Whether in suit by minor for share in joint family property, it is necessary to ask for setting aside sale?

Property Laws – Sale by Guardian – Cancellation of sale deeds – Absence of sanction – Hindu Minority and

Guardianship Act 32 of 1956 (Act), Section 8 – Properties are ancestral properties of Appellant/Plaintiff’s father who

died intestate – 1st Defendant/mother had to sell property for family necessity and for purpose of marriage of 2

Defendant/sister – Property sold to Respondents/Defendants 5 and 4 – On date of sale, Appellant was minor – After

attaining majority, Appellant challenged sale by claiming 5/12th share in suit property – Trial Judge held alienation

void and decreed suit as prayed for – Respondents challenged same – Lower Appellate Court set aside judgment of

Trial Court – Second Appeal – Contention of Appellant that in absence of sanction from Court under Section 8, sale

is voidable at instance of Appellant – Whether Lower Appellate Court legally right in holding that since Appellant

not prayed for setting aside sale of his share, suit is not maintainable – Whether in suit by minor for share in joint

family property, is it necessary to ask for setting aside sale – Whether sale by guardian of minor without obtaining

sanction from Court for sale valid – Held, Section 8(2) of Act specifically states that without previous sanction of

Court, natural guardian shall not alienate – One minor chooses to repudiate sale within limitation, i.e., within 3

years from date of attaining majority, alienation for binding necessity no longer available – Appellant has right to

avoid alienation in terms of Section 8 and till alienation set aside, it is valid – Appellant has to set aside sale if

wants to avoid transfers and recover properties from purchasers – But Appellant has not asked for prayer for

setting aside sale, instead, asked for preliminary decree declaring his share in suit properties – Appellant ought to

have prayed for cancellation of sale deeds expressly or impliedly and pay required Court fees – As prayer for

setting aside sale not asked for, sale cannot be cancelled – Having failed to seek prayer for cancellation of sale

deeds by paying Court fees, relief sought for by Appellant cannot be granted – Appeal dismissed.

Equivalent Citation: (2014)7MLJ37

IN THE HIGH COURT OF MADRAS

S.A. No. 1082 of 2006

Decided On: 19.08.2014

 R. Nagarajan
Vs.
Sundaravelu

Hon'ble Judges/Coram:Pushpa Sathyanarayana, J.

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