SANKARANARAYANA PILLAI Vs. KANDASAMIA PILLAI

JUDGEMENT

(1.) THE following questions have been referred to a Full Bench by Panchapakesa Ayyar, J. Has the plaintiff who as a minor, has been made eo nomine a party to a sale -deed or other document of alienation by his mother and guardian to pay Court -fee under Section 7(iv -A) of the Court -fees Act and to pray for the cancellation of the sale -deed expressly or impliedly and pay Court -fee under Section 7 (iv -A) of the Court -fees Act or can he ignore and bypass such alienation alleging illiteracy, ignorance, lack of worldly knowledge, undue influence, coercion, etc., and pray for mere possession of the lands paying Court -fee under Section 7(v)(b) of the Court -fees Act? Will it make any difference if the mother executing the sale -deed making him eo nomine a party is a guardian appointed under the Guardians and Wards Act?

(2.) AS the order of reference deals exhaustively with the facts which have given rise to the reference as well as the decided cases cited before him no further elaboration of factual details is necessary and we can straightaway proceed to discuss the legal points urged before us. At the very outset it is necessary to differentiate between transactions regarding properties which belong to the minor as his own and those in which he is interested as a member of a joint family where either his father or any other relative happens to be the kartha or head. In the latter case where a document is executed on behalf of the family he is only a component part in the entity which has a legal status and a person and therefore such a transaction cannot be deemed to be by the minor individually as such but in the former case where the person who executes the document is the father or the manager of the joint family the mere fact that he purported to execute it also as the guardian of the minor would not make it obligatory on the minor to have it cancelled before obtaining relief on the footing that it is not binding on him. But where the transaction is on behalf of the minor and is entered into by the guardian then the question arises as to whether in order to obtain relief the minor has to get the document cancelled. The law as laid down in Unni v. Kunchi Amma I.L.R.(1890) Mad. 26, and approved by the Full Bench in Ramaswami v. Rangachariar : AIR1940Mad118 , is well settled and is to the following effect:

(3.) CHANDRA Reddi, J., in Ramaswami v. Kunjammal (1950) 1 M.L.J. 468, has taken the view that it is sufficient if the plaintiff values the suit under Section 7(v) of the Court -fees Act and he need not ask for cancellation of the sale -deed executed by his mother as guardian and pay Court -fee under Section 7(iv -A) of the Court -fees Act. The learned Judge relied on the decisions in Ramaswami v. Rangachariar : AIR1940Mad118 , Kahanna Gounder v. Balasubramaniam : AIR1947Mad237 , and Kandaswami Udayar v. Annamalai Pillai : (1948)2MLJ130 , and followed the same. We are now asked to consider the correctness or otherwise of that judgment and in doing so we propose to refer to the conflict in case -law noted by the referring judge. On the side of the petitioners it is contended that in a transaction entered into by a guardian of a minor relating to the property belonging to the minor and in which the minor is eo nomine made a party represented by his guardian it is absolutely essential that in order to get the relief cancellation of the document is necessary for which purpose Court -fee will have to be paid under Section 7 (iv -A) of the Court -fees. Act but where the minor is one of the members of the joint family and the transaction is by the kartha or the other members of the family but the minor's name is added and represented by a guardian in such a case Section 7 (v) of the Act can be invoked. The matter came to the forefront in the decision in Doraiswami v. Thangavelu : AIR1929Mad668 , by Venkatasubba Rao, J. Where the mother as guardian under the Hindu Law executes a release deed on behalf of the minors the release deed is not void but only voidable and as such the minors, if they complain that it is invalid, are bound to set it aside. Hence if the minors after attaining majority bring a suit praying for a declaration that the release is invalid and for an injunction their suit looking at the substance of it, must be treated as one for cancellation of the instrument and so will come under Section 7(iv -A) of the Court -fees Act. The learned Judge was not inclined to follow the earlier decision in Veeraragavalu v. Sreeramulu : AIR1928Mad816 . It is clear from the facts of this case that the alienation was by the guardian representing the minor with regard to the minor's estate and not by the manager of a joint family in which the minor is only a constituent member. The learned Judge has also referred to the fact that in Section 7(iv -A) the words securing money or other property are not happy. In his opinion the release deed is a document securing property and it seems to us that a mortgage or sale of property is also one which secures money or other property. Though an argument has been addressed to us that the words, of Section 7(iv -A) of the Court -fees Act are inapplicable to a case where the transaction is one of sale, mortgage or exchange and the person who impugns is a mortgagor,, vendor or alienor it is difficult to say that the suit is for cancellation of a document securing money or other property but it has so far been construed in that light and it is too late in the day to question the correctness of that assumption.