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Beeyyathumma Vs. MoidIn Haji - Court Judgment

LegalCrystal Citation
SubjectProperty;Family
CourtKerala High Court
Decided On
Case NumberA.S. Nos. 1125 of 1953 and 818 of 1954 (M)
Judge
Reported inAIR1959Ker125
ActsLimitation Act, 1908 - Schedule - Articles 28 and 44
AppellantBeeyyathumma
RespondentMoidIn Haji
Appellant Advocate V.P. Gopalan Nambiar and; C.K. Viswanatha Iyer, Advs.
Respondent Advocate A. Achuthan Nambiar and; T.P. Kelu Nambiar, Advs.
DispositionAppeal dismissed
Cases ReferredS. A. Decosta v. Sivasubramonia Nadar
Excerpt:
- - in the plaint, it is more than once repeated that the transactions complained of are in excess of the authority of the second defen-as guardian of the minors. justice viswanatha sastri clearly show that transfers even in excess of the powers of a legal guardian arc not void but only voidable. in that case, in a prior litigation between the alienee and the minor it bad been held that the suit transaction was invalid and not binding on the minor. 38. this decision in our opinion, clearly establishes that though a transaction by a legal guardian is not beneficial to the minors or supported by consideration or for no justifiable necessity, nevertheless, the transactions are not void but only voidable requiring to be set aside under article 44. 39. to a similar effect are the two.....vaidialingam, j. 1. a. s. 1125/53 is an appeal by the first plaintiff (in o. s 94/49 against the decree and judgment of the learned subordinate judge, tellicherry, dismissing the suit so for as his claims were concerned,2. a. s. 818/54 is an appeal by defendants 12 and 13 against the order of the learned subordinate judge in the same suit disallowing certain reservations claimed by them.3. o. s 94/1949 was filed by the appellant and her sister for partition of the suit properties into three equal shares, ignoring certain transactions entered into by their father and guardian, the second defendant and for allotment and delivery of two shares to the plaintiffs. they also asked for certain consequential reliefs.4. the case of the plaintiffs was that the plaintiffs and the third defendant are.....
Judgment:

Vaidialingam, J.

1. A. S. 1125/53 is an appeal by the first plaintiff (in O. S 94/49 against the decree and judgment of the learned Subordinate Judge, Tellicherry, dismissing the suit so for as his claims were concerned,

2. A. S. 818/54 is an appeal by defendants 12 and 13 against the order of the learned Subordinate Judge in the same suit disallowing certain reservations claimed by them.

3. O. S 94/1949 was filed by the appellant and her sister for partition of the suit properties into three equal shares, ignoring certain transactions entered into by their father and guardian, the second defendant and for allotment and delivery of two shares to the plaintiffs. They also asked for certain consequential reliefs.

4. The case of the plaintiffs was that the plaintiffs and the third defendant are the children of the second defendant by one Pathumma. The plaint item 1 of which the plaint item 2 formed part, was held by the second defendant in Kanomkuzhikanom light under a Marupat dated 26-6-1939, Ex. A 1 from the first defendant. The second defendant has reclaimed the properties and has effected a lot of improvements on them. The terms were, that a sum of rupee 1/- is fixed as the Kanarthom and the rent was fixed at rupee 1/- and certain sundries. The term was fixed at 10 years.

5. The second defendant on 25-6-1931, under Ex. A 2, assigned his rights under Ex. A 1 in favour of Pathumma who was his wife and also the mother of the plaintiffs and the third defendant. Pathumma died in or about 1934 and her rights devolved upon her children, the plaintiffs and third defendant, and her husband the second defendant and also on her mother one Biyyathu. The grand-mother surrendered her rights in favour of plaintiffs and defendant 3. On 12-3-1934 under Ex. A 10 the second defendant assigned his share in the properties which devolved On him as heir of his wife, to his children the plaintiff and third defendant.

On 16-5-1934, under Ex. A-3, the second defendant as guardian of the plaintiffs and third defendant, surrendered their rights in the suit properties for Rs. 550/- in favour of the first defendant notwithstanding the fact that there were improvements in the properties to the extent of about Rs. 1,500/-. On the same date, under Ex. A-11, the first defendant granted a Kanom-kuzhikanom right in favour of the plaintiffs and the third defendant, represented by the second defendant as their guardian, for Rs. 550/-. The conditions under Ex. A 11 were as follows:

The, term (a) was to be for six years: and (b) rent was Rs. 40/- and sundries. Again on 20-8-1938 under Ex. A 12, the second defendant as guardian of the plaintiffs and the third defendant as a major, jointly surrendered their rights acquired under Ex. A11, to the first defendant for Rs. 100/-. Further on 29-8-1938, under Ex. B 3, the first defendant granted a lease of item 2 which is a portion of item 1 in favour of the third defendant for herself and as guardian of the minor plaintiffs.

6. The plaintiffs attacked the transactions entered into by their father guardian under Exs. A-3, A-11 and A 12 and also the transaction covered by Ex. B 3 as not binding on them and as not supported by consideration. They further alleged that all these transactions are not beneficial to the plaintiffs and the transactions are all in excess of the authority of the second defendant as guardian of the plaintiffs who were minors. They further alleged that those transactions are not binding on them and that they arc entitled to claim a partition ignoring those transactions.

7. The first defendant has filed a written-statement challenging the maintainability of the suit by the plaintiffs. He took a plea that the right of the plaintiffs to challenge those transactions are barred by Article 44 of the Limitation Act and that the plaintiffs have not taken any steps to challenge those transactions within the period stipulated therein, and as such their rights have become extinguished under Section 28 of the Limitation Act.

He also maintained that the several transactions sought to be ignored by the plaintiffs, were all transactions entered into by the father of the plaintiffs as their legal gaurdian and they were all done by the lawful guardian by virtue of authority given to him in law as a legal guardian. The first defendant further contended that all those transactions were beneficial to the interests of he minors and were supported by consideration and as such binding onthe plaintiffs and third defendant.

8. The third defendant, a sister of the plaintiffs, supported the case of the plaintiffs and pleaded that the transactions entered into by her father, the second defendant were not binding on her. In particular, regarding Ex. A-12 and Ex. 13-3, to which she was a party as a major, she pleaded that she did not know the nature of the transactions and that she simple obeyed the commands of her father, the second defendant who had married a second wife and was not acting in the interests of his children by Pathumma.

The learned additional Subordinate Judge of Tellicherry, after considering the entire evidence placed before him, has held that possession of the property under the several transactions impeached by the plaintiffs, passed to the first defendant by virtue of those transfers. He also relied upon the commissioner's report for this purpose. The learned Judge held that the suit transactions came under the category of unauthorised alienations by a lawful guardian and that the plaintiffs are bound to seek to set aside the transfers under Article 44 of the Limitation Act within the period prescribed.

Those transactions are only voidable transactions and not void as pleaded by the plaintiffs and therefore, the plaintiffs were bound to have them set aside. In this view, after considering the material placed before him regarding the age of the plaintiffs and the third defendant and also the date of the institution of the suit, the learned Judge held that so far as the rights of the first plaintiff and the third defendant are concerned, the suit was barred by limitation under Article 44 of the Limitation Act. But he held that so far as the second plaintiff was concerned, the suit was within time.

9. Regarding the actual transactions themselves, the learned Judge has come to the conclusion that the several transactions challenged by the plaintiffs, were not beneficial to the interests of the minors. The learned Judge also was prepared to hold that the several items of consideration mentioned in the transactions were not true and that the surrender under Ex. A-3 was really not supported by consideration.

In the end, the learned Judge held that the several transactions impeached by the plaintiffs, cannot be upheld on the ground of minors' necessity or benefit. In this view, the learned Judge came to the conclusion that they were unjustified transactions not supported by consideration and not binding on the minors and that they were all imprudent acts by the second defendant acting as the legal guardian of the plaintiffs and the third defendant.

10. In view of these findings about the transactions and in view of the findings that the second plaintiff at least is entitled to sue, the learned Judge granted a decree in favour of the second plaintiff declaring his right to 38/158 share in the suit properties and he also gave certain consequential directions. But in view of his finding that the claims of the first plaintiff and the third defendant were barred by limitation, he dismissed the suit so far as the first plaintiff was concerned.

11. The first defendant has allowed the decree-in favour of the second plaintiff to become final with all the findings recorded against them.

12. The first plaintiff has filed this appeal against the dismissal of his suit.

13. Mr V. P. Gopalan Nambiar, learned counsel for the first plaintiff, contends that on the findings of the learned Judge, it follows that the transactions challenged by the plaintiff, are all not viodable but void transactions. It is only the transactionswhich are voidable that will have to be set aside under Article 44. If they are absolutely void transactions, the first plaintiff is not bound to sue for setting aside those transfers. Therefore, Article 44 does not stand in the way of the first plaintiff also getting a decree in these proceedings.

14. On the other hand, Mr. Achuthan Nambiar, learned counsel for the first defendant, very vehemently attacks the findings of the learned Judge regarding their binding nature. The learned counsel also attempted to show that there is evidence to show that the documents are fully supported by consideration and that they are beneficial to the interest of the minors at the time when the second defendant as the legal guardian of the minors, entered into those transactions. Alternatively, the learned counsel also contended that even on the findings arrived at by the learned Judge regarding the transactions, they will not amount in law to void transactions, but they will only be at the most voidable transactions which the first plaintiff was bound to seek to set aside under Article 44 of the Limitation Act before he can get any relief.

15. We have been taken through the entire evidence regarding the transactions by the learned counsel for both sides. In our opinion, the learned Judge has very exhaustively considered the oral and documentry evidence regarding those transactions and has come to a very correct conclusion that they are not binding on the minors. We also accept his finding that they are all very imprudent transactions entered into by the second defendant as the legalguardian of the minors. We also further accept his findings that the transactions are unjustified and unsupported by consideration and not binding on the minors.

16. On these findings, the question that arises is as to whether the transactions in question are void or voidable transactions in law.

17. Article 44 of the Limitation Act is as follows:

'44.By a ward who has attained majority, to set aside a transferof property by his guardian.

Three years

When the ward attainsmajority.'

There is also no dispute that Article 44 applies only to transactions which are voidable' and as such will have to be set aside. If the transactions are absolutely void, no question of setting aside the transfers arises under this Article.

18. It is desirable to consider what exactly the case of the plaintiff was. In the plaint, it is more than once repeated that the transactions complained of are in excess of the authority of the second defen-as guardian of the minors. It may also be stated that there is no dispute that the second defendant, the father, who entered into these transactions as guardian of the minors was in law entitled to act as the guardian of the plaintiffs and the third defendant.

It is also stated that the transactions are not necessary or beneficial for the minors and that they are without any consideration. It is also stated that those transactions are fraudulent, imprudent and harmful, to the plaintiffs and as such, they are invalid transactions not binding on the plaintiffs. There is also an allegation that the properties were not actually delivered possession to the first defendant under the transactions and that the second defendant, the father, was himself holding and enjoying the properties continuously.

19. So far as the allegation regarding the first defendant not being in possession of the properties by virtue of the transactions impunged, as alreadystated, the learned Judge in paragraph 12 of his judgment has. held that by virtue oi the surrender and other documents executed by the second defendant as guardian, the first defendant has obtained possession of the properties. In fact, the learned Judge says:

'Possession of the property was conveyed to the 1st defendant, under the transfers in question.'

The learned Judge also relied upon the report of the commissioner and the plan in support of this finding. Mr. V. P. Gopalan Nambiar has not been able to displace this finding of the learned Judge. It may also be stated that Mr. V. P. Gopalan Nambiar, the learned counsel for the appellant, was not able to attack the finding of the learned Judge on the age of the appellant and the date of the institution of! the suit. The learned counsel also proceeded on the basis that the suit will be barred by limitation under Article 44 of the Limitation Act if the transactions are only voidable requiring to be set aside.

20. The learned counsel Mr. V. P. Gopalan Nambiar referred to certain decisions that even certain transactions similar to those before us, though entered into by authorised guardian, do not require to be set aside under Article 44 of the Limitation Act.

21. The first decision relied upon by learned counsel is that of Mr. Justice Venkatarama Ayyar as a Judge of the Madras High Court reported in Rangaswami Gounder v. Marappa Gounder 1952-2. Mad LJ 506 : (AIR 1953 Mad 230). That was a case of a gift of properties by the mother of a minor to the unmarried daughter of her husband's senior widow and the question arose whether the minor has to set aside such a gift within the period mentioned under Article 44. The minor in that case, filed a suit attacking this gift by his mother as void and not binding on him and the plaintiff was met with the plea of limitation under Article 44 on the ground that he should have set aside the transaction within three years of his attaining majority. The plaintiff succeeded in the trial court but lost before the learned District Judge and he filed the second appeal before the High Court.

22. It was contended before the learned Judge that the mother did not execute the gift as guardian of the minor and secondly that the gift is void as the mother had no power as a guardian to make any marriage gift. The learned Judge following a Bench decision of the Madras High Court, held that the gift is not binding on the plaintiff; but the learned Judge held that it does not follow from this that the alienation is not one which is required to be set aside under Article 44 of the Limitation Act. Then the learned Judge observes at p. 508 (of Mad LJ): (at p. 231 of AIR) as follows :

'Under the law, when a natural guardian having authority to alienate the properties of the ward for proper purposes effects a transfer which is in excess of that authority, it cannot be put in the same position as an alienation by an unauthorised person. An un-authorised alienation by a lawful guardian is only voidable and must be set aside within the time prescribed by Article 44, unlike an alienation by an unauthorised person, which is void under the law and does not require to be set aside under that Article.'

The learned Judge has also extracted a quotation from the judgment of Shadi Lal. Chief Justice in Labha Mal v. Matok Ram, ILR 6 Lah 447: (AIR 1925 Lah 619(2)), regarding alienation by a mother which was found to be not supported by any necessity. In that Lahore case, though the lower courts had held that the sale was not for necessity, the learned Chief Justice was of the view that such a finding does not affect the nature of the transaction,which should be treated as an unauthorised transfer by an authorised guardian and after referring to certain other decisions, the learned Judge was of the view that an unauthorised alienation by a guardian recognised by law is voidable and not void. Mr. Justice Venkatarama Ayyar has also quoted with approval a passage from another judgment of the Lahore High Court in Khushia v. Faiz Muhammed Khan, ILR 9 Lah 33: (AIR 1928 Lah 115). The tatter decision followed the previous Lahore decision referred to above. In the latter decision, it is stated :

'The alienation by a natural guardian of the minor's property is a voidable and not a void transaction and the fact that it was not for necessity does not alter the nature of the transaction. In other words, it was an unauthorised transfer by an authorised guardian and the limitation to set aside such a transfer is prescribed by Article 44.'

After referring to the Lahore decisions, Mr. Justice Vcnkatarama Ayyar further observes at p. 508 (of Mad LJ) : (at p. 232 of AIR) :

'We are not here concerned with a deed which is void under some other provision of law such as Transfer of Property Act or Registration Act in which case there is in existence no transfer of property and therefore, no question of setting aside such a transfer. But where the transfer is operative and the question is whether it is binding on the ward or not, it has to be set aside within the time prescribed by Article 44. Vide Sobhanadri Appa Rao v. Vcnkatarama Rao, 60 Mad LJ 701 : (AIR 1931 Mad 45) and Ramaswami v. Govindammal, 56 Mad LJ 332 : (AIR 1929 Mad 313).' Following the Madras and Lahore decisions quoted by the learned Judge, Mr. Justice Vankataramia Ayyar ultimately held that though the gift by the mother in that case was not binding on the plaintiff for the reason that it was not for a proper purpose, it was nevertheless one which has to be set aside under Article 44 and not having been so set aside, the suit would be barred.

23. Therefore, it will be seen that according to Mr. Justice Venkatarama Ayyar, even when a guardian has transferred properties of the minor in excess of his authority, such transactions cannot be gut in the same position as an alienation by an unauthorised person. It will only be an unauthorised alienation by a lawful guardian which will only be voidable and must be set aside under Article 44 within the time prescribed.

24. The two Lahore decisions referred to above by Mr. Justice Venkatarama Ayyar also show that even if the transactions are not supported by any necessity, that will not make the transactions void in law. Nevertheless, so long as those transactions are entered into by a lawful guardian, they may at the most amount only to an unauthorised transfer by an authorised guardian requiring to be set aside by a minor and they cannot be treated as a nullity or void.

25. But on the question as to whether the transaction was entered into by the mother as guardian of the plaintiff, Mr. Justice Venkatarama Ayyar considered the terms of the gift deed executed by the mother and came to the conclusion that the mother has executed the document in her own right asserting: a hostile title to the minor. In view of this finding, the learned Judge held that the alienation in question before him was void and therefore, need not be set aside under Article 44 of the Limitation Act.

26. Though the final conclusion that Article 44 is not a bar in the way of the plaintiff in that caseis in favour of Mr. V. P. Gopalan Nambiar's contention, it will be seen from what is stated above, that this finding is based not because that the gift deed need not be set aside but because the transaction itself was not one entered into by the mother as guardian of the minor.

27. I have already discussed the judgment of Mr. Justice Venkatarama Ayyar wherein in the earlier portion of the judgment the learned Judge has held that though the gift deed is in excess of the authority of the mother and as such not binding on the minor, still that will not take it away from the nature of a transaction which has to be set aside under Article 44. Having held that such transactions by authorised guardians in excess of their authority have to be set aside under Article 44, the learned Judge holds on the particular facts of that case that Article 44 does not apply because the transaction is really not one on behalf of the minor.

28. Therefore, this decision of Mr. Justice Venkataram Ayyar, far from supporting the contentions of Mr. V. P. Gopalan Nambiar, is really against his contentions regarding the non-applicability of Article 44.

29. Mr. V. P. Gopalan Nambiar, next referred us to the decision of the learned Chief Justice and Mr. Justice Mohammed Ahmed Ansari of the Andhra Pradesh High Court reported in Subba Rao v. Ramamurti, 1957-2 Andh WR 282: (AIR 1958 Andh-Pra 626). In that case, the mother of the minor had executed a gift deed of a land in favour of her brother. The minor, after becoming a major, filed a suit for recovery of possession of the property in the hands of his maternal uncle.

Article 44 of the Limitation Act was pleaded as a bar on the ground that the minor has not filed the suit to set aside the gift deed within the time allowed therein. Before the learned Judges, the decision of Mr. Justice Venkatarama Ayyar was referred to on behalf of the maternal uncle. But the learned Judges held that the mother had no right to execute the gift deed and declined to follow the reasoning of Mr. Justice Venkatarama Ayyar that a gift by the natural guardian is only voidable.

But the learned Judges further say that in the case before them, there was no semblance of authority for the natural guardian to confer a vested remainder in favour of a stranger and in that view, the learned Judges held that the gift was void. But the learned Judges were not prepared to accept the position taken up by Mr. Justice Venkatarama Ayyar that all unauthorised alienations by a lawful guardian are only voidable.

Mr. V. P. Gopalan Nambiar relies upon this judgment of the Andhra Pradesh High Court in support of his contention that there will be certain unauthorised alienations even entered into by lawful guardians which will be void. But it is not possible to accent this contention because the learned Judges at p. 284 (of Andhra WR): (at p. 628 of AIR) of the reports themselves give instances where unauthorised alienations by a lawful guardian may be void. Suffice it to say that the types of transfer before us have not been included in the examples given by the learned Judges.

30. We must only accept the decision of the Andhra High Court as exclusively restricted to the transactions before them which was an extreme case and to that extent they have taken a different view from the Madras decision quoted above regarding the authority of a Hindu guardian to make a gift of the minor's property. But, as stated earlier, the case before us is not one dealing with a gift by a legal guardian. We do not wish to express any opinion at present about the several examples givenby the learned Judges of the Andhra Pradesh High Court at p. 284 (of Andhra WR) : (at p. 628 of AIR) of the reports as being void transactions not requiring to be set aside.

31. The next decision referred to by Mr. V. P. Gopalan Nambiar is the decision of Mr. Justice Viswanatha Sastri reported in Palaniappa Goundan v. Nallappa Goundan, 1951-1 Mad LJ 265 : (AIR 1951 Mad 817). That was a case of a transfer by a de facto guardian and the learned Judge held that Article 44 has no application to transfers effected by a de facto guardian. The learned Judge has held that Article 44 applies only to transfers by a lawful or de jure guardian. In the case before us, admittedly, the transfers were made by the second defendant, the father, who is the legal guardian of the plaintiffs and third defendant. Therefore, this decision has no application at all. But it is useful to refer to this decision tor the discussion regarding void and voidable transactions at p. 270 (of Mad LJ) : (at p. 820 of AIR) of the reports. The learned Judge after discussing the case law on the point observes at p. 271 (of Mad LJ) : (at p. 820 of AIR) as follows :

'An alienation by a de jure or lawful guardian of the property of the ward in excess of his powers as a guardian is treated differently from an improper alienation by a Hindu widow or the manager of a joint Hindu family for the purpose of Limitation Act. The transfer by the guardian is not void as against the minor, but only voidable at his instance and the minor must sue to set aside the unauthorised transfer within the three years limited by Article 44 or lose his title to the property. As I have already staled, the law regards the minor as being a party to the alienation through his guardian, and Article 44 allows only a period of three years for setting aside the transfer, the same period being allowed under Article 91 for a man who seeks to set aside his own deed.' These observations of Mr. Justice Viswanatha Sastri clearly show that transfers even in excess of the powers of a legal guardian arc not void but only voidable.

32. The nest decision relied upon by learned Counsel is that of Mr. Justice Satyanarayana Rao arid Mr. Justice Balakrishna Ayyar renortcd in Alamelu Ammal v. Krishna Chetty, 1954-1 Mad LJ 294 ; (AIR 1954 Mad 585). We do not think that this decision helps the appellant in any way because the question before the learned Judges was whether the same disability under Article 44 applies to persons claiming through the minor either as transferees or as Legal Representatives and the learned Judges held that those persons also must exercise the option during the same period namely, three years from the date when the minor would have attained majority, had he been alive.

33. Similarly, the decision in Wall Singh v. Sohan Singh, AIR 1954 SC 263 will not also help Mr. V. P. Gopalan Nambiar because their Lordships at p. 265, held that there was nothing in the release deed before them by which it could be said that the, guardian acted on behalf of the minor and in this view, their Lordships held that there was no case for the application of Article 44 of the Limitation Act. The case before their Lordships appears to have been one where the guardian has not purported to act on behalf of the minor.

34. The last decision relied upon by Mr. Gopalan Nombiar is the one in (56 Mad LT 332) : (AIR 1929 Mad 313). That decision also does not help the appellant because the learned Judges held that the transaction in that case was only a voidable one and the learned Judges also held that the suit is barred under Article 44 of the Limitation Act.

35. On the other band, Mr. Achuthan Nambiar, learned Counsel for the first defendant, has invited our attention to certain decisions. In Madugula Latehiah y. Palli Mukkalinga, ILR 30 Mad 393, the learned Chief Justice and Mr. Justice Subramonia Ayyar have held that a suit by a ward to recover properties improperly alienated by the legal guardian will be governed by Article 44 of the Limitation Act. In that case, in a prior litigation between the alienee and the minor it bad been held that the suit transaction was invalid and not binding on the minor. But nevertheless, when the minor himself later on filed a suit to recover possession of the properties, the learned Judges held that Article 44 is a bar to his obtaining possession and that his rights have become extinguished under Section 28 of the Limitation Act.

33. This decision shows that even improper alienations by a lawful guardian are only voidable which will have to be set aside under Article 44.

37. In Kandasami v. Irusappa, ILR 41 Mad 102 ; (AIR 1918 Mad 724), a Division Bench of the Madras High Court consisting of Mr. Justice Sadasiva Ayyar and Mr. Justice Spencer had to consider the applicability of Article 44 in respect of transaction by a legal guardian which was found by both the lower Courts as having been entered into for no consideration and the minors not having derived any benefit under them and also for no justifiable necessity.

The learned Judges, after referring to the decision in ILR 30 Mad 393, held that the sale deed executed by a guardian, ought to be set aside by the ward by instituting a suit within the period mentioned in Article 44 and that till it is so set aside, the title vests in the alienee. In this view, the learned Judges held in that case, that the second defendant's right to institute a suit under Article 44 for setting aside a sale of 1893 and for possession has become barred in 1906 and that his rights to such property have become extinguished under Section 28 of the Limitation Act.

38. This decision in our opinion, clearly establishes that though a transaction by a legal guardian is not beneficial to the minors or supported by consideration or for no justifiable necessity, nevertheless, the transactions are not void but only voidable requiring to be set aside under Article 44.

39. To a similar effect are the two decisions of the Lahore High Court which have been referred to when dealing with the decision of Mr. Justice Venkatarama Ayyar, earlier in this judgment.

40. In Gangadhar v. Dattatraya, AIR 1953 Bom 424, Mr. Justice Gajendragadkar and Mr. Justice Vyas of the Bombay High Court has to consider the effect of a compromise: entered into by the mother of a minor without the sanction of the court. Even in such a case, the learned Judges held that the suit transaction was only voidable and not void and as such, Article 44 applies.

41. That an improper alienation by a lawful guardian is not void, but only voidable necessitating the transaction to be set aside under Article 44 is again laid down by Mr. Justice Krishnan in Arumugam Pillai v. Panayadi Yan Ambalam, 40 Mad LJ 475 : (AIR 1921 Mad 425). The said decision of Mr. Justice Krishnan has been approved by a Division Bench judgment of the Madras High Court consisting of Beasley, C. J. and Stodart, J. in Ankamma v. Kameswaramma, AIR 1936 Mad 346. Both the learned Judges held that suits brought by persons to set aside alienations by their de jure guardians during their minority are governed by Article 44.

42. That a fraudulent sale by a legal guardian is only voidable and as such, requires to be set aside under Article 44 within the period mentioned therein, has also been held by a Division Bench of the Calcutta High Court in Krishna Dhone v. Bhagaban Chandra, 34 Ind Cas 188 : (AIR 1917 Cal 610). In dealing with such an argument, the learned Judges at p. 191 (of Ind. Cas) : (at p. 611 of AIR) observed as follows :

'This argument would have been of weight if the sale were ab initio void. That is, however, not the case. A sale by a guardian is only voidable and is valid until avoided. This avoidance must be by a suit within 3 years under Article 44 of Schedule I, Limitation Act. As the ward cannot recover posses, sion without the sale, his right to recover possession is also gone.'

43. It may also be useful to refer to the decision of the Privy Council in Gnana Sambanda Pandara Sannadhi v. Velu Pandaram, ILR 23 Mad 271 at p. 279. Their Lordships observed at p. 279 :

'Chockalinga attained majority in 1880 and had by Article 44 of the Act three years for suing to set aside the sale by his guardian. He did not do so and by Sec. 28 of the Limitation Act his right became extinguished.'

This reasoning of their Lordships of the Privy Council indicate that Article 44 will apply to all transactions by an authorised guardian.

44. In Meenakshi Sundarammal v. Subramania Ayyar, AIR 1955 Mad 369, Mr. Justice Satyanarayana Rao and Mr. Justice Rajagopalan had again to consider the applicability of Article 44 to a transaction entered into on behalf of a minor by her father as guardian. The minor died while still a minor and her mother brought a suit to set aside the sale so far as her minor daughter's share was concerned claiming that she inherited the daughter's share as her heir and the sale of the share was not for purposes binding on her minor daughter.

The learned Judges held that since the minor daughter was a party 'co nomine' to the sale, Article 44 would have applied if the minor herself had brought a suit after becoming a major to avoid the sale deed. In this view, the learned Judges held that the mother as heir was also precisely in the, same position. Therefore, this decision again, in our opinion lays down that all transactions which have been entered into specifically by a legal guardian on behalf of a minor as such, have to be set aside under Article 44 if relief is to be obtained in respect of those transactions,

45. There is also a decision of the Full Bench of ths Madras High Court in Sankaranarayana v. Kandasamia, (S) AIR 1956 Mad 670. Though that was not a case arising about the applicability under Article 44 of the Limitation Act, nevertheless, that decision which arose under the Court Fees Act, lays down that a minor who has been made 'eo nomine' a party to a sale deed or other document of alienation by his legal guardian has to ask for cancellation of the sale deed expressly or impliedly. At p. 676 the learned Judges referred to the group of cases relating to void and voidable transactions and then ultimately at p. 677, the learned judges observed as follows :

'There is no doubt whatever that a transaction entered into by a guardian relating to the minors' properties is not void and if the minor does not sue to set it aside within 3 years of his attaining majority, it becomes valid under Article 44 of the Limitation Act. In such a case, the minor is deemed to be a party to the transaction.'

46. We may also refer to a decision of the Travancore-Cochin High Court of Joseph Vithayathil and Joseph, JJ., reported in S. A. Decosta v. Sivasubramonia Nadar, AIR 1956 Trav-Co. 107. In respect of certain transactions effected by the mother o a minor, the learned Judges held that the sale deeds executed by the mother on behalf of the minor as guardian are only voidable and not void and that the minor who became a major should have taken steps to have them set aside within 3 years of his attaining majority under Article 44 of the Limitation Act.

47. Applying the principles laid down by the, decisions referred to above it follows that the suit transactions entered into by the second defendant who was the legal guardian of the plaintiffs and the third defendant are only voidable and not void. Being only voidable transactions, the reasoning of the lower Court that they have to be set aside is correct. It further follows that the suit so far as the appellant is concerned, is barred by limitation.

48. In the result, the appeal is dismissed with costs throughout of the first defendant.A. S. 818/1954 (M). This is an appeal by defendants 12 and 13 against the final decree proceedings passed by the learned Judge in the same suit. These appellants were brought on record as the legal representatives of the deceased third defendant. When the first defendant applied for passing a final decree in terms of the preliminary decree passed by the learned Judge these appellants wanted certain reservations to be made in their favour. They had stated that the deceased third defendant had taken a lease of a portion of a property called Paralali Mala and that they are entitled to certain special rights in those items.

The learned Judge rejected the request on the ground that they did not file any written statement though they were represented by an advocate in the proceedings. The learned Judge has further held that at the time of the preliminary decree, no representations were made to him regarding the claim now put forward for reservation by the appellants. In this view, the learned Judge rejected their claim for special reservations.

Mr. C. K. Viswanatha Ayyar, learned Counselfor the appellants, contended that the reasoning ofthe learned Judge is not correct. In our opinion,there is no substance in this appeal. Mr. C. K.Viswimatha Ayyar has not been able to show thatthe reasons given by the learned Judge for rejectingtheir claim are in any way not supported by therecords. It was open to them to have claimed thesereservations and let in the necessary evidence toestablish their contentions. There is nothing in thepreliminary decree recognising any right in theirfavour. In consequence, this appeal fails and is dismissed without any order as to costs.


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