1. This is a plaintiff's second appeal against the judgment and decree dated 31-1-1972 passed by the Additional Civil Judge, Bangalore District in R. A. No. 135 of 1966 on his file dismissing the appeal confirming the judgment and decree dated 6-7-1966 passed by the Additional II Munsiff, Bangalore, in O. S. No. 420 of 1962 on his file dismissing the suit of the plaintiff for setting aside the alienation done by his guardian during his minority.
2. It is the case of the plaintiff that when he was a minor, the suit property was alienated under Ex. D-1 to defendants 2 to 5 on 6-11-1952 stating that there was pressure and it was necessitated by legal necessity. It is the case of the plaintiff that it was a property got by him under a will Ex. P-1 dated 12-5-1945 from his maternal grandfather and that his mother had no right to sell that property. He submitted that there was absolutely no legal necessity to sell the property and defendants 2 to 7 defrauded his parents in getting the sale deed executed. So, he prayed for setting aside the sale and possession of the property. Defendants resisted the suit. According to them, the sale was for legal necessity. They also stated that the suit was barred by Art. 44 of the Limitation Act. After hearing the learned counsel and on appreciation of evidence, the trial Court came to the conclusion that the sale was for legal necessity and that the suit was barred by time under Article 44 of the Limitation Act and thus, dismissed the suit. Aggrieved by the said judgment and decree, the plaintiff went up in appeal before the learned Civil Judge and as stated above, the learned Civil Judge by his judgment and decree dated 31-1-1972 dismissed the appeal confirming the judgment and decree passed by the learned Munsiff. Aggrieved by the said judgment and decree, the plaintiff has come up in Second Appeal before this Court.
3. The learned advocate, appearing for the appellant, vehemently contended that the suit sale was effected by showing the mother of the plaintiff as guardian during his minority; that it was not necessary for the plaintiff to sue within three years on attaining majority to set aside the sale and that it did not fall within the scope of Art. 44 of the Limitation Act, as it then existed. He further contended that the sale was void as it was not brought about by the natural guardian-the father. He also contended that the sale was effected as if the property belonged to defendants 6 and 7 as also the minor and his brother in addition to Chinnamma the grand-mother of the plaintiff. As against this, the learned counsel appearing for respondents urged strenuously to accept the reasoning and the final decree of the courts below.
4. The points that arise for my consideration are:
(i) Whether the finding of the Courts below that the suit is barred by time is legal and proper and
(ii) Whether the finding of the Courts below that the sale transaction was for legal necessity, can be gone into by this Court.
5. I was taken through Ex. D-1-the sale deed and the judgments of the Courts below. It is nowhere stated in Ex. D-1 that the property sold belonged to all those persons shown there as vendors. They have not disputed that the property came to the plaintiff, who was minor then, through his grand-father. As rightly put by the learned counsel for the respondents, by way of abundant caution all concerned persons have joined as vendors. Hence, there is no substance in the contention of the learned counsel that all the vendors including defendants 6 and 7 have sold the property as if it is their own and hence, the sale is void.
6. Adverting to the second contention of the learned counsel, it is true that the mother is shown as guardian of the minor in the sale deed and the father is also one of the vendors shown in the sale deed. The learned counsel submitted relying on a decision of Travancore-Cochin High Court in the case of Thomman Parakkal v. Madhavan Arakaparambal (AIR 1955 Trav-Co 197) that when the property is sold by a de facto guardian, Art. 44 of the Limitation Act would not be attracted. It is true that in that decision his Lordship Kumara Pillai, J. has held relying on a Madras decision that it is Art. 144 that comes into play and not Art 44 when the suit is brought for setting aside such a sale. This is what his Lordship has observed in the course of his judgment (at p. 199):-
' Hence, the setting aside of the transaction is not a condition precedent to the ward recovering the property from the alience. The ward can treat the alienation as a nullity and simply sue for possession of the property. Such a suit will be governed not by this Article but by Art. 142 or Art. 144.'
With great respect I am not persuaded by this observation of his Lordship. The reason is not far to seek. In the para preceding, his Lordship has observed quoting other decisions that the sale is merely void and not voidable. If that be so, his further reasoning that the ward can treat the sale as void is apparently an error by inadvertance. Hence, I am not persuaded by the reasoning of the decision. On the other hand, the learned counsel appearing for the respondents invited my attention to a Division Bench decision of the Andhra Pradesh High Court in the case of Kasturi Lakshmibayamma v. Sabnivis Venkoba Rao : AIR1970AP440 . Therein, their Lordships have discussed this aspect and have observed at paras 18 and 19, which read:
' The learned Judge was not unmindful of the language of Art. 44 which provides for the setting aside of alienations by guardians. No distinction is made in Art. 44 between de facto or lawful guardians. There is no warrant for reading the provisions of Art. 44 so as to restrict its operation to transfers effected only by lawful guardians other than de facto ones. The expression used by the legislature is 'guardian' simpliciter. It admits of no doubt that a de facto guardian has competence, in certain circumstances to convey the ward's estate. Ever since the early decision in Hanuman Pershad's case Courts have always recognised the validity of alienations made by a de facto guardian. We are unable to accept the reasoning of the learned Judge in support of his observation that a de facto guardian's sale is outside the purview of Article 44. Nor are we persuaded that the reliance placed by him on the decision in Chennappa v. Onkarappa, ILR (1940) Mad 358: (AIR 1940 Mad 33) (FB) is apposite. Cases relating to the power of acknowledgment of a debt, rest on a different basis and do not furnish an acceptable analogy. The observation of the Federal Court in Sriramulu v. Pundarikakshayya go to show that the reasoning of Satyanarayana Rao, J. in his obiter dicta, runs counter to the settled proposition as to legal competence of a de facto guardian. At pp. 604-605, the Federal Court observed:
'The dealings of such a guardian with regard to the estate of the infant would, in Hindu Law, be not regarded as void altogether but would be voidable only, and the same tests would be applied in determining the validity of such acts as are applied in the case of de jure guardian. To this extent and this extent only, a de facto guardian is to be treated as having the same position as a de jure guardian in Hindu Law.'
'19. There is a long and unbroken current of authority to sustain the view that the Hindu Law recognises the power of a de facto guardian to deal with the property of a minor in cases of necessity. Courts have repeatedly held that alienations by such guardians are only voidable in the same manner as alienations made by a de jure guardian.'
Thus, when once it is not in dispute that the de facto guardian can also sell the property of a minor ward for legal necessity just as a natural guardian, it is obvious that Art. 44 of the Limitation Act would be attracted, as is pointed out by their Lordships of the Andhra Pradesh High Court. Art. 44 of the Limitation Act speaks of a suit to set aside the alienation by a guardian. It does not speak of any suit to set aside the alienation by a 'natural guardian'. A de facto guardian is as much a guardian as a natural guardian and the powers of the de facto guardian also include the power to sell a minor's property for legal necessity and hence, there is no substance in the submission made by the learned counsel that Art. 44 of the Limitation Act, as it stood then, is not attracted to set aside the sale brought about by a de facto guardian of a minor. It that be so, the two Courts below are perfectly justified in holding that the suit is barred by time as it is brought three years after the plaintiff attained majority.
7. Adverting to the other point raised before me, namely, that the sale transaction was not for legal necessity, it may at once be stated that it is purely a question of fact and appreciation of evidence. This Court sitting in Second Appeal is not expected to re-assess the evidence on record. The Supreme Court in the case of Afsar Shaikh v. Soleman Bibi : 2SCR327 has observed in para 18 of the judgment thus:
'............ The scope of the powers of the High Court to interfere in second appeal with judgments and decrees of courts below is indicated in Ss. 100, 101 and 103 of the Code of Civil Procedure. Broadly, the effect of Ss. 100 and 101, read together, is that a second appeal is competent only on the ground of an error in law or procedure, and not merely on the ground of an error on a question of fact. The High Court has no jurisdiction to entertain a second appeal on the 'ground of an erroneous finding of fact, however gross or inexcusable the error may seem to be'.'
That being so, I am constrained to observe that the appeal has no merits and is liable to be dismissed and I dismiss the same. On the peculiar facts and circumstances of the case, I make no order as to costs.
8. Appeal dismissed.