K. S. Shivappa VS Smt. K. Neelamma
(A) Hindu Minority and Guardianship Act (32 of 1956) , S.8— Transfer of immovable property by guardian – Mode of repudiation by minor – It is not always necessary for minor on attaining majority, to institute suit within limitation provided, for cancellation of voidable sale transaction executed by his guardian – Such transactions can be avoided or repudiated by his conduct.
Order of High Court dated 19.03.2023-ReversedAIR 2001 SC 2607-DistinguishedAIR 2019 SC 2696-Distinguished
In the instant case, the question for consideration was whether a minor must file a suit within the prescribed time period, upon attaining majority to set aside the earlier sale deed executed by his natural guardian or whether such a sale deed can be repudiated by conduct within three years of attaining majority.
Held, it is not always necessary for a minor to institute suit for cancellation of a voidable sale transaction executed by his guardian on attaining majority within the limitation provided and such transactions can be avoided or repudiated by his conduct. A voidable transaction executed by the guardian of the minor can be repudiated and ignored by the minor within time on attaining majority, either by instituting a suit for setting aside the voidable transaction or by repudiating the same by his unequivocal conduct.
S 8 of Hindu Minority and Guardianship Act indicates that if the natural guardian or a minor disposes of immovable property of a minor in contravention of sub-Section (1) and sub-Section (2) particularly without the permission of the court, such a transaction would be voidable at the instance of the minor. The manner in which such a transaction of disposal of the property of a minor by a guardian without the permission of the court would be a voidable, is not provided. Such a transaction can be avoided or repudiated by the minor expressly by filing a suit for the cancellation of such a transaction or impliedly by his conduct namely by transferring the property himself on attaining the majority within the time prescribed. The avoidance of such a transaction by conduct appears to be permissible for two reasons. First, at times the minor may not be aware of such a transaction and as such may not be in a position to institute any suit; secondly, the transaction of such a nature, if any, may not have been given effect to and the party acquiring right in the property may not be having possession of the property giving an impression that the property is intact in the hands of the minor, in which case also the minor on attaining majority may not deem it proper to institute a suit.
Legal opinions expressed by Travellyan, Mulla and the High Courts of Allahabad, Madras and Kerala are also to the same effect.
(B) Hindu Minority and Guardianship Act (32 of 1956) , S.8— Transfer of immovable property by guardian – Repudiation by minor -Effect – Father/ guardian of minor sons sold subject plot to K without obtaining Court permission, who later sold it to N/ subsequent purchaser – On attainment of majority, surviving minors had sold said plot to S – Title suit was filed by N against S – There was no material on record that minors had knowledge of execution of sale deed by their father – Admittedly, based on sale deed executed by father of minors, purchaser or subsequent purchasers did not enter into possession and name of minors continued to appear in revenue records – Sale by minors was sufficient repudiation of sale executed by their father – Plaintiff had failed to enter witness box to testify and prove her plaint case – Since sale deed executed by father was repudiated by the minors within time on attaining majority, no valid right or title stood transferred to K from whom N had allegedly purchased the suit land – Plaintiff was not entitled to relief
Order of High Court dated 19.03.2023-ReversedAIR 2001 SC 2607-ReversedAIR 2019 SC 2696-Reversed(Paras32384041)
