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2019 Supreme(Mad) 1723
IN THE HIGH COURT OF JUDICATURE AT MADRAS
C.V. Karthikeyan, J.
S. Mallika - Appellant
Versus
R. Krishnaveni - Respondent
S.A. No. 473 of 2015 & M.P. No. 1 of 2015
Decided On : 13-09-2019
For the Appellant :J. Ramakrishnan, Advocate.
For the Respondent:V. Bhiman, Advocate.
Headnote:
Civil Procedure Code - Section 100 - Hindu Minority and Guardianship Act, 1956 - Sections 6 and 8 -seeking a preliminary -undivided share in a joint family property -challenge the sale - Whether the judgments of the Court below are vitiated in that, they have applied the provisions of the Sections 6 and 8 of the Hindu Minority and Guardianship Act, 1956 to a sale of a minors undivided share in a joint family property to declare such sale as void - Plaintiff had married on 15.09.1994. She stated that she came to know that Ayammal and Mariayee @ Maheswari had sold the entire suit property including the share of the Plaintiff to one Muthusamy. She claimed that the sale of 2/3rd share, when she was a minor was void. She also claimed that the sale was not binding on her. Muthusamy had sold the property to the Defendant, Malliga on 24.11.2008. She claimed that the said sale deed was also not binding on her. She demanded partition and separate possession. It is under these circumstances, that the suit was filed seeking 2/3rd undivided share in the suit properties – Held, It had further been provided under Section 8(3) of the said Act, that any disposal of immovable property by a natural guardian in contravention of the stipulation to obtain permission of the Court is voidable at the instance of the minor. If that sale is voidable then, if the minor is to avoid obligation under the sale deed, then the sale deed should be set aside in manner know to law. The manner known to law is by a judgment of the Court to set aside the sale deed in so far as it relates to the share of the minor. Article 60 of the Limitation Act provides that a minor has to set aside the transfer of property made by a natural guardian within a period of three years from the date when the minor had attained the age of majority. In the present case, neither has the Plaintiff sought a prayer to set aside the sale deed nor has she filed the suit within the period of three years from the date of attaining the age of majority. The suit has to fail on these grounds - Accordingly, the first substantial question of law is answered that the judgments of the Courts below are vitiated since the Respondent had not filed a suit seeking the relief to declare the sale deed dated 28.11.1988 as void. The second substantial question of law is answered that the suit is not maintainable without setting aside the sale deed in Ex.B1. The third substantial question of law is answered that the suit is barred by limitation as contemplated under Article 60 of the Limitation Act, since the suit had not been filed within three years from the date of attaining the age of majority by the Respondent. The fourth substantial question of law is answered that the mother is the natural guardian under Section 6 of the Hindu Minority and Guardianship Act, 1956 and in the present case, since the Respondent had a undivided interest in a joint family property, the appointment of natural guardian is also not contemplated - Appeal is allowed
JUDGMENT :
Prayer: The Second Appeal filed under Section 100 of CPC, against the judgment and decree of the learned I Additional Sub Judge, Salem, in A.S.No.97 of 2010 dated 24.06.2011 confirming the judgment and decree of the Learned II Additional District Munsif,Salem, in O.S.No.1319 of 2008 dated 10.02.2010.
1. The Defendant in O.S.No.1319 of 2008 on the file of the II Additional District Munsif, Salem, is the Appellant herein.
2. O.S.No.1319 of 2008 had been filed by R.Krishnaveni, seeking a preliminary decree of 2/3rd share with respect to two items of suit property in S.No.49/3B, Achan Kuttapatti Village, Ayothiyapattinam, Salem. The first item of suit property measures 1.55 acres and the second item of suit property measures 0.46 acre, totally 2.01 acres of Punja land. By judgment and decree dated 10.02.2010, the learned II Additional District Munsif, Salem, had granted 1/3rd undivided share to the Plaintiff. The Defendant then filed A.S.No.97 of 2010 on the file of the I Additional Sub Court, Salem. By judgment dated 24.06.2011, the First Appeal was dismissed and the judgment of the Trial Court is confirmed. Aggrieved by the said judgment, the Defendant had filed the present Second Appeal. The Second Appeal had been admitted on 21.10.2016, on the following four substantial questions of law:
“(i) Whether the judgments of the Court below are vitiated in that, they have applied the provisions of the Sections 6 and 8 of the Hindu Minority and Guardianship Act, 1956 to a sale of a minor's undivided share in a joint family property to declare such sale as void?
(ii) When the plaintiff as a minor is co-nominee a party to Ex.B1 sale deed being represented by her mother as guardian, then, whether the present suit for partition is maintainable, without seeking to set aside the sale made under Ex.B1?
(iii) Whether the present suit is barred by Limitation as comtemplated under Article 60 of the Limitation Act, Considering that the respondent herein has not filed the present suit within 3 years for attaining the majority to challenge the sale made under Ex.B1?
(iv) When the father is not alive, and there is other male member, whether the mother being the eldest adult member in management of the joint family properties is not competent to act as a natural guardian to deal with such properties, as contemplated under Section 12 of the Hindu Minority and Guardianship Act, 1956?”
O.S.No.1319 of 2008 (II Additional District Munsif Court, Salem):
3. The Plaintiff claimed that the suit property originally belonged to her grandfather C.Serangan. He had two wives namely, Lakshmi and Pappammal. He had one son Perumal and one daughter Dhanakodi through Lakshmi, his first wife, and one son Ramasamy and two daughters namely, Then and Ramayee through Pappammal, his second wife. Serangan, his first wife Lakshmi and his son Perumal died. Thereafter, there was a partition among Pappammal, the second wife of Serangan and Ramasamy, his son and Ayyammal, widow of Perumal by a registered partition deed, dated 15.05.1987. The suit property was allotted to the share of Perumal who was represented by Ayyammal. The Plaintiff was a minor on the date of partition. Perumal had died leaving behind Ayyammal and two daughters namely, Mariayee @ Maheswari and the Plaintiff herein, Krishnaveni. The Plaintiff thereafter, claimed 1/3rd undivided share in the suit property, in view of the amendment to the Hindu Succession Act. She claimed she was entitled to ½ share and another 1/3rd share in her father’s ½ share. She consequently, claimed an undivided 2/3rd share in the suit property. The Plaintiff had married on 15.09.1994. She stated that she came to know that Ayammal and Mariayee @ Maheswari had sold the entire suit property including the share of the Plaintiff to one Muthusamy. She claimed that the sale of 2/3rd share, when she was a minor was void. She also claimed t
