Hon'Ble Manoj Kumar Tiwari vs Kesava Gounder (Dead) Through ...
2022 Latest Caselaw 3049 UK

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                               WPMS No. 2210 of 2022
                               Hon'ble Manoj Kumar Tiwari, J.

Heard Mr. Siddhartha Singh, Advocate for the petitioner.

Petitioner is aggrieved by rejection of her application filed under Order 7 Rule 11 C.P.C., whereby she had sought rejection of plaint on the ground that it is barred by limitation.

It is contended by learned counsel for the petitioner that transfer of interest of a minor is voidable under Section 8 (2) of Hindu Minority & Guardianship Act, 1956. He further submits that limitation for a suit for cancellation of sale deed is three years from the date of his/her attaining majority. It is further contended that the plaintiff, in the present case, had attained majority on 05.09.2004; while, the suit was filed on 27.07.2015. Thus, according to him, the plaint of the suit was liable to be rejected on the question of limitation alone.

Learned counsel for the petitioner has also placed reliance upon the judgment rendered by Hon'ble Supreme Court in the case of Murugan & others Vs. Kesava Gounder (Dead) Through Legal Representatives & others, reported in (2019) 20 SCC

633. Paragraph nos. 9, 10, 14, 17, 18 & 24 of the said judgment are reproduced below:

"9. Article 60(b)(ii) refers to a suit when a ward dies before attaining majority. The present is a case where Palanivel died on 11-2-1986 before attaining majority, his date of birth being 16-7-1978, the limitation to avoid instrument made by guardian of the ward is 3 years from the death of ward when he dies before attaining majority. This Court had occasion to consider Articles 60 and 65 of the Limitation Act in reference to alienation made by a de facto guardian of a minor. In Madhukar Vishwanath v. Madhao, the maternal uncle of the appellant has executed a sale deed. The appellant after becoming major on 22-8-1966 filed a suit on 7-2-1973 praying that transferors be required to deliver the possession of the property. On behalf of the appellant, Article 65 was relied on for the purposes of limitation. This Court held that it is Article 60 and not Article 65, which is applicable. Paras 4 and 5 of the judgment are relevant, which are quoted as below: (SCC pp. 448-49)

"4. ... That the defendant, Baburao Madhorao Puranik, was the appellant's de facto guardian had been established and, therefore, the disposal by him of the said property was void. Being void, it was open to the appellant to file the suit for possession of the said property and the period for limitation for such suit was prescribed by Article 65.

5. ... Even if the suit was entertained as pleaded, no decree for possession could have been passed without first finding that the alienation was not for legal necessity and was, therefore, bad in law. To such a suit the provisions of Article 60 apply. Article 60 relates to a suit to set aside a transfer of property made by the guardian of a ward by the ward who has attained majority and the period prescribed is three years commencing on the date on which the ward attains majority. ..."

10. This Court in Narayan v. Babasaheb again had occasion to consider Article 60 of the Limitation Act. In the above case, this Court held that a suit by minor for setting aside the sale of his property by his guardian is governed by Article 60 of the Limitation Act. In paras 25 and 26, the following was laid down: (SCC p. 732)

"25. A close analysis of the language of Article 60 would indicate that it applies to suits by a minor who has attained majority and further by his legal representatives when he dies after attaining majority or from the death of the minor. The broad spectrum of the nature of the suit is for setting aside the transfer of immovable property made by the guardian and consequently, a suit for possession by avoiding the transfer by the guardian in violation of Section 8(2) of the 1956 Act. In essence, it is nothing more than seeking to set aside the transfer and grant consequential relief of possession.

26. There cannot be any doubt that a suit by quondam minor to set aside the alienation of his property by his guardian is governed by Article 60. To impeach the transfer of immovable property by the guardian, the minor must file the suit within the prescribed period of three years after attaining majority."

14. This Court time and again has considered the cases of alienation by natural guardian in contravention of Section 8 and Section 8(2) of the 1956 Act. This Court held that sale deed in violation of Sections 8(1) and 8(2) is a voidable sale deed. Voidable has been defined in Black's Law Dictionary, 10th Edn. as under:

"Valid until annulled; esp., (of a contract) capable of being affirmed or rejected at the option of one of the parties. This term describes a valid act that may be voided rather than an invalid act that may be ratified."

17. In Vishwambhar v. Laxminarayan, which was a case of challenge to alienation without Court's sanction and without legal necessity, this Court held that the alienation by natural guardian was voidable. In the above case, the mother, natural guardian of two minors has executed the sale deed before they attained majority. Minors after attaining majority had filed suit pleading that sale deeds are not binding and operative on the legal rights of the plaintiff, and prayed that the said sale deeds be set aside to the extent of their share and the suit for possession of the land be decreed. In the above case, after considering Section 8 this Court held that sale deeds were voidable at the instance of the plaintiff. This Court further held that if the plaintiffs were required to have the sale deeds set aside before making any claim in respect of suit properties sold then a suit without such a prayer was of no avail to the plaintiffs. Following was held in para 9: (SCC pp. 168 & 169)

"9. ... The question is, in such circumstances, are the alienations void or voidable? In Section 8(2) of the Hindu Minority and Guardianship Act, 1956, it is laid down, inter alia, that the natural guardian shall not, without previous permission of the court, transfer by sale any part of the immovable property of the minor. In sub-section (3) of the said section, it is specifically provided that any disposal of immoveable property by a natural guardian, in contravention of sub-section (2) is voidable at the instance of the minor or any person claiming under him. There is, therefore, little scope for doubt that the alienations made by Laxmibai which are under challenge in the suit were voidable at the instance of the plaintiffs and the plaintiffs were required to get the alienations set aside if they wanted to avoid the transfers and regain the properties from the purchasers. As noted earlier in the plaint as it stood before the amendment the prayer for setting aside the sale deeds was not there, such a prayer appears to have been introduced by amendment during hearing of the suit and the trial court considered the amended prayer and decided the suit on that basis. If in law the plaintiffs were required to have the sale deeds set aside before making any claim in respect of the properties sold, then a suit without such a prayer was of no avail to the plaintiffs. In all probability, realising this difficulty the plaintiffs filed the application for amendment of the plaint seeking to introduce the prayer for setting aside the sale deeds. Unfortunately, the realisation came too late. Concededly, Plaintiff 2 Digamber attained majority on 5-8-1975 and Vishwambhar, Plaintiff 1 attained majority on 20-7-1978. Though the suit was filed on 30-11-1980 the prayer seeking setting aside of the sale deeds was made in December 1985. Article 60 of the Limitation Act prescribes a period of three years for setting aside a transfer of property made by the guardian of a ward, by the ward who has attained majority and the period is to be computed from the date when the ward attains majority. Since the limitation started running from the dates when the plaintiffs attained majority the prescribed period had elapsed by the date of presentation of the plaint so far as Digamber is concerned. Therefore, the trial court rightly dismissed the suit filed by Digamber. The judgment of the trial court dismissing the suit was not challenged by him. Even assuming that as the suit filed by one of the plaintiffs was within time the entire suit could not be dismissed on the ground of limitation, in the absence of challenge against the dismissal of the suit filed by Digamber the first appellate court could not have interfered with that part of the decision of the trial court. Regarding the suit filed by Vishwambhar, it was filed within the prescribed period of limitation but without the prayer for setting aside the sale deeds. Since the claim for recovery of possession of the properties alienated could not have been made without setting aside the sale deeds the suit as initially filed was not maintainable. By the date the defect was rectified (December 1985) by introducing such a prayer by amendment of the plaint the prescribed period of limitation for seeking such a relief had elapsed. In the circumstances, the amendment of the plaint could not come to the rescue of the plaintiff."

18. To the same effect is the judgment of this Court in Madhegowda v. Ankegowda, where in para 25, the following has been held: (SCC p. 187) "25. ... The minor, on attaining majority, can repudiate the transfer in any manner as and when occasion for it arises. After attaining majority if he/she transfers his/her interest in the property in a lawful manner asserting his/her title to the same that is sufficient to show that the minor has repudiated the transfer made by the "de facto guardian/manager". "

24. We have noticed above that sub-section (3) of Section 8 refers to a disposal of immovable property by a natural guardian in contravention of sub-section (1) or sub-section (2) as voidable. When a registered sale deed is voidable, it is valid till it is avoided in accordance with law. The rights conferred by a registered sale deed are good enough against the whole world and the sale can be avoided in case the property sold is of a minor by a natural guardian at the instance of the minor or any person claiming under him. A document which is voidable has to be actually set aside before taking its legal effect. This Court in Gorakh Nath Dube v. Hari Narain Singh8, while making distinction between void and voidable document held: (SCC p. 538, para 5)

"5. ... We think that a distinction can be made between cases where a document is wholly or partially invalid so that it can be disregarded by any court or authority and one where it has to be actually set aside before it can cease to have legal effect. An alienation made in excess of power to transfer would be, to the extent of the excess of power, invalid. An adjudication on the effect of such a purported alienation would be necessarily implied in the decision of a dispute involving conflicting claims to rights or interests in land which are the subject-matter of consolidation proceedings. ..."

Issue notice to respondent no.1, returnable within a period of six weeks, by registered post, acknowledgment due.

List this matter on 14.12.2022.

Considering the submission advanced by learned counsel for the petitioner, it is directed that, till the next date of listing, further proceedings of Original Suit No. 233 of 2015 pending in the Court of learned IV Additional Civil (Junior Division), Dehradun, shall remain stayed.

Stay application (I.A. No. 1 of 2022) stands disposed of.

(Manoj Kumar Tiwari, J.) 21.09.2022 Arpan