Madras High Court
Vishnu Sneha vs M/S.Sree Daksha Property Developers ... on 6 February, 2025
Author: N. Sathish Kumar
Bench: N. Sathish Kumar
A.S.No.2 of 2022
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Dated 06.02.2025
CORAM:
THE HONOURABLE MR.JUSTICE N. SATHISH KUMAR
A.S.No.2 of 2022
Vishnu Sneha ... Appellant
Versus
M/s.Sree Daksha Property Developers (India) Pvt Ltd
Represent by N.Ganesan
S/o.Late Natarajan
Registered Office at
No.1, Gandhi Layout
Marudhamalai Main Road
Vadavalli, Coimbatore - 46 ... Respondent
Prayer: Appeal filed under Section 96 read with Order 4 Rule 1 of Code of Civil
Procedure, to set aside the judgment and decree dated 19.02.2020 made in
I.A.No.2 of 2019 in OS.No.105 of 2018 on the file of V Additional District Court,
Dharmapuri.
For Appellant : Mr.N.Krishnakumar
for M/s.Sarvabhauman Associates
For respondent : Mr.M.Santhanaraman
for Mr.S.Venugopalraj
Page 1 / 12
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A.S.No.2 of 2022
JUDGMENT
Aggrieved over the rejection of the suit filed by the plaintiff, the present
appeal came to be filed.
2. The suit has been originally filed by the plaintiff claiming for declaration
of sale deed dated 22.01.2007 and subsequent sale deeds also partition of the
properties into two equal shares and allot one such share to the plaintiff.
3. It is the case of the plaintiff that the suit property originally owned by her
father Selvan Raman Achary, who died on 21.03.1997 leaving behind the plaintiff
and the first defendant as the sole surviving legal heirs. According to the plaintiff,
at the time of the death of her father, she was a minor, whereas, her mother/first
defendant without any legal necessity and also without obtaining permission from
the Court sold the property in favour of the second defendant by virtue of
document Nos.309, 310 and 311 of 2007. Thereafter, the second respondent
appointed power agent, who executed a sale deed in favour various persons.
Hence, according to the plaintiff, sale deed executed in favour of second defendant
and various persons is void ab initio as there was no permission whatsoever
obtained from the Court to deal with the minor properties. Hence, filed the suit in
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O.S.No.105 of 2018.
4. The 10th defendant has filed an application to reject the suit on the ground
that the suit is ex facie barred by limitation. The suit has been filed beyond the
period of three years by the plaintiff after attaining majorty. That apart sale
executed in only for the purpose of legal necessity. The share of the minor is also
deposited in the fixed deposit which has been clearly reflected in the sale deed and
the same has been suppressed in the entire plaint.
5. The Trial Court, based on the pleadings, framed the following issue:
a. Whether this petition to reject the plaint is to be allowed?
6. The Trial Court after appreciation of documentary evidences considering
the fact that the guardian has sold the property allowed the application and
rejected the plaint by holding that the same ought to have been avoided by the
plaintiff within a period of three years of attaining majority. Hence, the present
appeal has been filed.
7. The main contention of the learned counsel for the appellant is that the
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sale itself is void, since, there was no permission whatsoever obtained from the
Court. Therefore, as far as the void document is concerned, Article 60 (a) of the
Limitation Act will not apply and the plaintiff can file a suit at any time. Whether
the document is void in nature or voidable is a matter of evidence, it can be seen
only at the time of the Trial. Therefore, the Trial Court rejecting the entire plaint
under Order VII Rule 11 of Code of Civil Procedure cannot be sustained in the eye
of law.
8. In support of his submissions, he placed reliance on the judgment of this
Court in the case of M.Bojan vs. B.Malathi and others made in S.A.No.591 of
2018 dated 28.03.2024.
9. Whereas, the learned counsel for the respondent would submit that minor
was eo-nominee party in the sale deed. The said deed is made only for the benefit
of the party, her share is also deposited in the fixed deposit in a bank which has
been suppressed by the minor. Further, it is the contention that it is not the case of
the plaintiff that there was a fraud played and the sale has been made fraudulently.
Sale deeds were sought to be annulled only on the ground that the permission has
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not been obtained. According to him, as far as the 8(1) of the Hindu Minority and
Guardianship Act, 1956, any sale made by the guardian without permission of the
Court is only voidable at the instance of the minor, to avoid such sale, suit ought
to have been filed within a period of three years on attaining the majority.
Therefore, according to him, when the Limitation Act stipulates that certain acts to
be done within a period, such right has to be exercised, otherwise, remedy of the
parties will get extinguished. Therefore, according to him, when the minor is also
eo-nominee party of the sale and the same has not been challenged within a period
of three years by way of suit and the present suit is barried by limitation.
Therefore, invoking Order VII Rule 11 of CPC by the Trial Court to reject the suit
does not require interference.
10. In support of his submissions, he placed reliance on the judgment of this
Court in the case of Mathivanan vs. Deivanai and others made in
A.S.(MD).No.297 of 2008 dated 29.03.2023.
11. In light of the above submissions, now, the points arise for consideration
are as follows:
i) Whether the sale of the minor property by the guardian is void or voidable?
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ii) Whether the suit can be maintained beyond the period of limitation?
12. Heard both sides and perused the materials placed on record.
13. Of course, to reject the plaint, it has to be established that the plaint will
fall within the ambit of the rules set out in Order VII Rule 11 of Code of Civil
Procedure
14. Order VII Rule 11 of Code of Civil Procedure reads as follows:
11. Rejection of plaint.— The plaint shall be rejected in the following
cases:—
(a) where it does not disclose a cause of action;
(b) where the relief claimed is undervalued, and the plaintiff, on
being required by the Court to correct the valuation within a time to
be fixed by the Court, fails to do so;
(c) where the relief claimed is properly valued, but the plaint is
returned upon paper insufficiently stamped, and the plaintiff, on
being required by the Court to supply the requisite stamp-paper
within a time to be fixed by the Court, fails to do so;
(d) where the suit appears from the statement in the plaint to be
barred by any law;
(e) where it is not filed in duplicate;]
[(f) where the plaintiff fails to comply with the provisions of rule 9:]
[Provided that the time fixed by the Court for the correction of the
valuation or supplying of the requisite stamp-paper shall not be
extended unless the Court, for reasons to be recorded, is satisfied
that the plaintiff was prevented by any cause of an exceptional nature
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from correcting the valuation or supplying the requisite stamp-paper,
as the case may be, within the time fixed by the Court and that refusal
to extend such time would cause grave injustice to the plaintiff.]
15. Order 7 Rule 11 (d) makes it clear that where the suit appears from the
statement in the plaint to be barred by any law, the said suit can be rejected by the
Court. It is not the case of the plaintiff that the sale made by her mother/first
defendant is solely on the ground of fraud, but, the sale deed is sought to be
annulled only on the ground that permission of the Court was not obtained to deal
with the minor property. The entire case papers when perused, particularly
Doc.No.21, school mark sheet of the plaintiff indicate that the plaintiff was born
on 18.11.1996. Further, it is also averred that on the date of death of her father on
21.03.1997, she was only four months. According to the plaintiff the suit has been
filed only on the basis of knowledge, therefore, limitation starts only on the date
of her knowledge.
16. It is relevant to note that the plaintiff is also made as eo-nominee party
in the sale deed executed by her mother. The sale deed filed before the Trial Court
indicate that the minors share have been deposited in fixed deposits of bank. Be
that as it may, the mother as a natural guardian has dealt with the minor's property,
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of course, without obtaining the permission of the Court as mandated under
Section 8(1) of the Hindu Minority and Guardianship Act, 1956. Section 8(3) of
the Hindu Minority and Guardianship Act, 1956 makes it very clear that any
disposal of immovable property by a natural guardian, in contravention of sub-
section (1) or sub-section (2), is voidable at the instance of the minor or any
person claiming under him. Therefore, the very provision makes it clear that any
property of the minor is dealt by the guardian without obtaining permission of the
Court is not void ab initio, it is voidable at the instance of the minor. When the
statute declares that such transaction is voidable, it has to be avoided by the minor
within the time stipulated in the statute. If such document is not avoided within
the time, it has to be held that minor has in fact ratified such sale.
17. Article 60(a) of the Limitation Act deals with the period of limitation to
set aside a transfer of property made by the guardian of a ward who has attained
majority. The same makes it clear that the suit have to be filed within a period of
three years on attaining majority. The limitation commences from the date on
which the minor attains the majority. As per the document No.21 relied upon by
the plaintiff, she was born on 18.11.1996. Such case, she has attained majority on
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18.11.2014. Therefore, the suit ought to have been filed on or before 19.11.2017,
whereas, the suit has been filed only on 23.01.2018 which is clearly barred by
limitation.
18. No doubt if the issue of limitation is a mixed question of facts and law,
in such case, the Court will not reject the suit straight away. However, when the
suit itself is on the basis of the pleadings and the documents of the plaintiff is
barred by law of limitation, then it cannot be said that the suit has to be tried.
When there is no dispute with regard to age of the minor and the suit is ex facie
barred by law and limitation, such suit can be rejected under Order 7 Rule 11 (d)
of CPC.
19. The jugment relied upon by the learned counsel for the petitioner,
M.Bojan' case (cited supra), when carefully seen, in paragraph 20, this Court has
held as follows:
“20. Unless the parties lead evidence during trial, the Sale
Deed executed by the father of the plaintiffs can be tested and
decided whether it is a void or voidable document. Moreover, in the
plaint, the plaintiffs specifically allege that they are in peaceful
possession of the suit property and they have also sought for relief of
permanent injunction to restrain the defendants from in any manner
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interfering with the plaintiffs' possession of the suit property. These
are factual matters that can be decided only during the course of
trial. Also as the Division Bench of Allahabad High Court, the sale
need not be necessarily questioned by the minor within a period of
three years from the date of attaining majority, if is shown that
possession continue to remain with the minors, even though there
was alienation by the guardian. The fact whether the possession was
given to the appellant/defendant or continues to remain with the
plaintiffs is again a matter for evidence and cannot be decided in an
application under Order 7 Rule 11 of CPC. Thus, I find that the
prayer for declaration of title and consequential permanent
injunction would stand independently and in fact, it would have a
bearing on the relief seeking cancellation of the Sale Deed also,
which again can be decided only on evidence, to be a void or
voidable document.”
20. The above judgment is not factually applicable to the present case. In
the above case, the plaintiffs are in peaceful possession of the suit property and
they have also sought for permanent injunction restraining the defendants from
interfering with the peaceful possession. Thus, this Court held that the possession
continue to remain with the minors, even though there was alienation by the
guardian. Therefore, whether the possession was given or continues to remain,
such factual matters can be decided only during the course of trial and cannot be
decided in an application under Order VII Rule 11. However, in the present case,
the suit itself was filed to avoid the document only on the ground that permission
was not obtained by the Court. This Court is of the view that when the statute
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itself stipulates such sale is voidable in nature and not void, it has to be avoided in
time. The plaintiff ought to have challenged such sale within a period of three
years on attaining majority. Therefore, the judgment relied upon by the learned
counsel for the appellant cannot be mechanically applied when the facts are entire
different.
21. The very sale deed was executed for legal necessity and the same was
deposited in the fixed deposit in bank is also clearly extracted in the sale deed
executed by the first defendant, these facts were also suppressed in the plaint.
Therefore, the suit filed on the basis of the alleged knowledge to get over the
limitation Act cannot be maintainable. According these points are answered.
22. In the result, appeal fails and stands dismissed. No costs.
06.02.2025
Index : Yes / No
Speaking/non speaking order
dhk
N. SATHISH KUMAR, J.
https://www.mhc.tn.gov.in/judis
dhk
To,
The V Additional District Judge
Additional District Court, Coimbatore
06.02.2025
https://www.mhc.tn.gov.in/judis
