When plaintiff in partition suit should not claim the cancellation of the alienations?

  It is not always necessary for a plaintiff in a suit for partition to seek the cancellation of the alienations. There are several reasons behind this principle. One is that the alienees as well as the co-sharer are still entitled to sustain the alienation to the extent of the share of the co-sharer. It may also be open to the alienee, in the final decree proceedings, to seek the allotment of the transferred property, to the share of the transferor, so that equities are worked out in a fair manner. Therefore, the High Court was wrong in putting against the appellant, her failure to challenge the alienations. {para 15}

IN THE SUPREME COURT OF INDIA 

CIVIL APPELLATE JURISDICTION 

Civil Appeal No. 2592 of 2022 

MRS. UMADEVI NAMBIAR Vs THAMARASSERI ROMAN CATHOLIC DIOCESE 

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Who can avoid sale of minor’s immovable property?

 One of the questions which came for consideration
in the above case was that “whether a transferee from
a minor after he attained majority, can file a suit
to set aside the alienation made by the minor’s
guardian or the said right is one to be exercised
only by the minor? A person entitled to avoid such a
sale is either the minor or any person claiming under
him. This Court held that either the minor, or his
legal representative in the event of his death, or
his successor-in-interest claiming under him by

reason of transfer inter vivos, must bring action
within the period prescribed for such a suit, i.e.
three years. Following is laid down in paragraph 9:
“9. The effect of this sub-section is
that any disposal of immovable property by a
natural guardian otherwise than for the
benefit of the minor or without obtaining
the previous permission of the court is
voidable. A person entitled to avoid such a
sale is either the minor or any person
claiming under him. This means that either
the minor, or his legal representative in
the event of his death, or his successor-ininterest
claiming under him by reason of
transfer inter vivos, must bring action
within the period prescribed for such a
suit, i.e. three years from the date on
which the minor died or attained majority,
as the case may be. 

REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO.1782 OF 2019
(arising out of S.L.P. (C) No. 21091 of 2010)

MURUGAN & ORS. Vs. KESAVA GOUNDER

ASHOK BHUSHAN, J.
Dated:February 25, 2019.

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Whether Mother Can Alienate Minor Son's Property When She's Not His Natural Guardian?

 In the light of these facts, it is crystal clear that when the
property inherited and owned by the plaintiff which is not a Hindu
Joint Family property or interest in the joint Hindu Family and when
father was not shown to be not taking care of the minor, mother is
not natural guardian. She as a de facto guardian has no right to
alienate the property of her minor son.
21. When the transaction is voidable, it is voidable at the
option of the minor. Minor's father or natural guardian cannot
exercise the option which a minor alone can exercise. Obviously, the
minor can exercise it after attaining the majority. Therefore, when
the sale is voidable, the ruling in Narayan Gilankar's (supra) would
be applicable but when the sale is void and there was threat of
dispossession or there was actual dispossession, it was not necessary
for minor to wait for attaining majority. His natural guardian could
have filed suit to protect his interest and his civil rights in the
property. Thus, the suit filed by the plaintiff during his minority
through his father a natural guardian as next friend is certainly
maintainable. The period of limitation in such matters will be 12
years and not 3 years as there is no necessity of claiming any
declaration. The question of legal necessity as held in Vishwambhar's
case (supra) is irrelevant. The sale is void and the transfer can be

repudiated on attaining majority. I therefore find that the learned
first appellate Court committed error in not properly appreciating the
above facts and did not follow the settled principles of law as laid
down in the above rulings. The sale could have been voidable only if
father was neglecting the child and was in care, custody and
maintenance of the mother. In this regard, reliance can be placed on
the judgment of the Apex Court in Githa Hariharan (Ms) Vs.
Reserve Bank of India reported in (1999) 2 SCC 228.
46. In our opinion, the word 'after” shall have to be
given a meaning which would subserve the need of the
situation, viz., the welfare of the minor and having due
regard to the factum that law courts endeavour to retain the
legislation rather than declare it to be void, we do feel it
expedient to record that the word “after” does not necessarily
mean after the death of the father, on the contrary, it depicts
an intent so as to ascribe the meaning thereto as “in the
absence of” be
it temporary or otherwise or total apathy of
the father towards the child or even inability of the father by
reason of ailment or otherwise and it is only in the event of
such a meaning being ascribed to the word “after” as used in
Section 6 then and in that event, the same would be in
accordance with the intent of the legislation, viz., the welfare
of the child.
47. In that view of the matter, the question of ascribing
the literal meaning to the word “after” in the context does not
and cannot arise having due regard to the object of the
statute, read with the constitutional guarantee of gender
equality and to give a full play to the legislative intent, since
any other interpretation would render the statute void and
which situation, in our view, ought to be avoided.

22. There are neither pleadings nor evidence to make out these
situations which could have made the mother as natural guardian.
Hence, the sale effected by mother is void and the suit filed for
challenging the same and for claiming perpetual injunction and later
on for possession was perfectly maintainable.

IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
BENCH AT AURANGABAD.
SECOND APPEAL NO. 650 OF 2003

Rameshwar Babasaheb Paul, Vs  Shivaji  Eknathrao Paul,

CORAM : A. M. DHAVALE, J.

DATED : 21.01.2019.
Citation: AIR 2019 Bom 77

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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 

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How to ascertain limitation for setting aside alienation made by father?

 Coming to the last question, of limitation, which needs to be considered by this Court, (in the absence of any arguments addressed with regard to the admissibility of any photostat documents), i.e. whether the suit in the current lis was barred by limitation or not.

In this context, firstly I agree with learned counsel for the respondents-plaintiffs that Article 109 of the Schedule to the Limitation Act lays down a limitation of 12 years, beyond which suits relating to setting aside a fathers' alienation of ancestral property cannot be filed.

As per the said Article, the period of limitation is to start running from the date when the alienee, (in this case the appellant), takes possession of the suit property.

Thus, though the decree that the respondents-plaintiffs sought the nullification of is dated 15.05.1995, and seen from that date the suit was instituted about four months and 24 days after limitation would have run out, however, since the period of limitation is to start running from the date that the alienee takes possession of the suit property, I see no flaw in the arguments of learned counsel, that such possession at best can be deemed to have been taken by the alienee on the date that a mutation was entered in his favour qua the ownership of the suit land, on the basis of the decree in his favour. As a matter of fact, unless the contrary is specifically proved, possession would normally be taken after the entry of ownership is entered. Especially where the land alienated is by a co-sharer, in favour of another co-sharer, the earliest date that such deemed possession can be inferred, in the absence of evidence to the contrary, would be the sanction of the mutation entry. The mutation entry admittedly having been made on 19.12.1995, vide mutation No. 826, the limitation to institute the suit would end on 18.12.2007. Thus, the suit in the current lis having been instituted on 09.10.2007, was within limitation by about two months, no evidence having been led to the contrary to show even to this Court, that possession qua the share of Rohtash was already with the appellant earlier.

IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH

RSA-1725-2016 (O&M)

Decided On: 02.06.2017

 Amrit Lal Vs.Savitri and Ors.

Hon'ble Judges/Coram:

Amol Rattan Singh, J.

Citation:AIR 2017 P&H 130

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When suit filed by several quondam minors for setting aside alienation of property by guardian will not be barred by limitation?

Hence, in view of our above discussion, the limitation to file the

present Suit is governed by Article 60 of the Act and the limitation is 3 years from the date of attaining majority. When once we arrive at a

conclusion that Article 60 of the Act applies and the limitation is 3

years, the crucial question is when there are several plaintiffs, what is

the reckoning date of limitation? A reading of Section 7 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.

32. In the case on hand, the 1st plaintiff was 20 years old, the 2nd

defendant was still a minor and the plaintiffs 3, 4 and 5, who are

married daughters, were aged 29, 27 and 25 respectively, on the date

of institution of the Suit in the year 1989. As per Explanation 2 of

Section 7, the manager of a Hindu undivided family governed by

Mithakshara 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 this case, plaintiffs 3 to 5

though majors as on the date of institution of Suit will not fall under

Explanation 2 of Section 7 of the Limitation Act as they are 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 and there is no evidence

forthcoming to arrive at a different conclusion with regard to the age

of the 1st plaintiff. In that view of the matter, the Suit is instituted well

1within three years of limitation from the date of attaining majority as

envisaged under Article 60 of the Act.

REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 3486 OF 2016

 NARAYAN .Vs BABASAHEB & ORS.

Citation:2016(4) ALLMR481 SC,(2016)6 SCC 725,2017(1) MHLJ
29 SC

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How to ascertain limitation in suit for setting aside alienation of ancestral property?

It is not in dispute that the suit land is the ancestral property

and the plaintiffs are Hindu governed by Mitakshara Law.   It is also not

disputed that alienation is made by defendant No. 1 Bhikarchand who is

father of plaintiffs No. 1 to 5.  Article 109 of the Limitation Act lays down
period of 12 years and the time from which period begins to run is when
the alienee takes the possession of the property.     In the instant case, in
pursuance   to   the   sale   deed   dated   08/04/1969,   defendant   No.   2   took
possession on 08/04/1969.  The Suit is instituted in the year 1980, which is
well   within   12   years   and,   therefore,   can   not   be   said   to   be   barred   by
limitation.     I,   therefore,   do   not   find   that   the   learned   District   Judge

committed any error in decreeing the Suit.

  

IN THE HIGH COURT OF JUDICATURE OF BOMBAY
BENCH AT AURANGABAD
SECOND APPEAL NO.103 OF 1990

Basheer s/o. Amir Patel v. Dnyaneshwar S/o. Bhikarchand

 
CORAM : R.G.KETKAR, J.
DATE OF JUDGMENT : 24th NOVEMBER,2014.
Citation; 2015(5) MHLJ 853

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