Govinda Menon, J.
1. The following questions have been referred to a Full Bench by Panchapakesa Ayyar, J.
Has the plaintiff who as a minor, has been made eo nomine a party to a sale-deed or other document of alienation by his mother and guardian to pay Court-fee under Section 7(iv-A) of the Court-fees Act and to pray for the cancellation of the sale-deed expressly or impliedly and pay Court-fee under Section 7 (iv-A) of the Court-fees Act or can he ignore and bypass such alienation alleging illiteracy, ignorance, lack of worldly knowledge, undue influence, coercion, etc., and pray for mere possession of the lands paying Court-fee under Section 7(v)(b) of the Court-fees Act? Will it make any difference if the mother executing the sale-deed making him eo nomine a party is a guardian appointed under the Guardians and Wards Act?
Is the position of a sale-deed executed by a father of the minor as guardian of the minor son and not as manager of the joint family and head of the coparcenary, any way different from the position of a sale-deed executed by the mother as guardian of the minor?
2. As the order of reference deals exhaustively with the facts which have given rise to the reference as well as the decided cases cited before him no further elaboration of factual details is necessary and we can straightaway proceed to discuss the legal points urged before us. At the very outset it is necessary to differentiate between transactions regarding properties which belong to the minor as his own and those in which he is interested as a member of a joint family where either his father or any other relative happens to be the kartha or head. In the latter case where a document is executed on behalf of the family he is only a component part in the entity which has a legal status and a person and therefore such a transaction cannot be deemed to be by the minor individually as such but in the former case where the person who executes the document is the father or the manager of the joint family the mere fact that he purported to execute it also as the guardian of the minor would not make it obligatory on the minor to have it cancelled before obtaining relief on the footing that it is not binding on him. But where the transaction is on behalf of the minor and is entered into by the guardian then the question arises as to whether in order to obtain relief the minor has to get the document cancelled. The law as laid down in Unni v. Kunchi Amma I.L.R.(1890) Mad. 26, and approved by the Full Bench in Ramaswami v. Rangachariar : AIR1940Mad118 , is well settled and is to the following effect:
If a person not having authority to execute a deed or having such authority under certain circumstances which did not exist, execute a deed, it is not necessary for persons who are not bound by it, to sue to set it aside for it cannot be used against them. They may treat it as non-existent and sue for their right as if it did not exist.
3. We are in this case concerned with an alienation of property belonging to the minor by his guardian and the question to be considered is what is the proper Court-fee payable in such a matter. Is it necessary for the minor to seek for a cancellation of the document and pay Court-fee under Section 7(iv-A) of the Court-fees Act or would it be sufficient if he ignores the transaction and seeks possession of the property and values the suit under Section 7(v) of the Act.
4. Chandra Reddi, J., in Ramaswami v. Kunjammal (1950) 1 M.L.J. 468, has taken the view that it is sufficient if the plaintiff values the suit under Section 7(v) of the Court-fees Act and he need not ask for cancellation of the sale-deed executed by his mother as guardian and pay Court-fee under Section 7(iv-A) of the Court-fees Act. The learned Judge relied on the decisions in Ramaswami v. Rangachariar : AIR1940Mad118 , Kahanna Gounder v. Balasubramaniam : AIR1947Mad237 , and Kandaswami Udayar v. Annamalai Pillai : (1948)2MLJ130 , and followed the same. We are now asked to consider the correctness or otherwise of that judgment and in doing so we propose to refer to the conflict in case-law noted by the referring judge. On the side of the petitioners it is contended that in a transaction entered into by a guardian of a minor relating to the property belonging to the minor and in which the minor is eo nomine made a party represented by his guardian it is absolutely essential that in order to get the relief cancellation of the document is necessary for which purpose Court-fee will have to be paid under Section 7 (iv-A) of the Court-fees. Act but where the minor is one of the members of the joint family and the transaction is by the kartha or the other members of the family but the minor's name is added and represented by a guardian in such a case Section 7 (v) of the Act can be invoked. The matter came to the forefront in the decision in Doraiswami v. Thangavelu : AIR1929Mad668 , by Venkatasubba Rao, J. Where the mother as guardian under the Hindu Law executes a release deed on behalf of the minors the release deed is not void but only voidable and as such the minors, if they complain that it is invalid, are bound to set it aside. Hence if the minors after attaining majority bring a suit praying for a declaration that the release is invalid and for an injunction their suit looking at the substance of it, must be treated as one for cancellation of the instrument and so will come under Section 7(iv-A) of the Court-fees Act. The learned Judge was not inclined to follow the earlier decision in Veeraragavalu v. Sreeramulu : AIR1928Mad816 . It is clear from the facts of this case that the alienation was by the guardian representing the minor with regard to the minor's estate and not by the manager of a joint family in which the minor is only a constituent member. The learned Judge has also referred to the fact that in Section 7(iv-A) the words securing money or other property are not happy. In his opinion the release deed is a document securing property and it seems to us that a mortgage or sale of property is also one which secures money or other property. Though an argument has been addressed to us that the words, of Section 7(iv-A) of the Court-fees Act are inapplicable to a case where the transaction is one of sale, mortgage or exchange and the person who impugns is a mortgagor,, vendor or alienor it is difficult to say that the suit is for cancellation of a document securing money or other property but it has so far been construed in that light and it is too late in the day to question the correctness of that assumption.
5. Wadsworth, J., in Venkatakrishniah v. Alli Sahib A.I.R. 1938 Mad. 921, took a similar view and held that where the suit is to set aside an alienation made by the guardian of the plaintiff during his minority and for possession of the properties alienated Court-fee should be paid under Section 7(iv-A). This also proceeds on the footing that the minor is eo nomine a party to the transaction and the consideration is as if the minor himself has executed it. The learned judge refers to the decision of Venkatasubba Rao, J., mentioned; above and points out the difference between a case where the alienation is by the lawful guardian of the minor as such and that by a manager of a joint family of which the minor is only a member. The observations of the same learned Judge in Vellayya Konar v. Ramaswami Konar : AIR1939Mad894 , are similar. A distinction is clearly made out between a case where the erstwhile minor has to remove an obstacle in his way before getting relief and one in which he could ignore and proceed as if he was not a party. Referring to the earlier case in Venkatakrishniah v. Alli Sahib A.I.R. 1938 Mad. 921, the learned Judge makes it clear that it was a case of a minor whose lawful guardian on his behalf made an alienation which the minor on attaining majority has necessarily to get the conveyance cancelled before he could get recovery of possession of the properties alienated and that in such a case Section 7 (ii-A) of the Court-fees Act applies. Though the observations of Satyanarayana Rao, J., in Vaduganatha Pillai v. Srinivasa Raghava Iyengar : AIR1951Mad278 , related to the case of of a decree to which the minor was a party represented by his guardian the principle underlying the judgment is where the transaction is by and on behalf of the individual any attempt to get over it should be by means of cancellation of the same. We are in agreement with the learned Judge. But a different line of reasoning is discernible in certain cases to the effect that even where the suit relates to the property of the minor alienated by a guardian all that he need do for impeaching the transaction is to sue to recover the property without seeking to set aside the transaction. Ramesam and Jackson, JJ., in Veeraragavalu v. Sreeramulu : AIR1928Mad816 , were of the view that a minor has not got to set aside the transaction by a guardian in suing to recover the property. He could ignore the transaction and merely pray for possession. That being so he need not seek the cancellation of the instrument, and therefore, Clause (iv-A) of Section 7 of the Court-fees Act does not apply. The authorities which the learned Judges relied on were Unni v. Kunchi Ammal I.L.R.(1890) Mad. 26 and Kamaraju v. Gunnayya : AIR1924Mad322 and they differed from the decision in Alagar Ayyangar v. Srinivasa Ayyangar : AIR1925Mad1248 . On looking at the facts of the case though the report of the same in the judgment is very meagre, from the printed records available in the archives of this Court, it is seen that the suit out of which the Civil Revision Petition arose was with regard to the joint family property and was for partition of the properties. Therefore on the facts of the case the decision is correct though the observations contained in the judgment are somewhat wide and are apt to be misunderstood. Where the suit is for setting aside a partition by a minor after attaining majority and seeking a fresh partition Kuppuswami Ayyar, J., in Kuppuswami Goundar v. Man Goundan : AIR1943Mad427 held that Court fee need be paid only under Section 7(v) of the Court-fees Act relying upon-the decision in Ramaswami v. Rangachariar : AIR1940Mad118 . Though it was sought to be argued in this case that the minor was represented by a guardian and the partition deed, so far as he was concerned, was one executed by the guardian and therefore there should be a prayer for cancellation and Court-fee should be paid on that basis, the learned Judge did not accept the contention.
6. One of the further cases where Section 7 (v) of the Court-fees Act was applied was Kalianna v. Balasubramaniam : AIR1947Mad237 in which Bell, J., following the decision in Ramaswami v. Rangachariar : AIR1940Mad118 took the view that a suit filed by a mother as the next friend of her three sons who belonged to a joint family (a) for a declaration that a sale-deed executed by their father for himself and as guardian of his sons was not binding on them not having been executed for family necessities, (b) for partition and (c) for recovery of the properties was in effect one for possession of the properties and the appropriate Court-fee payable was under Section 7(v) of the Court-fees Act. The decision in Kandaswami Udayar v. Annamalai Pillai : (1948)2MLJ130 relates to an alienation by the manager in which case the minor member is only a party in his capacity as a member of the family.
7. It is urged on behalf of the respondent by Mr. Natesan that in cases when a guardian purporting to act on behalf of a minor, whether it be with regard to the joint family properties of others and the minor or the properties belonging to the minor, it is open to the minor to ignore the transaction and recover possession of the properties on the footing of a void instrument in which case Court-fee is payable only under Section 7(v) of the Court-fees Act. He contends that in order that Section 7(iv-A) may be made applicable, it must be incumbent upon the plaintiff to' seek a cancellation of the instrument and in the case of a Hindu minor when the alienation is by the guardian it is open to the minor to ignore the transaction and avoid it within three years of his attaining majority failing which the transaction becomes perfected. Such ignoring or avoiding need not necessarily be by a suit, but an unequivocal act of quondam minor to elect or avoid would be sufficient. It is further urged that the power of a guardian under the Hindu Law is very limited and his alienation would be valid only under certain circumstances. It is open to the minor to go to the Court and allege that the transaction does not exist. The result of the analysis of the cases, according to the learned Counsel is that if it is found that the document is not binding on the minor it should be as if he was no t a party to the instrument at all. The cases cited at the bar can be classified under two heads, namely, those in which the minor's properties are being dealt with by a guardian and the minor seeks a decision that such dealings are not binding on him and secondly, those in which the father or the manager of the joint family purporting to deal with the family properties acts as the guardian of the minor, who is only one of the members of the joint family. It seems to us that in the former case the minor is eo nomine a party to the transaction and he should seek to cancel the documents in which case Court-fees has to be paid under Section 7(iv-A) of the Act. But where the minor was only a member of a joint family and the transaction is on behalf of the joint family, he could always ignore the transaction as not binding on the family and seek to recover possession. Their Lordships of the Judicial Committee in Subrohmanyam v. Subba Rao (1948) 2 M.L.J. 22, in considering the question regarding the applicability of Section 53-A of the Transfer of Property Act, took the view that the minor should be deemed to be a party to the transaction eo nomine. In interpreting the word 'transferor' in Section 53-A of the Transfer of Property Act, the Judicial Committee held that where the mother and guardian of a minor enters into a contract of sale of immoveable properties of the minor to discharge the father's debts and puts the transferee in possession, the transferor in such a case, for the application of Section 53-A of the Transfer of Property Act, is the minor. The principle deducible from this case is that where the transaction is with regard to the properties of the minor, it should-be deemed as if he is eo nomine a party. At page 24 we find the following Observation:
Their Lordships think it is clear that the words the 'transferor' refer back to the person who contracts to transfer for consideration any immoveable property by writing signed by him or on his behalf. Thus the act of the mother and guardian in entering into the contracts of sale in the present case was an act done on behalf of the minor and finally it was held that 'the person who most aptly answers the description of the transferor' in the sense in which these words are used in Section 53-A of the Transfer of Property Act is the minor himself.
8. If the matter is looked at in this way there is no difficulty in reconciling the various cases and we do not propose to analyse at length the large body of case-law cited at the Bar. The distinction between a void and voidable transaction has been brought out in a number of cases and we need only refer to a few of them : Chingacham Vitil Sankaran Nair v. Chingacham Vitil Gopala Menon I.L.R.(1906) Mad. 18, Bijoy Gopal Mukerji v. Krishna Mahishi Debi , Fakirappa Limmanna v. Lumanna Bin Mahadu (1919) I.L.R. 44 Bom. 742, Bali Reddi v. Khatipulal Sab : AIR1935Mad863 , Ankamma v. Kameswaramma (1935) 70 M.L.J. 352, Raja Ramaswami v. Govindammal (1928) 56 M.L.J. 332 and Vallabhacharyulu v. Rangacharyulu : AIR1937Mad449 . There is no doubt whatever that a transaction entered into by a guardian relating to the minor's properties is not void and if the minor does not sue to set it aside within three 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. But where the document is executed by a manager of the family and it is not binding on the family, the minor or any other member can ignore the transaction and recover possession of the property. To such a case Section 7(v) of the Court-fees Act will apply. We are here not concerned with decrees to which the minor is eo nomine a party. Our answer to the first question is that if the minor is eo nomine a party to a sale-deed or other document of alienations, he must sue for the cancellation of the document under Section 7(iv-A) of the Court-fees Act and it is not enough if he applies for possession under Section 7(v) of the Act; and to the second question our answer is that there can be no distinction whether the father as guardian of the minor and not as the manager of the joint family executes the deed. Even in that case also the document has to be set aside.
9. After expression of the above opinion by the Full Bench, the case came on for hearing and the Court (Panchapakesa Ayyar, J.) delivered the following