Holding

Section 8(3) of the Hindu Minority and Guardianship Act includes any person claiming under the minor, including a purchaser, and the right to sue to set aside a voidable alienation is an assignable property right not barred by Section 6(e) of the Transfer of Property Act.

Summary

The father, as natural guardian, sold immovable property belonging to his minor daughter without court permission and not for legal necessity, violating the Hindu Minority and Guardianship Act, 1956. The sale was voidable, and after attaining majority the daughter sold the property to the respondent within three years, who then sued the appellant (who had bought the property from the original purchaser) to set aside the guardian's alienation and recover possession. The lower courts decreed in favor of the respondent. The appellant appealed, contending that under Section 6(e) of the Transfer of Property Act only the minor or his legal representative could sue, and that a purchaser could not claim the minor's right to sue. The Supreme Court held that Section 8(3) of the Guardianship Act expressly includes any person claiming under the minor, which covers a purchaser, and that the right to sue is an assignable interest in property, not a mere personal right, thus not barred by Section 6(e). Consequently, the appeal was dismissed.

Issues considered

Whether a transferee from a minor, after the minor attains majority, can institute a suit to set aside a voidable alienation made by the minor's natural guardian.
Whether Section 6(e) of the Transfer of Property Act bars a purchaser from exercising the minor's right to sue under Section 8(3) of the Hindu Minority and Guardianship Act.

Legislation cited

Hindu Minority and Guardianship Act, 1956s. 5(b), s. 8(3)
Limitation Act, 1963s. Article 60
Transfer of Property Act, 1882s. 6(e)

Subjects

Hindu Minority and Guardianship ActTransfer of Property Actvoidable saleminor's propertyassignable rightchampertymaintenancelimitation periodpurchaser rightsstatutory interpretation

Judgment

AMIRTIIAM KUDUMBAH
v. A
SARNAM KUDUMBAN

APRIL 16, 1991

[DR. T. KOCHU THOMMEN AND R.M. SAHAI, JJ.] B

Hindu Minority and Guardianship Act, 195~ection 8(3)-
"Any person claiming under him"-Includes purchaser ofproperty.

Hindu Minority and Guardianship Act, 1956-Sections 5 (b ), 8(3)
and Section 6 of T.P, Act-Harmonious construction-Legislative
intention of. C

Hindu Minority and Guardianship Act, 1956-Sections 5(b), 8(3)
and Section 6 of T.P. Acl--Alienation of minor's property by guardian
without Coun's permission and without legal necessity-Suit for setting
aside by transferee within three years of minor's attaining majority- D
Maintainability of

The appellant purchased the suit property of the minor from a
person, to whom the same was sold by the father, the natural guardian,
whereas the respondent purchased the suit-property from the minor
within three years on his attaining majority. E

The respondent-plaintiff instituted a suit against the appellant-
defendant, to set aside the transfer of property made by the natural
guardian and for recovery of possession of property.

The suit was decreed and the decree was confirmed by the appel- F
late Court as well as by the High Court.

Dismissing the second appeal, the High Court held that the suit
instituted by the respondent as a transferee from the ex-minor within
three years after the minor attained majority was not hit by section 6(e)
of the Transfer of Property Act, 1882, against which the present appeal G
preferred by the appellant-defendant.

The appellant contended that the suit was bit by section 6(e) ofthe
Transfer of Property Act, as all that the ex-minor was in a position to
transfer was the mere right to sue to set aside the sale and recover
possession of the property transferred by the natural gnardlan; and H

389
390 SUPREME COURT REPORTS [ 1991] 2 S.C.R.

A that a person claiming under a minor, referred to in sectliln 8(3) of the
Hindn Minority and Guardianship Act, 1956 can only be a legal rel>'
resentative of a deceased minor and not a person succeeding to the
interests ofthe minor by reason of transfer inter vivas.
'.·
The contentions of the respondent were that the ex-minor was
B competent to bring a snit to set aside the sale within a period of three
years of bis i.ttaining majority and any person claiming under the
minor was equally competent to institnte action for the same pnrpose;
that the suit to set aside a sale was not for the enforcement of any
personal right, but a right in property and the snit was not bit by
Section 6(e) of the T .P. Act; and that the provisions contained in Section
C 6 of the T .P. Act and Section 8 of the Gnardianship Act were to be read
together.

On the qnestion, whether the respondent in bis capacity as a
transferee from the ex-minor was competent to bring a snit to set aside
the sale effected by the minor's gnardian, who bad sold the property
D without obtaining the permission of the Court as required under Section
8 of the Hindn Minority and Guardianship Act 1956 and withont any
legal necessity.

Dismissing the appeal of the appellant-defendant this Conrt,

E HELD: 1. Jn the instant case, on the facts found, the transfer of
the property made by the guradlan was a voidable transaction and it
was, therefore, open to the minor to cballenge it and seek recovery of
possession. Sncb a right of the minor is a right or interest in property
which be himself or "any person claiming under him" may enforce by
institnting a snit (Section 8(3) of the Gnardiansbip Act). "Any person
F daiming under him" mnst necessarily include a purchaser. [396G-397A]

2. Section 8(3) confers a right of snit in the special circnmstances
postnlated therein. The object of the Act being the protection of the
minor, the legislatnre bas thongbt it fit to confer a right of snit in
certain circmnstances not only on the minor, but also on a person to
G whom the minor bas transferred bis rights. (397A-BI

3. The right transferred is an interest in property which is CBI>'
able of eiiforcement at the instance of the transferee as it was at the
instance of the ex-minor prior to the transfer. Such a provision,
intended specially for the protection of the interests of the minor, must
H be read in harmony and consistently with the general provisions con-
A. KUDUMBAH v. S. KUDUMBAN [THOMMEN, J.] 39i

tainedinsection6oftbeT.P. Act. [397B-C] A
4. A construction which is unduly restrictive of the statutory pro-
visions intended for the protections of the interests of the minor must be
avoided. [397F-G]

5. The tran.•f.r made by the father during bis son's minority was B
voidable at the instance of bis son who was the real owner, and any
person purchasing such property from the natural guardian obtained
only a defeasible title. The minor retained a right in the property to defeat
existing adverse claims, and such right is an assignable right. [3970-E]
"' .
The J.K. Cotton Spinning & Weaving Mills Co. Ltd. v. The State C
of Uttar Pradesh & Ors., [1961] 3 S.C.R. 185, 194 and Ashoka Market-
ing Ltd. & Anr. v. Punjab National Bank & Ors., [1990] 3 JT SC 417,
439, followed.

Palaniappa Goundan v. Na/lappa Goundan & Ors., AIR 1951
Madras 817 and P. Kamara ju v. C. Gunnayya & Ors., AIR 1924 D
Madras 322, approved.

Jhaverbhai Hathibhai Patel v. Kabhai Bechar Patel & Ors., AIR
1933 Born. 42; Mon Mohan Battacharjee & Ors. v. Bidhu Bhusan Dutta
& Ors., AIR 1939 Cal. 460: and Palani Goundan & Anr. v. Vanjiakkal
& Anr., 1.1956] I.L.R. Mad. 1062, over-ruled. E

Premprakash Surajmal v. Maharashtra Revenue Tribunal.
Nagpur & Ors., A.I.R. 1969 Born. 361; and Ghanshyam Dass v. Dr.
Shiva Shankar Lal & Ors., [1980] All Law Journal 130, referred to.

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 951 F
of 1977.

From the Judgment and Order dated 29.7.1976 of the Madras
High Court in S.A. No. 89 of 1972.

A.T.M. Sampath and P.N. Ramalingam for the Appellant. G

S. Balakrishnan and S. Prasad for the Respondent.

The Judgment of the Court was delivered by

THOMMEN, J. The appellant is the defendant in a suit insti- H
392 SUPREME COURT REPORTS [1991) 2 S.C.R.

A luted by the respondent to set aside a transfer of property made by the
guardian of a minor and for recovery of possession of the property.
The-suit was decreed, and the decree was confirmed by the first appel-
late court as well as by the High Court.

The plaintiff-respondent purchased the suit property from an
B ex-minor within three years after the minor attained majority. During
his minority, the property was sold by his father as his natural guardian
to a person from whom the present appellant purchased the property.
All the courts found that the guardian had not obtained the permission
of the Court for the sale of the property, as required by section 8 of the
Hindu Minority & Guardianship Act, 1956 ("the Guardianship Act") .~

and that the sale of the property was not for legal necessity.
c
Dismissing the second appeal, the High Court held that the suit
was rightly instituted by the respondent as a transferee from the
ex-minor within three years after the minor attained majority and that
the contention of the defendant that the suit by a transferee from the
D ex-minor was hit by section 6(e) of the Transfer of Property Act, 1882
was unsustainable.

The only question which arises in the present appeal, as it did
before the High Court, is (to quote the words of the High Court)

E "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?".

The relevant facts are that the suit property belonged to one
F 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 Kaiiammal was a
minor. She thereupon left her father's house and resided with her
maternal grand-father who protected and maintained her. During her
G minority, Kandayya sold the property on 29 .10.1959 to Jainulavudeen.
On 25.4.1966, Jainulavudeen in turn sold the property to the defen-
dant-appellant. Subsequently, on 26.5.1966 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 pre-
sent suit (O.S. No. 491 of 1968) against the appellant to set aside the
H transfer of property made by Kandayya and for recovery of its
possession.
A. KUDUMBAH v. S. KUDUMBAN ITHOM)\IEN, l.I 393

The question is whether the respondent in his capaci!y as a tral)s- A
feree .from the ex-minor was competent to bring a S\lit to set aside the
sale effected by the minor's guardian. It is no longer dispµted that the
suit was brought within three years after the minor attained majority.
Nor is it any longer contended that the father of the minor, as her
natural guardian, had obtained the permission of the Court or that the
sale effected by him was one for legal necessity. These two vital points B
have been concurrently found against the appellant. The only conten-
tion which Mr. Sampath, appearing for the appellant, is in a position
to urge is as regards the question whether the suit is hit by section 6(e)
of the T.P. Act. Counsel says that all that the ex-minor was in a
position to transfer, and did transfer, was her mere right to sµe (o set
aside the sale and recover possession of the property transferred by her
father as her natural guardian. The property itself had been transfer- C
red by the father prior to its sale by the ex-minor. The minor had,
therefore, no property to sell, except a right to set aside the sale.
Accordingly, whatever transfer that was effected by the minor in
favour of the plaintiff was nothing more than a mere right to sue and
such transfer was invalid by reason of section 6( e) of theT.P. Act. I)

Mr. Balakrishnan, appearing for the respondent-plaintiff, con-
tends that the ex-minor was fully competent to bring a suit to set aside
the sale within a period of three years after attaining majority and any
person claiming under her is equally competent to institute action for
the same purpose. He refers to t]Je provisions of section 8(3) of the E
Guardianship Act. He contends that a suit to set aside a sale is not for
the enforcement of any personal right, but a right in pr0 p~rty, and is,
therefore, not hit by section 6(e) of the T.P. Act. In any view, counsel
says, section 8(3) of the Guardianship Act specificaJly allows such a
suit to be brought by a person claiming under a minor and, therefore,
such a statutory right specially granted by an enactment dealing with f
the protection of the minor cannot be defeated by the general provi-
sions of an earlier enactment. The two provisions, counsel says, can be
read harmoniously so as to avoid an artificial conflict. What the Guar-
dianship Act intends to protect is the right of a person claiming under a
minor to sue for setting aside the sale of property sold otherwise than
as permitted by section 8 of the Act. On the other hand, the T.P. Act G
only prohibits suits in the nature of champerty and maintenance based
on bare or naked right of litigation. The general provision contained in
section 6(e) of the T .P. Act does not derogate from the special protec-
tion of the minor's interest and the interest of a person claiming under
him, as afforded by the Gµardianship Act, w!Jich is addressed to a
specific problem. In any view, counsel says, a sale by the guardian H
394 SUPREME COURT REPORTS [ 1991] 2 S.C.R.

otherwise than as pennitted by section 8 is void and is, therefore,
A
incapable of passing a title. For all these reasons, Mr. Balakrishna
submits that the suit was competent and was rightly decreed on the
facts found and the appeal by the defendant has no merits.

As concurrently found by the courts below, the sale effected by
B the guardian during the minority of his daughter was not in compliance
with the provisions of section 8( 1) of the Guardianship Act. The pro-
perty was transferred by him without obtaining the previous pennis-
sion of the Court and the transfer was not for the benefit of the minor.
Such a sale by the minor's father who is his natural guardian is, unlike
in the case of transfer by a de facto guardian (Section 11), not a void
sale, but onfy a voidable sale. Such a sale until set aside is sufficiently
c effective to pass title, but being a voidable sale, what the buyer has
obtained is a defeasible title which is liable to be set aside at the
instance of the person entitled to impeach it. Section 8(3) of the Guar-
dianship Act says:

D "Any disposal of immovable property by a .natural guar-
dian, in contravention of sub-section (1) or sub-section (2),
is voidable at the instance of the minor or any person claim-
ing under him."
(emphasis supplied)

E 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 pennission 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-in-
F interest 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.

G Mr. Sampath, however, contends that a person claiming under a
minor, referred to in section 8(3), can only be a legal representative
of a deceased minor and not a person succeeding to the interests of the
minor by reason of transfer inter vivas. He refers to the decisions in
Jhaverbhai Hathibhai Patel v. Kabhai Bechar Patel & Ors., AIR 1933
Born. 42; Mon Mohan Bhattacharjee & Ors. v. Bidhu Bhusan Dutta &
H Ors., AIR 1939 Cal 460; Pa/ani Goundan & Anr. v. Vanjiakka/ &
A. KUDUMBAH v. S. KUDUMBAN [THOMMEN, J.] 395

Anr., [1956] I.LR. Mad. 1062; Premprakash Surajmalv. Maharashtra
A
Revenue Tribunal, Nagpur & Ors., AIR 1969 Born. 361 and Ghansh-
yam Dass v. Dr. Shiva Shankar Lal & Ors., [1980] All. Law Journal
130 and other cases in which certain High Courts have taken the view
that the right of the minor is a personal right and it cannot be transfer-
red otherwise than by inheritence. The "person claiming under him"
mentioned under section 8(3) of the Guardianshuip Act, counsel says, B
can only be a legal representative and not a purchaser or transferee
inter vivos. He refers to Article 60 of the Limitation Act, 1963 and
submits that that provision refers only to a legal representative and not
any other successor.

In Jhaverbhai Hathibhai Patel v. Kabhai Bechar Patel & Ors.,
AIR 1933 Born. 42, it was held: c
"what was assigned by the minor to the plaintiff in that suit
was not the property in question but his right to sue for it,
and if he could establish his allegation, to have the sale
avoided, this I think was no more than a right of suit, and if D
I am correct such a transfer is forbidden by S. 6, CL (e},
T.P. Act."

Similar reasoning was adopted in the other decisions cited by Mr.
Sampath on the point. The rationale of these decisions is that the right
to impeach a sale effected by the guradian is a personal right vested in E
the minor and it is not transferable inter vivos. The expression "person
A
claiming under him", according to this line of reasoning, must, there-
fore, be understood as a legal representative and not an assignee.

On the other hand, a Division Bench of the Madras High Court
in_ P. Kamara ju v. C. Gunnayya & Ors., AIR 1924 Madras 322 held F
that the right of the minor was not a bare right to sue and it was an
assignable right. The High Court held:

" ..... By selling the property to the plaintiff on the foot-
ing that the sale by the mother was not binding on him he
has chosen to avoid it, and the result of it is that from his G
point of view he has got a complete title. The title no doubt
will only be effective if the Court ultimately finds that the
sale by the mother is not binding on him. But contingent on
that event he has got a complete title and this title is not a
bare right to sue and is, therfore, assignable .......... "
H
396 SUPREME COURT REPORTS [1991] 2 S.C.R.

In Palaniappa Goundan v. Na/lappa Goundan & Ors., AIR 1951
A
Madras 817, Viswanatha Sastri, J. observed:

"Where an ex-minor transfers property unauthorisedly
sold by his guardian during his minority he transfers not a
mere right to sue but his interest in the prope1ty, though a
B
suit may be necessary to avoid the transfer by the guardian
& rcover possession of the property from his alienee. Con-
versely, the liability of the transferee from the guardian is
not a liability to pay damages for the unauthorised act of
the guardian, but is a liability to restore the property to the
rightful owner or his transferee".
(

Similar view was expressed in Karnam Nagabhushana Rao v. Karnam
Gowramma & Ors., [1968] 2 Andhra Weekly Reporter 57. These deci-
sions on which reliance was placed by the Madras High Court in the
impugned judgment are to the effect that the right of the minor is not a
D bare or naked right to sue but a right in property which is assignable.

In Hafsbury's Laws of England, 4th edn., Vol. 6, paragraphs
86-87 at pages 49-50, this is what is stated

"A bare right of litigation, such as a mere right to damages
E for a wrongful act, is not assignable, on the principle that
the law will not recognise any transaction savouring of
maintenance or champerty.

By way of exception to the rule stated in the previous
paragraph there is nothing unlawful in the purchase of
F
property which the purchaser can only enjoy by defeating
existing adverse claims, or in the assignment (for example
by mortgage) of property, being the fruits of litigation. In
every case it is a question whether the purchaser's real
object was to acquire an interest in the property, or
merely to acquire a right to bring an action, either alone or
G jointly with the vendor ....... ".

In the instant case, on the facts found, the transfer of the pro-
perty made by the guardian was a voidable transaction and it was,
therefore, open to the minor to challenge it and seek recovery of
H possession. Such a right of the minor is a right or interest in property
A. KUDUMBAH v. S. KUDUMBAN [TIJOMMEN, J.) 397

which he himself or "any person claiming under him" may enforce by
instituting a suit [Section 8(3) of the Guardianship Actl. "Any person A
claiming under him" must necessarily include a purchaser.

Section 8(3) confers a right of suit in the special circumstances
postulated in that provision. The object of the Act being the protec-
tion of the minor, the legislature has thought it fit to confer a right of B
suit in certain circumstances not only on the minor, but also on a
person to whom the minor has transferred his rights. The right trans-
ferred is an interest in property which is capable of enforcement at the
instance of the transferee as it was at the instance of the ex-minor prior
to the transfer. Such a provision, intended specially for the protection
of the interests of the minor, must be read in harmony and consistently
with the general provisions contained in section 6 of the T.P. Act. [See C
The J.K. Cotton Spinning & Weaving Mills Co. Ltd. v. The State of
Uttar Pradesh & Ors., [1961] 3 S.C.R. 185, 194 andAshoka Marketing
Ltd. & Anr. v. Punjab National Bank & Ors., [1990] 3 JT SC 417, 439}~

The transfer made by the father during his son's minority was
D
voidable at the instance of his son who was the real owner, and any person
purchasing such property from the natural guardian obtained only a
defeasible title. The minor retained a right in the property to defeat
existing adverse claims, and such right is an assignable right. We are in
complete agreement with what has been stated on the point in
Palaniappa Goundan v. Nallappa Goundan & Ors., AIR 1951 Madras E
817 and in P. Kamaraju v. C. Gunnayya & Ors., AIR 1924 Madras
322. We do not agree with the contrary view exprsssed on the point in
Jhaverbhai Hathibhai Patel v. Kabhai Bechar Patel & Ors., AIR 19.33
Born. 42; Mon Mohan Battacharjee & Ors. v. Bidhu Bhusan Dutta &
Ors., AIR 1939 Cal. 460 and Palani Goundan & Anr. v. Vanjiakkal &
Anr., [1956] I.L.R. Mad. 1062. F

A construction which is unduly restrictive of the statutory provi-
sions intended for the protection of the interests of the minor must be
avoided. This is all the more so in view of section 5(b) of the Guardian-
ship Act which says:
G
"5. Save as otherwise expressly provided in this Act

(a) ••••••••••••••••••••••••••• i •• •.• ••••••••••••••••

(b) any other law in force immediately before the com- }I
398 SUPREME COURT REPORTS [1991] 2 S.C.R.

A mencement of this Act shall cease to have effect in so far as
it is inconsistent with any of the provisions containecHn this
Act".

For the reasons stated by us, we see no merit in the challenge
against the judgment under appeal. The appeal is accordingly dismis-
B sed. We do not, however, make any order as to costs.

V.P.R. Appeal dismissed.