MANU/SC/0374/2001

Equivalent Citation: AIR2001SC 2607, 2001(4)ALLMR(SC )287, 2001(5)ALT27(SC ), 2001 (3) AWC 2315 (SC ), 2002(1)BLJ392, 2001(3)BLJR2371,
2001(2)C GLJ210, JT2001(5)SC 539, 2001(3)RC R(C ivil)815, RLW2002(1)SC 55, 2001(4)SC ALE420, (2001)6SC C 163, 2001(2)UC 341, 2002(1)UJ37

IN THE SUPREME COURT OF INDIA

Appeal (civil) 554 of 1998
Decided On: 20.07.2001
Appellants:Vishwambhar and Ors.
vs.
Respondent:Laxminarayana (Dead) through L.Rs. and Ors.
Hon'ble Judges/Coram:
D.P. Mohapatra and Doraiswamy Raju, JJ.
Counsels:
For Appellant/Petitioner/Plaintiff: Mr. V.A. Bobde, Sr. Adv., Mr. S.V. Deshpande and Mr.
Pramit Saxena, Advs
Case Note:

Family - possession - Section 8 of Hindu Minority and Guardianship Act, 1956

and Schedule to Articles 60 and 65 of Limitation Act, 1963 - property
inherited by appellants from deceased-father sold by their mother - appellants
were minor at that time - mother was acting as guardian and no permission
for sale of property taken from Court - on attaining majority suit claiming
possession of property filed by appellants - prayer for setting aside sale not
initially made in suit and included later on - respondents contended suit as
time barred - as per provisions suit must be filed within 3 years of attaining
majority - suit was filed by appellants within prescribed period but prayer for
setting aside the sale was made after expiration of 3 years - as per provisions
appellants entitled to get possession but only after setting aside of sale - suit
must include prayer for same - prayer was included after expiration of 3 years
- so suit was time barred.

ORDER
D.P. Mohapatra, J.
1. One Dattatraya Agnihotri died in April 1961 leaving behind his widow Laxmibai, sons
Vishwambhar and Digamber, and daughters, Indumati, Usha, Mangla and Shobha. The
suit land was ancestral property in the hands of Dattatraya Agnihotri. At the time of
death of their father Vishwambhar and Digmber were minors. Laxmibai was managing
the properties left by Dattatraya Agnihotri as guardian of the minors. On 14.11.1967
Laxmibai executed a sale deed in favour of Laxminarayan transferring 4 acres 13 guntas
of the suit land for the sum of Rs. 6000/- and delivered possession to the purchaser.
Again on 24.10.1974 she executed another sale deed in favour of Vijay Kumar son of
Laxminarayan in respect of 4 acres 13 guntas, a part of the suit land for the sum of Rs.
9000/- and delivered possession to the purchaser. The sale deeds were executed

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without any legal necessity and without obtaining permission of the Court as provided
under Section 8 of the Hindu Minority and Guardianship Act, 1956 (hereinafter referred
to as 'the Act').
2. Digamber attained majority on 5th August 1975 and Vishwambhar became major on
20th July, 1978. Thereafter they filed the suit RCS No. 5/81 in the Court of Civil Judge
(Junior Division) Jalna, in the State of Maharashtra impleading the purchasers
Laxminarayan and Vijay Kumar as defendants 1 and 2 respectively, their mother
Laxmibai as defendant no. 3 and their sisters, Indumati, Usha, Mangla and Shobha as
defendant nos. 4 to 7 respectively. The plaintiffs pleaded that the two sale deeds
executed by defendant no. 3 on 14.11.1967 and 24.10.1974 in favour of defendant
nos.1 and 2 are not binding and operative on the legal rights of plaintiff no. 1, and
prayed that the said sale deeds be set aside to the extent of his share and the suit for
possession of the land under survey no. 515-Area acres 26 guntas situated at Jalna
bearing the local name 'Girdharchamala' to the extent of 4/7th share be decreed with
costs against defendant nos. 1 and 2 and the plaintiffs be put in actual possession of
their share by dispossessing the said defendants from the land, etc.
3 . The gist of the case pleaded by the plaintiffs was that their mother as guardian
executed the above sale deeds without any legal necessity and without sanction of the
Court. The transfers made by her were void ab initio and not binding on the plaintiffs
and they are entitled to ignore the same altogether. In para 4 of the plaint it was
averred "the transaction, therefore, is liable to be treated as of no legal validity, right
from its inception and the defendant no. 1 never got any title to it under the law".
Averment to the same effect was made in respect of the sale deed dated 24.10.1974 in
favour of defendant no. 2 in paragraph 5 of the plaint. The plaintiffs pleaded that the
purchasers are trespassers on the suit land; that the plaintiffs have a right to recover
possession of the suit land from the purchasers within 12 years which they have done.
Reliance was placed on Article 65 of the Limitation Act. In para 7 of the plaint it was
asserted that the suit has been filed within the period of limitation with reference to the
suit transaction for the relief of recovery of possession by way of partition of the suit
land. It is relevant to state here that the relief of declaration that the sale deeds
executed by the defendants no. 3 in favour of defendant nos. 1 and 2 are invalid and
inoperative and that the said sale deeds be set aside, were added in the plaint
subsequently by amendment.
4. The contesting defendants 1 & 2 filed written statements pleading, inter alia, that the
Hindu Minority and Guardianship Act is not applicable in the case since the alienation
has been made by the mother as natural guardian of the minors. She was also the
manager of the joint family property. In such a case, according to the defendants, lack
of sanction under section 8 of the Act is not fatal to the alienations. The defendants
further averred that the alienations were made for legal necessity, for maintenance of
the plaintiffs, for meeting the marriage expenses of defendant nos. 4 to 7, for satisfying
antecedent debts etc. They also took the plea of limitation since the suit was filed
beyond 3 years after the minors attained majority. They prayed for dismissal of the suit
with costs. Defendants 3 to 7 supported the case of the plaintiffs.
5 . The trial court by judgment dated 6.12.1985 decreed the suit of the plaintiff no. 1
against the defendants and dismissed the claim of plaintiff no. 2. The Court declared
that the sale deeds are not binding on plaintiff no. 1 to the extent of his share in the
suit land and that plaintiff no. 1 is entitled to recover 2 acres 11 guntas as his share
from the suit land. Defendants 1 and 2 were ordered to deliver possession of the said

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property to the plaintiff no. 1.
6. Being aggrieved by the judgment and decree dated 6.12.1985 the defendants 1 and 2
preferred RCA No. 80/1986 in the Court of Additional District Judge, Jaina. The
appellate court by the judgment dated 21.6.1995 allowed the appeal and set aside the
judgment and decree passed by the trial court and dismissed the suit.
7 . Thereafter the plaintiffs filed the second appeal no. 350/96 in the High Court of
Bombay challenging the judgment and decree of the lower appellate court, which was
dismissed summarily holding that no substantial question of law was involved in the
second appeal and that there was not merit in the second appeal. The said judgment is
under challenge in this appeal filed by the plaintiffs and defendant nos. 3 to 7 by
special leave.
8. The learned counsel appearing for the appellants contended that the High Court erred
in dismissing the second appeal filed by the plaintiffs. He also contended that the first
appellate court was in error in dismissing the suit for recovery of possession. According
to the learned counsel the Court should have held that in view of the undisputed factual
position that the sale deeds were executed without obtaining prior sanction of the
District Court and in view of the concurrent findings of the trial court and the first
appellate court that the alienations were not supported by legal necessity the first
appellate court should have held that the alienations were void and it was not necessary
for the plaintiffs to file a suit to set aside the sale deeds or to declare them invalid. The
learned counsel submitted that the lower appellate court failed to appreciate that Article
60 of the Limitation Act has no application in the case.
9. On a fair reading of the plaint, it is clear that the main fulcrum on which the case of
the plaintiffs was balanced was that the alienations made by their mother-guardian
Laxmibai were void and therefore, liable to be ignored since they were not supported by
legal necessity and without permission of the competent court. On that basis the claim
was made that the alienations did not affect the interest of the plaintiffs in the suit
property. The prayers in the plaint were inter alia to set aside the sale deeds dated
14.11.1967 and 24.10.1974, recover possession of the properties sold from the
respective purchasers, partition of the properties carving out separate possession of the
share from the suit properties of the plaintiffs and deliver the same to them. As noted
earlier, the trial court as well as the first appellate court accepted the case of the
plaintiffs that the alienations in dispute were not supported by legal necessity. They
also held that no prior permission of the court was taken for the said alienations. The
question is in such circumstances are the alienations void or voidable? In Section 8(2)
of the Hindu Minority and Guardianship Act, 1956, it is laid down, inter alia, that the
natural guardian shall not, without previous permission of the Court, transfer by sale
any part of the immovable property of the minor. In sub-section (3) of the said section
it is specifically provided that any disposal of immovable property by a natural
guardian, in contravention of sub-section (2) is voidable at the instance of the minor or
any person claiming under him. there is, therefore, little scope for doubt that the
alienations made by Laxmibai which are under challenge in the suit were voidable at the
instance of the plaintiffs and the plaintiffs were required to get the alienations set aside
if they wanted to avoid the transfers and regain the properties from the purchasers. As
noted earlier in the plaint as it stood before the amendment the prayer for setting aside
the sale deeds was not there, such a prayer appears to have been introduced by
amendment during hearing of the suit and the trial court considered the amended prayer
and decided the suit on that basis. If in law the plaintiffs were required to have the sale
deeds set aside before making any claim in respect of the properties sold then a suit

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without such a prayer was of no avail to the plaintiffs. In all probability realising this
difficulty the plaintiffs filed the application for amendment of the plaint seeking to
introduce the prayer for setting aside the sale deeds. Unfortunately, the realisation came
too late. Concededly, plaintiff no. 2 Digamber attained majority on 5th August, 1975
and Vishwambhar, plaintiff no. 1 attained majority on 20 th July, 1978. Though the suit
was filed on 30th November, 1980 the prayer seeking setting aside of the sale deeds
was made in December, 1985. Article 60 of the Limitation Act, prescribes a period of
three years for setting aside a transfer of property made by the guardian of a ward, by
the ward who has attained majority and the period is to be computed from the date
when the ward attains majority. Since the limitation started running from the dates
when the plaintiffs attained majority the prescribed period had elapsed by the date of
presentation of the plaint so far as Digamber is concerned. Therefore, the trial Court
rightly dismissed the suit filed by Digamber. The judgment of the trial court dismissing
the suit was not challenged by him. Even assuming that as the suit filed by one of the
plaintiffs was within time the entire suit could not be dismissed on the ground of
limitation, in the absence of challenge against the dismissal of the suit filed by
Digambar the first appellate court could not have interfered with that part of the
decision of the trial court. Regarding the suit filed by Vishwambhar it was filed within
the prescribed period of limitation but without the prayer for setting aside the sale
deeds. Since the claim for recovery of possession of the properties alienated could not
have been made without setting aside the sale deeds the suit as initially filed was not
maintainable. By the date the defect was rectified (December, 1985) by introducing
such a prayer by amendment of the plaint the prescribed period of limitation for seeking
such a relief had elapsed. In the circumstances the amendment of the plaint could not
come to the rescue of the plaintiff.
10. From the averments of the plaint if cannot be said that all the necessary averments
for setting aside the sale deeds executed by Laxmibai were contained in the plaint and
adding specific prayer for setting aside the sale deeds was a mere formality. As noted
earlier, the basis of the suit as it stood before the amendment of the plaint was that the
sale transactions made by Laxmibai as guardian of the minors were ab into void and,
therefore, liable to be ignored. By introducing the prayer for setting aside the sale
deeds the basis of the suit was changed to one seeking setting aside the alienations of
the property by the guardian. In such circumstance the suit for setting aside the
transfers could be taken to have been filed on the date the amendment of the plaint was
allowed and not earlier than that.
11. The first appellate court had based its judgment on well accepted principles of law
and has given cogent reasons for not accepting the judgment of the trial court decreeing
the suit field by Vishwambhar. The High Court rightly confirmed the judgment of the
first appellate court and dismissed the second appeal. Thus, this appeal being devoid of
merit, is dismissed. But in the circumstances of the case there will be no order for
costs.

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