Vilas S/O Narsappa Narare vs Dattatraya S/O Balasaheb ...
2004 Latest Caselaw 1219 Bom

JUDGMENT

D.G. Karnik, J.

1. Heard the learned Counsel for the parties.

2. These Second Appeals arise out of a common Judgment and Order, dated 24.3.2003, passed by learned Second Additional District Judge, Ambejogai in Regular Civil Appeal No. 39 of 1996.

3. The respondent Nos. 1 and 2, who were then minors, filed a suit, bearing Regular Civil Suit No. 340 of 1990 through their next friend and maternal uncle for the declaration of ownership and possession of the suit property. The suit property originally belonged to a joint family of which the respondent No. 3, the father of respondent Nos. 1 and 2 was the Karta. The respondent Nos. 1 and 2 had earlier filed a suit, bearing Regular Civil Suit No. 347 of 1982, against the respondent No. 3 for partition. In the said suit a compromise decree for partition was passed and the suit properties were allotted to the share of respondent Nos. 1 and 2. After the compromise decree was passed, the respondent No. 3 sold the suit properties to the appellants in the two appeals. Therefore, the respondent Nos. 1 and 2 filed the suit from which the present appeals arise for injunction. Later on, by amending the plaint the respondent Nos. 1 and 2 claimed possession of the suit property in the event it was found that the appellants were in possession of the suit property. The Trial Court dismissed the suit, but the Lower Appellate Court allowed the appeal and passed a decree for possession in favour of respondent Nos. 1 and 2 for possession of the suit property on the basis of their title. The two sets of purchasers have filed these two appeals separately challenging that judgment of the Lower Appellate Court.

4. The learned Counsel for the appellants firstly submits that since father of the respondent Nos. 1 and 2 was alive, the maternal uncle could not file the suit on their behalf. The interest of the respondent No. 3 is conflicting with the interest of the respondent Nos. 1 and 2. It is the respondent No. 3, who had executed a sale deed of the suit property of the respondents Nos. 1 and 2 who were then minors. Under the circumstances, it was unlikely that the father himself would file a suit. Therefore, there was nothing wrong in maternal uncle of the respondent Nos. 1 and 2 acting as their next friend and filing the suit as such.

5. Learned Counsel for the appellants next submits that the respondent Nos. 1 and 2 had not sought a declaration that the sale deed executed by respondent No. 3 was void and hence they were not entitled to a decree for possession. In this connection, reliance is placed on the judgment of the Supreme Court in case of Vishwambhar and Ors. v. Laxminarayan (Dead) through L.Rs. and Anr. . In that case, the plaintiffs had filed a suit for possession contending that the transfers made by their mother-guardian were without legal necessity and not binding on them as alienation had been effected without the permission of the Court under Section 8(2) of the Hindu Minority and Guardianship Act, 1956. Initially no prayer was made for setting aside the sale deeds, but the prayer for setting aside the sale deeds was made an amendment after the expiry of the period of limitation. It was held by the Supreme Court that transactions made by the mother as guardian of the minors were not ab initio void but only voidable under Section 8(3) of the Hindu Minority and Guardianship Act, and therefore, it was necessary to pray for setting aside the sale deeds. It was further held that the amendment would not relate back to the date of institution of the suit to cure the defect of limitation.

The facts in that case are distinguishable from the facts of the present case. In that case, the sale was made by mother acting as a guardian of the minors and that sale was not void but only voidable under Section 8(3) of the Hindu Minority and Guardianship Act. In the present case, the sale has not been made by the respondent No. 3, acting or purporting to act as a guardian of respondent Nos. 1 and 2. The respondent No. 3 had no title and he purported to sell the property in his own name and own right. As he had no title over the suit property, he could not sell the property and the sale deed was totally void. The sale-deed in the present case was not executed on behalf of or as a natural guardian of the respondent Nos. 1 and 2, as was the case in Vishwambhar v. Laxminarayan (supra). It was not necessary for the respondent Nos. 1 and 2 to make a prayer for setting aside the sale deed as it was void ab initio and merely voidable. Hence, the respondent Nos. 1 and 2 could sue for possession in their own right on the basis of their title.

6. No other point was urged before me.

7. There is no merit in these Second Appeals with are hereby dismissed.