1997 Supreme(Mad) 688

High Court of Judicature at Madras
THE HONOURABLE MR. JUSTICE S.S. SUBRAMANI
P. Govindaraju Padayachi & Another
Versus
Vijayakumara Vijaya Oppillada Malavaraya Nayanar & Others
S.A. Nos. 1194 & 1720 of 1988
Decided On :Decided on : 14-07-1997

Headnote:

HINDU MINORITY AND GUARDIANSHIP ACT, 1956 - SECTION 8(3) - TRANSFER OF PROPERTY ACT, 1882 - SECTION 43 - VOID AND VOIDABLE TRANSACTIONS - SALE DEEDS EXECUTED BY DE FACTO GUARDIAN - EFFECT - EQUITIES - PARTITION.

Fact of the Case:

Plaintiffs, four in number, filed a suit for partition claiming 6/7 shares in the plaint item. It is alleged that the plaint property originally belonged to one Muthu Vijaya Oppilada Malavaraya Nayanar, father-in-law of first defendant and grandfather of plaintiffs. On his death, all his properties including the suit schedule property were inherited by his son Velusamy Vijaya Oppillada Malavaraya Nayanar, who was the husband of first defendant and father of defendants 2 and 3. The father died leaving behind him plaintiffs 1 to 4 and defendants 1 to 3 as his heirs. The property being joint family property of plaintiffs 1 and 2 along with their deceased father, each was entitled to one-third share. On the death of their father, his one-third share devolved on plaintiffs 2 and 3 and defendants 1 to 3, each getting 1/21 shares. Thus, plaintiffs 1 and 2 are each entitled to 8/21 shares and plaintiffs 3 and 4 and defendants 1 to 3 are each entitled to 1/21 shares. Plaintiffs put together are entitled to 6/7 shares in the plaint property. It is further stated that on 8.5.1976, defendants 1 to 3 and plaintiffs who are minors represented by their maternal uncle Jayaraman Sethupathy executed a sale deed in favour of 4th defendant for a stated consideration of Rs. 11,000/- in respect of half of the schedule property. It is further said that out of the sale consideration of Rs. 11,000/-, Rs. 5,000/- was directed to be paid in discharge of four prior mortgages alleged to have been executed by plaintiffs father, and Rs. 6,000/- was received in cash by the so called guardian Jayaraman Sethupathy before the Sub Registrar. On the same day, defendants 1 to 3 and plaintiffs, represented by their maternal uncle named above, acting as their guardian, executed another sale deed, again, for Rs. 11,000/-, in favour of the 5th defendant, who is none other than the brother of the 4th defendant, in respect of the remaining portion of the schedule property. The consideration is made up of Rs. 2,000/- paid in advance and Rs. 9,000/- paid to the first defendant, before the Sub Registrar. Both the sale deeds, which are marked as Exs. B-1 and B-2, or Exs. A-2 and A-3 were registered at the residence of the first defendant. The maternal uncle who has been impleaded as 7th defendant in the suit is neither a natural guardian nor a lawful guardian. He is not even a de facto guardian of the plaintiffs. On the death of their father, first defendant became their natural guardian. Even the natural guardian has no power to sell the property without previous permission of the Court. The sale deeds executed by the 7th defendant representing the minors are void transactions and, therefore, plaintiffs are entitled to ignore those sale deeds and recover possession of their 6/7 shares. It is further averred that on 11.12.1978, defendants 4 and 5 executed a sale deed in respect of a portion of the property which they had purchased in favour of the sixth defendant. The contents of the documents are all make-belief recitals and they are not binding on the plaintiffs. It is stated that the sale deeds in favour of defendants 4, 5 and 6 are all void in law, and the sale price mentioned in those documents is not the real market value. In fact, the documents are without consideration and they have been written for a very low price. First plaintiff was born on 4.4.1960 and he became a major on 4.4.1978. He therefore filed the plaint for himself and on behalf of plaintiffs 2, 3 and 4.

Finding of the Court:

The Court found that the plaint property belonged to the family of the plaintiffs and defendants 1 to 3. 7th defendant has no authority to represent the minors in Exs. A-2 and A-3 (i.e., Exs. B-1 and B-2) and those transactions are not binding on the plaintiffs. Since the 7th defendant has no authority, the documents executed by him are void, and the same need not be set aside. Plaintiffs can ignore the same as if there are no such documents at all. Trial Court found that the plaintiffs are entitled to 2/3rd share of the plaint items and a preliminary decree was passed permitting them to have the same partitioned by metes and bounds. The matter was taken in Appeal before the lower Appellate Court by defendants 4, 5 and 6 by filing A.S. No. 246 of 1985, and also by 8th defendant who filed A.S. No. 275 of 1985. Both the Appeals were clubbed together and, after hearing counsel on both sides, the lower Appellate Court did not find any reason to interfere with the preliminary decree passed by the trial Court. Both the Appeals were dismissed. It is against the concurrent judgment, defendants, 4, 5 and 6 have preferred these Second Appeals.

Issues: 1. Whether the principle laid down under Section 8(3) of the Hindu Minority and Guardianship Act, 1956 has been properly appreciated by the Courts below and the reliance placed on 99 L.W. 110 is correct? 2. Whether Exs. A-2 and A-3 (Exs. B-1 and B-2) are void or voidable? 3. Whether the contention of the appellants that they are entitled to benefits of Section 43 of the Transfer of Property Act in view of the death of first plaintiff subsequent to the filing of Second Appeals, could be entertained? 4. Whether the argument that the appellants are entitled to the benefits of Section 35 of the Transfer of Property Act is tenable? 5. What are the equities, if any, to which the parties are entitled at the time of partition?

Ratio Decidendi: 1. Exs. B-1 and B-2 are void transactions and defendants 4 and 5 are not entitled to get any benefit on the basis of those transactions so far as the minors shares are concerned. The 7th defendant was not even a de facto guardian and he was an utter stranger so far as the minors properties are concerned. Therefore, the documents are void ab initio, and no rights will flow on the basis of such transactions. 2. Section 43 feeds its estoppel. The rule of estoppel by deed by the transferor would apply only when the transferee has been misled. The transferee must know or be put on notice that the transferor does not possess the title which he represents that he has. When note in the sale deed had put the appellant on notice of limited right of the mother as guardian, as a reasonable prudent man the appellant is expected to enquire whether on her own the mother as guardian of minor son is competent to alienate the estate of the minor. When such acts were not done the first limb of Section 43 is not satisfied. It is obvious that it may be an erroneous representation and may not be fraudulent one made by the mother that she is entitled to alienate the estate of the minor. For the purpose of Section 43 it is not strong material for consideration. But on declaration that the sale is void, in the eye of law the contract is non sest to the extent of the share of the minor from its inception. The second limb of Section 43 is that the contract must be a subsisting one at the time of the claim. A void contract is no contract in the eye of law and was never in existence so the second limb of Section 43 is not satisfied. 3. There is no evidence in this case to show that the minors were benefited by any of the transactions. When the transaction is declare d void, in the eye of law, there is no transaction at all. If that be so, the question of return of any benefit also will not arise. The principle of election has no application in such cases.

Final Decision: Both the Second Appeals are dismissed with costs.