To set aside a transfer of property made by the guardian of a ward- (a)by the ward who has attained majority. (b)by the ward’s legal representative- Three years When the ward attains majority. i) When the ward dies within three years from the date of attaining majority. Three years When the ward attains majority. ii) When the ward dies before attaining majority.” Three years When the ward dies.


Hon’ble Mr. Justice Ashok Bhushan

REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO.1782 OF 2019
(arising out of S.L.P. (C) No. 21091 of 2010)
MURUGAN & ORS. …APPELLANTS
Vs.
KESAVA GOUNDER (DEAD)
THR. LRS. AND ORS. …RESPONDENTS
J U D G M E N T
ASHOK BHUSHAN, J.
This is the plaintiff’s appeal challenging the
judgment of Madras High Court dismissing the second
appeal filed by the plaintiffs-appellants.

  1. Brief facts of the case are:-
    2.1 The suit property belongs to one Petha
    Gounder. Petha Gounder had two sons namely
    Kannan and Balaraman and three daughters.
    Sengani Ammal was wife of Petha Gounder. On
    17.05.1971 Petha Gounder executed a Will
    bequeathing life interest to his sons Kannan
    and Balaraman and thereafter to the two male
    1
    heirs of his both the sons, who were to take
    the property absolutely. Will further
    stipulated that in event, there is no male
    heir to one of his sons, the male heirs of
    other son will take the property. Petha
    Gounder died on 28.11.1971 leaving behind his
    wife, two sons Balaraman and Kannan and three
    daughters. Petha Gounder’s wife Sengani
    Ammal died on 02.02.1982. Balaraman had one
    son namely Palanivel.
    2.2 Balaraman on his behalf as well as on behalf
    of his minor son had sold Item Nos.1 to 3 of
    the suit properties by registered Sale Deed
    dated 15.12.1981. Balaraman also sold Item
    No.6 and a portion of Item No.7 by two Sale
    Deeds dated 30.03.1981 and 31.03.1981 in
    favour of the first defendant. Balaraman had
    sold Item No. 6 in favour of the second
    defendant by registered Sale Deed dated
    29.03.1982. Balaraman died in 1983 and
    Kannan died on 02.12.1984. Balaraman’s wife
    was Lakshmi. The plaintiffs are sons of
    Kannan. Palanivel, the son of Balaraman died
    2
    on 11.02.1986 while still a minor.
    Palanivel’s mother Lakshmi Ammal executed a
    registered Release Deed dated 24.03.1986 in
    favour of the plaintiffs for a consideration.
    The plaintiffs filed suit No.229 of 1992
    praying for following reliefs:-
    “VI. The plaintiffs therefore pray
    that the Hon’ble Court may be pleased
    to:-
    (a) Declare that the plaintiffs are
    entitled to the suit properties;
    (b) Direct the Defendants to deliver
    possession of the suit
    properties failing which order
    delivery of possession through
    process of court;
    (c) Direct the Defendants to pay the
    cost of the suit and
    (d) Grant such other reliefs as the
    Hon’ble Court may deem fit in
    the circumstances of the case.”
    2.3 The plaintiffs’ case in the plaint was that
    Balaraman had no authority to execute Sale
    Deed on behalf of his minor son Palanivel and
    the Sale Deeds executed by Balaraman were
    void. The plaintiffs being sons of Kannan
    are entitled for declaration and possession
    of the properties from the defendants. It
    3
    was further pleaded that validity of the Will
    dated 17.05.1971 has been upheld by the
    Subordinate Judges Court, Cuddalore in O.S.
    No. 447 of 1973.
    2.4 The defendant filed written statement. The
    defendant’s case was that Balaraman, in order
    to discharge his debts and for family
    necessity executed sale deed for himself and
    on behalf of his minor son on 15.12.1981.
    The sale deed binds the minor Palanivel. The
    release deed executed by Lakshmi Ammal on
    24.03.1986 will confer no right to the
    plaintiffs. The suit is barred by limitation
    since the suit has not been filed within 03
    years from the date of death of Palanivel
    i.e. 11.02.1986. The suit as framed is not
    maintainable. The defendants are not in
    illegal possession. The defendants are
    bonafide purchasers for value. The
    plaintiffs cannot file suit for declaration
    without praying for setting aside the sale
    deeds.
    4
    2.5 The trial court framed ten issues. Issue
    No.7 was “Whether the suit is barred by
    limitation?”. Issue No.8 was “Whether the
    plaintiffs are entitled to seek for
    declaration of title in respect of suit
    properties?”. Issue No.9 was “Whether the
    plaintiffs are entitled to seek for recovery
    of possession?”. The trial court while
    deciding Issue No.7 held that suit is not
    barred by limitation. Trial court held that
    plaintiff having filed the suit as
    reversioner, Article 65 of the Limitation Act
    will apply. As per Article 65, period for
    limitation is 12 years, hence suit was within
    time. The Will dated 17.05.1971 was held to
    be a valid Will. The sale deeds executed by
    Balaraman are voidable. On release deed, the
    trial court held that Lakshmi Ammal had no
    right in the suit properties, as such the
    plaintiffs do not derive any new right from
    the release deed. Trial court held that it
    is not necessary to decide the truth and
    validity of the release deed dated
    5
    24.03.1986. The trial court further held that
    there was no necessity to file the suit
    seeking a prayer to set aside the sale deeds
    separately since those sale deeds are
    voidable and they can be ignored. It was
    held that plaintiffs are competent to recover
    possession from the defendants. Trial court
    vide its judgment and decree dated 13.08.1997
    decreed the suit.
    2.6 The defendants aggrieved by the judgment of
    the trial court filed appeal. The Principal
    District Judge vide its judgment dated
    31.08.1999 allowed the appeal dismissing the
    suit. Appellate Court held that since
    Palanivel died on 11.02.1986, the suit should
    have been filed to set aside the sale deeds
    and for possession within 03 years from his
    death. The suit filed in 1992 was barred by
    limitation. The Appellate Court relied on
    Article 60 of the Limitation Act. Aggrieved
    against the judgment of the First Appellate
    Court, the plaintiffs filed second appeal in
    the High Court. High Court vide its judgment
    6
    dated 21.04.2010 dismissed the second appeal.
    High Court had framed following substantial
    questions of law for consideration:-
    “i) Whether the Learned First Appellate
    Judge is correct in holding that the
    release deed Ex.A-15 dated 24.03.1986, is
    not avoiding the transfers by sales under
    Exs. A-9=B-9, A-10=B-7, A-11=B-2 and A12=B-9, executed by the natural guardian
    late Balaraman, of the properties belong
    to the deceased minor Palanivel?
    ii) Whether the sale deeds executed by late
    Balaraman, the natural guardian of minor
    Palanivel, of the properties of the minor
    are valid in law when the said sale deeds
    were executed in gross violation of
    Section 8(2)(a) of the Hindu Minority and
    Guardianship Act, especially when the
    mother, who claimed under the minor
    avoided the sale immediately on the
    demise of the minor?
    iii)Whether first appellate Judge is correct
    in holding that the suit is not
    7
    maintainable, since the suit was not
    filed to set aside the sales within three
    years from the date of demise of minor
    Palanivel?
    2.7 The High Court held that alienations made by
    Balaraman can be construed only as a voidable
    alienations and not void alienations. High
    Court held that plaintiffs suit ought to have
    been filed within 03 years as per Article 60
    of the Limitation Act. All substantial
    questions of law were decided in favour of
    the defendants-respondents. High Court
    dismissed the second appeal. Aggrieved
    against the judgment, this appeal has been
    filed.
  2. Shri V. Prabhakar, learned counsel for the
    appellants in support of the appeal contends that
    Article 60 of the Limitation Act shall not apply and
    the suit was rightly held to be governed by Article
    65 by the trial court, which was well within time.
    It is submitted that the option to repudiate the
    action on behalf of the minor having been exercised
    8
    by mother of the minor, the sale deed executed by
    Balaraman become void from its inception. Sale deeds
    executed by Balaraman were without permission of the
    Court and were without legal necessity, hence was
    rightly repudiated by his mother Lakshmi Ammal. On
    the strength of repudiation of the alienation by
    Lakshmi Ammal, the sale deeds become void and there
    was no necessity for praying for setting aside the
    sale deeds and suit for declaration and possession
    was fully maintainable. Article 60 would have been
    applicable only if the suit was filed for setting
    aside the sale deeds.
  3. Ms. V. Mohana, learned senior counsel appearing
    for the respondents refuting the submissions of the
    counsel for the appellants contends that suit was
    clearly barred by time, it having been not filed
    within 03 years from the date of death of the minor.
    It is further submitted that release deed dated
    24.03.1986 cannot be accepted as repudiation of the
    sale deeds. It is submitted that without praying for
    setting aside the sale deeds, the decree of
    possession could not have been claimed by the
    9
    plaintiffs. Limitation was governed by Article 60 of
    the Limitation Act.
  4. Learned counsel for the parties have relied on
    various judgments, which shall be referred to and
    considered while considering the submissions in
    detail.
  5. From the submissions of the learned counsel for
    the parties and pleadings on record, following are
    the issues, which arise for consideration in this
    appeal:-
    (i) Whether the suit filed by the plaintiffsappellants was barred by limitation?
    (ii) Whether without praying for setting aside
    the sale deeds executed by Balaraman, the
    suit for declaration and possession was
    maintainable?
    (iii) Whether the plaintiffs can successfully
    contend that by execution of release deed
    dated 24.03.1986 by Lakshmi Ammal, sale
    deeds executed by Balaraman were
    successfully repudiated?
    10
    Issue No. 1
  6. The trial court has held that suit has been filed
    within time relying on Article 65 whereas the
    Appellate Court as well as the High Court relied on
    Article 60 and held that suit was barred by time.
    Part IV of the Limitation Act, which deals with suits
    relating to “Decrees and instruments” contains
    Articles 59 and 60. Article 60 is as follows:-
    _____________________________________
    Description of suit Period of Time from which
    Limitation period begins to run

60 To set aside a
transfer of property
made by the guardian
of a ward-
(a)by the ward who
has attained
majority.
(b)by the ward’s
legal representative-

Three years When the ward attains majority.
i) When the ward dies
within three years
from the date of
attaining majority.
Three years When the ward attains majority.
ii) When the ward
dies before
attaining majority.”
Three years When the ward dies.

  1. Article 65 is contained in Part V (suits relating
    to immovable properties), which is as follows:-
    “65. For possession of immovable Twelve Years When the possession of
    property or any interest therein the defendant becomes
    based on title. adverse to the plaintiff.
    Explanation.- For the purposes
    of this article11
    (a) Where the suit is by a
    remainderman, a
    reversioner (other than a
    landlord) or a devisee,
    the possession of the
    defendant shall be
    deemed to become
    adverse only when the
    estate of the
    remainderman,
    reversioner or devisee, as
    the case may be, falls
    into possession;
    (b) where the suit is by a
    Hindu or Muslim entitled
    to the possession of
    immovable property on
    the death of a Hindu or
    Muslim female, the
    possession of the
    defendant shall be
    deemed to become
    adverse only when the
    female dies;
    (c) where the suit is by a
    purchaser at a sale in
    execution of a decree
    when the judgmentdebtor was out of
    possession at the date of
    the sale, the purchaser
    shall be deemed to be a
    representative of the
    judgment-debtor who
    was out of possession.”
  2. Article 60(b)(ii) refers to a suit when a ward
    dies before attaining majority. The present is a
    case where Palanivel died on 11.02.1986 before
    attaining majority, his date of birth being
    16.07.1978, the limitation to avoid instrument made
    12
    by guardian of the ward is 03 years from the death of
    ward when he dies before attaining majority. This
    Court had occasion to consider Articles 60 and 65 of
    the Limitation Act in reference to alienation made by
    a de-facto guardian of a minor. In the case of
    Madhukar Vishwanath Vs. Madahav and Others, (1999) 9
    SCC 446, the maternal uncle of the appellant has
    executed a sale deed. The appellant after becoming
    major on 22.08.1966 filed a suit on 07.02.1973
    praying that transferors be required to deliver the
    possession of the property. On behalf of appellant,
    Article 65 was relied for the purposes of limitation.
    This Court held that it is Article 60 and not Article
    65, which is applicable. Paragraph No. 4 and 5 of
    the judgment are relevant, which are quoted as
    below:-
    “4. XXXXXXXXX
    That the defendant, Baburao Madhorao
    Puranik, was the appellant’s de facto
    guardian had been established and,
    therefore, the disposal by him of the said
    property was void. Being void, it was open
    to the appellant to file the suit for
    possession of the said property and the
    period for limitation for such suit was
    prescribed by Article 65.
    13
  3. ……………………Even if the suit was entertained
    as pleaded, no decree for possession could
    have been passed without first finding that
    the alienation was not for legal necessity
    and was, therefore, bad in law. To such a
    suit the provisions of Article 60 apply.
    Article 60 relates to a suit to set aside a
    transfer of property made by the guardian
    of a ward by the ward who has attained
    majority and the period prescribed is three
    years commencing on the date on which the
    ward attains majority………………………”
  4. This Court in Narayan Vs. Babasaheb and Others,
    (2016) 6 SCC 725 again had occasion to consider
    Article 60 of the Limitation Act. In the above case,
    this Court held that a suit by minor for setting
    aside the sale of his property by his guardian is
    governed by Article 60 of the Limitation Act. In
    Paragraph Nos. 25 and 26, following was laid down:-
    “25. A close analysis of the language of
    Article 60 would indicate that it applies
    to suits by a minor who has attained
    majority and further by his legal
    representatives when he dies after
    attaining majority or from the death of the
    minor. The broad spectrum of the nature of
    the suit is for setting aside the transfer
    of immovable property made by the guardian
    and consequently, a suit for possession by
    avoiding the transfer by the guardian in
    violation of Section 8(2) of the 1956 Act.
    In essence, it is nothing more than seeking
    to set aside the transfer and grant
    consequential relief of possession.
    14
  5. There cannot be any doubt that a suit
    by quondam minor to set aside the
    alienation of his property by his guardian
    is governed by Article 60. To impeach the
    transfer of immovable property by the
    guardian, the minor must file the suit
    within the prescribed period of three years
    after attaining majority.”
  6. Now, coming to Article 65, on which reliance has
    been placed by learned counsel for the appellants.
    The said period of limitation is available when suit
    is filed for possession of immovable property on any
    interest therein based on title. The present is a
    case where by registered sale deeds the property was
    conveyed by the father of the minor was eonominee
    party. Thus, when sale deed was executed by Balaraman
    he purported to convey the right of the minor also.
    The sale deeds being voidable and not void,
    plaintiffs cannot rely on Article 65. We, thus, are
    of the view that first Appellate Court and the High
    Court has rightly held that limitation for suit was
    governed by Article 60 and the suit was clearly
    barred by time.
  7. It is important to find from the sale deed what
    was conveyed. This we say, as appellant has a case
    15
    that the father of the minor was given a life estate
    and after his death alone the minor was to get a
    right. In this regard we may notice the distinction
    between a vested right and a contingent right. Vested
    right is the subject matter of Section 19 of the
    Transfer of Property Act whereas a contingent
    interest is dealt with Section 21 of the Transfer of
    Property Act. Since the life estate followed by an
    absolute right is created by a will, the relevant
    provision is Section 119 of the Indian Succession
    Act, 1925. Section 119 reads as follows:
    “119. Date of vesting of legacy when
    payment or possession postponed.—Where by
    the terms of a bequest the legatee is not
    entitled to immediate possession of the
    thing bequeathed, a right to receive it at
    the proper time shall, unless a contrary
    intention appears by the Will, become
    vested in the legatee on the testator’s
    death, and shall pass to the legatee’s
    representatives if he dies before that time
    and without having received the legacy, and
    in such cases the legacy is from the
    testator’s death said to be vested in
    interest.
    Explanation.—An intention that a legacy
    to any person shall not become vested in
    interest in him is not to be inferred
    merely from a provision whereby the payment
    or possession of the thing bequeathed is
    postponed, or whereby a prior interest
    therein is bequeathed to some other person,
    or whereby the income arising from the fund
    16
    bequeathed is directed to be accumulated
    until the time of payment arrives, or from
    a provision that, if a particular event
    shall happen, the legacy shall go over to
    another person.”
    It is relevant that we notice illustration No.(iii)
    which reads as follows:
    “(iii) A fund is bequeathed to A for life,
    and after his death to B. On the testator’s
    death the legacy to B becomes vested in
    interest in B.”
    Therefore, the absolute right bequeathed in favour of
    Palanivel became vested in him upon the death of
    Petha Gounder.
    Issue No.2
  8. In the present case, there is no dispute that
    sale deeds executed by Balaraman on behalf of himself
    and his minor son Palanivel were executed without
    obtaining permission of the Court. Section 8 of the
    Hindu Minority & Guardianship Act, 1956, which is
    relevant is as follows:-
  9. Powers of natural guardian.- (1) The
    natural guardian of a Hindu minor has
    power, subject to the provisions of this
    section, to do all acts which are necessary
    or reasonable and proper for the benefit of
    the minor or for the realisation,
    protection or benefit of the minor’s
    estate; but the guardian can in no case
    bind the minor by a personal covenant.
    17
    (2) The natural guardian shall not, without
    the previous permission of the court,-
    (a) mortgage 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
    subsection (1) or sub-section (2), is
    voidable at the instance of the minor or
    any person claiming under him.
    (4) No court shall grant permission to the
    natural guardian to do any of the acts
    mentioned in sub-section (2) except in case
    of necessity or for an evident advantage to
    the minor.
    (5) The Guardians and Wards Act, 1890 (8 of
    1890), shall apply to and in respect of an
    application for obtaining permission of the
    court under sub-section (2) in all respects
    as if it were an application for obtaining
    the permission of the court under section
    29 of that Act, and in particular-
    (a) proceedings in connection with the
    application shall be deemed to be
    proceedings under that Act within the
    meaning of section 4A thereof.
    (b) the court shall observe the
    procedure and have the powers
    specified in sub-sections (2), (3)
    and (4) of section 31 of that Act;
    and
    18
    (c) an appeal shall lie from an order of
    the court refusing permission to the
    natural guardian to do any of the
    acts mentioned in sub-section (2) of
    this section to the court to which
    appeals ordinarily lie from the
    decisions of that court.
    (6) In this section, “Court” means the city
    civil court or a district court or a court
    empowered under section 4A of the Guardians
    and Wards Act, 1890 (8 of 1890), within the
    local limits of whose jurisdiction the
    immovable property in respect of which the
    application is made is situate, and where
    the immovable property is situate within
    the jurisdiction of more than one such
    court, means the court within the local
    limits of whose jurisdiction any portion of
    the property is situate.”
  10. This Court time and again has considered the
    cases of alienation by natural guardian in
    contravention of Section 8 and Section 8(2) of the
    1956 Act. This Court held that sale deed in
    violation of Section 8(1) and 8(2) is a voidable sale
    deed. Voidable has been defined in Black’s Law
    Dictionary, Tenth Edition as under:-
    “Valid until annulled; esp., (of a
    contract) capable of being affirmed or
    rejected at the option of one of the
    parties. This term describes a valid act
    that may be voided rather than an invalid
    act that may be ratified.”
    19
  11. Salmonds on Jurisprudence, Twelfth Edition has
    noticed the distinction between Valid, Void and
    Voidable in following passage:-
    “… 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 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 ab
    initio. The avoidance of it relates
    back to the making of it. The
    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.”
  12. This Court in Dhurandhar Prasad Singh Vs. Jai
    Prakash University and Others, (2001) 6 SCC 534 had
    noted the distinction between Void and Voidable. In
    Paragraph No. 22, following has been laid down:-
    “22. Thus the expressions “void and
    voidable” have been the subject-matter of
    20
    consideration on innumerable occasions by
    courts. The expression “void” has several
    facets. One type of void acts,
    transactions, decrees are those which are
    wholly without jurisdiction, ab initio void
    and for avoiding the same no declaration is
    necessary, law does not take any notice of
    the same and it can be disregarded in
    collateral proceeding or otherwise. The
    other type of void act, e.g., may be
    transaction against a minor without being
    represented by a next friend. Such a
    transaction is a good transaction against
    the whole world. So far as the minor is
    concerned, if he decides to avoid the same
    and succeeds in avoiding it by taking
    recourse to appropriate proceeding the
    transaction becomes void from the very
    beginning. Another type of void act may be
    which is not a nullity but for avoiding the
    same a declaration has to be made. Voidable
    act is that which is a good act unless
    avoided, e.g., if a suit is filed for a
    declaration that a document is fraudulent
    and/or forged and fabricated, it is
    voidable as the apparent state of affairs
    is the real state of affairs and a party
    who alleges otherwise is obliged to prove
    it. If it is proved that the document is
    forged and fabricated and a declaration to
    that effect is given, a transaction becomes
    void from the very beginning. There may be
    a voidable transaction which is required to
    be set aside and the same is avoided from
    the day it is so set aside and not any day
    prior to it. In cases where legal effect of
    a document cannot be taken away without
    setting aside the same, it cannot be
    treated to be void but would be obviously
    voidable.”
  13. In Vishwambhar and Others Vs. Laxminarayan (Dead)
    Through LRs. and Another, (2001) 6 SCC 163, which was
    21
    a case of challenge to alienation without Court’s
    sanction and without legal necessity, this Court
    held that the alienation by natural guardian was
    voidable. In the above case, the mother, natural
    guardian of two minors has executed the sale deed
    before they attained majority. Minors after
    attaining majority had filed suit pleading that sale
    deeds are not binding and operative on the legal
    rights of plaintiff, and prayed that the said sale
    deeds be set aside to the extent of their share and
    the suit for possession of the land be decreed. In
    the above case, after considering Section 8 this
    Court held that sale deeds were voidable at the
    instance of the plaintiff. This Court further held
    that if the plaintiffs were required to have the sale
    deeds set aside before making any claim in respect of
    suit properties sold then a suit without such a
    prayer was of no avail to the plaintiffs. Following
    was held in Paragraph No.9:-
    “9. …………………………………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
    22
    any part of the immoveable property of the
    minor. In sub-section (3) of the said
    section, it is specifically provided that
    any disposal of immoveable property by a
    natural guardian, in contravention of subsection (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 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 2
    Digamber attained majority on 5-8-1975 and
    Vishwambhar, Plaintiff 1 attained majority
    on 20-7-1978. Though the suit was filed on
    30-11-1980 the prayer seeking setting aside
    of the sale deeds was made in December
  14. 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
    23
    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 Digamber 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.”
  15. To the same effect is the judgment of this Court
    in Madhegowda (dead) by LRs. Vs. Ankegowda (dead) by
    LRs. and Others, (2002) 1 SCC 178, where in Paragraph
    No. 25, following has been held:-
    “25.……………………The minor, on attaining
    majority, can repudiate the transfer in any
    manner as and when occasion for it arises.
    24
    After attaining majority if he/she
    transfers his/her interest in the property
    in a lawful manner asserting his/her title
    to the same that is sufficient to show that
    the minor has repudiated the transfer made
    by the “de facto guardian/manager”.
  16. This Court further held in Nangali Amma Bhavani
    Amma Vs. Gopalkrishnan Nair and Others, (2004) 8 SCC
    785 that the alienation made in violation of Section
    8(2) is voidable, holding it to be void would not
    only be contrary to the plain words of the statute
    but would also deprive the minor of the right to
    affirm or ratify the transaction upon attaining
    majority. Following was held in Paragraph No.8:-
    “8. In view of the express language used,
    it is clear that the transaction entered
    into by the natural guardian in
    contravention of sub-section (2) was not
    void but merely voidable at the instance of
    the minor. To hold that the transaction in
    violation of Section 8(2) is void would not
    only be contrary to the plain words of the
    statute but would also deprive the minor of
    the right to affirm or ratify the
    transaction upon attaining
    majority…………………………….”
  17. The alienations, which were voidable, at the
    instance of minor or on his behalf were required to
    be set aside before relief for possession can be
    claimed by the plaintiffs. Suit filed on behalf of
    25
    the plaintiffs without seeking prayer for setting
    aside the sale deeds was, thus, not properly framed
    and could not have been decreed.
    Issue No.3
  18. The question is as to whether by execution of the
    release deed dated 24.03.1986 in favour of the
    plaintiffs, there was repudiation of the alienation
    made by Balaraman. The release deed has been brought
    on the record as Annexure P-1. A perusal of the
    release deed does not indicate that there is any
    reference of alienation made by Balaraman in favour
    of the defendants. There being no reference of the
    alienation made by Balaraman on behalf of minor,
    there is no occasion to read release deed as
    repudiation of the claim on behalf of the minor.
    Section 8(3) gives a right to the minor or any person
    claiming under him, the relevant words in Section
    8(3) are “at the instance of the minor or any person
    claiming under him.” Thus, alienation made on behalf
    of the minor can be avoided by minor or any person
    claiming under him. In event, minor dies before
    26
    attaining majority, obviously, his legal heirs will
    have right to avoid the alienation.
  19. The submission raised by the learned counsel for
    the respondents is that for avoiding sale of
    immovable property of a minor as contemplated under
    sub-section (3) of Section 8, the minor or any person
    claiming under him has to bring an action i.e. to
    file a suit within the limitation prescribed.
  20. Learned counsel for the appellants has refuted
    the submission and contended that the avoidance of a
    sale of immovable property by a minor can be in any
    manner. It is submitted that it is not necessary for
    minor or the person claiming on his behalf to bring a
    suit for avoiding a sale deed.
  21. We have noticed above that sub-section (3) of
    Section 8 refers to a disposal of immovable property
    by a natural guardian in contravention of sub-section
    (1) or sub-section (2) as voidable. When a registered
    sale deed is voidable, it is valid till it is avoided
    in accordance with law. The rights conferred by a
    registered sale deed are good enough against the
    whole world and the sale can be avoided in case the
    27
    property sold is of a minor by a natural guardian at
    the instance of the minor or any person claiming
    under him. A document which is voidable has to be
    actually set aside before taking its legal effect.
    This Court in Gorakh Nath Dube vs. Hari Narain Singh
    and others, (1973) 2 SCC 535, while making
    distinction between void and voidable document held:
    “5………We think that a distinction can be made
    between cases where a document is wholly or
    partially invalid so that it can be
    disregarded by any court or authority and one
    where it has to be actually set aside before
    it can cease to have legal effect. An
    alienation made in excess of power to
    transfer would be, to the extent of the
    excess of power, invalid. An adjudication on
    the effect of such a purported alienation
    would be necessarily implied in the decision
    of a dispute involving conflicting claims to
    rights or interests in land which are the
    subject-matter of consolidation
    proceedings……”
  22. In Amirtham Kudumbah vs. Sarnam Kudumban, (1991)
    3 SCC 20, this Court had occasion to consider the
    provisions of Section 8(3) of the Hindu Minority and
    Guardianship Act, 1956. The facts of the case have
    been noticed in paragraph 5 which is to the following
    effect:
    28
    “5. 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 daughter
    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
    grandfather who protected and maintained
    her. During her minority, Kandayya sold the
    property on October 29, 1959 to
    Jainulavudeen. On April 25, 1966,
    Jainulavudeen in turn sold the property to
    the defendant-appellant. Subsequently, on
    May 26, 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.”
  23. One of the questions which came for consideration
    in the above case was that “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? A person entitled to avoid such a
    sale is either the minor or any person claiming under
    him. This Court held that either the minor, or his
    legal representative in the event of his death, or
    his successor-in-interest claiming under him by
    29
    reason of transfer inter vivos, must bring action
    within the period prescribed for such a suit, i.e.
    three years. Following is laid down in paragraph 9:
    “9. 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-ininterest 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.”
  24. In Vishwambhar and others vs. Laxminarayan(Dead)
    through LRs. and another (supra) this Court has
    observed that 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
    without such a prayer was of no avail to the
    plaintiffs.
  25. This Court time and again held that setting aside
    of a sale which is voidable under Section 8(3) is
    30
    necessary for avoiding a registered sale deed. We
    may, however, not to be understood that we are
    holding that in all cases where minor has to avoid
    disposal of immovable property, it is necessary to
    bring a suit. There may be creation of charge or
    lease of immovable property which may not be by
    registered document. It may depend on facts of each
    case as to whether it is necessary to bring a suit
    for avoiding disposal of the immovable property or it
    can be done in any other manner. We in the present
    case are concerned with disposal of immovable
    property by natural guardian of minor by a registered
    sale deed, hence, we are confining our consideration
    and discussion only with respect to transfer of
    immovable property by a registered deed by a natural
    guardian of minor.
  26. The Limitation Act, 1963 has been enacted by the
    Parliament after the enactment of Hindu Minority and
    Guardianship Act, 1956. Article 60 of the Limitation
    Act, 1963 which provides for limitation “suits
    relating to decrees and instruments”. The Limitation
    Act contemplates suit to set aside a transfer of
    property made by the guardian of a ward for which
    31
    limitation is contemplated as three years. Article 60
    of the Limitation Act although provides for a
    limitation of a suit but also clearly indicates that
    to set aside a transfer of property made by the
    guardian of a ward a suit is contemplated.
  27. We may notice a judgment of this Court reported
    in Madhegowda (Dead) by LRs. vs. Ankegowda (Dead) by
    LRs. and others, (2002) 1 SCC 178. This Court in the
    above case had occasion to consider Section 11 of the
    Hindu Minority and Guardianship Act, 1956. In the
    above case sister of a minor acting as guardian sold
    immovable property by registered sale deed. In the
    above reference this Court had made following
    observations:
    “25………Undoubtedly Smt Madamma, sister of
    the minor, is not a “guardian” as defined in
    Section 4(b) of the Act. Therefore, she can
    only be taken to be a “de facto guardian” or
    more appropriately “de facto manager”. To a
    transfer in such a case Section 11 of the
    Act squarely applies. Therefore, there is
    little scope for doubt that the transfer of
    the minor’s interest by a de facto
    guardian/manager having been made in
    violation of the express bar provided under
    the section is per se invalid. The existence
    or otherwise of legal necessity is not
    relevant in the case of such invalid
    transfer. A transferee of such an alienation
    32
    does not acquire any interest in the
    property. Such an invalid transaction is not
    required to be set aside by filing a suit or
    judicial proceeding. The minor, on attaining
    majority, can repudiate the transfer in any
    manner as and when occasion for it arises.
    After attaining majority if he/she transfers
    his/her interest in the property in a lawful
    manner asserting his/her title to the same
    that is sufficient to show that the minor
    has repudiated the transfer made by the “de
    facto guardian/manager”.”
  28. The above observations were made by this Court in
    the context of Section 11 of the Act, 1956. Section
    11 of the Act contains a statutory prohibition on “de
    facto guardian” of the minor from disposing of the
    property of the minor. The transfer made by de facto
    guardian is, thus, void and can be repudiated in any
    manner. It is well settled that it is not necessary
    for a minor or any person claiming under him to file
    a suit for setting aside a void deed. A void deed can
    be ignored. The above observations cannot be held to
    be applicable to transfer made by a natural guardian
    under Section 8(3) of the Act.
  29. We may notice one more judgment of this Court
    relied on by the learned counsel for the appellants
    that is G. Annamalai Pillai vs. District Revenue
    33
    Officer and others, (1993) 2 SCC 402. The question
    which arose for consideration in the said case has
    been noticed in paragraph 1 of the judgment in
    following words:
    “1. 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 effective from the date of the
    lease deed so as to make the transaction void and
    unenforceable from the very inception.”
  30. The land in dispute was owned by one Janarthanan.
    His father, Purushothaman executed a registered lease
    deed in favour of appellant on 12.12.1971 on which
    date the owner was minor. The appellant filed
    application before Tehsildar to be registered as a
    tenant which was contested by Janarthanan.
    Janarthanan contended that his father has no right or
    title to deal with land and lease by his father is in
    contravention of Section 8 of Hindu Minority and
    Guardianship Act, 1956. Tehsildar held that there was
    no valid lease which order was confirmed by the High
    Court against which judgment appeal was filed. In
    paragraphs 5 and 6 following has been laid down:
    34
    “5. 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, Twelfth 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
    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 ab initio. The avoidance of it
    relates back to the making of it. The
    hypothetical or contingent efficacy
    35
    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 and in the Division Bench
    judgment in S.N.R. Sundara Rao and Sons,
    Madurai v. CIT. The Division Bench held,
    following the said 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 the 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.”
  31. 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.”
  32. Learned counsel for the appellants relying on the
    above decision contends that sale by Balaraman when
    has been avoided by release deed it became void from
    36
    the very beginning. There can be no quarrel to the
    proposition laid down in G. Annamalai Pillai vs.
    District Revenue Officer and others(supra). In the
    present case there having been no repudiation of sale
    deed on behalf of minor, the question of voidable
    sale deed becoming void does not arise.
  33. We are, thus, of the considered opinion that in
    the present case it was necessary for the person
    claiming through minor to bring an action within a
    period of three years from the date of the death of
    the minor to get sale deed executed by Balaraman set
    aside. We, thus, conclude that the sale deeds
    executed by Balaraman were not repudiated or avoided
    within the period of limitation as prescribed by law.
    Issue No.3 is answered accordingly.
  34. In view of the foregoing discussions, we do not
    find any merit in this appeal. The appeal is
    dismissed accordingly.
    ………………….J.
    ( ASHOK BHUSHAN )
    ………………….J.
    ( K.M. JOSEPH )
    New Delhi,
    February 25, 2019.
    37