We may notice one more judgment of this Court
relied on by the learned counsel for the appellants
that is G. Annamalai Pillai vs. District Revenue
Officer and others, (1993) 2 SCC 402. The question
which arose for consideration in the said case has
been noticed in paragraph 1 of the judgment in
following words:
“1. The short question for consideration in
this appeal is whether lease deed in dispute, which
was voidable in terms of Section 8(3) of the Hindu
Minority and Guardianship Act, 1956 (the Act) when
validly avoided, was effective from the date of the
lease deed so as to make the transaction void and
unenforceable from the very inception.” {Para 32}
33. The land in dispute was owned by one Janarthanan.
His father, Purushothaman executed a registered lease
deed in favour of appellant on 12.12.1971 on which
date the owner was minor. The appellant filed
application before Tehsildar to be registered as a
tenant which was contested by Janarthanan.
Janarthanan contended that his father has no right or
title to deal with land and lease by his father is in
contravention of Section 8 of Hindu Minority and
Guardianship Act, 1956. Tehsildar held that there was
no valid lease which order was confirmed by the High
Court against which judgment appeal was filed. In
paragraphs 5 and 6 following has been laid down:
“5. We have heard learned counsel for the
parties. We have been taken through the
orders of the Revenue authorities, judgment
of the learned Single Judge and of the
Division Bench of the High Court in writ
appeal. The Division Bench of the High
Court, in a lucid judgment, answered the
question — posed by us in the beginning —
in the affirmative and against the
appellant-Annamalai Pillai on the following
reasoning:
“We have already seen that clause (3) of
Section 8 of the Hindu Minority and
Guardianship Act, 1956, specifically makes
the transaction voidable. The lease
executed by the guardian in this case is
prohibited and in that sense it was
without any authority. On the legal
efficacy and the distinction between
valid, void and voidable agreements, we
find the following passage in Salmond on
Jurisprudence, Twelfth Edition at page
341:
‘… A valid agreement is one which is
fully operative in accordance with the
intent of the parties. A void agreement
is one which entirely fails to receive
legal recognition or sanction, the
declared will of the parties being
wholly destitute of legal efficacy. A
voidable agreement stands midway
between these two cases. It is not a
nullity, but its operation is
conditional and not absolute. By reason
of some defect in its origin it is
liable to be destroyed or cancelled at
the option of one of the parties to it.
On the exercise of this power the
agreement not only ceases to have any
efficacy, but is deemed to have been
void ab initio. The avoidance of it
relates back to the making of it. The
hypothetical or contingent efficacy
which has hitherto been attributed to
it wholly disappears, as if it had
never existed. In other words, a
voidable agreement is one which is void
or valid at the election of one of the
parties to it.’
This distinction has also been
judicially noticed in the Privy Council
judgment reported in Satgur Prasad v.
Harnarain Das and in the Division Bench
judgment in S.N.R. Sundara Rao and Sons,
Madurai v. CIT. The Division Bench held,
following the said Privy Council judgment as
follows:
‘When a person, who is entitled to
dissent from the alienation, does so, his
dissent is in relation to the transaction
as such and not merely to the possession
of the alienee on the date of such
dissent.
The effect of the evidence is,
therefore, to get rid of the transaction
with the result that in law it is as if
the transaction had never taken place.’
We have, therefore, no doubt that when the
fifth respondent avoided the lease executed
by his father, the fourth respondent, the
lease became void from its inception and no
statutory rights, could, therefore, accrue
in favour of the appellant herein.”
6. We agree with the reasoning and the
conclusions reached by the Division Bench
of the High Court and as such this appeal
has to be dismissed.”
34. Learned counsel for the appellants relying on the
above decision contends that sale by Balaraman when
has been avoided by release deed it became void from
the very beginning. There can be no quarrel to the
proposition laid down in G. Annamalai Pillai vs.
District Revenue Officer and others(supra). 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.
35. We are, thus, of the considered opinion that 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 Balaraman set
aside. We, thus, conclude that the sale deeds
executed by Balaraman were not repudiated or avoided
within the period of limitation as prescribed by law.
Issue No.3 is answered accordingly.
36. In view of the foregoing discussions, we do not
find any merit in this appeal. The appeal is
dismissed accordingly.
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO.1782 OF 2019
MURUGAN & ORS. Vs. KESAVA GOUNDER (DEAD)
THR. LRS. AND ORS.
Author: ASHOK BHUSHAN, J.
Dated: February 25, 2019.
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