IMPORTANT POINT
Alienation of a minor’s property by de-facto guardian is void ab initio.

JUDGMENT

The second defendant in OS No.586 of 2013, who managed to convince the Trial Court to dismiss a suit for partition and declaration that the Sale Deed dated 10.05.1999 executed by the first defendant in favour of the second defendant and the Mortgage Deed dated 09.02.2011 executed by the second defendant in favour of the third defendant as invalid and not binding on the plaintiff, upon the said judgment being reversed by the Appellate Court in AS No.78 of 2015 has come up with this Second Appeal.

2. The plaintiff sued for the aforesaid reliefs contending that the suit property was purchased by him along with his paternal aunt Marakkal during his minority i.e. on 16.09.1992. By virtue of the joint purchase the plaintiff was entitled to a half share in the suit property. The suit property was a vacant site and with a view to put up construction therein by borrowing from the Suramangalam Co-operative Society, the plaintiff ‘s father Mathaiyan filed GWOP No.124 of 1995, before the First Additional District Judge, Salem, seeking permission to mortgage the property with the said Co-operative Society. Though the said permission was granted on 09.08.1996, the mortgage was not effected and monies were not borrowed from the Co-operative Society. However, subsequently on 10.05.1999, Marakkal the paternal Aunt of the plaintiff had sold the property in favour of the second defendant claiming to the de-facto guardian of the plaintiff. This, According to the plaintiff, came to his knowledge only during the year 2013, when he was impelled to apply for an Encumbrance Certificate due to a wordy quarrel between his father and his sister Marakkal. Upon discovering the fact that a sale has been effected by Marakkal to the second defendant and the second defendant had in turn mortgaged the property in favour of the third defendant, the plaintiff came up with the above suit seeking the aforesaid reliefs.

3. The suit was resisted by the second defendant contending that the suit property was purchased by Marakkal and the plaintiff name was only included in the Sale Deed as a name lender. Therefore, Marakkal was the owner of the entire property. It was also contended that the plaintiff is the adopted son of Marakkal and therefore, Marakkal was the natural guardian and she had the power to alienate the property of the plaintiff. The said alienation not having been questioned within the period allowed under Article 60 of the Limitation Act is valid and therefore, the plaintiff’s suit is hopelessly barred by limitation. It is also the further contention of the second defendant that the suit itself is a collusive suit engineered by Marakkal and the father of the Plaintiff Mathaiyan. On the above contentions, the second defendant sought for dismissal of the suit.

4. The first defendant Marakkal filed a separate written statement denying the claim of the plaintiff and she would contend that it was she who paid the consideration for the purchase and hence she is the owner of the property. She however claims that she did not sell the entire property and she sold only her share in the property. She also contended that the document styled as sale deed dated 10.05.1999 would not confer any right on the defendant.

5. At trial, the plaintiff was examined as P.W.1 and Exhibits A1 to A10 were produced. The first defendant Marakkal was examined as D.W.1 and the second defendant was examined as D.W.2 and Exhibits B1 to B3 were produced.

6. The learned Trial Judge on a misconception of the powers of a de-facto guardian under the Hindu Minority and Guardianship Act concluded that Marakkal being the guardian of the plaintiff is entitled to alienate his share in the property also. The learned Trial Judge was over awed by what he thought was an apparent collusion between Marakkal and the plaintiff in bringing about the suit. On finding that Marakkal being the de-facto guardian was entitled to alienate the property of the minor, the Trial Court dismissed the suit. Agg