DHANASEKARAN Vs. MANORANJITHAMMAL

JUDGEMENT

(1.) This appeal has to be allowed on legal point taken before me. The plaintiff, who is the appellant in this appeal, is the son of one Rajamanicka who died in March, 1960. The first defendant is his widow as well as the mother of the plaintiff. Impeaching a sale dated 2.8.1961, marked in the case as Exhibit B-4, effected by the first defendant for herself and on behalf of the plaintiff, who was then a minor, in favour of the second defendant, who was the younger brother of Rajamanicka, the plaintiff laid the suit for partition and separate possession of his three-fourth share in the suit properties. The first defendant remained ex parte. The substance of the defence of the second defendant. who died pending the suit and whose legal representatives were brought on record in the suit itself, was that the sale was for binding necessities. The Court below did not countenance the case of the plaintiff and dismissed the suit and that is how the plaintiff is before this Court by way of this appeal.

(2.) There is no need to investigate as to whether the sale was not for binding necessities and was tainted with vitiating circumstances as contended by the plaintiff, because the complaint, now legitimately put forth by Mr. A.V.Dhanakoti, learned Counsel for the appellant is that no sanction of Court was obtained by the first defendant, as contemplated under section 8 (2) of the Hindu Minority and Guardianship Act 32 of 1956, hereinafter referred to as the Act, for the alienation under Exhibit B-4 and hence, it is voidable at the instance of the plaintiff. That the plaintiff was entitled to three-fourth share in the suit properties is the finding rendered by the Court below. That finding is not being impeached before me by any process known to law. If this is so, on the date of the alienation, namely 2.8.1961, the Act was in force and there was the mandate of section 8 (2) of the Act requiring obtaining of sanction of Court for such sale and section 8 (3) of the Act lays down that an alienation in contravention of section 8 (2) is voidable at the instance of the minor-in the present case the plaintiff-who has subsequently become a major. There is no dispute that such sanction was not obtained. It is well settled that once a transfer is shown to be voidable at the instance of the minor-, who may have become a major subsequently, it is voidable without any enquiry as regards the terms of the transfer as to whether it was for binding necessity or for any other binding purposes.

(3.) Section 8 (2) lays down in specific and explicit terms that the natural guardian shall not, without the previous permission Of the Court, indulge in and effect any of the alienations set out in sub-clauses (a) and (b). Section 8 (3) is categoric leaving no room for any argument that any disposal of immovable property by a natural guardian in contravention of section 8 (2) is voidable at the instance of the minor. The field and sphere of argument that such an alienation is for binding necessities and should be upheld are no longer available. When the inhibition is of the statute and it is plain and unambiguous, it is not open to sustain an alienation done in contravention of it by still investigating and finding out justifying factors therefor.