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PETITIONER: AMIRTHAM KUDUMBAH

       Vs.

RESPONDENT: SARNAM KUMDUMBAN

DATE OF JUDGMENT16/04/1991

BENCH: THOMMEN, T.K. (J) BENCH: THOMMEN, T.K. (J) SAHAI, R.M. (J)

CITATION:  1991 AIR 1256            1991 SCR  (2) 389  1991 SCC  (3)  20        JT 1991 (2)   428  1991 SCALE  (1)757

ACT:      Hindu  Minority  and Guardianship  Act,    1956-Section 8(3)  and Section 6 of T.P.   Act-Harmonious  construction-- Legislative intention of.      Hindu  Minority  and Guardianship  Act,  1956--Sections 5(b),   8(3)   and  Section  6   of   T.P.   Act--Harmonious construction--Legislative intention of.      Hindu  Minority  and Guardianship  Act,  1956--Sections 5(b), 8(3) and Section 6 of T.P. Act--Alienation of  minor’s property by guardian without Court’s permission and  without legal  necessity-Suit for setting aside by tronsferee within three  years of minor’s  attaining  majority-Maintainability of.

HEADNOTE:      The appellant purchased the suit property of the  minor from a person, to whom the same was sold by the father,  the natural guardian, whereas the respondent purchased the suit- property from the minor within three years on his  attaining majority.      The respondent-plaintiff instituted a suit against  the appellant  defendant, to set aside the transfer of  property made by the natural guardian and for recovery of  possession of property.      The  suit was decreed and the decree was  confirmed  by the appellate Court as well as by the High Court.      Dismissing the second appeal, the High Court held  that the  suit instituted bythe respondent as a  transferee  from the  ex-minor  within three years after the  minor  attained majority  was  not hit by section 6(e) of  the  Transfer  of Property  Act,  1882,  against  which  the  present   appeal preferred by the appellant-defendant.      The  appellant  contended  that the  suit  was  hit  by section  6(e) of the Transfer of Property Act, as  all  that the  ex-minor  was in a position to transfer  was  the  mere right to sue to set aside the sale and recover possession of the property transferred by the natural guardian; and                                                          390 that a person claiming under a minor, referred to in section 8(3)  of the Hindu Minority and Guardianship Act,  1956  can only be a legal representative of a deceased minor and not a

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person succeeding to the interest of the minor by reason  of transfer inter vivos.      The  contentions  of the respondent were that  the  ex- minor  was competent to bring a suit to set aside  the  sale within a period of three years of his attaining majority and any person claiming under the minor was equally competent to institute action for the same purpose; that the suit to  set aside  a  sale was not for the enforcement of  any  personal right,  but a right in property and the suit was not hit  by Section  6(e)  of  the  T.P.Act;  and  that  the  provisions contained in Section 6 of the T.P. Act and Section 8 of  the Guardianship Act were to be read together.      On the question, whether the respondent in his capacity as  a transferee from the ex-minor was competent to bring  a suit to set aside the sale effected by the minor’s guardian, who  had sold the property without obtaining the  permission of  the  Court  as required under Section  8  of  the  Hindu Minority  and  Guardianship Act 1956 and without  any  legal necessity.      Dismissing  the appeal of the appellant-defendant  this Court,      HELD:  1. In the instant case, on the facts found,  the transfer of the property made by the guardian was a voidable transaction  and  it was, therefore, open to  the  minor  to challenge  it and seek recovery of possession. Such a  right of  the  minor is a right or interest in property  which  he himself  or "any person claiming under him" may  enforce  by instituting  a suit (Section 8(3) of the Guardianship  Act). "Any  person claiming under him" must necessarily include  a purchaser. [396G-397A]      2. Section 8(3) confers a right of suit in the  special circumstances  postulated  therein. The object  of  the  Act being  the  protection  of the minor,  the  legislature  has though  it  fit  to  confer  a  right  of  suit  in  certain circumstances not only on the minor, but also on a person to whom the minor has transferred his rights.[397A-B]      3.  The  right transferred is an interest  in  property which  is  capable  of enforcement at the  instance  of  the transferee  as it was at the instance of the ex-minor  prior to the transfer. Such a provision intended specially for the protection  of the interests of the minor, must be  read  in harmony and consistently with the general provisions con-                                                        391 tained in section 6 of the T.P. Act. [397B-C].      4.  A construction which is unduly restrictive  of  the statory  provisions  intended  for the  protections  of  the interests of the minor must be avoided. [397F-G]      5.  The  transfer made by the father during  his  son’s minority was voidable at the instance of his son who was the real owner, and any person purchasing such property from the natural guardian obtained only a defeasible title. The minor retained a right in the property to defeat existing  adverse claims, and such right is an assignable right. [397D-E]      The J.K.Cotton Spinning & Weaving Mills Co.Ltd. v.  The State  of Uttar Pradesh & Ors., [1961] 3 S.C.R.185, 194  and Ashoka Marketing Ltd. & Anr. v. Punjab National Bank & Ors., [1990] 3JT SC 417, 439, followed.      Palaniappa Goundan v. Nallappa Goundan & Ors., AIR 1951 Madras  817  and P.Kamaraju v. C.Gunnayya & Ors.,  AIR  1924 Madras 322, approved.      Jhaverbhai  Hathibhai  Patel v. Kabhai Bechar  Patel  & Ors.,  AIR  1933 Bom.42; Mon Mohan Battacharjee  &  Ors.  v. Bidhu  Bhusan  Dutta & Ors., AIR 1939 Cal. 460:  and  Palani Goundan & Anr. v. Vanjiakkal & Anr., [1956] I.L.R. Mad.1062, over-ruled.

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    Preprakash  Surajmal v. Maharashtra  Revenue  Tribunal. Nagpur  &Ors.,  A.I.R. 1969 Bom.361; and Ghanshyam  Dass  v. Dr.Shiva  Shankar  Lal & Ors., [1980] All Law  Journal  130, referred to.

JUDGMENT:      CIVIL  APPELLATE JURISDICTION: Civil Appeal  No.951  of 1977.      From  the  Judgment and Order dated  29.7.1976  of  the Madras High Court in S.A. No.89 of 1972.      A.T.M. Sampath and P.N.Ramalingam for the Appellant.      S.Balakrishnan and S.Prasad for the Respondent.      The Judgment of the Court was delivered by      THOMMEN,  J.  The appellant is the defendant in a  suit insti-                                                          392 tuted by the respondent to set aside a transfer of  property made  by  the  guardian  of a  minor  and  for  recovery  of possession  of the property.  The suit was decreed, and  the decree was confirmed by the first appellate court as well as by the High Court.      The  plaintiff-respondent purchased the  suit  property from an ex-minor within three years after the minor attained majority.  During his minority, the property was sold by his father  as  his natural guardian to a person from  whom  the present  appellant purchased the property.  All  the  courts found  that the guardian had not obtained the permission  of the  Court  for  the sale of the property,  as  required  by section  8  of the Hindu Minority & Guardianship  Act,  1956 ("the  Guardianship Act") and that the sale of the  property was not for legal necessity.      Dismissing the second appeal, the High Court held  that the  suit  was  rightly instituted by the  respondent  as  a transferee  from the ex-minor within three years  after  the minor  attained  majority  and that the  contention  of  the defendant  that the suit by a transferee from  the  ex-minor was  hit  by section 6(e) of the Transfer of  Property  Act, 1882 was unsustainable.      The  only question which arises in the present  appeal, as  it did before the High Court, is (to quote the words  of the High Court)          "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?".      The relevant facts are that the suit property  belonged to  one  Veerammal.  She had a daughter by  name  Kaliammal. Veerammal  died shortly after she purchased the property  in 1948.   She  left  behind her  husband  Kandayya  and  their duaghter Kaliammal.  Subsequently, Kandayya married a second time when his daughter Kaliammal was a minor.  She thereupon left her father’s house and resided with her maternal grand- father  who  protected  and  maintained  her.   During   her minority,  Kandayya  sold  the  property  on  29.10.1959  to Jainulavudeen.  On 25.4.1966, Jainulavudeen in turn sold the property  to  the  defendant-appellant.   Subsequently,   on 26.5.1966 the plaintiff obtained a deed of sale of the  suit property  in  his  favour from Kaliammal  who  had  by  then attained majority.  The Plaintiff thereafter instituted  the present suit (O.S. No. 491 of 1968) against the appellant to set aside the transfer of property made by Kandayya and  for recovery of its possession.                                                        393

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    The question is whether the respondent in his  capacity as  a transferee from the ex-minor was competent to bring  a suit to set aside the sale effected by the minor’s guardian. It  is no longer disputed that the suit was  brought  within three  years after the minor attained majority.  Nor  is  it any  longer contended that the father of the minor,  as  her natural  guardian, had obtained the permission of the  Court or  that  the  sale  effected  by  him  was  one  for  legal necessity.   These two vital points have  been  concurrently found against the appellant.  The only contention which  Mr. Sampath,  appearing for the appellant, is in a  position  to urge  is as regards the question whether the suit is hit  by section 6(e) of the T.P. Act. Counsel says that all that the ex-minor  was in a position to transfer, was her mere  right to  sue to set aside the sale and recover possession of  the property transferred by her father as her natural  guardian. The property itself had been transferred by the father prior to  its sale by the ex-minor.  The minor had, therefore,  no property  to  sell, except a right to set  aside  the  sale. Accordingly,  whatever  transfer that was  effected  by  the minor  in  favour of the plaintiff was nothing more  than  a mere right to sue and such transfer was invalid by reason of section 6(e) of the T.P. Act.      Mr.   Balakrishnan,  appearing  for   the   respondent- plaintiff, contends that the ex-minor was fully competent to bring a suit to set aside the sale within a period of  three years after attaining majority and any person claiming under her  is equally competent to institute action for  the  same purpose.  He refers to the provisions of section 8(3) of the Guardianship  Act.  He contends that a suit to set  aside  a sale is not for the enforcement of any personal right, but a right  in  property, and is, therefore, not hit  by  section 6(e)  of the T.P. Act.  In any view, counsel  says,  section 8(3) of the Guardianship Act sepcifically allows such a suit to  be  brought  by a person claiming  under  a  minor  and, therefore,  such a statutory right specially granted  by  an enactment dealing with the protection of the minor cannot be defeated by the general provisions of an earlier  enactment. The  two provisions, counsel says, can be read  harmoniously so   as   to  avoid  an  artificial  conflict.    What   the Guardianship Act intends to protect is the right of a person claiming under a minor to sue for setting aside the sale  of property  sold otherwise than as permitted by section  8  of the  Act.   On the other hand, the T.P. Act  only  prohibits suits  in the the nature of champerty and maintenance  based on bare or naked right of litigation.  The general provision contained in section 6(e) of the T.P. Act does not  derogate from the special protection of the minor’s interest and  the interest of a person claiming under him, as afforded by  the Guardianship Act, which is addressed to a specific  problem, In any view, counsel says a sale by the guardian                                                        394 otherwise  than  as permitted by section 8 is void  and  is, therefore,  incapable  of  passing a title.  For  all  these reasons, Mr. Balakrishna submits that the suit was competent and  was rightly decreed on the facts found and the   appeal by the defendant has no merits.      As  concurrently  found by the courts below,  the  sale effected by the guardian during the minority of his daughter was  not in compliance with the provisions of section  18(i) of  the Guardianship Act.  The property was  transferred  by him  without obtaining the previous permission of the  Court and the transfer was not for the benefit of the minor.  Such a sale by the minor’s father who is his natural guardian is, unlike  in  the  case of transfer by  a  de  facto  guardian

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(Section  11),  not a void sale, but only a  voidable  sale. Such  a  sale until set aside is sufficiently  effective  to pass  title, but being a voidable sale, what the  buyer  has obtained  is  a defeasible title which is liable to  be  set aside at the instance of the person entitled to impeach  it. Section 8(3) of the Guardianship Act says:          "Any  disposal of immovable property by  a  natural          guardian,  in contravention of sub-section  (1)  or          sub-section (2), is voidable at the instance of the          minor or any person claiming under him."                                          (emphasis supplied)      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- 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 from the date on  which  the minor died or attained majority, as the case may be.  In the present  case, the suit was brought, as found by the  courts below, within three years after the minor attained majority.      Mr.  Sampath, however, contends that a person  claiming under  a minor, referred to in section 8(3), can only  be  a legal  representative of a deceased minor and not  a  person succeeding  to  the  interests of the  minor  by  reason  of transfer  inter  vivos.   He  refers  to  the  decisions  in Jhaverbhai Hathibhai Patel v. Kabhai Bechar Patel & Ors, AIR 1933 Bom. 42; Mon Mohan Bhattacharjee & Ors. v. Bidhu Bhusan Dutta  &  Ors., AIR 1939 Cal 460; Palani Goundan &  Anr.  v. Vanjiakkal &                                                        395 Anr.,  [1956]  I.L.R.  Mad. 1062;  Premprakash  Surajmal  v. Maharashtra  Revenue  Tribunal,  Nagpur  &  Ors.,  AIR  1969 Bom.361 and Ghanshyam Dass v. Dr. Shiva Shankar Lal &  Ors., [1980] All. Law Journal 130 and other cases in which certain High Courts have taken the view that the right of the  minor is  a personal right and it cannot be transferred  otherwise than  by  inheritence.   The  "person  claiming  under  him" mentioned  under  section  8(3)  of  the  Guardianship  Act, counsel  says,  can  only  be a  representative  and  not  a purchaser  or transferee inter vivos.  He refers to  Article 60  of  the  Limitation  Act, 1963  and  submits   that  the provision refers only to a legal representative and not  any other successor.      In Jhaverbhai Hathibhai Patel v. Kabhai Bechar Patel  & Ors., AIR 1933 Bom. 42, it was held:          "what was assigned by the minor to the plaintiff in          that suit was not the property in question but  his          right to sue for it, and if he could establish  his          allegation, to have the sale avoided, this I  think          was  no  more  than a right of suit, and  if  I  am          correct  such a transfer is forbidden by S. 6,  Cl.          (e), T.P. Act." Similar reasoning was adopted in  the other decisions  cited by  Mr.  Sampath  on  the point.   The  rationale  of  these decisions  is that the right to impeach a sale  effected  by the guradian is a personal right vested in the minor and  it is  not  transferable inter vivos.  The  expression  "person claiming  under him", according to this line  of  reasoning, must, therefore, be understood as a legal representative and not an assignee.      On the other hand, a Division Bench of the Madras  High

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Court in P. Kamaraju v. C. Gunnayya & Ors., AIR 1924  Madras 322 held that the right of the minor was not a bare right to sue and it was an assignable right.  The High Court held:          ". . . . .By selling the property to the  plaintiff          on the footing that the sale by the mother was  not          binding  on him he has chosen to avoid it, and  the          result of it is that from his point of view he  has          got a complete title.  The title no doubt will only          be effective if the Court ultimately finds that the          sale  by  the mother is not binding  on  him.   But          contingent  on  that event he has  got  a  complete          title and this title is not a bare right to sue and          is, therfore, assignable. . . . . . . . .."                                                        396 In  Palaniappa Goundan v. Nallappa Goundan & Ors., AIR  1951 Madras 817, Viswanatha Sastri, J. observed:          "Where     an    ex-minor    transfers     property          unauthorisedly  sold  by his  guardian  during  his          minority  he transfers not a mere right to use  but          his interest in the property, though a suit may  be          necessary  to avoid the transfer by the guardian  &          recover   possession  of  the  property  from   his          alienee.    Conversely,   the  liability   of   the          transferee from the guardian is not a liability  to          pay  damages  for  the  unauthorised  act  of   the          guardian,  but  is  a  liability  to  restore   the          property to the rightful owner or his transferee". Similar  view  was expressed in Karnam Nagabhushana  Rao  v. Karnam Gowramma & Ors., [1968] 2 Andhra Weekly Reporter  57. These  decisions on which reliance was placed by the  Madras High  Court in the impugned judgment are to the effect  that the  right of the minor is not a bare or naked right to  sue but a right in property which is assignable.      In  Halsbury’s  Laws  of England,  4th  edn.,  Vol.  6, paragraphs 86-87 at pages 49-50, this is what is stated          "A  bare right of litigation, such as a mere  right          to  damages for a wrongful act, is not  assignable,          on  the principle that the law will  not  recognise          any   transaction  savouring  of   maintenance   or          champerty.           By  way  of exception to the rule  stated  in  the          previous  paragraph there is nothing  unlawful   in          the  purchase of property which the  purchaser  can          only enjoy by defeating existing adverse claims, or          in  the  assignment (for example  by  mortgage)  of          property, being the fruits of litigation.  In every          case it is a question whether the purchaser’s  real          object was to acquire an interest in the  property,          or  merely to acquire a right to bring  an  action,          either alone or jointly with the vendor . . . .".      In  the instant case, on the facts found, the  transfer of  the  property  made  by  the  guardian  was  a  voidable transaction  and  it was, therefore, open to  the  minor  to challenge it and seek recovery of possession.  Such a  right of the minor is a right or interest in property                                                        397 which  he  himself or "any person claiming  under  him"  may enforce   by  instituting  a  suit  [Section  8(3)  of   the Guardianship  Act].  "Any person claiming  under  him"  must necessarily include a purchaser.      Section  8(3)  confers a right of suit in  the  special circumstances  postulated in that provision.  The object  of the  Act being the protection of the minor, the  legislature has  thought  it fit to confer a right of  suit  in  certain circumstances not only on the minor, but also on a person to

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whom  the  minor  has transferred  his  rights.   The  right transferred  is an interest in property which is capable  of enforcement  at the instance of the transferee as it was  at the instance of the ex-minor prior to the transfer.  Such  a provision,  indeed  specially  for  the  protection  of  the interests  of  the  minor,  must  be  read  in  harmony  and consistently  with  the  general  provisions  contained   in section  6 of the T.P. Act. [See The J.K. Cotton Spinning  & Weaving Mills Co. Ltd. v. The State of Uttar Pradesh & Ors., [1961] 3 S.C.R. 185, 194 and Ashoka Marketing Ltd. & Anr. v. Punjab National Bank & Ors., [1990] 3 JT SC 417, 439].      The  transfer  made  by the  father  during  his  son’s minority was voidable at the instance of his son who was the real owner, and any person purchasing such property from the natural  guardian  obtained only a  defeasible  title.   The minor  retained a right in the property to  defeat  existing adverse  claims, and such right is an assignable right.   We are  in complete agreement with what has been stated on  the point in Palaniappa Goundan v. Nallappa Goundan & Ors.,  AIR 1951  Madras 817 and in P. Kamaraju v. C. Gunnayya  &  Ors., AIR 1924 Madras 322.  We do not agree with the contrary view expressed  on  the point in Jhaverbhai  Hathibhai  Patel  v. Kabhai  Bechar  Patel & Ors., AIR 1933 Bom.  42;  Mon  Mohan Battacharjee & Ors. v. Bidhu Bhushan Dutta & Ors., AIR  1939 Cal.  460  and Palani Goundan & Anr. v. Vanjiakkal  &  Anr., [1956] I.L.R. Mad. 1062.      A  construction  which  is unduly  restrictive  of  the statutory  provisions  intended for the  protection  of  the interest of the minor must be avoided.  This is all the more so  in  view of section 5(b) of the Guardianship  Act  which says.          "5.  Save as otherwise expressly provided  in  this          Act          (a)  ................................................          (b)  any other law in force immediately before  the          com-                                                        398          mencement of this Act shall cease to have effect in          so  far  as  it is inconsistent  with  any  of  the          provisions contained in this Act."      For  the reasons stated by us, we see no merit  in  the challenge against the judgment under appeal.  The appeal  is accordingly dismissed.  We do no, however, make any order as to costs. V.P.R.                                      Appeal dismissed.                                                        399