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PETITIONER: G. ANNAMALIA PILLAI

       Vs.

RESPONDENT: DISTRICT REVENUE OFFICER AND ORS.

DATE OF JUDGMENT17/03/1993

BENCH: KULDIP SINGH (J) BENCH: KULDIP SINGH (J) KASLIWAL, N.M. (J)

CITATION:  1993 SCR  (2) 397        1993 SCC  (2) 402  JT 1993 (4)   113        1993 SCALE  (2)75

ACT: Hindu Minority & Guardianship Act, 1956: Section  8(2) and (3) Lease--deed executed by  the  guardian which  was voidable--"en validly avoided--Makes  transaction void abinitio.

HEADNOTE: The  father of Purshothanan (then minor) respondent  No.  5, executed  a  registered  lease-deed of  the  land  owned  by Purshothanan  (minor)  for  a period of five  years  to  the appellant/G.  Annamalia Pillai. The  appellant  riled an application  before  the  Tehsildar under  the provisions of the Tamil Nadu  Agricultural  Lands Record of Tenancy Rights Act, 1969 praying to be  registered as a tenant in the tenancy records, on the basis of the said lease-deed. Respondent No.5/Janarthanan contested the said proceeding on the ground that the land was his property, his father had no right  or  title to deal with the same and  the  lease  deed executed  by  his father was contrary to the  provisions  of Section 8 of the Hindu Minority & Guardianship Act.  Further he  contended that he had no knowledge of the  execution  of the  lease-deed by his father and on attaining  majority  he avoided the same. The  Tehsildar  dismissed the application of  the  appellant holding that there was no valid lease. The  Revenue  Divisional Officer, no  appeal,  reversed  the findings  of  the Tehsildar and held that the  appellant  is entitled to be registered as a cultivating tenant. In  revision,  the District Revenue Officer  set  aside  the order  of the Appellate Authority and restored the order  of the Tehsildar. The High Court of Madras dismissed the writ petition and the writ appeal filed by the appellant. 398 This appeal by way of Special Leave is against the  judgment of the Madras High Court. Appeal dismissed, HELD:  In the present case, the High Court has rightly  held that the, lease was to go more than one year beyond the date on  which the minor was to attain majority.  The  provisions of Section 8(2) (b) were attracted. [400D]

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Clause   (3)  of  Section  8  of  the  Hindu  Minority   and Guardianship  Act, 1956, specifically makes the  transaction voidable.   The lease executed by the guardian in this  case is  prohibited  and  in  that  sense  it  was  without   any authority.   It  was further held that the  respondent  No.5 avoided  the lease executed by his father, the lease  became void  from  its  inception and no  statutory  rights  could, therefore, accrue in favour of the appellant. [400F, 401G] Solmond  on  Jurisprudence,  Twelfth Edition  at  page  341; Satgur  Prasad v. Hamaraili Das, AIR 1932 Supreme Court  89; S.N.R. Sundara Rao & Sons, Madurai v. Commissioner of Income Tax, Madras, AIR 1957 Madras 451, referred to. [401D] G. Ponniah Thewar v. Nellavam Perumal Pillai and others, AIR 1977 S.C. 244, distinguished. [401H] 2. In the present case the father of respondent No.5 had  no authority  to lease the property without complying with  the provisions  of Section 8(2)(b) of the Act.  Because  of  the inherent  illegality in the execution of the  lease-deed  it was  liable  to be cancelled at the option of the  minor  on attaining majority.  On the exercise of the option the lease became void abinition. [402D]

JUDGMENT: CIVIL APPELLATE JURISDICTION : Civil Appeal No.4792 of 1984. From  the Judgment and Order dated 14.9.1984 of  the  Madras High Court in Writ Appeal No.96 of 1981. Sanjeev Madan for Ms. Asha Jain Madan for the Appellant. A.T.M. Sampath for the Respondents. 399 The Judgment of the Court was delivered by KULDIP  SINGH,  J. The short question for  consideration  in this  appeal  is whether lease-deed in  dispute,  which  was voidable in terms of Section 8(3) of the Hindu Minority  and Guardianship  Act, 1956 (the Act) when validly avoided,  was affective from the date of the lease-deed so as to make  the transaction void and unenforceable from the very inception. It  is not disputed before us that the land in  dispute  was owned  by  Janarthanan respondent-5 before us.   His  father Purushothaman  by a registered deed dated December 12,  1971 leased the land in dispute for a period of five years to  G. Annamalai  Pillai.   On  the date when the  lease  deed  was executed  Janarthanan was a minor, his date of  birth  being September 27, 1957.  Claiming to be a cultivating tenant, on the  basis  of  the lease deed, Annamalai  Pillai  filed  an application before the Tehsildar under the provisions of the Tamil Nadu Agricultural Lands Record of Tenancy Rights  Act, 1969  praying  that  he be registered as  a  tenant  in  the tenancy records.  Janarthanan contested the said  proceeding on the ground that the land was his property, his father had no right or title to deal with .the same and the lease  deed executed  by  his father was contrary to the  provisions  of Section  8 of the Act.  He further contended that he had  no knowledge  of the execution of the lease deed by his  father and  on attaining majority he avoided the same on  September 15, 1978.  The Tehsildar held that there was no valid  lease and  as  such  he dismissed  the  application  of  Annamalai Pillai.   On appeal the Revenue Divisional Officer  reversed the  findings of the Tehasildar and came to  the  conclusion that  Annamalai Pillai was a contractual tenant and as  such was  entitled  to  be registered as  a  cultivating  tenant. Janarthanan preferred a revision before the District Revenue Officer  who set aside the order of the Appellate  Authority

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and  restored  the order of the Tehsildar holding  that  the Annamalai  Pillai  was not a cultivating tenant.   The  writ petition and the writ appeal filed by Annamalai Pillai  were dismissed  by the Madras High Court.  This appeal by way  of special leave is against the judgment of the Division  Bench of the High Court dated September 14, 1984 rendered in  writ appeal. Sub-sections  (2) and (3) of Section 8 of the Act which  are relevant are reproduced hereunder:               "(2)  The natural guardian shall not,  without               the previous permission of the court, 400               (a)  mortage or charge, or transfer  by  sale,               gift,  exchange or otherwise, any part of  the               immovable property of the minor, or               (b) lease any part of such property for a term               exceeding  five years or for a term  extending               more  than one year beyond the date  on  which               the minor will attain majority.               (3)  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." Respondent-5  was to attain majority on September  27,  1975 and the lease was to subsist upto December 11, 1976.   Since the tenure of the lease in this case was to go more than one year  beyond  the  date on which the  minor  was  to  attain majority the provisions of section 8(2)(b) were attracted. We have heard learned counsel for the parties.  We have been taken  through  the  orders  of  the  Revenue   Authorities, judgment  of  the learned single Judge and of  the  Division Bench  of the High Court in writ appeal. The Division  Bench of  the  High  Court,  in a  lucid  judgment,  answered  the question   posed by us in the beginning  in the  affirmative and against the appellant-Annamalai Pillai on the  following reasoning:               "We  have  already  seen that  clause  (3)  of               section   8   of  the   Hindu   Minority   and               Guardianship Act, 1956, specifically makes the               transaction  voidable.  The lease executed  by               the guardian in this case is prohibited and in               that  sense it was without any authority.   On               the legal efficacy and the distinction between               valid,  void and voidable agreements, we  find               the   following   passage   in   Salmond    on               Jurisprudence, Twelth Edition at page 341:-               "A  valid  agreement  is one  which  is  fully               operative in accordance with the intent of the               parties.   A  void  agreement  is  one   which               entirely fails to receive legal recognition or               sanction,  the  declared will of  the  parties               being  401               wholly   destitute  of  legal   efficacy.    A               voidable agreement stands midway between these               two  cases.   It  is not a  nullity,  but  its               operation is conditional and not absolute.  By               reason  of  some defect in its origin  it.  is               liable  to  be destroyed or cancelled  at  the               option  of one of the parties to it.   On  the               exercise of this power the agreement not  only               ceases to have any efficacy, but is deemed  to               have been void ad initio.  The avoidance of it               relates  back  to  the  making  of  it.    The

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             hypothetical or contingent efficacy which  has               hitherto   been   attributed  to   it   wholly               disappears,  as if it had never  existed.   In               other words, a voidable agreement is one which               is void or valid at the election of one of the               parties to it.               This  distinction  has  also  been  judicially               noticed in the Privy Council judgment reported               in Satgur Prasad v. Harnarain Das, A.I.R. 1932               P.C. 89 and in the Division Bench judgment  in               S.N.R.  Sundara  Rao  and  Sons,  Madurai   v.               Commissioner  of  Income Tax,  Madras,  A.I.R.               1957  Madras  451.  The Division  Bench  held,               following   the  Privy  Council  Judgment   as               follows:-               "When  a  person, who is entitled  to  dissent               from  the alienation, does so, his dissent  is               in relation to the transaction as such and not               merely to the possession of the alienee on the               date of such dissent.               The  effect of the evidence is, therefore,  to               get rid of the transaction with result that in               law  it  is as if the  transaction  had  never               taken place." We have, therefore, no doubt that when the fifth  respondent avoided  the  lease  executed  by  his  father,  the  fourth respondent, the lease became void from its inception and  no statutory rights, could, therefore, accrue in favour of  the appellant herein." We  agree with the reasoning and the conclusions reached  by the Division Bench of the High Court and as such this appeal has to be dismissed. 402  The judgment of this Court in G. Ponniah Thevar v. Nellavam Perumal Pillai and others, A.I.R. 1977 S.C. 244 relied  upon by the learned counsel for the appellant is not relevant  in the  facts  and circumstances of this case.  In  G.  Ponniah Thevar’s  case a lease deed was executed by a  life  estate- holder.   On the cessation of the life estate the  successor claimed  that the lease executed was not binding on him  and as  such  the  tenant could not claim  the  benefit  of  the Tenants  Protection  Act.   This Court held  that  the  life estate-holder was entitled to create a valid tenancy and the tenant  was  entiled  to take the  benefit  of  the  Tenants Protection Act.  It was further held that the right  accrued to  the tenant could legally extend beyond the life time  to the  life estate-holder and would bind the  successor.   The reason  is obvious.  The life estate-holder has a  right  to lease  the property.  He does not deal with the property  on behalf  of  the successor.  Though the lease itself  may  be valid  only during the life time of the life  estate-holder, the  authority  to lease could not be questioned.   If  once initially  there was a valid tenancy then the  successor  is bound  by the tenancy rights acquired by the  tenant  during that period.  In the present case unlike life  estate-holder the  father  of respondents had no authority  to  lease  the property  without complying with the provisions  of  Section 8(2)(b)  of the Act.  Because of the inherent illegality  in the  execution  of  the  lease-deed  it  was  liable  to  be cancelled at the option of the minor on attaining  majority. On the exercise of option the lease became void ab initio. We, therefore, dismiss the appeal.  No costs. S.K.                        Appeal dismissed. 403

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