Sale of property of minor by the mother of minor during the lifetime of father.

N.V.BALASUBRAMANIAN,J.

This Letters Patent Appeal is preferred against the judgment and decree passed by a learned Single Judge of this Court in A.S.No.732 of 1981 dated 11.3.1997 dismissing the appeal and confirming the judgment and decree passed by the First Assistant City Civil Judge, Chennai dismissing the suit in O.S.No.3614 of 1971 on his file.

2. The plaintiff who lost his case before the trial Court as well as the learned Single Judge of this Court is the appellant herein. The first respondent herein is the first defendant in the suit and he is the purchaser of the suit property by a sale deed dated 11.6.1956 and the suit has been filed for the cancellation of the said sale deed and for declaring the sale deed to be collusive, fraudulent, mala fide and not binding on the plaintiff and for other incidental reliefs.

3. The purchaser of the suit property, viz., the first defendant died during the pendency of the appeal and his legal representatives have been impleaded as respondents 2 to 5 by order dated 25.2.2003. Apart from the first defendant, who is the purchaser of the suit property, the other parties to the suit are the second defendant who is the father of the plaintiff and the third defendant who is his mother.

4. The short facts that are necessary for the disposal of the appeal are that the plaintiff, who is the appellant herein, has filed a suit for cancellation of the deed of sale dated 11.6.1956, inter alia, on the ground that the suit property was sold by his mother when he was a minor and she was not competent during the lifetime of father to act as the guardian of the plaintiff and the debts for the discharge of which the property was sold were avyaviharika debts and not binding on the plaintiff. He also raised a plea that the deed of sale was executed in a collusive and fraudulent manner between the purchaser of the property and the defendants 2 and 3 and the property was sold at much below the market price of the property. Hence, the suit has been filed for cancellation of the sale deed dated 11.6.1956.

5. In our view, it is not necessary to set out the details of the objections raised by the defendants in the written statement as well as the oral evidence in extenso as they have been considerably dealt with by the trial Court in two instances and by learned Judges of this Court twice.

6. The suit was originally dismissed by the City Civil Court, Chennai, by judgment dated 3.1.1973 against which an appeal was preferred before this Court in A.S.No.741 of 1974 and a learned Judge of this Court remitted the matter to the trial Court to find out whether the sale in favour of the first defendant would be binding on the plaintiff and if so, to what extent and also to consider the question whether the suit property is a self-acquired property or joint family property. After the remand, the plaintiff has examined himself apart from examining another witness on his side, P.W.2 and the first defendant has examined himself as D.W.1 and on behalf of the plaintiff, Exs.A-4 to A-6 were marked and on behalf of the first defendant, Exs.B-27 to B-32 were marked. Learned First Assistant Judge, City Civil Court, Chennai held that the suit property is a joint family property and there was no collusion between the purchaser of the property and the defendants 2 and 3. He held that the plaintiff has failed to establish that the sale in favour of the first defendant was vitiated by fraud and collusion. He also held that the plaintiff is not entitled to question the sale deed after accepting the benefits conferred upon him by the sale deed. Learned First Assistant Judge held that the debts referred to in the deed of sale are not avyaviharika in nature and the plaintiff is not entitled to the relief of cancellation of the sale deed. In this view of the matter, learned First Assistant Judge dismissed the suit. As against the judgment and decree, an appeal was preferred.

7. A learned Judge of this Court has considered the matt