Limitation Act, 1963 – Arts.60 and 65 – Suit property belonged to one ‘PG’, who had two sons, ‘K’ and ‘B’ and three daughters – ‘PG’ executed Will in 1971 bequeathing life interest to his sons ‘K’ and ‘B’ and thereafter to the two male heirs of his sons – ‘PG’ died – ‘B’ on his behalf and on behalf of his minor son ‘P’ sold certain portion of the suit property to defendants-respondents in 1981-82– ‘B’ died in 1983, his minor son ‘P’ died on 11.02.1986 – B’s wife executed registered Release Deed in 1986 in favour of the plaintiffs-appellants (sons of ‘K’) for consideration – Plaintiffs filed suit in 1992 on the ground that ‘B’ had no authority to execute the Sale Deeds on behalf of his minor son ‘P’ and the same were void – Defendants inter alia contended that the suit was barred by limitation as it was not filed within 3 years from the death of ‘P’, i.e. 11.02.1986 – Suit decreed – Defendants filed appeal – Allowed – Plaintiffs filed second appeal in the High Court – Dismissed – Held: Part IV of the Limitation Act, dealing with suits relating to “Decrees and instruments”, contains Art.60 – Art.60 although provides for limitation of a suit but also clearly indicates that to set aside a transfer of property made by the guardian of a ward a suit is contemplated – Art.60(b)(ii) refers to a suit when a ward dies before attaining majority – Present is a case where ‘P’ died before attaining majority – Limitation to avoid instrument made by guardian of the ward is 3 years from the death of ward when he dies before attaining majority – Sale deeds by ‘B’ on his behalf and on behalf of his minor son ‘P’, executed without the permission of the Court were in contravention of s.8(2), 1956 Act and hence voidable – Sale deeds being voidable and not void, plaintiffs cannot rely on Art.65, period for limitation under which is 12 years – High Court rightly held that limitation for suit was governed by Art. 60 and the suit was barred by time – Alienations being voidable, were required to be set aside before relief for possession can be claimed by the plaintiffs – Suit filed by the plaintiffs without seeking prayer for setting aside the sale deeds was, thus, not properly framed and could not have been decreed – Sale deeds executed by ‘B’ were not repudiated or avoided within the period of limitation as prescribed by law – Hindu Minority & Guardianship Act, 1956 – s.8.
Hindu Minority & Guardianship Act, 1956 – s.8(3) – Right under – Of the minor or any person claiming under him – Discussed.
Words & Phrases - “Vested Right” and “Contingent Right” – Distinction between – Held: Vested right is the subject matter of s.19 of the 1882 Act while contingent interest is dealt with u/s.21 of the 1882 Act – Transfer of Property Act, 1882 – ss.19, 21. Dismissing the appeal, the Court
HELD: 1.1 Part IV of the Limitation Act, 1963 which deals with suits relating to “Decrees and instruments” contains Articles
59 and 60. Article 65 is contained in Part V (suits relating to immovable properties). Article 60(b)(ii)refers to a suit when a ward dies before attaining majority. The present is a case where ‘P’ died on 11.02.1986 before attaining majority, his date of birth being 16.07.1978, the limitation to avoid instrument made by guardian of the ward is 03 years from the death of ward when he dies before attaining majority. [Paras 7, 8 and 9][366-G; 367-D; 360-A-B]
1.2 The period of limitation under Article 65 is available when suit is filed for possession of immovable property on any interest therein based on title. The present is a case where by registered sale deeds the property was conveyed by the father of the minor. Thus, when sale deed was executed by Balaraman he purported to convey the right of the minor also. The sale deeds being voidable and not void, plaintiffs cannot rely on Article 65. First Appellate Court and the High Court rightly held that limitation for suit was governed by Article 60 and the suit was clearly barred by time. [Para 11][369-D, E]
1.3 In the present case, there is no dispute that sale deeds executed by ‘B’ on behalf of himself and his minor son ‘P’ were executed without obtaining permission of the Court. Sale deed in violation of Section 8(1) and 8(2) of the Hindu Minority & Guardianship Act, 1956 is a voidable sale deed. The alienations, which were voidable, at the instance of minor or on his behalf were required to be set aside before relief for possession can be claimed by the plaintiffs. Suit filed on behalf of the plaintiffs without seeking prayer for setting aside the sale deeds was, thus, not properly framed and could not have been decreed. [Paras 13, 14, 20] [370-F; 372-A; 375-G-H]
1.4 The release deed dated 24.03.1986 has been brought on the record as Annexure P-1. A perusal of the release deed does not indicate that there is any reference of alienation made by ‘B’ favour of the defendants. There being no reference of the alienation made by ‘B’ on behalf of minor, there is no occasion to read release deed as repudiation of the claim on behalf of the minor. Section 8(3), 1956 Act gives a right to the minor or any person claiming under him, the relevant words in Section 8(3) are “at the instance of the minor or any person claiming under him.” Thus, alienation made on behalf of the minor can be avoided by minor or any person claiming under him. In event, minor dies before attaining majority, obviously, his legal heirs will have right to avoid the alienation. Sub-section (3) of Section 8 refers to a disposal of immovable property by a natural guardian in contravention of sub-section (1) or sub-section (2) as voidable. When a registered sale deed is voidable, it is valid till it is avoided in accordance with law. The rights conferred by a registered sale deed are good enough against the whole world and the sale can be avoided in case the property sold is of a minor by a natural guardian at the instance of the minor or any person claiming under him. A document which is voidable has to be actually set aside before taking its legal effect. [Paras 21, 24] [376-A-C; 376-F-G]
1.5 Supreme Court time and again held that setting aside of a sale which is voidable under Section 8(3) is necessary for avoiding a registered sale deed. Court may, however, not to be understood that it is holding that in all cases where minor has to avoid disposal of immovable property, it is necessary to bring a suit. There may be creation of charge or lease of immovable property which may not be by registered document. It may depend on facts of each case as to whether it is necessary to bring a suit for avoiding disposal of the immovable property or it can be done in any other manner. The Limitation Act, 1963 has been enacted by the Parliament after the enactment of Hindu Minority and Guardianship Act, 1956. Article 60 of the Limitation Act, 1963 which provides for limitation “suits relating to decrees and instruments”. The Limitation Act contemplates suit to set aside a transfer of property made by the guardian of a ward for which limitation is contemplated as three years. Article 60 of the Limitation Act although provides for a limitation of a suit but also clearly indicates that to set aside a transfer of property made by the guardian of a ward a suit is contemplated. [Paras 28, 29] [378-E-H; 379-A]
1.6 Section 11 of the 1956 Act contains a statutory prohibition on “de facto guardian” of the minor from disposing of the property of the minor. The transfer made by de facto guardian is, thus, void and can be repudiated in any manner. It is well settled that it is not necessary for a minor or any person claiming under him to file a suit for setting aside a void deed. A void deed can be ignored. [Para 31] [379-G]
1.7 In the present case there having been no repudiation of sale deed on behalf of minor, the question of voidable sale deed becoming void does not arise. In the present case it was necessary for the person claiming through minor to bring an action within a period of three years from the date of the death of the minor to get sale deed executed by ‘B’ set aside. The sale deeds executed by ‘B’ were not repudiated or avoided within the period of limitation as prescribed by law. [Paras 34, 35] [382-B, C]
Madhukar Vishwanath v. Madahav and Others (1999)
9 SCC 446; Narayan v. Babasaheb and Others (2016)
6 SCC 725 : [2016] 2 SCR 948; Nangali Amma Bhavani Amma v. Gopalkrishnan Nair and Others (2004) 8 SCC 785; Gorakh Nath Dube v. Hari Narain Singh and others (1973) 2 SCC 535 : [1974] 1 SCR 339 – relied on.
Dhurandhar Prasad Singh v. Jai Prakash University and Others (2001) 6 SCC 534 : [2001] 3 SCR 1129; Vishwambhar and Others v. Laxminarayan (Dead)
Through LRs. and Another (2001) 6 SCC 163;
Madhegowda (dead) by LRs. v. Ankegowda (dead) by LRs. and Others (2002) 1 SCC 178 : [2001] 5 Suppl. SCR 290; Amirtham Kudumbah v. Sarnam Kudumban
(1991) 3 SCC 20 : [1991] 2 SCR 389; Madhegowda (Dead) by LRs. v. Ankegowda (Dead) by LRs. and others (2002) 1 SCC 178 : [2001] 5 Suppl. SCR 290; G. Annamalai Pillai v. District Revenue Officer and others (1993) 2 SCC 402 : [1993] 2 SCR 397 –
referred to.
As published in the Supreme Court Reports, Supreme Court of India. Text from the Indian Supreme Court Judgments open data set (Dattam Labs), CC BY 4.0.
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