K. Govindarajan, J.
1. The plaintiff in O.S.No. 1250 of 1982 and the defendant in O.S.No. 119 of 1983 has filed these Second Appeals aggrieved by the judgments and decrees of the courts below.
2. The appellant filed O.S.No. 1250 of 1982 for declaration that he is entitled to the entire suit properties and for injunction restraining the defendants from interfering with his possession in the suit properties or in the alternative for recovery of possession of the same.
3. According to the appellant, the suit properties originally belonged to one Vadivel. After his death, his wife Kuzhanthaianimal along with children inherited the properties. She sold the said properties on her behalf and on behalf of the minors under Ex.A2 in favour of the plaintiff on 15.5.1972. The 1st defendant in O.S.No. 1250 of 1982 also filed another suit in O.S.No. 1 19 of 1983 for declaration and for possession or in the alternative for partition of his 5/6th share in the suit properties. He admitted that the suit properties belonged to Vadivel. He has contended that Kuzhanthaiammal is not the wife of Vadivel, but one Govindammal is the wife of Vadivel. The said Govindammal eloped with another person and thereafter he was living with Kuzhanthaiammal. The properties of Vadivel were inherited by Govindammal and the two children, namely, Thanikachalam and Santhi. After they attained majority, they executed Ex.B3 dated 24.8.82 selling the suit properties to the 1st defendant/Rajagopal and so the appellant is not having any right in the suit properties except for 1/6th share.
4.The trial court accepting the case of the plaintiff in O.S.No. 119 of 1983 decreed the suit for partition of 5/6th share and dismissed the suit in O.S.No. 1250 of 1982. Aggrieved, the appellant filed Appeals in A.S.No. 86 of 1990 and 4 of 1991 on the file of the Sub-Court, Cuddalore. Even the lower appellate court confirmed the said judgment and decrees of the trial court. Hence these appeals.
5. The substantial question of law that was framed in these Second Appeals are:-
"Whether the claim of the respondents are barred by limitation"?
6. On the basis of the arguments raised by both the counsel, I am reframing the substantial question of law as follows:-
(1) Whether Kuzhanthaiammal is having any legal right to convey the interest of the minors in the joint family property as their guardian?
(2) Whether such a sale deed without obtaining permission from the Court under Section 8 of the Hindu Minority and Guardianship Act 1956 is sustainable in law?
(3) Whether a suit to avoid such sale has to be filed within three years as contemplated under Article 60 of the Limitation Act or can be within 12 years as contemplated under Article 65 of the Limitation Act?
7. The courts below held that the sale deed executed by Kuzhanthaiammal on behalf of the minor children in favour of the appellant under Ex.A2, dated 15.5.1972 cannot be sustained as no permission from the court was obtained, as contemplated under Section 8 of the Hindu Minority and Guardianship Act, 1956, hereinafter called 'the Act 1956', and so the plaintiff in O.S.No. 1250 of 1982 (appellant herein) cannot claim any right in the share of the minors, as the 1st respondent has filed the suit, namely, O.S.No. 119 of 1983 to avoid the sale within 12 years, as contemplated under Article 65 of the Limitation Act.
8. Mr. Maninarayanan, learned counsel for the appellant has submitted that it is not in dispute that the suit properties are the joint family properties and the mother executed Ex.A2 sale deed on her behalf and as natural guardian on behalf of the minor children in favour of the appellant. Even if no permission was obtained from the court as contemplated under Section 8 of the Act, 1956 to sell the interest in the share of the immovable properties of the minors, it is only voidable and the said sale could be avoided within three years from the date when the minors attained majority as contemplated under Article 60 of the Indian Limitation Act. He also submitted that since such a suit to set aside the sale was not filed within three years, the sale in favour of the appellant cannot be assailed, and the 1st respondent could not have derived any right or title by virtue of the sale deed Ex. B3 executed by the said minors, after they attained majority.
9. Mr. Ragavachari, learned counsel for the respondents submitted that the mother cannot be construed neither as kartha nor as manager of the family, and so she cannot act as guardian of the minor children. Since she cannot act as guardian, she cannot sell the minors' interest in the joint family properties as guardian and so such a sale is void. He also submitted that the courts below are not correct in applying Section 8 of the Act 1956 to the facts of the present case. According to him, the said provision will apply only to sell the minors' immovable properties and not to sell their interest in the joint family properties. He further submitted that since the suit has been filed within 12 years from the date when the minors attained majority, as contemplated under Article 65 of the Limitation Act, the courts below are correct in holding that the appellant cannot claim any right in the minors' interest and decreeing the suit filed by the 1st respondent in O.S.No. 119 of 1983 for partition.
10. It is not in dispute that the suit properties originally belonged to Vadivel. According to the appellant one Kuzahanthaiammal is the wife of Vaidvel. Though it was alleged that Kuzhanthaiammal is not the wife of Vadivel, but one Govindammal is his wife, the trial court found that Kuzhanthaiammal is the wife of Vaidvel and she had alias name Govindammal. The said finding has been confirmed by the lower appellate court. So, we have to proceed with the case to decide the dispute raised only on the basis that Kuzhanthaiammal is the wife of Vaidvel and mother of Thanikachalam and Santhi.
11. Now we have to consider whether Kuzhanthaiammal, the mother of the said minors is entitled to act as their guardian and execute the sale deed on their behalf with reference to their interest in the joint family properties.
12."Guardian" has been defined under Section 4(b) of the Act 1956, which reads as follows:-
" 'guardian' means a person having the care of person of a minor or of his property or of both his person and property, and includes -
(i) a natural guardian,
(ii) a guardian appointed by the will of the minor's father or mother;
(iii) a guardian appointed or declared by court, and
(iv) a person empowered to act as such by or under any enactment relating to any court of wards"
13. "natural guardian" has been defined under Section 4(c) of the Act 1956, which reads as follows:-
" 'natural guardian' means any of the guardians mentioned in Section 6"
14. To understand the scope of the "definition of natural guardian", we have to refer to Section 6 of the Act 1956 which reads as follows:-
"6.Natural guardians of a Hindu minor:-The natural guardians of a Hindu minor, in respect of the minor's person as well as in respect of the minor's property (excluding his or her undivided interest in joint family property), are-
(a)in the case of a boy or an unmarried girl - the father, and after him, the mother: Provided that the custody of a minor who has not completed the age of five years shall ordinarily be with the mother;
(b)in the case of an illegitimate boy or an illegitimate unmarried girl -the , mother, and after her, the father;
(c)in the case of a married girl - the husband;
Provided that no person shall be entitled to act as the natural guardian of a minor under the provisions of this section -
(a)if he has ceased to be a Hindu, or
(b)if he has completely and finally renounced the world by becoming a hermit (vanaprastha) or ascetic (yati or sanyasi).
Explanation:-In this section , the expression 'father' and 'mother' do not include a step-father and a step-mother"
15. Section 11 of the Act 1956 deals with the power of De facto guardian and the said provision prohibits the De facto guardian from dealing with the property of a Hindu minor.
16. According to Section 12 of the Act 1956, no guardian shall be appointed for managing the minor's undivided interest in joint family which is under the management of an adult member of the family. But this provision shall not affect the jurisdiction of the High Court to appoint a guardian in respect of such interest.
17. From a reading of Section 6 of the Act 1956, it is clear that the mother can be the natural guardian. The term "guardian" has been defined under Section 4(b) of the Act 1956, as a person of a minor and of his property and includes natural guardian among others and the term "natural guardian" has been defined under Section 4(c) of the Act 1956, as any of the guardians mentioned in Section 6, and these definitions do not create any discrimination against the mother, as, under Section 6 of the Act 1956, she being one of the natural guardians. But it is stated that she would be the guardian "after the father". It gives an impression that the mother can act as a guardian only after the lifetime of the father.
18. Though such a view is also possible, taking into consideration the welfare of the children, exercising judicial power of interpreting the law, for the first time in the decision in Jijabai v. Pathankhan, , it was held that "normally when the father is alive he is the natural guardian and it is only after him the mother becomes the natural guardian. But on the facts found above, the mother was rightly treated by the High Court as natural guardian". The Apex Court, in spite of the expression "father and after him, the mother", interpreting the said expression held that "it is no doubt true" that father was alive but he was not taking any interest in the affairs of the minor and it was as good as if he was non existent so far as the minor appellants were concerned". This observation was given on the basis that the father and mother of the minor appellants had fallen out and mother was living separately for over, 20 years by managing the affairs of the minor daughter who was under her care and protection.
19. Subsequently, in the decision in Githa Hariharan v. Reserve Bank of India, , the Apex Court has further explained the
scope of the word "after the father" in Section 6(a) of the Act. The discussion of the Apex Court is as follows:-
"8.Whenever a dispute concerning the guardianship of a minor, between the father and mother of the minor is raised in a Court of law, the word 'after' in the section would have no significance, as the Court is primarily concerned with the best interests of the minor and his welfare in the widest sense while determining the question as regards custody and guardianship of the minor. The question, however, assumes importance only when the mother acts as guardian of the minor during the lifetime of the father, without the matter going to Court, and the validity of such an action is challenged on the ground that she is not the legal guardian of the minor in view of Section 6(a) (supra). In the present case, the Reserve Bank of India has questioned the authority of the mother, even when she had acted with the concurrence of the father, because in its opinion she could function as a guardian only after the lifetime of the father and not during his lifetime.
9. Is that the correct way of understanding the section and does the word 'after' in the Section mean only 'after the lifetime'? If this question is answered in the affirmative, the section has to be struck down as unconstitutional as it undoubtedly violates gender-equality, one of the basic principles of our Constitution. The HMG Act came into force in 1956, i.e., six years after the Constitution. Did the Parliament intend to transgress the constitutional limits or ignore the fundamental rights guaranteed by the Constitution which essentially prohibits discrimination on grounds of Sex? In our opinion -No. It is well settled that if on one construction a given statute remains within the constitutional limits, the Court will prefer the latter on the ground that the Legislature is presumed to have acted in accordance with the Constitution and courts generally lean in favour of the constitutionality of the statutory provisions.
10. We are of the view that the Section 6(a) (supra) is capable of such construction as would retain it within the Constitutional limits. The word 'after' need not necessarily mean 'after the lifetime'. In the context in which it appears in Section 6(a) (supra), it means 'in the absence of', the word 'absence' therein referring to the father's absence from the care of the minor's property or person for any reason whatever. If the father is wholly indifferent to the matters of the minor even if he is living with the mother or if by virtue of mutual understanding between the father and the mother, the latter is put exclusively in charge of the minor, or if the father is physically unable to take care of the minor either because of his staying away from the place where the mother and the minor are living or because of his physical or mental in capacity, in all such like situations, the father can be considered to be absent and the mother being a recognised natural guardian, can act validly on behalf of the minor as the guardian. Such an interpretation will be the natural outcome of harmonious construction of Section 4 and Section 6 of HMG Act, without causing any violence to the language of Section 6(a)(supra)."
Ultimately, the Apex Court has held as follows:-
"16. while both the parents are duty bound to take care of the person and property of their minor child and act in the best interest of his welfare, we hold that in all situations where the father is not in actual charge of the affairs of the minor either because of his indifference or because of an agreement between him and the mother of the minor (oral or written) and the minor is in the exclusive care and custody of the mother or the father for any other reason is unable to take care of the minor because of his physical and/or mental incapacity, the mother, can act as natural guardian of the minor and all her actions would be valid even during the lifetime of the father, who would be deemed to be 'absent' for the purpose of Section 6(a) of HMG Act and Section 19(b) of GW Act."
20. The Division Bench of this Court in the decision in K. Jagannathan v. A.M. Vasudevan Chettiar and 12 Ors., 2001(2) C.T.C. 642, following the said decision of the Apex Court has held that mother can act as a natural guardian and merely because mother as a guardian executed the sale deed with reference to the interest in the joint family property of the minor, it cannot be said that it is a void transaction. In the present case, admittedly, the father is not alive and so without any difficulty we can hold that the mother Kuzhanthaiammal as the natural guardian legally entitled to deal with the properties for the benefit of the minors.
21. Even in the decision in Logambal, K. v. Sakunthala V.V., , the Division Bench of this Court, following the
decision of the Apex Court in Sri Narayan Bal and Ors. v. Sri Sridhar Sutar and Ors., , took the similar view.
22. In the elaborate judgment, another Division Bench of this Court in the decision in Jagannathan, K. v. A.M. Vasudevan Chettiar, 2001 (2) CTC 641, appreciating the scope of Section 4, 6, 11 and 12 of the Act 1956, held that mother can act as a guardian in the absence of father or father is not in-charge of the affairs of minor either because of his indifference or because of the indifference between the father and mother. The said Division Bench has relied on the decision of the Apex Court in Githa Hariharan v. Reserve Bank of India, , cited above.
23. Recently also, the Apex Court in the decision in Vishwambhar v. Laxminarayana, , had an occasion to consider the scope of Section 8 of the Act 1956 and found that the mother as a natural guardian cannot sell the property of the minors' share in the joint family property without permission of the court. If it is so sold, it could be avoided by the minors by filing a suit to set aside the sale executed by the mother within the period contemplated under Article 60 of the Limitation Act, that is, within three years from the date when they attained majority.
24. But, Mr. Ragavacahri, learned counsel for the respondents, submitted that the mother cannot act as a guardian, and the mother cannot also claim as a natural guardian. In support of his submission, he relied on the judgment of Ratnam, J., as he then was, in the decision in Pattayi Pasdayachi v. Subbaraya Padayachi, 1980 (93) L.W.
369. No doubt, in the said decision, the learned Judge has held that even in the absence of father, mother cannot be the natural guardian and so the alienation of the minors' interest in the joint family property has to be held as void, and so the suit can be sustained within 12 years from the date of such alienation as contemplated under Article 65 of the Limitation Act.
25. But the learned counsel failed to bring to my notice that such decision was held as not a good law, by the Division Bench of this Court in the decision in Dhanasekaran v. Manoranjithammal, . In the said case, a suit was filed by the son to set aside the sale effected by his mother when he was a minor insofar as his undivided share in the joint family property. He also prayed for partition and separate possession of his share. The question raised in that case was whether the said sale was hit by Section 8 of the Act 1956, as no permission was obtained by the mother from the court. While deciding the said issue and appreciating Sections 8, 11 and 12 of the Act 1956, it was held that Section 8 of the Act 1956 also covers such a case. The said Division Bench held that Section 11 of the Act 1956 is not attracted in the case of minor's interest in the joint family property. While considering the judgment of Ratnam, J., as he then was, in Pattayi Pasdayachi v. Subbaraya Padayachi, 1980 (93) L.W. 369, the said Division Bench of this Court held that the said decision of the learned Judge holding that the term "adult member" contemplates only the case of the male members of a family is not correct, and ultimately held that the view taken by the learned Judge in the decision in Pattayi Pasdayachi v. Subbaraya Padayachi, 1980 (93) L.W. 369, is not correct. So the submission of the learned counsel that Kuzhanthaiammal has no right to execute the sale deed as guardian of the minors and so such a sale under Ex.A2 is void cannot be countenanced.
26. From the above said decisions it is clear that mother can act not only as a guardian but also such a transfer of interest of minors in the joint family property will come under Section 8 of the Act 1956 and so such a sale without permission of the court is voidable.
27. In the present case admittedly no permission was obtained from the court to sell- the interest of the minors share to execute Ex. A2 sale deed by Kuzhanthaiammal and so it is only voidable. As the sale is only voidable it has to be avoided within three years from the date when the minors attained majority. Learned counsel for the respondents relied on the suit filed by the 1st respondent in O.S.No. 119 of 1983 in support of his submission that the suit had been filed within 12 years as contemplated under Article 65 of the Indian Limitation Act. Admittedly, it was not filed within three years from the date when the minors attained majority, as contemplated under Article 60 of the Limitation Act. Since the sale under Ex.A2 is only voidable and not void as contended by the learned counsel for the respondent, Article 65 of the Limitation Act cannot be applied to the facts of the present case and to sustain the contention of the respondent that the suit was filed within 12 years from the date of sale under Ex.A2.
28. Moreover the present suit filed by the 1st respondent in O.S.No. 119 of 1983 is only for partition and so it cannot be construed as a suit filed to avoid the sale executed under Ex.A2. There is no prayer for cancellation of Ex.A2 sale deed.
29. A Full Bench of five Judges of this Court in the decision in Ramaswami v. Rangachariar, AIR 1940 Mad. 113, has settled this issue and held as follows:-
"In respect of decrees passed against him in suits in which he had been eo nomine impleaded as a party, it is plain that he must pay the fee prescribed by Section 7(iv-A). Such decrees bind him until set aside, and therefore he cannot seek to obtain a decision on the footing that his interest in the joint family property is not affected by them. It makes no difference that the plaintiff is a minor or merely a junior member of the family, as the considerations which apply to the decree of a competent Court, once it is passed, are essentially different from those applicable to the transactions of a party. The plaintiff must be held to have impliedly asked for a cancellation of the decrees passed against him and must accordingly stamp his plaint ad valorem on the amount of the decrees and liability is for the full amount, though necessarily limited to the extent of his share in the joint family assets."
30. The Full Bench of this Court in the decision in Sankaranarayana v. Kandasamia, AIR 1956 Mad. 670, has also held as follows:-
"There is no doubt whatever that a transaction entered into by a guardian relating to the minor's properties is not void and if the minor does not sue to set it aside within three years of his attaining majority it becomes valid under Article 44, Limitation Act. In such a case the minor is deemed to be a party to the transaction. But where the document is executed by a manager of the family and it is not binding on the family, the minor or any other member can ignore the transaction and recover possession of the property. To such a case Section 7(v), Court-Fees Act will apply.
We are here not concerned with decrees to which the minor is eo nominee a party. Our answer to the first question is that if the minor is eo nominee a party to a sale deed or other document of alienations, he must sue for the cancellation of the document under Section 7(iv-A), Court-Fees Act and it is not enough if he applies for possession under Section 78(v) of the Act and to the second question our answer is that there can be no distinction whether the father as guardian of the minor and not as the manager of the joint family executes the deed. Even in that case also the document has to be set aside."
31. The said decision of the Full Bench of this Court has been followed by the Division Bench of this Court in the decision in Jagannathan, K. v. A.M. Vasudevan Chettiar, 2001 (2) CTC 641 and has held that the plaintiff who was a minor at the relevant time was made eo nominee party in the partition deed and so he has to pray for cancellation of the earlier partition expressly or impliedly by paying necessary court fees. In the present case, admittedly, no such prayer was sought for and no court fee is paid under Section 40 of the Tamil Nadu Court Fees and Suits Valuation Act to cancel the document executed under Ex.A2, and the suit to that effect was not filed within three years from the date when the minors Thanikachalam and Santhi attained majority as contemplated under Article 60. Therefore the 1st respondent cannot claim any right under Ex. B3,as rights in the suit property had already been transferred to under Ex.A2 and sale in favour of the appellant has not been assailed.
32. For all the reasons stated above the courts below are not correct in dismissing the suit filed by the appellant and decreeing the suit filed by the 1st respondent. Hence the judgments and decrees of the courts below are set aside and these Second Appeals are allowed with cost of Rs. 2,000 in each case.