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High Court of Judicature at Madras
The Honourable Mr. Justice K.P. Sivasubramaniam
Anjalai and others - Appellant
Versus
Arumuga Chettiar and another - Respondents
S.A. No. 1466 of 1987
Decided On : 01 October 1999
GUARDIAN AND WARD - ALIENATION BY GUARDIAN - VOID OR VOIDABLE - GUARDIAN APPOINTED BY COURT - SALE WITHOUT COURT SANCTION - VOIDABLE AND NOT VOID - MINOR CAN AVOID IT WITHIN LIMITATION - GUARDIAN WITHOUT COURT PERMISSION - VOIDABLE AT INSTANCE OF MINOR - MINOR MUST PRAY FOR SETTING ASIDE THE TRANSACTION - GUARDIAN AND WARD ACT, 1890 - SECTION 29 - TRANSFER OF PROPERTY ACT, 1882 - SECTION 41 - LIMITATION ACT, 1963 - ARTICLE 44.
Fact of the Case:
Plaintiff filed a suit for declaration of title to the suit property and restraining the 2nd defendant from interfering with the plaintiff's enjoyment of the suit property. The plaintiff claimed that the suit property and three other items originally belonged to one Peria Pillai Ammal and after her death, about 45 years back, her daughter, Jagadambal Ammal, inherited them and enjoyed them in her own right absolutely. Jagadambal Ammal executed a registered settlement deed in favor of her brother's wife, Kullammal, as guardian of her minor children, the plaintiff and his deceased brother, Sabbarayan. Kullammal took possession of the 4 items of properties and was managing as such peacefully and prudently. Kullammal died about 15 years back prior to the filing of the suit and Subbarayan, brother of the plaintiff was also died a year back unmarried and issueless. Therefore, the plaintiff alone was the sole owner of the properties mentioned in the settlement deed dated 22.7.1937. The first defendant claimed that the suit property belonged to his father, Narayanaswamy Padayachi, who had executed a sale deed in favor of Kuppu Chettiar, grand-father of the 1st defendant on 1.4.1926. Eversince, the purchase, Kuppusamy Chettiar and later his son Palanisamy Chettiar and the first defendant continued in possession. There was a dispute between Palaniswamy Chettiar and plaintiffs' parent in respect of the property and hence plaintiff’ s parents for themselves and on-behalf of the other sons including the plaintiff executed a registered release deed on 27.1.1942 in respect of the property. The first defendant has sold only 73?4 cents in S. No. 253/1 out of Ac1. 51 to 2nd defendant under a registered sale deed dated 10.12.1980. and from the date of’ sale 2nd defendant alone was in possession and enjoyment of the suit property.
Finding of the Court:
The court held that the alienation by the guardian without permission of the Court was voidable and therefore, there was an obligation on the part of the plaintiffs to have prayed for to set aside the earlier transaction. The court also held that the property dealt with under Ex Bl being the sale deed in favor of Kuppuswamy Chettiar was the same as the suit property.
Issues: 1. Whether the alienation by the guardian without permission of the Court was void or voidable? 2. Whether the plaintiff was obliged to pray for setting aside the release deed? 3. Whether the property dealt with under Ex Bl being the sale deed in favor of Kuppuswamy Chettiar was the same as the suit property?
Ratio Decidendi: 1. The court relied on the judgment of the Supreme Court in Divyadip Singh and others v. Ram Cachan Mishra and others, JT 1997 (1) S.C. 504, which held that when the natural guardian without the previous permission of the Court had alienated the property, it was voidable at the instance .of the minor. 2. The court also relied on the judgment of the Full Bench of this Court reported in Mir Ghulam Hussain Sahib v. Ayesha Bibi and others, A.I.R. 1941 Mad. 481, wherein the Full Bench held that the transfer by guardian appointed by Court without. Court sanction is voidable and not void. It is valid unless set aside at the instance of minors, within limitation. 3. The court also referred to the judgment of this Court reported in Sankaranarayana Pillai and another v. Kandasamia Pillai, 1956 (II) M.L.J. 411, wherein the Full Bench held that when the minor was co-nominee a party to a sale deed or other document of alienation by a guardian which he seeks to set aside, it is not enough for him to merely sue for possession but he must have also prayed for cancellation of the document and pay due Court fee for the said prayer.
Final Decision: The court dismissed the appeal.
1. The appeal is directed against the judgment of the learned Subordinate Judge, Cuddalore in A.S. No. 136 of 1985 in confirmimg that of the learned District Munsif, Panruti in O.S. No.351 of 1982. The plaintiffs in the suit are the appellants in the above second appeal.
2. The plaintiff has filed the suit for declaration of the plaintiffs title to the suit property, restraining the 2nd defendant from interfering with the plaintiffs' enjoyment of the suit property. According to the plaintiffs, the suit property and three other items originally belonged to one Peria Pillai Ammal and after her death, about 45 years back, her daughter, Jagadambal Ammal, inherited them and enjoyed them in her own right absolutely. The said Peria Pillai Ammal while she was alive, and at the time of her death expressed a wish that the properties, after the lifetime of Jagadambal, should go to her son's family to be enjoyed by the heirs of her son absolutely." Therefore, in keeping with the wish of Perial Pillai Ammal, her daughter, Jagadambal Ammal, executed a registered settlement deed in favour of her brother's wife.Kullammal, as guardian of her minor Children, the plaintiff and his deceased brother, Sabbarayan. The terms of the said settlement deed dated 22.7.1937 are that Kullammal should function as guardian of her minor children, above named, without power of alienation and on their attaining majority the properties should be handed over to them to be enjoyed by them absolutely as per the wish of their grandmother Peria Pillai Ammal. Kullammal took possession of the 4 items of properties and was managing as such peacefully and prudently.' Kullammal died about 15 years back prior to the filing of the suit and Subbarayan, brother of the plaintiff was also died a year back unmarried and issueless. Therefore, the plaintiff alone was the sole owner of the properties mentioned in the settlement deed dated 22.7.1937.(ExA5). It was further contended that Kullammal, during her lifetime, and the plaintiff, after her death were paying kist for the properties and were enjoying the properties and were dealing with them in their own right. While so, on 15.12.1980, the second defendant was giving out in the village that the first defendant had sold the suit property of an extent of 0.75 cents of Punja land to him and that he wants to construct a thatched house in the suit property. The first defendant had never asserted any right over the suit property. He cannot have any right to any of the properties in view of the long enjoyment of the same for over 45 years by Jagadambal, Kullammal and the plaintiff. The 2nd defendant attempts to enter the suit property forcibly in denial of the plaintiffs right. Therefore, the plaintiff was entitled to restrain the defendants. There was a fire accident in th e village and the plaintiff’s thatched house was gutted to ashes. Along with it valuable documents, kist receipts, grains etc. were also reduced to ashes. Therefore, he obtained a registration copy of the settlement deed dated 22.7.1937 and has obtained two affidavits of respectable villagers to show his possession of the settlement properties.
3. In the written statement filed by the first defendant, the claim of the plaintiff to be the owner of the property was denied. The possession as claimed by the plaintiff was denied. The claim that/the suit property and three items originally belonged to one Periya Pillai Ammal and after her death her daughter Jagadambal Ammal had Inherited them, that she enjoyed them in her own right absolutely were also denied as false. He further denied the allegation that 'Peria Pillai Ammal while she was alive expressed the desire that the suit property and other properties should be enjoyed by her sons. The execution of the settlement deed was also denied. The. due attestation as well as the validity of the execution were also denied. According to the first defendant, the suit itself had been filed at the instigation of the
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