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2011 Supreme(Mad) 478
2011 (1) MWN(Civil) 837, 2011 (6) MLJ 945
High Court of Judicature at Madras
R.S. RAMANATHAN
U. Palanisamy
Versus
K. Thangavelu & Another
Second Appeal No.1008 of 2001 & C.M.P.Nos.10516 of 2001 & 3194 of 2007
Decided on : 31-01-2011
For the Appellant:N. Jothi for N. Manokaran, Advocates.
For the Respondents:R1 - S.V. Srinivasan, Advocate.
The main legal point established in the judgment is that a suit for partition without a prayer for setting aside the transaction by the minor is not maintainable and is barred by limitation as per Article 60 of the Limitation Act.
Headnote:
Release Deed - Partition - HMG Act, Limitation Act - Section 8(3) HMG Act, Article 60 Limitation Act - The court discussed the validity of the release deed executed by the natural guardian, the applicability of HMG Act and Limitation Act, and the requirement for setting aside the transaction by the minor. The court held that the suit for partition without a prayer for setting aside the transaction is not maintainable and is barred by limitation as per Article 60 of the Limitation Act.
Fact of the Case:
The suit was filed for partition and separate possession of ancestral property. The Trial Court and the first appellate court decreed the suit, but the second appeal was filed challenging the judgment. The substantial question of law was whether the suit for partition is maintainable in the absence of a specific relief for declaration of the release deed as null and void.
Finding of the Court:
The court found that the suit for partition without a prayer for setting aside the transaction is not maintainable and is barred by limitation as per Article 60 of the Limitation Act.
Issues: The main issue was the maintainability of the suit for partition without a prayer for setting aside the release deed and the applicability of the HMG Act and Limitation Act.
Ratio Decidendi: The court held that the suit for partition without a prayer for setting aside the transaction is not maintainable and is barred by limitation as per Article 60 of the Limitation Act.
Final Decision: The judgment and decree of both the courts below were set aside, and the second appeal was allowed.
1. The unsuccessful first defendant is the appellant.
2. The suit was filed by the first respondent herein for partition and separate possession. The case of the first respondent was that the suit property is the ancestral property and the appellant is the paternal uncle and the second respondent is his father and all of them constitute a joint Hindu Family and the first respondent has got < share in the suit property by birth and without any legal necessity, his father executed a release deed dated 25.2.1976 releasing his share as well as the first respondent's share in the property in favour of the appellant and the said release deed is not binding on the first respondent and he is entitled to < share in the property and therefore, filed the suit for partition. It is also stated in the plaint that the second respondent, his father, was addicted to alcohol and was having all vices and taking advantage of the weakness of the second respondent, the appellant colluded with the second respondent with the intention of misappropriating the joint family properties, and obtained the release deed in his favour.
3. The second respondent herein, father of the first respondent remained absent and was set ex parte and the appellant filed statement denying the allegations made in the plaint and stated that the release deed was validly executed by the kartha of the family and it is binding on the first respondent and the release deed is a valid one and the first respondent was a party to the said document and without a prayer to set aside the release deed, the suit for partition is not maintainable and the suit is also barred by limitation as the suit was not filed within three years from the date of attaining majority by the first respondent.
4. The Trial Court held that the suit is not barred by limitation and Article 60 of the Limitation Act will not apply to the facts of the case and the release deed executed by the second respondent in favour of the appellant is not valid in law and therefore, the plaintiff is entitled to the relief of partition.
5. The first appellate court also confirmed the judgment and decree of the Trial Court. Aggrieved by the same, the second appeal is filed.
6. At the time of admission of the second appeal, the following substantial question of law was framed:- "Whether, in the absence of any specific relief for declaration of the release deed, Ex.A8 as null and void, can the suit be maintainable in view of the Full Bench decisions of this court in AIR 1941 Madras 481, 1956 II MLJ 411 (FB) and 2000 (2) CTC 154?"
7. Mr.N.Jothi, learned counsel for Mr.N.Manoharan, learned counsel for the appellant submitted that both the courts below erred in decreeing the suit without recognising the principles of law laid down by the Honourable Supreme Court and in contravention of the provisions of the Hindu Minority and Guardianship Act (HMG Act). Mr.N.Jothi, learned counsel for the appellant submitted that under section 8(3) of the HMG Act, any transaction of minor's interest by the natural guardian without permission of the court is voidable and being a voidable transaction, it has to be set aside within a period of three years from the date of attaining majority by the minor and in this case, admittedly, the suit was filed after the expiry of three years from the date of attaining majority by the first respondent and the first respondent has not prayed the relief of declaration that the release deed is not binding on him and therefore, in the absence of any prayer for setting aside the transaction, the suit is not maintainable and as the suit was filed after the period of three years from the date of attaining majority, the suit is barred by limitation as per Article 60 of the Limitation Act.
8. The learned counsel Mr.N.Jothi also relied upon the following judgments of the Supreme Court in support of his contention.
1) MADHUKAR VISHWANATH v. MADHAO ((1999) 9 SCC 446)
2) NANGALI AMMA BHAVANI AMMA v. GOPALAKRISHNAN NA
