# MURUGAN & ORS v. KESAVA GOUNDER (DEAD) THR. LRS. AND ORS

- **Citation:** [2019] 4 S.C.R. 357
- **Court:** Supreme Court of India
- **Decided:** 2019-02-25
- **Case number:** Civil Appeal No. 1782 of 2019
- **Bench:** Ashok Bhushan, K. M. Joseph
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/murugan-ors-v-kesava-gounder-dead-thr-lrs-and-ors-33646
- **Pages:** 26

## Headnote

Limitation Act, 1963 - Arts.60 and 65 - Suit property belonged
to one 'PG', who had two sons, 'K' and 'B' and three daughters -
'PG' executed Will in 1971 bequeathing life interest to his sons 'K'
and 'B' and thereafter to the two male heirs of his sons - 'PG'
died - 'B' on his behalf and on behalf of his minor son 'P' sold
certain portion of the suit property to defendants-respondents in
1981-82- 'B' died in 1983, his minor son 'P' died on 11.02.1986 -
B's wife executed registered Release Deed in 1986 in favour of the
plaintiffs-appellants (sons of 'K') for consideration - Plaintiffs filed
suit in 1992 on the ground that 'B' had no authority to execute the
Sale Deeds on behalf of his minor son 'P' and the same were void -
Defendants inter alia contended that the suit was barred by limitation
as it was not filed within 3 years from the death of 'P', i.e. 11.02.1986
- Suit decreed - Defendants filed appeal - Allowed - Plaintiffs
filed second appeal in the High Court - Dismissed - Held: Part IV
of the Limitation Act, dealing with suits relating to "Decrees and
instruments", contains Art.60 - Art.60 although provides for
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 - Art.60(b)(ii) refers to a suit when a ward dies before
attaining majority - Present is a case where 'P' died before attaining
majority - Limitation to avoid instrument made by guardian of the
ward is 3 years from the death of ward when he dies before attaining
majority - Sale deeds by 'B' on his behalf and on behalf of his
minor son 'P', executed without the permission of the Court were in
contravention of s.8(2), 1956 Act and hence voidable - Sale deeds
being voidable and not void, plaintiffs cannot rely on Art.65, period
for limitation under which is 12 years - High Court rightly held
that limitation for suit was governed by Art. 60 and the suit was
barred by time - Alienations being voidable, were required to be set
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aside before relief for possession can be claimed by the plaintiffs -
Suit filed by the plaintiffs without seeking prayer for setting aside
the sale deeds was, thus, not properly framed and could not have
been decreed - Sale deeds executed by 'B' were not repudiated or
avoided within the period of limitation as prescribed by law - Hindu
Minority & Guardianship Act, 1956 - s.8.
Hindu Minority & Guardianship Act, 1956 - s.8(3) - Right
under - Of the minor or any person claiming under him - Discussed.
Words & Phrases - "Vested Right" and "Contingent Right" -
Distinction between - Held: Vested right is the subject matter of
s.19 of the 1882 Act while contingent interest is dealt with u/s.21 of
the 1882 Act - Transfer of Property Act, 1882 - ss.19, 21.
Dismissing the appeal, the Court
HELD: 1.1 Part IV of the Limitation Act, 1963 which deals
with suits relating to "Decrees and instruments" contains Articles
59 and 60. Article 65 is contained in Part V (suits relating to
immovable properties). Article 60(b)(ii)refers to a suit when a
ward dies before attaining majority. The present is a case where
'P' died on 11.02.1986 before attaining majority, his date of birth
being 16.07.1978, the limitation to avoid instrument made by
guardian of the ward is 03 years from the death of ward when he
dies before attaining majority. [Paras 7, 8 and 9][366-G; 367-D;
360-A-B]
1.2 The period of limitation under Article 65 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. 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.
First Appellate Court and th

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 MURUGAN & ORS.
v.
KESAVA GOUNDER (DEAD) THR. LRS. AND ORS.
(Civil Appeal No. 1782 of 2019)
FEBRUARY 25, 2019
[ASHOK BHUSHAN AND K. M. JOSEPH, JJ.]
Limitation Act, 1963 - Arts.60 and 65 - Suit property belonged
to one 'PG', who had two sons, 'K' and 'B' and three daughters -
'PG' executed Will in 1971 bequeathing life interest to his sons 'K'
and 'B' and thereafter to the two male heirs of his sons - 'PG'
died - 'B' on his behalf and on behalf of his minor son 'P' sold
certain portion of the suit property to defendants-respondents in
1981-82- 'B' died in 1983, his minor son 'P' died on 11.02.1986 -
B's wife executed registered Release Deed in 1986 in favour of the
plaintiffs-appellants (sons of 'K') for consideration - Plaintiffs filed
suit in 1992 on the ground that 'B' had no authority to execute the
Sale Deeds on behalf of his minor son 'P' and the same were void -
Defendants inter alia contended that the suit was barred by limitation
as it was not filed within 3 years from the death of 'P', i.e. 11.02.1986
- Suit decreed - Defendants filed appeal - Allowed - Plaintiffs
filed second appeal in the High Court - Dismissed - Held: Part IV
of the Limitation Act, dealing with suits relating to "Decrees and
instruments", contains Art.60 - Art.60 although provides for
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 - Art.60(b)(ii) refers to a suit when a ward dies before
attaining majority - Present is a case where 'P' died before attaining
majority - Limitation to avoid instrument made by guardian of the
ward is 3 years from the death of ward when he dies before attaining
majority - Sale deeds by 'B' on his behalf and on behalf of his
minor son 'P', executed without the permission of the Court were in
contravention of s.8(2), 1956 Act and hence voidable - Sale deeds
being voidable and not void, plaintiffs cannot rely on Art.65, period
for limitation under which is 12 years - High Court rightly held
that limitation for suit was governed by Art. 60 and the suit was
barred by time - Alienations being voidable, were required to be set
[2019] 4 S.C.R. 357
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aside before relief for possession can be claimed by the plaintiffs -
Suit filed by the plaintiffs without seeking prayer for setting aside
the sale deeds was, thus, not properly framed and could not have
been decreed - Sale deeds executed by 'B' were not repudiated or
avoided within the period of limitation as prescribed by law - Hindu
Minority & Guardianship Act, 1956 - s.8.
Hindu Minority & Guardianship Act, 1956 - s.8(3) - Right
under - Of the minor or any person claiming under him - Discussed.
Words & Phrases - "Vested Right" and "Contingent Right" -
Distinction between - Held: Vested right is the subject matter of
s.19 of the 1882 Act while contingent interest is dealt with u/s.21 of
the 1882 Act - Transfer of Property Act, 1882 - ss.19, 21.
Dismissing the appeal, the Court
HELD: 1.1 Part IV of the Limitation Act, 1963 which deals
with suits relating to "Decrees and instruments" contains Articles
59 and 60. Article 65 is contained in Part V (suits relating to
immovable properties). Article 60(b)(ii)refers to a suit when a
ward dies before attaining majority. The present is a case where
'P' died on 11.02.1986 before attaining majority, his date of birth
being 16.07.1978, the limitation to avoid instrument made by
guardian of the ward is 03 years from the death of ward when he
dies before attaining majority. [Paras 7, 8 and 9][366-G; 367-D;
360-A-B]
1.2 The period of limitation under Article 65 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. 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.
First Appellate Court and the High Court rightly held that
limitation for suit was governed by Article 60 and the suit was
clearly barred by time. [Para 11][369-D, E]
1.3 In the present case, there is no dispute that sale deeds
executed by 'B' on behalf of himself and his minor son 'P' were
executed without obtaining permission of the Court. Sale deed
in violation of Section 8(1) and 8(2) of the Hindu Minority &
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Guardianship Act, 1956 is a voidable sale deed. 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 the plaintiffs without
seeking prayer for setting aside the sale deeds was, thus, not
properly framed and could not have been decreed. [Paras 13,
14, 20] [370-F; 372-A; 375-G-H]
1.4 The release deed dated 24.03.1986 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 'B' favour of the defendants. There being no reference of the
alienation made by 'B' 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), 1956 Act 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 attaining majority, obviously, his legal heirs will have right
to avoid the alienation. 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 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. [Paras 21, 24] [376-A-C; 376-F-G]
1.5 Supreme Court time and again held that setting aside
of a sale which is voidable under Section 8(3) is necessary for
avoiding a registered sale deed. Court may, however, not to be
understood that it is 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
MURUGAN & ORS. v. KESAVA GOUNDER (DEAD) THR. LRS.
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in any other manner. 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
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. [Paras 28, 29]
[378-E-H; 379-A]
1.6 Section 11 of the 1956 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. [Para 31] [379-G]
1.7 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. 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 'B' set aside. The sale deeds
executed by 'B' were not repudiated or avoided within the period
of limitation as prescribed by law. [Paras 34, 35] [382-B, C]
Madhukar Vishwanath v. Madahav and Others (1999)
9 SCC 446; Narayan v. Babasaheb and Others (2016)
6 SCC 725 : [2016] 2 SCR 948; Nangali Amma Bhavani
Amma v. Gopalkrishnan Nair and Others (2004) 8 SCC
785; Gorakh Nath Dube v. Hari Narain Singh and
others (1973) 2 SCC 535 : [1974] 1 SCR 339 - relied
on.
Dhurandhar Prasad Singh v. Jai Prakash University
and Others (2001) 6 SCC 534 : [2001] 3 SCR 1129;
Vishwambhar and Others v. Laxminarayan (Dead)
Through LRs. and Another (2001) 6 SCC 163;
Madhegowda (dead) by LRs. v. Ankegowda (dead) by
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LRs. and Others (2002) 1 SCC 178 : [2001] 5 Suppl.
SCR 290; Amirtham Kudumbah v. Sarnam Kudumban
(1991) 3 SCC 20 : [1991] 2 SCR 389; Madhegowda
(Dead) by LRs. v. Ankegowda (Dead) by LRs. and
others (2002) 1 SCC 178 : [2001] 5 Suppl. SCR 290;
G. Annamalai Pillai v. District Revenue Officer and
others (1993) 2 SCC 402 : [1993] 2 SCR 397 -
referred to.
Case Law Reference
(1999) 9 SCC 446
relied on
Para 9
[2016] 2 SCR 948
relied on
Para 10
[2001] 3 SCR 1129
referred to
Para 16
(2001) 6 SCC 163
referred to
Para 17
[2001] 5 Suppl. SCR 290
referred to
Para 18
(2004) 8 SCC 785
relied on
Para 19
[1974] 1 SCR 339
relied on
Para 24
[1991] 2 SCR 389
referred to
Para 25
[2001] 5 Suppl. SCR 290
referred to
Para 30
[1993] 2 SCR 397
referred to
Para 32
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 1782
of 2019
From the Judgment and Order dated 21.04.2010 of the High
Court of Judicature at Madras in S.A. No. 644 of 2000.
V. Prabhakar, Ms. Jyoti Parasher, N. J. Ramchandar,
R. Chandrachud, Advs. for the Appellants.
Ms. V. Mohana, Sr. Adv., B. Ragunath, Mrs. N. C. Kavitha,
C. D. Singh, Vijay Kumar, Advs. for the Respondents.
MURUGAN & ORS. v. KESAVA GOUNDER (DEAD) THR. LRS.
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The Judgment of the Court was delivered by
ASHOK BHUSHAN, J. 1. This is the plaintiff's appeal
challenging the judgment of Madras High Court dismissing the second
appeal filed by the plaintiffs-appellants.
2. 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 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
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;
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(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 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.
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
MURUGAN & ORS. v. KESAVA GOUNDER (DEAD) THR. LRS.
[ASHOK BHUSHAN, J.]
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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 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 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 A-12=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
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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 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.
3. 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 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.
4. 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 plaintiffs. Limitation was governed by Article 60 of the Limitation
Act.
MURUGAN & ORS. v. KESAVA GOUNDER (DEAD) THR. LRS.
[ASHOK BHUSHAN, J.]
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5. Learned counsel for the parties have relied on various judgments,
which shall be referred to and considered while considering the
submissions in detail.
6. 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 plaintiffs-appellants 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?
Issue No. 1
7. 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 representativeThree 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.
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8. Article 65 is contained in Part V (suits relating to immovable
properties), which is as follows:-
MURUGAN & ORS. v. KESAVA GOUNDER (DEAD) THR. LRS.
[ASHOK BHUSHAN, J.]
"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 article-
(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."
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9. 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 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.
5. ........................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..........................."
10. 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:-
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"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.
26. 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."
11. 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.
12. It is important to find from the sale deed what was conveyed.
This we say, as appellant has a case 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:
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"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 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
13. 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:-
8. 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.
(2) The natural guardian shall not, without the previous permission
of the court,-
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(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
(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."
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14. 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."
15. 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."
16. 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 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
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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."
17. In Vishwambhar and Others Vs. Laxminarayan (Dead)
Through LRs. and Another, (2001) 6 SCC 163, which was 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 any part of the immoveable
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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 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 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 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 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
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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."
18. 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. 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".
19. This Court further held in Nangali Amma Bhavani Amma
Vs.