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1970 Supreme(Ker) 15
Judges : P.SUBRAMONIAN POTI
VARGHESE - Appellant
Versus
MARIAMKUTTY - Respondent
Case No : S. A. No. 1517 of 1965
Decided On : 01/20/1970
Advocates Appeared :
Joseph Augustine; M. C. Mathew; For Appellants K. Chandrasekharan; For Respondents
The main legal point established is the distinction between void and voidable transactions by a guardian of a minor, and the applicability of Art.44 of the Limitation Act to transactions unsupported by necessity binding on the minor.
Headnote:
Oral Partition - Property Partition - Limitation Act - Guardian's Sale Deed - Necessity and Consideration - Art.44 of Limitation Act - Full Bench Decision
Fact of the Case:
The case involved a dispute over the partition of properties claimed by the plaintiffs and defendants. The plaintiffs sought partition, claiming that certain sale deeds were not binding on their interests. The defendants contested, relying on oral partition and subsequent alienations, and argued that the suit was barred by limitation.
Finding of the Court:
The court found that the oral partition was not proved and the sale deeds were not binding on the plaintiffs. It held that the sale deed executed by the guardian of a minor was not supported by necessity binding on the minor, and discussed the applicability of Art.44 of the Limitation Act.
Issues: The issues involved the validity of the sale deeds, the applicability of the Limitation Act, and the distinction between void and voidable transactions by a guardian of a minor.
Ratio Decidendi: The court held that the sale deed, unsupported by necessity binding on the minor, was voidable and not void. It discussed the Full Bench decision and distinguished cases of want of consideration from cases of absence of necessity binding on minors.
Final Decision: The court modified the decree, dismissing the suit in regard to the claim of the second plaintiff to share in certain items covered by the sale deed, and upheld the decree in other respects. The parties were to suffer costs in the Second Appeal.
1. This second appeal was filed by the 4th defendant in the suit and on his death his legal representatives have come in as additional appellants 2 to 5. The appeal arises from a suit for partition of the plaint properties which is claimed as that belonging to the predecessor-in-interest of the plaintiffs, defendants 1 to 3 and 5 to 16. Two sale deeds, Exs. D-1 and D-2, have been executed for these properties, but according to the plaintiffs those sale deeds are not binding on the interests of the plaintiffs and therefore partition is prayed for avoiding these sale deeds. Kochuvareed, the father of the plaintiffs, to whom the suit properties belonged, died on 15101117 leaving his heirs. His children were plaintiffs, defendants 2 and 3, one Lonappan, father of defendants 5 to 7, and Anthony, husband of the 8th defendant and father of defendants 9 to 16 and also his second wife, the first defendant. The 4th defendant obtained Ex. D 1 sale deed dated 12 21951 from Anthony, Lonappan and the first defendant for items 1 and 2 in the plaint schedule and Ex. D 2 sale deed dated 22-3-1952 from the 3rd defendant for item No. 3 in plaint schedule. In joining Ex. D-1 sale deed the first defendant who was the mother of the plaintiffs and the second defendant purported to act as their guardian also. But the case of the plaintiffs is that in the sale deed Ex. Dl an oral partition was set up and in the written statement of the 4th defendant it is contended that the oral partition is said to have conferred the right over plaint items 1 and 2 to Anthony and Lonappan alone, so much so, according to the plaintiffs, first defendant did not join in Ex. D1 so as to convey any rights in items 1 and 2. With regard to the sale of item 3 under Ex. D2 the case of the plaintiffs is that even on the face of it would not operate to assign the interest of the plaintiffs as it does not purport to convey their interest, unless the 4th defendant is able to succeed in his case as to the oral partition between the legal heirs of the deceased Kochuvareed. The case of oral partition mentioned in Exs. D1 and D2 are denied by the plaintiffs. According to the law governing the parties the first plaintiff would be entitled to 1/16th share and second plaintiff to 3/16th share and a division of those share in respect of the suit properties is claimed in the plaint. The 4th defendant who contests the claim of the plaintiffs relies on the oral partition and subsequent alienations in respect of the plaint items by the persons who obtained those properties under the said oral partition. In the alternative it is contended that these deeds are binding on the plaintiffs as being supported by consideration and necessity binding on the minors. It is also contended that in any view of the matter the suit should be deemed to be barred by limitation, the first plaintiff having been a major even on the date of Ex. D1 and the second plaintiff having become a major more than three years before the institution of the suit.
2. A contention was urged in the court below and that has found acceptance by the court to the effect that the document Ex. D-1 is not binding upon the plaintiffs for the reason that first defendant has not purported to convey any interest of the minors in executing Ex. D-1. The question of avoidance of a document by any person would arise only if the interest of such person has been conveyed under the transfer. It is not because Ex. D-1 on the face of it does not purport to convey any interest of the first defendant or her minor children that the courts below have come to its conclusion. The 4th defendant relies upon an oral partition and if the oral partition is true, then the properties conveyed under Ex. D-1 having not been obtained by the first defendant or her children, there would be no conveyance of any interest of the minors by executing Ex. D1. Therefore, the court below has assumed that in the face of the pleadings of the 4th defendant it cannot
