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High Court of Kerala
K.P. Balanarayana Marar, J.
Assiya - Appellant
Versus
Rajeevan & Anr - Respondent
S.A. No. 296 of 1988
Decided On : 13-08-1993
recovery of possession - Hindu Minority and Guardianship Act - S.8 - S.35 of the Transfer of Property Act, S.64 of the Indian Contract Act, and S.41 of the Specific Relief Act - The court found that the assignment deed executed by the mother as guardian of the minors was void ab initio since the permission required under S.8 of the Hindu Minority and Guardianship Act was not obtained. The court also held that the minors were liable to restore the benefit obtained by them under the impugned alienation to the disappointed alienee, as per the equitable principles embodied in S.35 of the Transfer of Property Act, S.64 of the Indian Contract Act, and S.41 of the Specific Relief Act. The court emphasized that the principle of restoring the benefit can be applied in favor of a plaintiff in a case where the defendant successfully resists a suit on the ground that the instrument is void or voidable and that he has avoided it. The court also highlighted the discretionary power of the court to restore the benefit or to make any compensation, based on the principle of equity that parties are to be restored to the position which they occupied before the contract was entered into.
Fact of the Case:
The suit for recovery of possession arose from the assignment of property belonging to minors by their mother as guardian to the defendant without obtaining the required permission from the District Court. The trial court granted a decree for recovery, which was upheld by the lower appellate court. The second appeal was admitted on substantial questions of law, including the validity of the assignment deed and the rights of the plaintiffs to question the transaction and to get recovery of possession.
Finding of the Court:
The court found that the assignment deed executed by the mother as guardian of the minors was void ab initio since the permission required under S.8 of the Hindu Minority and Guardianship Act was not obtained. The court also held that the minors were liable to restore the benefit obtained by them under the impugned alienation to the disappointed alienee, as per the equitable principles embodied in S.35 of the Transfer of Property Act, S.64 of the Indian Contract Act, and S.41 of the Specific Relief Act. The court emphasized that the principle of restoring the benefit can be applied in favor of a plaintiff in a case where the defendant successfully resists a suit on the ground that the instrument is void or voidable and that he has avoided it. The court also highlighted the discretionary power of the court to restore the benefit or to make any compensation, based on the principle of equity that parties are to be restored to the position which they occupied before the contract was entered into.
Issues: The issues included the validity of the assignment deed, the rights of the plaintiffs to question the transaction and to get recovery of possession, the restoration of the benefit obtained by the minors, and the award of the value of improvements put up by the appellant in the property.
Ratio Decidendi: The court held that the assignment deed executed by the mother as guardian of the minors was void ab initio since the permission required under S.8 of the Hindu Minority and Guardianship Act was not obtained. The court also emphasized the equitable principles embodied in S.35 of the Transfer of Property Act, S.64 of the Indian Contract Act, and S.41 of the Specific Relief Act, which empower the court to restore the benefit obtained by a party on adjudging the cancellation of an instrument. The court highlighted the discretionary power of the court to restore the benefit or to make any compensation, based on the principle of equity that parties are to be restored to the position which they occupied before the contract was entered into.
Final Decision: The second appeal was allowed, and a decree was passed for recovery of possession of the plaint schedule property from the defendant, subject to the condition of plaintiff's restoring the benefits obtained by them under another property to the defendant. The court also directed the plaintiffs to restore 3/4th of the property purchased under that document to the defendant and awarded the value of improvements effected by the defendant in the plaint schedule property since the date of the assignment deed. The parties were directed to suffer their costs throughout.
K.P. Balanarayana Marar, J.
1. The second appeal arises from a suit for recovery of possession. While plaintiffs were minors the plaint schedule property which belonged to them was assigned by their mother as guardian to defendant for a consideration of Rs. 6000/-. Alleging that the sale was effected without obtaining the permission of the District Court and that no benefit was obtained by the minors, relief of recovery of possession was sought in the plaint. Of the two minors one has attained majority and the other was still a minor at the time of suit. She was represented by the 1st plaintiff as the next friend.
2. Defendant resisted the suit on various grounds. The sale is alleged to have taken place after obtaining permission from the District Court. Defendant was made to understand that the mother had obtained permission from the court whereas the permission was really obtained by the father. When this was noticed subsequent to the sale deed, defendant wanted the father of the minors to get the defect rectified, but defendant is alleged to have been told that the assignment by the mother is valid. No action was therefore taken by the defendant. The property was sold for raising consideration to purchase another property in the name of the minors. A property was purchased in the name of the utilising this consideration. Defendant therefore disputed the rights of plaintiffs to question the validity of the transaction and to get recovery of possession.
3. The trial court granted a decree for recovery finding that Ext. B2 assignment executed by the mother as guardian of defendant is void ab initio since the permission required under S.8 of the Hindu Minority and Guardianship Act was not obtained by the mother. On appeal the lower appellate court concurred with that decision and dismissed the appeal. The lower appellate court permitted the defendant to remove the house constructed by him before surrendering possession. Hence the second appeal by the defendant which was admitted on the following substantial questions of law formulated in the appeal memorandum:
(A) Where sanction under S.8 of the Hindu Minority and Guardianship Act for the sale of the property at the price indicated is obtained by the legal guardian of the minors and the deed of sale is executed by the mother who had made the original acquisition on behalf of the minors and the transaction is attested by the guardian, is such transaction void in law?
B) Whether the lower appellate court has not misinterpreted the scope of S.8 of the Hindu Minority and Guardianship Act and whether the finding that Ext. B2 assignment deed is void ab initio sustainable in law?
C) Whether in any view the plaintiffs are not bound to disgorge the benefits derived by them by the utilisation of the consideration obtained by the sale of Ext. B2 and is the lower appellate court justified in law in not making the decree conditional on such disgorging of the benefit?
D) Whether the lower appellate court has not gone wrong in law in not awarding the value of the building put up by the appellant in the property?
E) Whether the suit as laid is maintainable in law?
4. Heard counsel on both sides.
5. The validity of the assignment deed Ext. B2 was questioned mainly on the ground that the permission required under S.8 of the Hindu Minority and Guardianship Act was not obtained. Admittedly the mother who executed the document as guardian of the minors had not obtained the permission of the District Court. It is seen that the father of the minors had moved the District Court, Kozhikode by O. P. 157/1978 and by Ext. B5 order dt. 1-8-1978 the District Court granted permission to sell the property. The assignment deed was executed three days later wherein the mother figured as the guardian. The father participated in the document as one of the attesting witnesses as well as the identifying witness. It is therefore contended that the father was fully aware of the transaction and that he had played a frau
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