1. These three appeals arise out of three suits tried together by the City Civil Judge. The advisability of trying O.S. No. 555 of 1929 (C.C.C.A. No. 18 of 1931) with the other two suits is open to question, but we propose to record our findings upon the issues which it raises quite separately. Certain facts may however be stated as common to the three cases.
2. We are concerned with a family of Indian Christians composed of Richard and Caroline Kent, husband and wife, and two daughters Sarah (Mrs. Borgonah) and Lydia. Richard Kent, who was an Inspector on the railway, owned a house, No. 6, Salai Street, Vepery, Madras, in part of which he was living up to the time of his death. The house consisted of two distinct portions, a front part and a rear part, and these figure separately in the later transactions. In 1913 Richard Kent executed two successive mortgages of the whole property to a Marwari Sowcar named Birchand for sums of Ra. 500 and Rupees 100 respectively. In 1914, under Ex. D, he made a gift of the property to his wife and daughters. In 1916 Birchand sued upon his mortgages (O.S. No. 422 of 1916) and obtained a preliminary decree. Thereupon, in spite of the gift deed, on 25th December 1916 Richard Kent executed an agreement to sell the front part of the house to one Muniswami for a sum of Rs. 1,500 and acknowledged an advance payment; of Rs. 100. Less than a month later, on 20th January 1917, Richard Kent died, and less than a month after his death, on 17th February 1917, the widow executed a sale deed, Ex. E, of the front part for herself and as guardian of her two daughters, to Muniswami's daughter Bangarammal for Rs. 1.500. Out of this consideration a sum of Rs. 1,150, as the receipts Exs. 5 and 5-A show, was paid, to Birchand in discharge of the mortgage debts of 1913 and of some smaller-loans advanced to Caroline. This sale is the subject matter of O.S. No. 555 of 1929. The plaintiff is Lydia Kent and she sued in forma pauper is for a declaration that it was not binding upon her and for partition and delivery of her one-third share in the property under the gift deed. It is probable that the elder daughter would have joined in this claim had she not allowed it to get barred against her. The lower Court has held that the gift deed, which was impugned as benami or nominal, was valid and that the sale is not binding upon the plaintiff, who has been given a declaration accordingly. The appellant is therefore the vendee, Bangarammal who was defendant 1 in the suit.
3. The grounds adduced for holding that the gift deed is nominal are, in view of the relationship between the parties, quite inconclusive, and it has been recognized before us that it is not open to the vendee to attack this document, forming as it does the title of the vendors relied upon in the sale deed. We agree with the lower Court in holding, that the plaintiff has a valid title under that instrument. The plea that the sale deed is not binding to the extent of the plaintiff's share is based firstly upon the contention that the mother was not in any circumstances competent to alienate her daughter's property, and secondly, that if she was competent to do so in circumstances of necessity, such necessity has not been proved.
4. The powers of a mother, as guardian, in communities not governed by Hindu or by Mahomedan law do not appear to have formed the subject of express judicial decision. There are cases decided under Mahomedan and under Hindu law but the principles upon which they rest are not necessarily extensible to other communities. The Mahomedan law decisions exemplified by the Privy Council cases Mata Din v. Ahmad Ali (1912) 34 All. 213, Imambandi v. Mutsaddi 1918 P.C. 11 and Mohammad Ejaz Husain v. Mohammad Iftikhar Husaia 1932 P.C. 76, establish the proposition that a mere de facto guardian, i.e., a person who has charge of the minor's person and property but has no legal claim to be the guardian, has no power to convey to another any right or interest in the minor's immovable property, and that any such conveyance will he void as against the minor. Under the Mahomedan law the position of a mother is merely that of a de facto guardian. The position of a de facto guardian under the Hindu law has been discussed by Kumaraswami Sastri, J., in a case to which one of us was a party, Ramaswamy v. Kasinatha 1928 Mad. 226, and the proposition was accepted largely upon the principle of stare decisis, that such a guardian under the Hindu law is in the same position as a de jure guardian so far as acts done for the minor's benefit are concerned. As regards other communities, we do not think that much assistance can be obtained from an examination of the English law, as the mother's powers have been defined by satutory enactment. No doubt in such communities also an act done by a mere de facto guardian, which means a person having none of the rights of a guardian, would not bind the minor and would be void against him. This has been decided by Madhavan Nair, J., in Sundara Nandan v. Annammal 1931 Mad. 529. But a mother, the father being dead, does not, we think, fall within this category, but is certainly for many purposes the natural guardian of her minor child. She is for instance entitled to the custody of the child and to the guardianship of its property. Trevelyan (the Law Relating to Minors, Edn. 6, pp. 187-8) states that
the law applicable to persons other than Hindus and Mahomedans does not permit guardians, other than those appointed by the Court, or having power given to them by the instrument appointing them to sell or charge the immovable property of their wards.
5. But he adds that an alienation by a guardian, which does not bind the minor is not void, but voidable at the instance of the ward. Upon such avoidance the minor would have to repay any money advanced for his benefit. The same conclusion that such a transaction is voidable and not void, may, we think, be drawn from certain provisions in the Guardians and Wards Act. Sections 28 and 29 provide that the powers respectively of a testamentary guardian and of a guardian appointed by the Court shall be limited by the terms of the instrument of the order appointing him. The question then arises as to the effect of an alienation of the minor's property entered into by the guardian in excess of those powers and Section 30 provides that such a disposal of immovable property is voidable at the instance of any other person affected thereby, as for example the minor. Upon the same principle we think that an alienation effected by a natural guardian such as a mother will be voidable and not void. If it is voidable the question of limitation will arise in the connected appeals and may be dealt with here. The only cases cited to us relate to Hindus but we think that the same principles will apply because the reasoning is quite general. In Dip Chand v. Munni Lal 1929 All. 879 it has been held that Article 44, Limitation Act, applies, the learned Judge's observing:
The words of this article are very general and have application to every case in which a ward,; on attaining majority, impugns the transfer made by his or her guardian during his or her minority, and there is absolutely no warrant for restricting the application of that article to oases of transfers made by a certificated guardian.
6. It is added that the word 'guardian' as used in the article is of general import and includes natural and testamentary guardians and guardians appointed by Court. Similar views have been expressed by this Court in Satyalakshmi Narayana v. Jagannadham 1918 Mad. 487 and Arumugam Pillay v. Ambalam 1921 Mad. 425. We conclude therefore that a minor must sue within the three years allowed by the article for a declaration that the transaction is not binding upon him.
7. The second question raised with regard to the sale is whether it was in the interests of Lydia Kent. The learned City Civil Judge has discussed this matter from various points of view and has come to the conclusion that Caroline Kent was not a free agent and that the price paid for the property was in-adequate. The evidence relating to the value of the front portion of the house is not very definite. Sarah Borgonah, P.W. 1, says that it is worth Rs. 6,000, but this has not been corroborated. She further says that it has fetched a rent of Rs. 30 per mensem, and a receipt Ex. F, has been filed executed by Bangarammal in 1929. A house which fetches such a rent should be worth something like Rs. 4,000, and even in 1917, when the sale took place, such a house must have been worth more than Rs. 1,500. It is stated that the front half is larger than the rear half, and as we shall see, Birchand advanced money on mortgages of the rear half to the extent of Rs. 1,600 principal, and this debt aggregated to a sum of Rupees 4,700 at the time of these suits. This suggests that even the rear half is worth more than the price obtained for the front half. The argument that Richard Kent himself agreed to accept Rs. 1,500 for the property does not upon examination carry us very far. In the first place the property was not his, as he had gifted it to his wife and daughters. The agreement to sell was executed, as has been said within a month of his death, and at a time when according to his widow he was very seriously ill.
8. It was executed under threat of Court sale and by it Richard Kent obtained a sum of Rs. 100 in cash while providing for the discharge of the decree debt. The agreement it is said was arranged by Birchand himself doubtless as an easy means of obtaining his money. After Richard Kent's death the widow says that Birchand came to her and told her that the house had already been sold to Muniswami and made her execute a sale deed, giving her Rs. 200 and taking the remainder himself. She is an illiterate woman and there is nothing to show that she obtained any independent advice. The property represented at least one half of the family assets and its sale deprived them of a substantial source of income. We see no reason to differ from the view that it was not in the interest of the minor daughter and not binding upon her. The learned City Civil Judge has given her a decree declaring this and that she is entitled to a one-third in the property. But this is to lose sight of the fact that the property as gifted to the mother and the daughters was subject to the two mortgages of 1913, and these having been executed by the father were binding upon them. They were discharged out of the sale price and accordingly the vendee must have a charge upon the property to the extent of the sum so paid. This would have amounted, it is calculated, at the date of sale to Rs. 1,058. The decree will be modified accordingly. Further the lower Court has only given a declaration and has added a note that the plaintiff undertakes to take her remedy of partition in execution. This is not the correct course. The plaint asks for partition as well as for a declaration and there should have been a preliminary decree for partition. We accordingly pass such a decree and the case will be remitted to the lower Court to proceed with the partition and pass a final decree. Having regard to the indivisibility of the property, recourse should, if necessary, be had to Sections 2 and 3, Partition Act 4 of 1893. This disposes of C.C.C.A. No. 18 of 1931, in which the appellant has succeeded only with regard to the charge for the mortgage debt. Each party will bear their own costs throughout. (The rest of the judgment regarding Appeals Nos. 34 and 35 of 1931 is not material for purposes of this report).