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PETITIONER:

G. ANNAMALIA PILLAI

Vs.

RESPONDENT:

DISTRICT REVENUE OFFICER AND ORS.

DATE OF JUDGMENT17/03/1993

BENCH:

KULDIP SINGH (J)

BENCH:

KULDIP SINGH (J)

KASLIWAL, N.M. (J)

CITATION:

1993 SCR (2) 397 1993 SCC (2) 402

JT 1993 (4) 113 1993 SCALE (2)75

ACT:

Hindu Minority & Guardianship Act, 1956:

Section 8(2) and (3) Lease--deed executed by the guardian

which was voidable--"en validly avoided--Makes transaction

void abinitio.

HEADNOTE:

The father of Purshothanan (then minor) respondent No. 5,

executed a registered lease-deed of the land owned by

Purshothanan (minor) for a period of five years to the

appellant/G. Annamalia Pillai.

The appellant riled an application before the Tehsildar

under the provisions of the Tamil Nadu Agricultural Lands

Record of Tenancy Rights Act, 1969 praying to be registered

as a tenant in the tenancy records, on the basis of the said

lease-deed.

Respondent No.5/Janarthanan contested the said proceeding on

the ground that the land was his property, his father had no

right or title to deal with the same and the lease deed

executed by his father was contrary to the provisions of

Section 8 of the Hindu Minority & Guardianship Act. Further

he contended that he had no knowledge of the execution of

the lease-deed by his father and on attaining majority he

avoided the same.

The Tehsildar dismissed the application of the appellant

holding that there was no valid lease.

The Revenue Divisional Officer, no appeal, reversed the

findings of the Tehsildar and held that the appellant is

entitled to be registered as a cultivating tenant.

In revision, the District Revenue Officer set aside the

order of the Appellate Authority and restored the order of

the Tehsildar.

The High Court of Madras dismissed the writ petition and the

writ appeal filed by the appellant.

398

This appeal by way of Special Leave is against the judgment

of the Madras High Court.

Appeal dismissed,

HELD: In the present case, the High Court has rightly held

that the, lease was to go more than one year beyond the date

on which the minor was to attain majority. The provisions

of Section 8(2) (b) were attracted. [400D]

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Clause (3) of Section 8 of the Hindu Minority and

Guardianship Act, 1956, specifically makes the transaction

voidable. The lease executed by the guardian in this case

is prohibited and in that sense it was without any

authority. It was further held that the respondent No.5

avoided the lease executed by his father, the lease became

void from its inception and no statutory rights could,

therefore, accrue in favour of the appellant.

[400F, 401G]

Solmond on Jurisprudence, Twelfth Edition at page 341;

Satgur Prasad v. Hamaraili Das, AIR 1932 Supreme Court 89;

S.N.R. Sundara Rao & Sons, Madurai v. Commissioner of Income

Tax, Madras, AIR 1957 Madras 451, referred to. [401D]

G. Ponniah Thewar v. Nellavam Perumal Pillai and others, AIR

1977 S.C. 244, distinguished. [401H]

2. In the present case the father of respondent No.5 had no

authority to lease the property without complying with the

provisions of Section 8(2)(b) of the Act. Because of the

inherent illegality in the execution of the lease-deed it

was liable to be cancelled at the option of the minor on

attaining majority. On the exercise of the option the lease

became void abinition. [402D]

JUDGMENT:

CIVIL APPELLATE JURISDICTION : Civil Appeal No.4792 of 1984.

From the Judgment and Order dated 14.9.1984 of the Madras

High Court in Writ Appeal No.96 of 1981.

Sanjeev Madan for Ms. Asha Jain Madan for the Appellant.

A.T.M. Sampath for the Respondents.

399

The Judgment of the Court was delivered by

KULDIP SINGH, J. The short question for consideration in

this appeal is whether lease-deed in dispute, which was

voidable in terms of Section 8(3) of the Hindu Minority and

Guardianship Act, 1956 (the Act) when validly avoided, was

affective from the date of the lease-deed so as to make the

transaction void and unenforceable from the very inception.

It is not disputed before us that the land in dispute was

owned by Janarthanan respondent-5 before us. His father

Purushothaman by a registered deed dated December 12, 1971

leased the land in dispute for a period of five years to G.

Annamalai Pillai. On the date when the lease deed was

executed Janarthanan was a minor, his date of birth being

September 27, 1957. Claiming to be a cultivating tenant, on

the basis of the lease deed, Annamalai Pillai filed an

application before the Tehsildar under the provisions of the

Tamil Nadu Agricultural Lands Record of Tenancy Rights Act,

1969 praying that he be registered as a tenant in the

tenancy records. Janarthanan contested the said proceeding

on the ground that the land was his property, his father had

no right or title to deal with .the same and the lease deed

executed by his father was contrary to the provisions of

Section 8 of the Act. He further contended that he had no

knowledge of the execution of the lease deed by his father

and on attaining majority he avoided the same on September

15, 1978. The Tehsildar held that there was no valid lease

and as such he dismissed the application of Annamalai

Pillai. On appeal the Revenue Divisional Officer reversed

the findings of the Tehasildar and came to the conclusion

that Annamalai Pillai was a contractual tenant and as such

was entitled to be registered as a cultivating tenant.

Janarthanan preferred a revision before the District Revenue

Officer who set aside the order of the Appellate Authority

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and restored the order of the Tehsildar holding that the

Annamalai Pillai was not a cultivating tenant. The writ

petition and the writ appeal filed by Annamalai Pillai were

dismissed by the Madras High Court. This appeal by way of

special leave is against the judgment of the Division Bench

of the High Court dated September 14, 1984 rendered in writ

appeal.

Sub-sections (2) and (3) of Section 8 of the Act which are

relevant are reproduced hereunder:

"(2) The natural guardian shall not, without

the previous permission of the court,

400

(a) mortage or charge, or transfer by sale,

gift, exchange or otherwise, any part of the

immovable property of the minor, or

(b) lease any part of such property for a term

exceeding five years or for a term extending

more than one year beyond the date on which

the minor will attain majority.

(3) Any disposal of immovable property by a

natural guardian, in contravention of sub-

section (1) or sub-section (2), is voidable at

the instance of the minor or any person

claiming under him."

Respondent-5 was to attain majority on September 27, 1975

and the lease was to subsist upto December 11, 1976. Since

the tenure of the lease in this case was to go more than one

year beyond the date on which the minor was to attain

majority the provisions of section 8(2)(b) were attracted.

We have heard learned counsel for the parties. We have been

taken through the orders of the Revenue Authorities,

judgment of the learned single Judge and of the Division

Bench of the High Court in writ appeal. The Division Bench

of the High Court, in a lucid judgment, answered the

question posed by us in the beginning in the affirmative

and against the appellant-Annamalai Pillai on the following

reasoning:

"We have already seen that clause (3) of

section 8 of the Hindu Minority and

Guardianship Act, 1956, specifically makes the

transaction voidable. The lease executed by

the guardian in this case is prohibited and in

that sense it was without any authority. On

the legal efficacy and the distinction between

valid, void and voidable agreements, we find

the following passage in Salmond on

Jurisprudence, Twelth Edition at page 341:-

"A valid agreement is one which is fully

operative in accordance with the intent of the

parties. A void agreement is one which

entirely fails to receive legal recognition or

sanction, the declared will of the parties

being

401

wholly destitute of legal efficacy. A

voidable agreement stands midway between these

two cases. It is not a nullity, but its

operation is conditional and not absolute. By

reason of some defect in its origin it. is

liable to be destroyed or cancelled at the

option of one of the parties to it. On the

exercise of this power the agreement not only

ceases to have any efficacy, but is deemed to

have been void ad initio. The avoidance of it

relates back to the making of it. The

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hypothetical or contingent efficacy which has

hitherto been attributed to it wholly

disappears, as if it had never existed. In

other words, a voidable agreement is one which

is void or valid at the election of one of the

parties to it.

This distinction has also been judicially

noticed in the Privy Council judgment reported

in Satgur Prasad v. Harnarain Das, A.I.R. 1932

P.C. 89 and in the Division Bench judgment in

S.N.R. Sundara Rao and Sons, Madurai v.

Commissioner of Income Tax, Madras, A.I.R.

1957 Madras 451. The Division Bench held,

following the Privy Council Judgment as

follows:-

"When a person, who is entitled to dissent

from the alienation, does so, his dissent is

in relation to the transaction as such and not

merely to the possession of the alienee on the

date of such dissent.

The effect of the evidence is, therefore, to

get rid of the transaction with result that in

law it is as if the transaction had never

taken place."

We have, therefore, no doubt that when the fifth respondent

avoided the lease executed by his father, the fourth

respondent, the lease became void from its inception and no

statutory rights, could, therefore, accrue in favour of the

appellant herein."

We agree with the reasoning and the conclusions reached by

the Division Bench of the High Court and as such this appeal

has to be dismissed.

402

The judgment of this Court in G. Ponniah Thevar v. Nellavam

Perumal Pillai and others, A.I.R. 1977 S.C. 244 relied upon

by the learned counsel for the appellant is not relevant in

the facts and circumstances of this case. In G. Ponniah

Thevar's case a lease deed was executed by a life estate-

holder. On the cessation of the life estate the successor

claimed that the lease executed was not binding on him and

as such the tenant could not claim the benefit of the

Tenants Protection Act. This Court held that the life

estate-holder was entitled to create a valid tenancy and the

tenant was entiled to take the benefit of the Tenants

Protection Act. It was further held that the right accrued

to the tenant could legally extend beyond the life time to

the life estate-holder and would bind the successor. The

reason is obvious. The life estate-holder has a right to

lease the property. He does not deal with the property on

behalf of the successor. Though the lease itself may be

valid only during the life time of the life estate-holder,

the authority to lease could not be questioned. If once

initially there was a valid tenancy then the successor is

bound by the tenancy rights acquired by the tenant during

that period. In the present case unlike life estate-holder

the father of respondents had no authority to lease the

property without complying with the provisions of Section

8(2)(b) of the Act. Because of the inherent illegality in

the execution of the lease-deed it was liable to be

cancelled at the option of the minor on attaining majority.

On the exercise of option the lease became void ab initio.

We, therefore, dismiss the appeal. No costs.

S.K. Appeal dismissed.

403

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