K.S. Menon, J.
1. This second appeal arises out of a suit for partition and possession of one-third share of the plaintiff. It is alleged that the properties were bequeathed to the plaintiff and her sisters, defendands 1 and 2, by their father Sankarapandiyan Pillai, and that the sale deeds, Ex. I and XII, executed by the first defendant and for herself and as guardian of the plaintiff and second defendant were not valid and binding on the plaintiff. The contesting defendants pleaded that the plaintiff was bound to get the sale deeds set aside before relief in respect of the properties comprised therein could be given to her and that, as she came of age more than three years before the suit was filed, her right to get these documents set aside was barred by limitation. The trial Court upheld the contention of the defendants and gave a decree only in respect of the remaining properties. The appellate Court reversed that decree, holding that the person who executed the sale deed on behalf of the plaintiff was not her guardian, that she was therefore not bound to get the documents set aside and that the suit was not barred by limitation. Defendants, 1, 3 and 5 and the L. Rs., of the sixth defendant have filed this second appeal.
2. The only question argued before me was whether the plaintiff was bound to get the sale deeds, Ex. I and XII, set aside before she could claim any relief in respect of the properties comprised therein. The plaint properties, as already observed, were bequeathed to the plaintiff and her sister's, defendants 1 and 2, by their father Sankarapandian Pillai. The third defendant is the husband of the first defendant and the fourth defendant is the husband of the second defendant. The two documents impeached viz., Exs. I and XII, purport to have been executed by the first defendant for herself and acting as the guardian of her sisters, plaintiff and second defendant. The contention of the appellants is that, as these two documents were executed by the first defendant acting as the guardian of the plaintiff, the plaintiff is bound to get these documents set aside and a suit to set aside these documents is governed by Article 44 of the Indian Limitation Act. The answer of the plaintiff (respondent) is that the first defendant was neither her legal nor her natural guardian and that, in fact, it was the third defendant and not the first defendant, who was managing the properties left by her father, that therefore this is not a case of an alienation by a guardian and that she is not liable to get the documents set aside. The finding of the Lower Appellate Court is that the person who was really managing the properties and the affairs of the three sisters was the third defendant and that the first defendant was not the de facto guardian of the plaintiff. It is true, that, after the death of the plaintiff's father, a number of documents relating to the properties have been taken in the name of the first defendant, purporting to act as the guardian of the plaintiff, but the lower Appellate Court has held that all these transactions were brought about by the third defendant and that he was really the manager of the properties and the person acting as the guardian of the plaintiff. If that is so . . . and I see no reason why a different conclusion should be come to . . . the first defendant was not at all the guardian of the plaintiff. Admittedly she was not the de jure guardian of the plaintiff; she was also not the natural guardian, as the mother of the plaintiff is still alive. In these circumstances, she cannot at all be regarded in any sense of the term as the guardian of the plaintiff. If that is so, Exs. I and XII are void, so far as the plaintiff is concerned; and she need not get them set aside.
3. Assuming that the first defendant was the de facto guardian of the plaintiff, it has to be seen whether the alienations were for any legal necessity. The Lower Appellate Court has found that both the transactions were not for any necessity binding on the minor plaintiff. It has therefore to be held that the documents in question were not for the benefit of the minor and were executed without necessity. In the case of Thayammal v. Kuppanna Koundan : AIR1915Mad659(2) , this Court (Sadasiva Aiyar and Tyabji, JJ.), held that an alienation for no necessity need not be got set aside by the minor and that Article 44 of the Limitation Act does not apply to unauthorised alienations. In the case of Kathaperumal Thevan v. Ramalinga Thevan (1914) 17 M.L.T. 138, Ayling and Kumaraswami Sastri, JJ., held that in cases of alienations by a mother, who was not in law the guardian, Article 44 of the Limitation Act did not apply. The view taken in the case reported in Thayammal v. Kuppanna Koundan : AIR1915Mad659(2) was quoted with approval by Devadoss and Mackay, JJ., in the case of Chinna Alagunperumal Karayalar v. Vinayagathamma : AIR1929Mad110 . Dealing with the same question Mr. Justice Ramesam made the following observations in the case of Purushothama Ratho v. Brundavana Dass (1931) 33 L.W. 664 .
Alienations by de facto guardians. To this class Article 44 does not apply. Vide Thayammal v. Kuppanna Koundan : AIR1915Mad659(2) and Ramaswami v. Kasinatha : AIR1928Mad226 . Such alienations by de facto guardiagis can be ignored by a minor and he can bring a suit within the larger period, generally twelve years allowed by the genera law. The transactions were not void because, if the alienations were for justifiable necessity, they may be upheld wholly or partially. They are only avoidable, but one has to use the term 'voidable' carefully in respect of such cases. Voidability by minors of such alienations is analogous to the voidability of Widow's alienations by the reversioners who can ignore the widow's alienations and bring a suit within twelve years under Article 141. . . The word 'voidable' in such cases is not used in the same sense in which it is used in the law of contracts.
4. The view of Ramesam. J., is quoted with approval by the learned Chief Justice in Koya Ankamma v. Kameswarmma (1934) 70 M.L.J. 352, in which his Lordship observes,
Purushothama Ratho v. Brundavana Dass2, decides that suits brought by persons to set aside alienations by their de jure guardians during the minority are governed by Article 44 whereas Article 44 does not apply to suits by minors to set aside alienations made by de facto guardian.
5. But as the case in Koya Ankamma v. Kameswaramma (1934) 70 M.L.J. 352, was a case of an alienation by a de jure guardian, Article 44 was applied. It will therefore be seen that this Court has been consistently holding that in case of improper or unauthorised alienations by de facto guardians, the minors, when they come of age, need not get the alienations set aside and that Article 44 of the Limitation Act would not apply. It is, however, pointed out by the learned Advocate for the appellant that the correctness of the decision in Thayammal v. Kuppanna Koundan : AIR1915Mad659(2) was doubted by Curgenven, J., in the case of Kari Adeyya v. Tammalampudi Govindu (1929) 50 M.L.J. 417 but the question for decision there was whether an alienation by the mother acting as the guardian of her daughter, who was a minor Hindu Widow, was void or only voidable, and whether the suit by the reversioners was barred by Article 125 of the Limitation Act and after expressing a doubt about the correctness of the decision in Thayammal v. Kuppanna Goundan : AIR1915Mad659(2) , His Lordship observes,
In any case it does not follow that because Article 44 may be inapplicable the transaction would be void.
6. I do not think this case helps the appellant. In Seetharamamma v. Appiah (1925) 50 M.L.J. 689 : I.L.R. 49 Mad. 768 no question of the applicability of Article 44 arose for decision. The question there was whether an alienation by the de facto guardian not for necessity was only voidable and could be ratified by the minor on attaining majority. This too therefore does not help the appellant. In the case reported in Ramaswami v. Kasinatha : AIR1928Mad226 it was pointed out that Article 44 of the Limitation Act did not apply to cases of alienaations by de facto guardians, and several cases including Thayammal v. Kuppanna Goundan (1914) 27 M.L.J. 417 were quoted. In the case in Bangarammal v. Lydia Kent (1934) 67 M.L.J. 322 : I.L.R. 57 Mad. 1062 where the parties were christians, the question for decision was whether the mother could be regarded as a natural guardian and what was the effect of an alienation by her. The cases relied on by the appellant therefore do not support his contentions.
7. It may even be doubted whether such persons who are called dc facto guardians can really be regarded as guardians in the strict sense of the term. They may be intermeddling with the estate of the minor or even managing and dealing with that estate for some time, but it is very doubtful whether by those acts alone they can be called guardians in the strict legal sense of that term. If that is so, Article 44, which deals with alienations by 'guardians' can have no application whatever to alienations by such persons. However in this case it is not necessary to go so far, for as the alienations in question are found to be not for necessity and not binding on the minor, I do not think that the plaintiff is bound to get them set aside or that Article 44 applies. The suit is therefore not barred by limitation.
8. The Second Appeal is therefore dismissed with costs including costs in C.M.P. 4711 of 1934.