A transaction in violation of S.8(2) of the Hindu Minority and Guardianship Act is void and not merely voidable, and minors are entitled to seek partition and separate possession without the need to seek the setting aside of the sale deeds by their guardian.

Balasubramanyan, J.

These appeals at the instance of the contesting defendants in O.S. Nos. 14 of 1986 and 15 of 1986 have been referred to the Division Bench in view of the importance of the question arising for decision. The appeal from O.S.15 of 1986 was initially filed as A.S.253 of 1987 before the District Court of Calicut but was subsequently withdrawn to this Court by order dt. 9.10.1992 for being heard with A.S.323 of 1987. The appeal withdrawn from the District Court was subsequently numbered as A.S.657 of 1992.

2. In a partition dt. 4.10.1962 between one Kumaran and his brother Kunhikannan, the properties involved in these suits were set apart to the share of Kunhikannan. Kunhikannan, a Hindu, died in the year 1967. On 4.5.1978 defendant No. 7 in the suit, the widow of Kunhikannan, the mother of the plaintiffs and defendants 8. to 10 sold for herself and as guardian of the minors the plaint B schedule property in O.S. No. 14 of 1986 to defendants 1 to5inthesuitandoneAndy,fatherofdefendantNo.6. The extent of the property sold was 6 acres 77 cents and the price for which it was sold was Rs. 10,500/-. A daughter and son of Kunhikannan filed the suit O.S.14 of 1986 on 10.2.1986 for partition of the property and delivery to them of their share on the basis that the deed of assignment executed by their mother on 4.5.1978 was void and could be ignored by them in view of the fact that they were minors on the date of the sale, the sale was effected without sanction from the court in terms of the Hindu Minority and Guardianship Act, hereinafter cal led the Act and that it was not for the necessity or the benefit of the minors. Another item of property having an extent of 1 acre 98 cents held on tenancy right by Kunhikannan and inherited by his widow and children was also sold by the widow acting for herself and as guardian of her minor children, alongwith her major children on 16.8.1967 to defendants 1 to 6 in O.S.15 of 1986 for a price of Rs. 200/-. The two children who instituted the suit O.S.14 of 1986 instituted the suit O.S.15 of 1986 praying for partition and delivery of their share in the property sold on 16.8.1967 on identical grounds.

3. In defence the contesting defendants arrayed as defendants 1 to 6 in both the suits contended that the age of minors shown is not correct, that the suit filed for partition without seeking the setting aside of alienations effected by their mother, their natural guardian was not maintainable, that the sale was for the benefit of the minors, that Hindu Minority and Guardianship Act had no application since the property was joint family property, that a suit merely for partition is not maintainable and that the suits are liable to be dismissed.

4. On the evidence the trial court found that the suit by the plaintiffs was within time, having been brought within three years of their attaining majority, that defendant No. 10 was also a minor on the date of the sale deed dated 4.51978 impugned in O.S.14 of 1986, that the sale could be ignored by the plaintiffs and defendant No. 10 and that they were entitled to shares in the property. In O.S.15 of 1986 the Court held that the plaintiffs were entitled to claim their shares on partition. In negativing the claim of the contesting defendants that the plaintiffs were bound to seek a setting aside of the sale deeds and could not simply ignore them, the trial court relied on a decision of this court in Santha v. Cherukutty (1972 KLT 1051) wherein His Lordship Justice Krishna Iyer (as he then was) held that a quandom minor could merely avoid a transaction without sanction under S.8(2) of the Act by his conduct and there was no need for him to file a suit for avoiding the transfer. This view of the learned judge in the decision followed by the trial court was questioned before the learned Single Judge by counsel for the appellants and that led to a reference of these appeals to the Division Bench.

5. The main contention raised on behalf of the