1. This second appeal comes by way of reference from Gokulakrishnan, J. The question referred to this Full Bench is, 'whether a transferee from a minor, after he attained majority, can file a suit to set aside the alienation made by the minor's guardian or the said right is one to be exercised only by the minor?
2. The facts of the case on which the question falls for determination may be briefly set out. The suit property, a piece of land of an extent of 1 acre 12 cents in the village of Vettivayal, Thanjavur District, originally belonged to one Veerammal, who purchased the same in the year 1948. Veerammal had a daughter by name Kaliammal. Veerammal died a few months after the purchase of the suit property leaving behind her surviving her minor daughter Kaliammal and her husband, Kandayya. Subsequent to Veerammal's death, Kandayya married again. Kaliammal was then a minor. She left her father's house to reside with her maternal grand-father who was protecting and maintaining her during her minority. Meanwhile, on 29th May, 1958, Kandayya executed an other on the suit property in favour of one Jamalula Maracayar. The othi was subsequently discharged. On 21st October, 1959 Kandayya sold the property to one Jainulabdeen, purporting to do so for himself and one behalf of his minor daughter, Kaliammal. Jainullabdeen, in turn, sold the suit property to one Amirtham on 25th April, 1966. In time, Kaliammal attained majority. She regarded the sale deed executed by her father in favour of Jainullabdeen as not binding on her. She ignored it, and proceeded to sell the property herself to one Sornam under sale deed, dated 26th May, 1966. Thereafter, Sornam filed the suit, O.S. No, 491 of 1968, on the file of the Court of District Munsif, Pattukkottai against Amirtham to set aside the sale of Kandayya, dated 21st October, 1959 and for recovery of possession. Amirtham resisted the suit on many grounds. The trial Court held against him on all the issues. The suit was decreed in favour of Sornam as prayed for. Amirtham appealed to the Court of the Subordinate Judge, Thanjavur. But the appeal was dismissed. Thereupon, Amirtham filed Second Appeal No. 89 of 1972, which has now come before this Full Bench on reference by Gokulakrishnan, J.
3. The principal question raised before Gokulakrishnan, J., and now before us, Is whether the plaintiff Sornam, as purchaser from Kaliammal, is entitled to file the suit to set aside the sale made by her father and guardian Kandayya on 21st October, 1959 in favour of Jainullabdeen from who the defendant Amirtham subsequently purchased the suit property. While raising this question in this form Mr. Martin, learned Counsel for the appellant, could not dispute the following findings of the Courts below: (i) The suit property belonged absolutely to Veerammal, and, after her death, it devolved on her heir and minor daughter Kaliammal as her absolute property; (ii) after the death of Veerammal minor Kaliammal was not living with her father Kandayya or under his protection; (iii) the mortgage executed by Kandayya as well as the sale of the property made by him in favour of Jainullabdeen were not for the benefit of the minor or for legal necessity; (iv) At the time Kandayya sold the property to Jainullabdeen, Kaliammal was a minor; (v) The plaintiff Sornam purchased the suit property for valuable consideration from Kaliammal after she had attained majority; and (vi) under the sale deed in favour of Sornam, what was purported to be transferred by Kaliammal was the entitle fee simple in the property.
4. On these concurrent findings of fact by the Courts below. Mr. Martin. nevertheless contends that the plaintiff Sornam has not derived any right under the sale deed from Kaliammal which entitles him to file the suit against the defendant to set aside the alienation made by Kandayya, as father and guardian. Learned Counsel does not dispute the position that Kaliammal herself, after attaining majority could have filed a suit seeking to set aside the alienations made by her guardian during her minority on the ground that the alienations were not for her benefit or for legal necessity and hence not binding on her. But the suit has been filed in this case, not by Kaliammal, but by Sornam, who is only alienee, although for consideration. This according to Mr. Martin, makes all the difference in the legal position.
5. The question before us, therefore, lies in a very narrow compass. We have earlier set out the facts which provide the background for the case. One further fact may be mentioned here. Before selling the property to Jainullabdeen, Kandayya as guardian of his minor daughter Kaliammal, did not obtain the previous permission of the Court within whose jurisdiction the suit property was situate. This is a relevant circumstance. For the right of the plaintiff Sornam to sue for setting aside the guardian's alienation has to be determined on the basis of the relevant provisions of the Hindu Minority and Guardianship Act, 1956 (Central Act XXXII of 1956), which had come into force on 25th August, 1956. The Act applied to the alienation now in question. The alienation was on 21st October, 1959, alter the Act came into force.
6. The Legislature had avowedly brought this measure with a view to amend and codify certain parts of the law relating to minority and guardianship among Hindus. Under Section 2 of the Act, it is provided that the provisions of that Act shall be in addition to, and not in derogation of, the Guardians and Wards Act, 1890. Under Section 6, the natural guardian of a Hindu minor in respect of the minor's person as well as in respect of the minor's property, in the case of a boy or an unmarried girl, is the father, and after him, the mother. Section 8 is relevant to the present discussion. It defines the powers of the natural guardian of a Hindu minor. Sub-section (1) states that the natural guardian has power, subject to the provisions of the section, to do all acts which are necessary, reasonable and proper for the benefit of the minor or for the realisation, protection or benefit of the minor's estate. It is, however, clearly enacted that the guardian can, in no case, bind the minor by a personal covenant. Sub-section (2) of Section 8 provides that the natural guardian shall not, without the previous permission of the Court (a) mortgage or charge, or transfer by sale, gift, exchange or otherwise, any part of the immovable property of the minor; or (b) lease any part of such property for a term exceeding five year or for a term extending more than one year beyond the date on which the minor will attain majority. Sub-section (3) of the same section is an important provision, in the context of the questions arising in this second appeal. It declares that any disposal of immovable property by a natural guardian, in contravention of Sub-section (1) or Sub-section (2), is voidable at the instance of. the minor or any person claiming under him.
7. The provisions of Section 8 are simple. Their meaning can hardly be misunderstood. Especially that of Sub-section (2) and Sub-section (3). Sub-section (2) insists that a guardian cannot mortgage, charge, sell, gift, exchange or otherwise transfer any immovable property of his ward, unless he had obtained the previous permission of the Court. As earlier mentioned, Kandayya did not obtain the sanction of the Court before selling the property as guardian of his minor daughter Kaliammal. Nor, as the Courts have found, was the sale for the minor's benefit or for legal necessity or for benefit of the estate. It follows that the sale is hit at by Sub-section. (2) of Section 8. From this, it is but a step to conclude, in terms of Sub-section (3), that the sale is voidable either at the instance of Kaliammal or at the instance of the plaintiff Sornam who claims under the sale executed by Kaliammal in his favour.
8. Mr. Martin, nevertheless, argues that the plaintiff Sornam could not be regarded as a person 'claiming under the minor' within the meaning of Section 8 (3) of the Act. We have not been shown any direct authority on the meaning of the words 'any person claiming under the minor' occurring in Section 8 (3) of the Act. t The matter has, therefore, to be decided as one of first impression. In our view, the words seem to apply to any person who derives from the minor the right to avoid the guardian's alienations. He might derive the right by inheritance, under testamentary disposition, by transfer inter vivos or by devolution by law. In all the cases, he would be a person 'claiming under the minor.' On this construction of the sub-section the plaintiff Sornam must be held to be a person claiming under the minor Kaliammal. It is plain that he does not claim under any one else. The cause of action for his suit is founded entirely on the sale deed executed by Kaliammal in his favour.
9. We did not understand Mr. Martin to argue that the words of Section 8 (3) cannot, in their natural meaning apply to the plaintiff Sornam. His attempt, rather was, to show that the sale deed, dated 26th May, 1966 executed by Kaliammal in favour of Sornam, after she attained majority, did not, in law, convey in the plaintiff's favour any right to the property such as would enable him to maintain the suit for setting aside the prior alienation by the guardian. Mr. Martin contended that at the time Kaliammal purported to sell the property to the plaintiff, all that she herself had was no more than a right to sue for avoiding her guardian's alienations during her minority. But this right, it was argued was purely personal to Kaliammal, whereby it was meant that Kaliammal herself could have exercised that right by suing through a next friend during her minority, or by filing a suit herself after attaining majority. Being a personal right to sue, in the sense aforesaid, Mr. Martin maintained, it could not be the subject-matter of a valid transfer by Kaliammal. Reference was made, in this connection, to Section 6 (e) of the Transfer of Property Act, 1882 which provided that a mere right to sue cannot be transferred. Learned Counsel submitted that Kaliammal's sale deed, dated 26th May, 1966 in favour of the plaintiff being merely the transfer of a personal right to sue, was within the mischief of Section 6 (e) of the Transfer of Property Act, and, therefore, it could not clothe the transferee within any rights. Thus, even with this sale deed in his favour, the plaintiff Sornam cannot be held to be a person claiming 'under the minor' within the meaning of Section 8(3) of the Act.
10. We cannot subscribe to the basic arguments of Mr. Martin that the right of a ward after attaining majority to avoid or set aside the guardian's alienations during minority is merely a personal right to sue which is incapable of transfer by the minor. Under the plain terms of Section 8 (3) of the Act, it is difficult to see how we can exclude a transferee from the minor from the ambit of this provision. When the sub-section refers to 'any person claiming under the minor', it is assumptive of the position that the right to avoid the guardian's transfer can be a derivative right, claimed as such by anyone else from the minor. If the Legislature had accepted the position that a Hindu minor's right to avoid the guardian's alienations is merely a personal right to sue, these words would not have been found enacted in the sub-section.
11. There is a theory that the mistake and assumptions of those who draw up Acts of Parliament do not constitute the law. But we are satisfied that Section 8 (3) of the Act has been enacted on firm foundations. Even under the general law, relating to transfers of property, Courts have recognized a well-merited distinction between the transfer of a mere right to sue, as such, on the one hand, and the transfer of property which carries with it an incidental right related to the remedy for its recovery, on the other. Section 6 (e) of the Transfer of Property Act, on which reliance was placed by Mr. Martin, does not brush aside this distinction. It is applicable, in terms, only to the former kind of transferee of a mere right to sue. The section in the Transfer of Property Act would seem to have been inspired by ancient English rules of law which were framed against any transfer of a mere right to sue. The objection was based on the doctrine that the law would not recognise any transaction savouring of maintenance or champerty. However, even in England, exceptions are recognised to this rule. One such is that there is nothing unlawful in the purchase of property which the purchaser can only enjoy by defeating existing adverse claims. The position is succinctly set out in Halsbury Vol. 6 paragraph 47 at page 50: 'In every case it is a question whether the purchaser's real object was to acquire an interest in the property, or merely to acquire a right to bring an action, either alone or jointly with the vendor.' In this sense, it becomes a matter of enquiry in every case as to whether the subject of the conveyance is the property, including the right of action in respect of the property, or whether it is a mere right of litigation. If the assignment or transfer of the right to sue is only incidental and subsidiary to the conveyance of the property, there could be no question that the same may be transferred along with the property, under an effective conveyance.
12. In India, the position seems to have been not so well settled. On the question whether the conveyance by a ward of property alienated by his guardian is the assignment of a mere right to sue or something more, there has been some conflict of authority in our Courts. There are cases on both sides of the line. There are decisions of Courts which have held that the minor's right to avoid the transfer by his guardian or to set it aside is a valuable right attached to the property. They have further held that it is given to the minor under the law to render an effective conveyance to his alienee of the property along with the incidental remedy for its recovery. The latter view fine's forcible expression in a judgment of Viswanatha Sastri, J., in Palaniappa Goundan v. Nallappa Goundan : AIR1952Mad175 . After referring to some of the earlier authorities in which a contrary opinion had been expressed, the learned Judge observed at page 272:
I am unable to accept these decisions as embodying a correct statement of the law. There was here a sale of property by the ex-minor and not an assignment of a mere right to sue. No doubt, the vendee from the minor had to Sue the previous purchaser from the guardian for recovery of possession of the property, but in my opinion, that did not render the sale by the minor a transfer of a mere right to sue....
It is a right annexed to the ownership of property or an interest in property and is available to the legal representatives of a minor who dies without avoiding a transfer. Where an ex-minor transfers property unauthorisedly sold by his guardian during his minority, he transfers not a right to sue, but his interest in the property, though a suit may be necessary to avoid the transfer by the guardian and possession of his property from the alienee.
13. One of the authorities which came in for criticism at the hands of Viswanatha Sastri, J., was an early decision of a Division Bench of this Court consisting of Sadasiva Ayyar and Spencer, JJ. In Muthukumara Chetty v. Anthony Udayar I.L.R.(1915) Mad. 867 : 29 M.L.J. 617 : 24 Ind.Cas.120. In that case, Sadasiva Ayyar, J., stated the proposition of law, as a theoretical question, with reference to the facts of that in the following terms: 'If Rajagopalan, after attaining majority, should wish to repudiate the lease, there can be no doubt he can do so without a suit. But can any one else do so? The right to avoid is a personal privilege'....
14. In Alamelu Ammal v. Krishna Chetty : AIR1954Mad585 . Satyanarayana Rao and Balakrishna Ayyar, JJ., had to consider a case where, on the death of a minor, the reversionary heirs of the minor had brought a suit for setting aside the alienation effected by the guardian of the minor. The suit was filed by the reversioners within 12 years of the date of the alienation, but after the expiry of three years from the minor's death. The lower Courts held that the suit was barred by limitation, because under Section 6 (3) of the Indian Limitation Act, 1908, limitation had to be counted from the date of the death of the minor. The learned Judges held that Article 44 applied to the case, but in computing the limitation, Section 6 (3) cannot be invoked. According to them, the three-year period must be counted from the date when the minor would have attained majority had he not died. The reasoning of the learned Judges was that a transferee or a legal representative of the minor acquired title to the property subject to the right of the minor's option being exercised within three years from the date of the minor attaining majority. After referring to certain earlier decisions the learned Judges observed 'in our opinion, the right which is being exercised by the legal representatives is the right of the minor to avoid the transfer....'
According to the learned Judges, this manner of applying Article 44 to the case of minor's legal representative was in consonance with the policy behind that article. Their reasoning was that the same disability that affects the minor must also apply to the minor's legal representatives or a transferee from the minor; for according to the learned Judges, they were 'persons claiming through the minor'. The learned Judges also observed that the right to set aside an alienation, for which Article 44 provided1 the period of limitation, was not 'a personal privilege conferred upon the minor under Section 6(3) of the Limitation Act.' The learned Judges expressed their disagreement with the decision in Ramiah v. Brahmiah : (1930)59MLJ196 . which had relied on Section 6 (3) of the Limitation Act and had held that limitation has to be computed from the date of death of the minor. Incidentally, the conflict in judicial decisions touching the computation of limitation had been resolved in the new Limitation Act, 1963 in Article 60 of the Schedule.
15. The aforesaid view of Satyanarayana Rao and Balakrishna Ayyar, JJ., on the nature of the minor's right to set aside the guardian's alienations were not accepted as correct in a later decision of a Bench of this Court consisting of Govinda Menon and P.N. Ramaswami, JJ. in Palani Goundan v. Vanjikkal : (1956)1MLJ498 . This Division Bench thought that the learned Judges who decided Alamelu Ammal v. Krishna Chetty : AIR1954Mad585 . had merely assumed, without a detailed examination of the legal position, that a minor's right to set aside the guardian's alienation is heritable and alienable, and that the learned Judge's were only dealing with a matter of limitation. We may say that this observation may not be apposite, at the present moment, as applied to Article 60 of the Limitation Act, 1963. For this Article now clearly provides for a suit to set aside a transfer of property affected earlier by the guardian of a ward not only by the ward himself after attaining majority, but also by the ward's legal representative in a case where a ward dies before attaining majority and also in a case where he dies within three years from the date of attaining majority. Article 60 of the Schedule to the Limitation Act, 1963, clearly and unequivocally proceeds on the footing that the said right is heritable, if not alienable.
16. Be that it as it may, Govinda Menon and Ramaswami, JJ. preferred not to accept the decision in Alamelu Ammal v. Krishna Chetty : AIR1954Mad585 . They accepted as correct the decision of Sadasiva Ayyar and Spencer, JJ. in Muthukumara Chetty v. Anthony Udayar I.L.R.(1915) Mad.867 : 29 M.L.J.617. They expressed their dissent from the opinion expressed by Viswanatha Sastri, J. in Palaniappa Goundan v. Nallappa Goundan : AIR1952Mad175 .
17. Apart from the above decisions of our High Court reference was made to a decision of the Calcutta High Court in Man Mohan v. Bidhu Bhusan : AIR1939Cal460 . It was held in that case that the interest which the minor possessed in the property transferred by the guardian is a mere right to sue to have the sale set aside, and the transfer by the minor of such a right is clearly prohibited under Section 6 (e) of the Transfer of Property Act.
17-A. It is unnecessary to refer in detail to the other cases cited at the bar. A fairly long list of decisions may be found in the judgment of Viswanatha Sastri, J. in Palaniappa Goundan v. Nallappa Goundan : AIR1952Mad175 . Thereunder the list upto date, we may site the judgment of Ramamurti, J., in Gunnama v. Baluchi I.L.R. (1965) Mad.114. In which the learned Judge merely followed without discussion, the judgment of Govindan Menon and Ramaswami, JJ. in Palani v. Vanjikkal : (1956)1MLJ498 .
18. On a view of the cases cited at the bar, we find that the questions at issue in the present case had not directly arisen in any of those cases excepting, incidentally, in connection with the application of Section of 6 (3) of the Indian Limitation Act, 1908 or Article 44 of Schedule 1 to the said Act. At all events, all those cases had only dealt with the law that subsisted before the coming into force of the Hindu Minority and Guardianship Act, 1956 and they cannot be regarded as authorities on the true construction of Section 8 of that Act.
19. Gokulakrishnan, J., in making the reference to the Full Bench, had pinpointed on the apparent conflict between the decisions in Muthukumara Chetty v. Anthony Udayar I.L.R.(1915) Mad.867 : 1915 29 M.L.J. 617. and Palani v. Vanjikkal : (1956)1MLJ498 . on the one side, and Palaniappa Goundan v. Nallappa Goundan : AIR1952Mad175 . and Alamelu Ammal v. Krishna Chetty (1954) 1 M.L.J. 294 : I.L.R. (1955) Mad. 562. on the other. This conflict in Bench decisions provided the main impulse for the learned Judge to refer the matter to the Full Bench. For purposes of the present case, however, we do not think it is really necessary to resolve the conflict, although we are inclined to think that the opinion expressed by Viswanatha Sastri, J., Palaniappa Goundan v. Nallappa Goundan : AIR1952Mad175 . is the sounder view, on principle, of the law obtaining on the subject both before and after the commencement of the Hindu Minority and Guardianship Act, 1956.
20. At this stage, we may refer to Section 5 of the Hindu Minority and Guardianship Act, 1956, which clearly lays down that any text, rule or interpretation of Hindu Law or any custom or usage as part of that law in force immediately before the commencement of. the Act, shall cease to have effect with respect to any matter for which provision is made in this Act. In our view, the overriding effect of the Act under this provision would encompass even earlier Court rulings on the subjects which are now dealt with by the Act. At all events, in so far as the instant question before us is concerned, we have no doubt, that it has got to be decided only in terms of Section 8 (3) and not by reference to the judicial precedents in regard to the law as it existed before the commencement of the Act.
21. Gokulakrishnan, J., in his referring judgment, apparently thought that Section 8 (3) can only refer to persons who obtained the minor's property by devolution of law, such as heirs-at-law or reversioners. We do not find any justification for giving to the words 'any one claiming under him' this restricted meaning. The reasons suggested for this restricted interpretation was that Section 8 (3) of the Hindu Minority and Guardianship Act, 1956 must be construed in harmony with Section 6 (e) of the Transfer of Property Act. We doubt whether there exists any canon of 'harmonious ' construction, which extends the scope of the Court's inquiry beyond the confines of the particular statute which the Court has to construe. Nor can we accept as sound the notion that the Court can ignore the plain terms of a statute, by reference to the provisions in a different enactment. In any case, we do not see the relevance of reading Section 6 (e) of the Transfer of Property Act into Section 8 (3) of the Hindu Minority and Guardianship Act, 1956. Section 8 (3), on its plain terms applies to the transferees as well as the legal representatives of the minor, and it cannot have been the intention behind the words 'any person claiming under the minor' that a transferee from the minor should stand excluded from the description.
22. Gokulakrishnan, J. however, was prepared to concede that the words 'any person claiming under the minor' could be applied to persons to whom the minor's interest has devolved under inheritance. We are unable to see how this result could flow if Section 6 (3) of the Transfer of Property Act were thought to control the scope of Section 8 (3) of the Hindu Minority and Guardianship Act. If the theory is that a minor's right to set aside the guardian's alienation is a mere right of litigation and is only personal to the minor, then, on the minor's death, the right also must die with him, it cannot devolve on his heirs or reversioners. But the view adumbrated by Gokulakrishnan, J., would seem to suggest that Section 6 (e) of the Transfer of Property Act would only have the effect of excluding from the ambit of Section 8 (3) of the Hindu Minority and Guardianship Act, 1956 transfers inter vivos of the minor's right in the property alienated by the guardian, We do not see any validity, in principle, for this understanding of the sections. We have earlier referred to Section 5 of the Hindu Minority and Guardianship Act, 1956 with particular reference to Clause (a). That sub-section dealt with the overriding effect of the Act as respects any rule of Hindu law, usage, custom, etc., in force immediately before the commencement of the Act. Clause (b) enacts similarly, that 'any other law in force immediately before the commencement of this Act shall cease to have effect in so far as it is inconsistent with any of the provisions contained in the Act.' This being the avowed intention of. the legislature, when it comes to a question of, which is to be master, Section 6 (e) of the Transfer of Property Act or Section 8 (3) of the Hindu Minority and Guardianship Act, 1956? The former must necessarily yield to the latter under the compulsive rule of interpretation declared by Section 5 (b) of the latter Act. We have no hesitation, therefore, in giving to Section 8 (3) the full force and effect the words in their natural and ordinary meaning carry.
23. In the result, our formal answer to the question referred to us is that the right to set aside the alienation of a minor's property by the guardian is available under Section 8 (3) of the Hindu Minority and Guardianship Act, 1956, not only to the minor himself, but also to any person claiming under him, which latter expression includes a transferee of the minor.
24. On this construction of Section 8 (3) of the Hindu Minority and Guardianship Act, 1956, the plaintiff Sornam has to be regarded as a person claiming under the minor Kaliammal, and this being so, the previous alienation of the suit property, dated 21st October, 1959 made by Kandayya as guardian of Kaliammal is open to avoidance by the plaintiff. It follows that the suit filed by him for setting aside that alienation and for possession must be held to have been properly laid.
25. The second appeal is dismissed. But in the circumstances, there will be no order as to costs.