Case Note & Summary
The second appeal arose from a suit filed by eight daughters and their mother against the appellant purchaser of agricultural land. The land originally belonged to Shivram, father of the daughters and husband of the mother. After his death in approximately 1970, the mother sold four acres out of a total of 6 acres 14 gunthas from Survey No. 43A to the appellant via a registered sale deed dated 22 March 1979. At the time of sale, respondent nos. 6 to 8 were already married and living with their husbands, while respondent nos. 1 to 5 were minor daughters living with the mother. The suit, filed on 25 August 1980 by the daughters through their maternal grandfather as guardian of the minors, sought a declaration that the sale was not binding on them to the extent of their 8/9th share, possession of the sold land, or in the alternative, partition of their shares, and an injunction against the appellant from obstructing possession of the remaining unsold portion of 2 acres 14 gunthas. The trial court dismissed the suit, holding the sale was for legal necessity and binding on the plaintiffs. The first appellate court, without entering into the question of legal necessity, declared all plaintiffs as tenants in common, granted injunction, and set aside the dismissal. The appellant then filed the present second appeal. The High Court framed two substantial questions of law: the effect of Section 8 of the Hindu Minority and Guardianship Act, 1956 on the sale deed, and the entitlement of the plaintiffs to the alternative relief of partition. The court noted that since there were no male coparceners after Shivram's death, the property was held as joint property by the female heirs as tenants in common. The mother had no authority to sell the shares of the major married daughters (respondent nos. 6 to 8) because they were not under her guardianship, and thus the sale was not binding on them. Regarding the minor daughters (respondent nos. 1 to 5), the court analyzed Section 8 of the Hindu Minority and Guardianship Act, which requires previous court permission for a natural guardian to transfer a minor’s immovable property and declares any contravention voidable at the instance of the minor. The suit, filed while they were still minors, contained no prayer to set aside the sale deed; it merely asserted the sale was null and void. Relying on Vishwambhar v. Laxminarayana (AIR 2001 SC 2607) and Nagappan v. Ammasai Gounder ((2004) 13 SCC 480), the court held that a sale by a guardian without court permission is voidable, not void, and can be avoided only by a suit with a specific prayer for setting it aside, which must be brought within three years of attaining majority as per Article 60 of the Limitation Act. Since no such prayer was made and the limitation had expired, the minor daughters could not obtain any relief against the sale. Consequently, the High Court partly allowed the appeal. It set aside the decree of the first appellate court insofar as it concerned respondent nos. 1 to 5. It upheld that the sale deed was not binding on respondent nos. 6 to 8, and they were entitled to the alternative relief of partition of their shares in the suit property.
Headnote
A) Hindu Minority and Guardianship Act, 1956 - Voidable Sale - Section 8(1),(2),(3) - Natural guardian cannot transfer minor's immovable property without previous permission of court; sale in contravention is voidable at instance of minor - Suit filed by minor plaintiffs through their maternal grandfather without prayer to set aside sale deed - Held, such suit is not maintainable and plaintiffs not entitled to relief in respect of the sold property (Paras 10-13). B) Limitation - Article 60, Limitation Act, 1963 - Minor's suit to set aside alienation - Suit to avoid disposal by guardian must be brought within three years of attaining majority - Plaintiffs (respondent nos. 1-5) filed suit while minors but never amended plaint to seek setting aside of sale; no such prayer even after attaining majority - Held, relief barred by limitation and suit ineffective (Paras 11-12). C) Property Law - Co-ownership/tenancy in common - Major married daughters not under guardianship of mother - Hindu Minority and Guardianship Act, 1956 - Mother had no authority to sell shares of major married daughters (respondent nos. 6-8) without power of attorney; sale not binding on them - Held, they are entitled to partition (Paras 8, 14). D) Partition - Alternative relief - Code of Civil Procedure, 1908 - Plaintiffs prayed for partition in alternative to declaration and injunction - Since sale not binding on some plaintiffs, they are entitled to partition of their shares in the suit property (Paras 14).
Issue of Consideration
(1) What is the effect of Section 8 of the Hindu Minority and Guardianship Act, 1956 on the sale deed executed by mother in favour of appellant? (2) Whether the plaintiff daughters were entitled to relief of partition sought in the alternative?
Final Decision
Second appeal partly allowed. Decree of first appellate court set aside in respect of respondent nos. 1 to 5 (minor daughters); sale deed not binding on respondent nos. 6 to 8 (major married daughters) who are entitled to alternative relief of partition of their shares in the suit property.
Law Points
- Sale by natural guardian without court permission is voidable under Section 8 of Hindu Minority and Guardianship Act
- 1956
- suit for recovery must include prayer to set aside sale
- Article 60 of Limitation Act prescribes 3-year limitation from attaining majority
- major married daughters not under guardianship of mother not bound by her alienation
- tenants in common can seek partition
