permission was granted on 09.08.1996, the mortgage was not effected and monies were not borrowed from the Co-operative Society. However, subsequently on 10.05.1999, Marakkal the paternal Aunt of the plaintiff had sold the property in favour of the second defendant claiming to the de-facto guardian of the plaintiff. This, According to the plaintiff, came to his knowledge only during the year 2013, when he was impelled to apply for an Encumbrance Certificate due to a wordy quarrel between his father and his sister Marakkal. Upon discovering the fact that a sale has been effected by Marakkal to the second defendant and the second defendant had in turn mortgaged the property in favour of the third defendant, the plaintiff came up with the above suit seeking the aforesaid reliefs. 3. Upon discovering the fact that a sale has been effected by Marakkal to the second defendant and the second defendant had in turn mortgaged the property in favour of the third defendant, the plaintiff came up with the above suit seeking the aforesaid reliefs. 3. The suit was resisted by the second defendant contending that the suit property was purchased by Marakkal and the plaintiff name was only included in the Sale Deed as a name lender. Therefore, Marakkal was the owner of the entire property. It was also contended that the plaintiff is the adopted son of Marakkal and therefore, Marakkal was the natural guardian and she had the power to alienate the property of the plaintiff. The said alienation not having been questioned within the period allowed under Article 60 of the Limitation Act is valid and therefore, the plaintiff’s suit is hopelessly barred by limitation. It is also the further contention of the second defendant that the suit itself is a collusive suit engineered by Marakkal and the father of the Plaintiff Mathaiyan. On the above contentions, the second defendant sought for dismissal of the suit. 4. The first defendant Marakkal filed a separate written statement denying the claim of the plaintiff and she would contend that it was she who paid the consideration for the purchase and hence she is the owner of the property. She however claims that she did not sell the entire property and she sold only her share in the property. She also contended that the document styled as sale deed dated 10.05.1999 would not confer any right on the defendant. 5. At trial, the plaintiff was examined as P.W.1 and Exhibits A1 to A10 were produced. The first defendant Marakkal was examined as D.W.1 and the second defendant was examined as D.W.2 and Exhibits B1 to B3 were produced. 6. The learned Trial Judge on a misconception of the powers of a de-facto guardian under the Hindu Minority and Guardianship Act concluded that Marakkal being the guardian of the plaintiff is entitled to alienate his share in the property also. The learned Trial Judge was over awed by what he thought was an apparent collusion between Marakkal and the plaintiff in bringing about the suit. On finding that Marakkal being the de-facto guardian was entitled to alienate the property of the minor, the Trial Court dismissed the suit. The learned Trial Judge was over awed by what he thought was an apparent collusion between Marakkal and the plaintiff in bringing about the suit. On finding that Marakkal being the de-facto guardian was entitled to alienate the property of the minor, the Trial Court dismissed the suit. Aggrieved the plaintiff preferred an appeal in AS No.78 of 2015. 7. The Appellate Court upon a reconsideration of evidence on record and the essential distinction between the powers of the natural guardian and de-facto guardian under the provisions of The Hindu Minority and Guardianship Act, 1956, concluded that in view of Section 11 of the Hindu Minority and Guardianship Act, the sale by the de-facto guardian, viz. Marakkal of the minor’s interest in the property is invalid and it will not confer any title on the second defendant the purchaser. The Lower Appellate Court also took note of the fact that Marakkal had even in GWOP No. 124 of 1995 deposed that the plaintiff is the son of her brother and he is not her adopted son, though he was being brought up by her. 8. In the light of the said statement made and the fact that GWOP 124 of 1995 was filed by the natural guardian, viz. the father of the plaintiff the claim that the plaintiff was the adopted son of Marakkal and that she was the natural guardian cannot be accepted. Even assuming that the plaintiff was a foster son of Marakkal and Marakkal could be termed as a de-facto guardian, the powers of the de-facto guardian under Section 11 of the Hindu Minority and Guardianship Act, 1956, are very limited. There is a legal prohibition against such de-facto guardian from alienating the properties of the minor. 9. Taking into account the above legal position, the learned Principal District Judge, who considered the appeal rightly interfered with the decision of the Trial Court and decreed the suit as prayed for. Aggrieved the second defendant has come with this Second Appeal. 10. I have heard Mr.P.Jagadeesan, learned counsel appearing for the appellant. 11. Mr.P.Jagadeesan, learned counsel appearing for the appellant would vehemently contend that the Lower Appellate Court was not right in concluding that Marakkal was only a de-facto guardian and as such she did not have the power to alienate the property of the minor. 10. I have heard Mr.P.Jagadeesan, learned counsel appearing for the appellant. 11. Mr.P.Jagadeesan, learned counsel appearing for the appellant would vehemently contend that the Lower Appellate Court was not right in concluding that Marakkal was only a de-facto guardian and as such she did not have the power to alienate the property of the minor. He would also point out that the fact that the property was purchased by Marakkal, out of her income in the name of the plaintiff was totally overlooked by the Appellate Court. He would further contend that the suit itself is the result of collusion between Marakkal and the plaintiff in order to defeat the rights of the second defendant, who is a bona-fide purchaser. 12. I am unable to countenance any of the contentions of the learned counsel appearing for the appellant. While purchasing the property in 1992, the plaintiff was described as son of Marakkal, however, subsequently even in the year 1995, Marakkal herself had deposed in GWOP No.124 of 1995 stating that the plaintiff was only a foster son and he was wrongly described as son of Marakkal. Thereafter, in 1999, Marakkal acted as a guardian of the plaintiff and sold the suit property to the second defendant. The core question is as to the capacity of Marakkal and the power of a de-facto guardian to alienate the properties of a minor. Even in her evidence in GWOP No.124 of 1995, Marakkal had very clearly stated that plaintiff is her brother’s son and he is being brought up by her. From the evidence, at best, it can be taken that the plaintiff was the foster son of Marakkal. Even conceding that the plaintiff is a foster son of Marakkal and Marakkal was in fact looking after the plaintiff, whether she could be termed as a natural guardian of the minor is a larger issue. 13. In view of Section 6 of the Hindu Minority and Guardianship Act, 1956, which defines the natural guardians of a Hindu minor and their property. A foster mother or a foster father cannot be construed as a natural guardian by any stretch of imagination, at best they can be termed as de- facto guardian. 14. Section 11 of the Act, prohibits an alienation of a minor’s property by the de-facto guardian. A foster mother or a foster father cannot be construed as a natural guardian by any stretch of imagination, at best they can be termed as de- facto guardian. 14. Section 11 of the Act, prohibits an alienation of a minor’s property by the de-facto guardian. In view of Section 11 of the Act, the alienation by Marakkal, of the share of the minor, would become void ab initio. It is not voidable as in the case of alienation by a natural guardian. Once it is found that the sale is void ab initio, the plaintiff can ignore the same and seek partition of his share in the suit property. 15. The Lower Appellate Court had considered the evidence on record as well as the law relating to alienation of property of minors by de- facto guardian and had reached the right conclusion that the plaintiff has to succeed in suit and the Trial Court was wrong in dismissing the suit. I do not see any perversity in the findings of the appellate Court in order to enable me to interfere with the factual findings rendered by it. 16. I therefore do not find any question of law much less substantial question of law enabling me to entertain the Second Appeal. Hence the Second Appeal is dismissed without being admitted. There will be no order as to costs.