Important Points:
The earlier suit was filed for setting aside the document, but the instant suit was filed for partition without a prayer for setting aside the document. The relief of partition cannot be granted without setting aside the document and hence the bar under Order IX Rule 9 C.P.C., would come into play.

A suit for partition was decreed by the trial court and the first appellate court by granting a preliminary decree for partition against which the second and third defendants came up with this appeal.

2. The suit is one for partition and for fixation of boundary. The 4th defendant is the father of the plaintiffs. The mother obtained the property in the year 1953 under a partition. The father sold the property to the first defendant after the death of the mother. At that time the plaintiffs were minors. The third plaintiff attained majority in the year 1982. She has filed an earlier suit in O.S.No.239 of 1983 for herself and as next friend of her two minor siblings, the second and the first plaintiff. The suit was ended in dismissal for default. Ext.B8 is the judgment. It is thereafter, the present suit was instituted in the year 1997 for partition and fixation of boundary. Both the trial court and the first appellate court granted a decree for partition by passing a preliminary decree. Aggrieved by the said decree and judgment, the defendant Nos.2 and 3 came up with this appeal.

3. The questions came up for consideration are:

(i) Whether a document of transfer executed by the guardian for and on behalf of minors would be void at its very inception or voidable at the option of minors ?

(ii) Whether the trial court and the first appellate court justified in their conclusion that Ext.A2 sale deed is void at its very inception ?

(iii) Whether the trial court and the first appellate court are justified in passing a preliminary decree without a prayer for setting aside the document of alienation executed by the natural guardian of the minors ?

(iv) What would be the legal impact of dismissal of the earlier suit for default, on a subsequent suit for the very same relief ?

(v) What is the period of limitation available to exercise option under Section 8 of Hindu Minority and Guardianship Act by the minor ?

(vi) Whether the trial court and the first appellate court failed in applying the legal position regarding the limitation in the exercise of option available to a minor, to challenge a document of alienation ?

4. Ext. A2 sale deed relates back to the year 1978, more specifically on 29.11.1979 executed by the father of minors, representing the three minor children, after the death of their mother. Section 8 of the Hindu Minority and Guardianship Act, 1956 extracted below for reference:

(1) The natural guardian of a Hindu minor has power, subject to the provisions of this section, to do all acts which are necessary or reasonable and proper for the benefit of the minor or for the realization, protection or benefit of the minor’s estate; but the guardian can in no case bind the minor by a personal covenant.

(2) The natural guardian shall not, without the previous permission of the court-

(a) mortgage or charge, or transfer by sale, gift, exchange or otherwise, any part of the immovable property of the minor; or

(b) lease any part to such property for a term exceeding five years or for a term extending more than one year beyond the date on which the minor will attain majority,

(3) Any disposal of immovable property by a natural guardian, in contravention of sub-section (1) or subsection (2), is voidable at the instance of the minor or any person claiming under him.

(4) No court shall grant permission to the natural guardian to do any of the acts mentioned in sub-section (2) except in case of necessity or for an evident advantage to the minor.

(5) The guardians and Wards Act, 1890 (8 of 1890), shall apply to and in respect of an application for obtaining permission of the court under sub-section(2) in all respects as if it were an application for obtaining the permission of the court under section 29 of the Act, and in particular-

(a) proceedings in connection with the application shall be deemed to be proceedings under that Act within the meaning of section 4A thereof;

(b) the court shall observe the procedure and have the powers specified in su