Transaction in minor’s name contravening Guardianship Act, 1956 and also without any legal necessity is voidable #indianlaws

Section 7 of the Limitation Act makes it clear that when one of several persons who are jointly entitled to institute a suit or make an application for the execution of the decree and a discharge can be given without the concurrence of such person, time will run against all of them but when no such discharge can be given, time will not run against all of them until one of them becomes capable of giving discharge. Further, as per Explanation 2 of Section 7, the manager of a Hindu undivided family governed by Mitakshara law shall be deemed to be capable of giving a discharge without concurrence of other members of family only if he is in management of the joint family property. In the present case, Plaintiffs 3 to 5 though majors as on the date of institution of suit would not fall under Explanation 2 of Section 7 of the Limitation Act as they were not the manager or Karta of the joint family. The suit was held to be as instituted well within three years of limitation from the date of attaining majority as envisaged under Article 60 of the Act.

Supreme Court in the present matter had to determine as to whether the suit filed in the year 1989 with regard to the sale deed dated January 20, 1982 was within limitation.

Originally a suit was filed seeking the relief of partition and for a declaration that the sale deeds dated 20.01.1982 and 28.11.1988 executed by Defendant No.2 in favour of Defendant No.1 (Appellant before Supreme Court) were not binding and to set aside the same and also for recovery of possession of the Suit schedule property and for mesne profits.

There were five Plaintiffs (now Respondents before Supreme Court) who had filed the suit. The first two Plaintiffs were the real brothers, with second being minor under the guardianship of 1^st Plaintiff. Rest of the three were real sisters. Defendant No. 2 was the mother and the Defendant No. 1 (Now Appellant) was the one in whose favour sale deeds were allegedly executed and were sought to be set aside in the suit filed. There was another defendant as No. 3, who in fact was the fourth sister, but her whereabouts were not known for several years. She was later impleaded.

Plaintiff’s father was contended to be the original owner of the Suit schedule property, which was ancestral. After his death, he was survived by Plaintiffs and his widow i.e. 2^nd Defendant. There were counter allegations against the Parties and the mother was also alleged of selling property without there being any legal necessity and that too at a very meagre amount when adjoining property of similar nature were fetching much higher price. Mother was alleged of acting in connivance with Appellant besides being of loose character. The sale transaction was alleged to be one with intent to defraud Plaintiffs.

The trial Court concluded that under Section 11 of the Hindu Minority and Guardianship Act, 1956 the sale made by the de facto guardian of the minor is void ab initio and is incapable of subsequent clarification in the absence of evidence to show that the transfer is made for legal necessity. Hence, the sale deeds were held to be as not binding on the Plaintiffs and accordingly the suit was decreed whereby shares were accordingly determined. Thereafter in appeal the issue of limitation was raised by the Defendants contending that the suit is barred by limitation as per Article 60 of the Limitation Act, 1963 and as on the date of filing of the suit, except the 2nd Plaintiff, all other plaintiffs were majors and hence the suit ought to have been instituted within three years as envisaged by Article 60 of the Act. It was further urged that the legal disability of 2nd plaintiff does not entitle other plaintiffs to institute the suit after the prescribed period in the Act and relied upon Section 7 of the Limitation Act.

Appellate Court held that Article 60 was not applicable to the facts of the case as the 2nd Defendant (Mother) was not the guardian appointed by the Court. Therefore, Article 109 of the Act, which prescribes 12 years would be applicable where the alienation made by the father of the ancestral property by the Hindus, governed by the Mitakshara law and hence the suit filed in the year 1989 was well within limitation. Appellate court modified the decree to the extent that the 1st defendant was entitled to the share of the 2nd defendant. The view was affirmed by the High Court also, against which matter came up before the apex Court on the limited question as to whether the suit filed in the year 1989 for setting aside the sale deed dated 20.01.1982 would be governed under which Article of the Limitation Act and whether the same was within limitation or not?

It was observed and held that after the death of Plaintiff’s father, their mother had automatically become the natural guardian of her children. Section 8(1) of the 1956 Act indicates that it empowers the natural guardian to do all the acts which are necessary or reasonable or proper for the benefit of the minor. Section 8(2)(a) of the 1956 Act prescribes that either the purchaser or the seller should obtain the permission of the District Court to transfer the property by sale.

Hence, the present transaction on the face of it was in contravention of the mandatory provisions laid down by the 1956 Act. When once a transaction takes place in the name of the minor which is in contravention of the 1956 Act and which is not done for legal necessity, such transaction is voidable and unless such a transaction is sought to be impeached or set aside, the question of recovery of possession of that property does not arise.

Article 60 of the Limitation Act applies to suits by a minor who has attained majority and further by his legal representatives when he dies after attaining majority or from the death of the minor. The broad spectrum of the nature of the suit is for setting aside the transfer of immovable property made by the guardian and consequently, a suit for possession by avoiding the transfer by the guardian in violation of Section 8(2) of the 1956 Act. In essence, it is nothing more than seeking to set aside the transfer and grant consequential relief of possession.

A suit by quondam minor to set aside the alienation of his property by his guardian is governed by Article 60. To impeach the transfer of immovable property by the Guardian, the minor must file the suit within the prescribed period of three years after attaining majority. The Limitation Act neither confers a right nor an obligation to file a suit, if no such right exists under the substantive law. It only provides a period of limitation for filing the suit.

It was accordingly concluded that a quondam minor plaintiff challenging the transfer of an immovable property made by his guardian in contravention of Section 8(1)(2) of the 1956 Act and who seeks possession of property can file the suit only within the limitation prescribed under Article 60 of the Limitation Act which is 3 years from the date of attaining majority.

Further, as per Explanation 2 of Section 7, the manager of a Hindu undivided family governed by Mitakshara law shall be deemed to be capable of giving a discharge without concurrence of other members of family only if he is in management of the joint family property. In the present case, Plaintiffs 3 to 5 though majors as on the date of institution of suit would not fall under Explanation 2 of Section 7 of the Limitation Act as they were not the manager or Karta of the joint family. The first plaintiff was 20 years old as on the date of institution of the suit. In that view of the matter, the suit was held to be as instituted well within three years of limitation from the date of attaining majority as envisaged under Article 60 of the Act. The Appeal was accordingly dismissed.

[Narayan vs. Babasaheb & Ors.]

(SC, 05.04.2016)

Civil Appeal No. 3486 of 2016