Absolute sale deed with separate repurchase agreement not mortgage; minors must challenge guardian’s alienation within 3 years of majority by seeking cancellation.

JUDGMENT :

K. MURALI SHANKAR, J.

1.The second appeal is directed against the judgment and decree made in A.S.No.29 of 2014, dated 05.04.2016 on the file of the Subordinate Judge, Paramakkudi, confirming the judgment and decree passed in O.S.No.58 of 2010 on the file of the learned District Munsif cum Judicial Magistrate, Kamudhi.

2.The appellants are the plaintiffs 1 to 5. They along with fourth respondent Sekar, filed a suit in O.S.No.58 of 2010, before the District Munsif cum Judicial Magistrate, Kamudhi, claiming partition and allotment of 6/8 shares in the suit property.

3. For the sake of convenience and brevity, the parties hereinafter will be referred as per their ranking/status before the trial Court.

4. The relationship not in dispute is that the first plaintiff is the wife of the first defendant and the plaintiffs 2 to 6 and the second defendant are their children. The third defendant is a third party-purchaser. Pending second appeal, the fourth appellant/plaintiff had died and his legal heirs were impleaded as the appellants 6 to 8 and the sixth appellant was appointed as guardian of minor appellants 7 and 8.

5.The case of the plaintiffs, in brief, is as follows :

a) The suit properties are the ancestral properties of the first defendant. The plaintiffs were constrained to get an encumbrance certificate on 11.01.2010 as the third defendant was claiming right over the suit property and they came to know that the defendants 1 and 2 had executed a mortgage deed, dated 13.11.1997 and subsequently, a sale deed, dated 04.01.2001, but the patta bearing No.157 continued to be in the name of the first defendant.

b) The plaintiffs and the defendants 1 and 2 are in possession and enjoyment of the suit property. At the time of execution of the sale deed by the defendants 1 and 2, the plaintiffs 2 and 3 were major and only the plaintiffs 4 to 6 were minors. Hence, the sale in favour of the third defendant will not bind the shares of the plaintiffs.

c) On enquiry, the defendants 1 and 2 admitted to have executed a sale deed for the loan availed by them from the third defendant and that the third defendant executed an agreement not to claim any right and title over the suit property and that the sale deed was executed only as a security for the loan. Hence, the plaintiffs were forced to file the above suit for partition and for allotment of 6/8 shares in the suit property.

6. The defence of the third defendant, in short, is as follows :

a) The suit properties are the ancestral properties of the plaintiffs and the defendants 1 and 2. The first defendant along with the second defendant for himself and as a guardian for minor plaintiffs 2 to 6 had mortgaged the suit property to the third defendant for Rs.40,000/- and the first defendant had agreed to repay the loan amount with interest at Rs.2/- per Rs.100/- per month. But the defendants 1 and 2 have failed to any amount towards principal or interest. But they availed further hand loans from the third defendant and the loan amount and interest had exceeded Rs.1 lakh as in December 2000. Since the plaintiffs and the defendants 1 and 2 were unable to discharge the loan amount, they have requested the third defendant to purchase the suit properties. But at that time, the suit properties would fetch only Rs.65,580/- and hence, the third defendant asked the fi