Sunday, 11 November 2018

Whether quandom minor can get possession of property sold in absence of prayer for setting aside alienation?

 The second question pertains to whether it was necessary for the original plaintiffs to have prayed for setting aside of the sale-deed dated 30.03.1974 executed by their mother while seeking possession of the suit property. In the present case, the original plaintiffs have contended that they were minors when the aforesaid sale-deed was executed by their mother and that upon attaining majority, they were entitled to possession of the suit property as their mother could not have executed the aforesaid sale-deed. The Hon'ble Supreme Court in the case of Nagappan v. Ammasai Gounder and others (supra) held that when a minor claims that an alienation of property by a guardian was not sustainable, such alienation is voidable upon the minor attaining majority. In such a situation, the minor, upon attaining majority and in order to avoid such alienation must seek setting aside of such alienation and then seek possession of the suit property. It was held that in the absence of a prayer for setting aside alienation a suit seeking possession would not be maintainable. The aforesaid case was concerned with absence of permission under Section 8 of the aforesaid Act and it was held that in the absence of such permission when a sale-deed was executed, it was voidable at the instance of minor and that in such a situation a prayer for setting aside of the sale-deed was necessary.

15. In the case of Kisan Ramji Khandare v. Kaussalyabai Gangaram Korde and others (supra), this Court has placed reliance on the aforesaid judgment of the Hon'ble Supreme Court in the case of Nagappan v. Ammasai Gounder and others (supra) and the position of law has been followed to the effect that when the sale-deed was voidable at the instance of a minor, a prayer for setting aside the sale-deed was necessary.

16. The learned Counsel appearing on behalf of respondent Nos. 1 to 4 has relied upon the judgments of the Hon'ble Supreme Court in the case of G. Annamalai Pillai v. District Revenue Officer and others (supra) and State of Maharashtra v. Pravin Jethalal Kamdar (supra) to contend that there was no need to seek a declaration for setting aside of the sale-deed in the present case and that suit simpliciter for possession was maintainable. In the present case, since respondent Nos. 1 to 4 upon attaining majority, approached the Court to prove that the aforesaid sale-deed dated 30.03.1974 was not executed properly in the eyes of law by their mother without seeking permission of the Court, it was at best voidable at their instance. In such a situation, unless the respondent Nos. 1 to 4 prayed for setting aside of the aforesaid sale-deed, they could not have sought a decree for possession. Hence, the second substantial question of law framed by this Court is also answered in favour of the appellant and against respondent Nos. 1 to 4.

IN THE HIGH COURT OF BOMBAY (NAGPUR BENCH)

Second Appeal (SA) No. 582 of 2006

Decided On: 04.05.2018

 Vasantrao Gulabrao Thakre Vs. Sudhakar Wamanrao Hingankar 


Hon'ble Judges/Coram:
Manish Pitale, J.


Citation: 2018(5) MHLJ 121.
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