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 diedon 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 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 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 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.;