Madras High Court· 24 July 2026

Can a plaintiff obtain a partition decree while treating a release deed executed on her behalf during minority as non-est, without seeking its declaration as null and void?

Lakshmi Bai v. Rani Bai

SA No. 594 of 1993 · SA No. 594 of 1993
Coram: K.Kumaresh Babu

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Answer

No. Where the plaintiff had not sought a prayer to declare the release deed as null and void, and defendants supporting her claim also did not seek such relief, a decree of partition ignoring the declaratory reliefs over the suit schedule property must be rejected.

Headnote

Hindu Minority and Guardianship Act, 1956 — s.8 — Limitation Act, 1963 — Article 60(a) — s.6 — Code of Civil Procedure, 1908 — Order XX Rule 12 — Partition — Release deed — Minor's alienation — Limitation — Declaratory relief — Hindu Minority and Guardianship Act, 1956 — s.8 — Release deed by minor's guardian — no declaratory challenge sought — Held: A plaintiff who claims partition on the footing that a release deed executed on her behalf during minority is non-est cannot obtain that relief without praying for a declaration that the release deed is null and void and not binding on her; a bare denial of the deed's validity, raised only as a defence while the executant father is alive and examined as a witness, does not substitute for a declaratory prayer. (¶43, 44) Limitation Act, 1963 — Article 60(a) — Challenge to release deed by erstwhile minor — three-year period from majority — Held further: Where defendants who executed a release deed along with their father never challenged its execution within the period of limitation, they cannot resile from it by pleading want of knowledge, and their claim for partition raised through a written statement must fail on that ground alone. (¶9, 44) Code of Civil Procedure, 1908 — Partition suit — Declaratory relief a precondition — Effect of a subsisting mortgage decree and sale deed — Held further: A suit for partition cannot be decreed while ignoring the existence of a release deed, a mortgage decree, and a subsequent sale deed under which title is claimed by contesting parties, unless those documents are first assailed by way of declaratory relief; the first substantial question of law is answered against the appellant and the question of limitation is rendered academic. (¶45) Hindu Minority and Guardianship Act, 1956 — s.8 — Validity of release deed — question left undecided for want of challenge — Held further: Since no relief challenging the release deed had been sought on any ground, the question whether the deed offends Section 8 of the Hindu Minority and Guardianship Act, 1956 for want of prior court permission need not be examined; both the second appeal and the connected first appeal, along with the application for additional evidence, stand dismissed with no order as to costs. (¶46, 49)

In the Court's own words

Paragraph 43Even though the plaintiff had claimed partition of the suit schedule property, there has been an admitted averment of a release deed having been executed by her father for himself and on behalf of her, as she was a minor, and defendants 2 to 4, which, according to her, was non-est and non-binding on her. The plaintiff had not sought for a prayer to declare such release deed as null and void. Similarly, defendants 2 to 4, who had filed a written statement supporting the claim of the plaintiff, had also not sought for a relief to declare such document to be null and void. It is further to be noted their father Narayan Sah who had a right in the property as being the legal heir of both Venkamma Bai and Venku Sah has not been made a party to the suit but has been examined as a witness.

Paragraph 44It is to be noted that defendants 2 to 4 had executed the release deed along with their father and they had not challenged the same within the period of limitation, and in that regard, they cannot also claim that they had no knowledge of the release deed to seek a claim for partition, and in that regard, their claim for partition in the written statement would have to be rejected. As regards the plaintiff, even though she claims to have had knowledge of the release deed only on the filing of the counter by defendants 1, 6 and 7 in their claim petition in the Execution Petition, when such a claim had been made, it was incumbent upon the plaintiff to seek a relief of declaring such release deed to be null and void and not binding on her. No such relief had been sought for.

Acts & Sections

Section 8 of the Hindu Minority and Guardianship Act, 1956Article 60(a) of the Limitation Act, 1963Section 6 of the Limitation Act, 1963Order XX Rule 12 of the Code of Civil Procedure, 1908Section 92 of the Indian Trusts Act

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Also decided in this judgment

Where defendants executed a release deed along with their father and never challenged it within limitation, can they later claim partition by pleading no knowledge of it?Does answering the limitation question in favour of an appellant matter if she has not sought a declaration invalidating the release deed on which title rests?

Plain-language answer prepared by the LexStreak Editorial Desk — verify against the judgment. Source: Madras High Court. Corrections