1. The question primarily arising in this second appeal is one of limitation. The reversioners sue for a declaration that the widow's alienation is not binding on them after her life-time. There were two mortgages of the same property. The first was effected during the widow's minority by her mother, admittedly a guardian de facto, by Exhibit II in 1906. The second (Exhibit I) in renewal, was by the widow herself, after she came of age, in 1913. I think that if Exhibit II is only voidable, and not void, the plaintiffs must seek theirs declaration with regard to it, just as though it had been executed by the widow herself, and that it is not enough to obtain a declaration only with regard to the later mortgage. Their learned Advocate has endeavoured to reason that, even if so, time will not run against his clients until either the widow ratifies or the time allowed her to avoid her guardian's act has expired, but neither on principle nor upon any authority shown to me do I feel disposed to accept this view. If Exhibit II evidences a valid transfer until avoided, the reversioners had a cause of action, irrespective of what the widow might do, as soon as it came into existence.
2. The case mainly relied on as authority for the view that an alienation by a de facto guardian, and unsupported by necessity, is void, is Thayammal v. Kuppanna Koundan (1914) I.L.R. 38 M. 1125 : 27 M.L.J. 285 After holding that a paternal aunt is not a natural guardian, Sadasiva Aiyar, J., observes that, therefore, her alienation need not be set aside, and that Article 44 of the Limitation Act does not apply. I infer that he would regard such an alienation as void, but the view is unsupported either by discussion or by reference to case-law. The observation with regard to Article 44 is derived from the Privy Council judgment in Mata Din v. Ahmad Ali (1912) L.R. 39 I.A. 49 : I.L.R. 34 A. 213 : 23 M.L.J. 6 (P.C.), but that case was decided upon Muhammadan Law, which unlike Hindu Law does not recognise a de facto guardian. It appears doubtful, therefore, whether it is good authority for the proposition, and in any case it does not follow that because Article 44 may be inapplicable, the transaction would be void. Its applicability depends in the first place upon the construction to be placed upon the word 'guardian' in it. The cases relating to Muhammadans have received some notice in Seetharamamma v. Appiah (1925) I.L.R. 49 M. 768 : 50 M.L.J. 689 where it was held that an alienation by the de facto guardian of a Hindu minor was valid if for necessity, and if not for necessity was voidable only, so that it could be ratified by the minor on attaining majority. It has been said that this was not really the question before the Bench, but that is not so, because both the learned Judges hold that apart from necessity there was ratification by the minor on attaining age in the case of one of the sales. The case is, therefore, clear authority for the proposition. It was followed by Odgers, J., in Endandi Thesuan v. Subramania Aiyar (1926) 97 I.C. 611. In Chinna Alagum-perumal Karayalar v. Vinayagathammal (1928) 29 L.W. 6 it was found that the alienation was effected by a person who was not even a de facto guafdian so that it was void ab initio. There is an obiter dictum that it is well settled that the powers of a de facto guardian are the same as those of a lawful guardian under the Hindu Law and authority is cited for the proposition. The same judgment, however, contains the remarks that the unauthorised or improper alienation of a minor's property by a de facto guardian need not be set aside, which I cannot reconcile with the other view. The question in Ramamnnii v. Kasinatha : AIR1928Mad226 , to which I was a party, was rather the effect of an alienation by a de facto guardian which was supported by necessity, and we held that in such a case the de facto guardian was in the same position as a de jure guardian. We reached this conclusion on a general survey of the die facto guardian's powers, though it is true that the effect of an alienation unsupported by necessity had not to be pronounced upon.
3. It appears to me that such authority as is furnished by decisions of this Court is perceptibly in favour of the view that such an alienation is voidable and not void. Two cases decided by the Judicial Commissioner, Nagpur (Husein v. Rajaram (1914) 26 I.C. 813 and Mahadeo v. Somaji (1926) 99 I.C. 1050) are against it, but they do not take into consideration the difference between Muhammadan and Hindu Law upon this subject. In a Lahore case, Tapassi Rant v. Raja Ram (1929) 115 I.C. 417, it was held that under Hindu Law a de facto guardian's alienation was not void.
4. If a de facto guardian, equally with a de jure guardian, can alienate for necessity, it is not very easy to perceive why, if not so supported, the one should be only voidable and the other void. Even to alienate for necessity connotes some power to deal with the property, and indeed not only is such a power recognised in a de facto guardian but the view seems to be that in all such dealings no distinction can be drawn between the powers of the two classes of guardians. I am at least justified, I think, in laying it upon the party asserting that an alienation while voidable in the one case is void in the other, to establish his proposition, and this he has not succeeded in doing to my satisfaction. I conclude accordingly that the plaintiffs had to attack the prior mortgage of 1906, and, therefore, that their suit is time-barred.
5. The Second Appeal is allowed and the plaintiff's suit dismissed with costs to defendants 2 to 6 throughout.