S. Ramachandra Iyer, C.J.
1. This appeal which is filed against the judgment of Kailasam J. under Cl. 15 of the Letters Patent, raises a question of limitation. The appellants with their elder brother constituted a Hindu Joint family. They instituted a suit (which has given rise to this appeal for setting aside a sale of_ a joint family property effected by the latter in the year 1942 (28-6-1118 M.E.) in favour of the respondent and for recovery of possession of that property. At the time of the sale, the appellants were minors. Their mother, as their natural guardian joined her eldest son and executed the document.
2. On 21-1-1953, admittedly more than three years after' the appellants attained the age of majority, but within 12 years from the date of the alienation, the present' suit was instituted. The alienee pleaded inter alia, that the suit must be held to. be barred by Article 44 of the Limitation Act. Both the courts below without much discussion overruled the plea of limitation. They concurrently found that the sale was supported by consideration only in part and they passed a conditional decree for possession in favour of the appellants and against the respondent on payment by the former of a sum of 1222 fanams-the actual consideration paid for the purchase by the respondent. This decree has been set aside on second appeal by Kailasam J. on the ground that the appellants being eo nomine parties to and represented in the transaction by their mother. Article 44 of the Limitation Act would apply and that the claim for recovery of possession would be barred.
3. The only question for consideration in this appeal is that whether in a sale of joint family property by the manager, a minor member of the family is represented eo nomine in the transaction by his guardian, it would be obligatory upon him to have it set aside before he can claim recovery of possession of the property on the ground that the alienation was not justified.
4. Article 44 of the Limitation Act provides a period of three years for suit by a ward who has attained majority to set aside a transfer of property by his guardian, from the date when the ward attains majority. The two relevant requirements of the article so far as the present case is concerned are: (1) the property which had been alienated by his guardian should have belonged to the minor, and (2) the transaction by the guardian should be voidable and not a void one as in the latter case there would be no need to set it aside.
5. A minor member of a joint Hindu family has undoubtedly an interest in the joint family property. He can, for example (if it be for his benefit) sue for partition and separate possession of his share of the properties. But all the same, the property cannot be regarded as his individual property. The question then is whether in regard to such property the natural guardian of the minor can by a conveyance (even if it be for necessity) pass title to the purchaser of the minor's o interest in the joint family property. If he can do so the minor will be bound to set aside the alienation and Article 44 would apply. Otherwise there would be no need to have the transaction set aside and the minor who wants to repudiate the transaction can sue for recovery of possession from the alienee within the period prescribed by Article 144.
6. Before referring to decided cases on the question it will be useful to advert briefly to the principles. In a joint Hindu family, the right of management of property inheres in the manager. If the family consists of a minor member his guardian will not be entitled to separate possession of the minor's share or even to interfere with the exclusive right of the kartha to manage. The position however will be different where the minor is the sole surviving member of the joint Hindu family. In such a case there being no manager his guardian can have custody of his property. This rule has been, if we may say so, succinctly set out in Ramchandra Vasudeo v. Krishnarao, ILR 32 Bom 259. It was held in that case that where all the coparceners of a Hindu joint family happened to be minors the court would have jurisdiction to appoint a guardian of property of that group of coparceners as a whole but when subsequently one of that group reached the age of majority, the guardianship of the persons appointed 'by the court would cease and the court would be bound to hand over the joint family property to the adult coparcener notwithstanding the fact that the other coparceners were minors. It is on this principle that it has been held that a Hindu. father or a senior coparcener in a Mitakshara family has no power to appoint by will or other instrument a guardian for his minor son, brother or nephew. Vide Chidambaram Pillai v. Rangaswami Naicker, ILR 41 Mad 561 : AIR 1919 Mad 1046. In Gharibullah v. Khalak Singh, ILR 25 All 407 (PC), the Privy Council held that there could not be a. guardian of minor's interest in an undivided Hindu family for the reason, that such interest would not be the individual property of the minor. The position of manager of a joint Hindu family quad its property has been stated in Mayne's Hindu law, 11th Edn. page 367, thus:
'The position of a Kartha or manager is sui generis; the relation between him and the other members of the family is not that of a principal and agent or of partners. It is more like that of a trustee and cestui que trust. But the fiduciary relationship does not involve all the duties which are imposed upon trustees.'
Earlier at page 287 the learned author said:
'In an undivided family governed by Mitak shara law the management of the whole property including the minor's share would be vested not in the mother but in the eldest male. It would be otherwise where the family is divided or where the minor has separate property. But this would not interfere with her right to the custody of the child.'
This rule is really the outcome of the principle as to the corporate character of a joint family and of its capacity to hold its property. The result is that where the family consists of brothers and the eldest of them is a major, he will in his capacity as manager of the family be solely entitled' to be in possession of the property of the family. The mother of the remaining coparceners, who happen to be minor sons will not be entitled to the custody of the individual interest of the minor sons although she be their natural guardian.
7. When, therefore, the manager of the family effects an alienation of the property, the joining of the mother in the transaction in her purported capacity as guardian of the minors, will not mean that she is conveying any interest of the minors in the joint family property as that could be done only by the manager of the family. In Ambalayana Pillai v. Gowri Ammal : AIR1936Mad871 a. major son and the guardian of the minor sons appointed under the will of their father mortgaged a joint family property and both of them made payments of interest, acknowledging the mortgage debt. A question arose as to the binding nature of such an acknowledgment as far as the minors were concerned. Varadachariar and Mockett JJ held, that it being incompetent in law to appoint a testamentary guardian for a minor with respect to the coparcenery property the appointment of the guardian was invalid and hence the minor sons could not be regarded as parties to the mortgage in their individual capacity; at the same time it was also held that the acknowledgment by the major son must be regarded as an acknowledgment made by the manager on behalf of the whole joint family and binding on the minor sons, the mortgage should be deemed to have been kept alive as against the entire family. This decision will lend support to the view that although the guardian of a minor coparcener of a joint Hindu family joins in an alienation by the manager there of, the document should be regarded as having been executed by the manager and not by the guardian of the minor.
In Rathinam Pillai v. Thangavelu Muthiriar, 75 Mad LW 31, Jagadisan j. held that in circumstances similar to the present case even if the minor coparcener had been made eo nomine a party to a sale transaction (he being represented by his mother as his guardian), along with the manager, the alienation should be regarded as in effect and in substance one by the manager in his capacity as such, and not by the guardian on behalf of the minor. The learned Judge held that where the minor repudiated the transaction, a suit to recover possession of the property would be governed by . Article 144 and not 44 of the Limitation Act.
8. Kailasam, J. in the present case however was of opinion that the decision in Sankaranarayana Pillai v. Kandisamia Pillai : AIR1956Mad670 compelled a different view being taken. In our opinion that decision is entirely distinguishable from the present case. Although the claim in that case was one for partition, it is clear on a close reading of the facts, that the property which was the subject-matter of alienation by the guardian was the separate property of the minor. In such a case it is undoubted law that the transaction entered into by the guardian relating to the minor's property will not be void and the minor can repudiate the sale only by having the document executed by the guardian set aside. Article 44 would then apply.
9. This position is amply supported by authority. In Ankamma v. Kameswaramma : AIR1936Mad346 a minor was the sole surviving coparcener of a Hindu family. His property was sold by his mother. It was held that Article 44 would govern the case. The same rule will apply to the case of the separate property of the minor. A good instance of the rule is found in Arumugam Pillai v. Panayadian Ambalam, 40 MLJ 475 : AIR 192 Mad 425, where the property inherited by a minor from his mother and belonging exclusively to him, was sold by his father acting as his guardian. The father joined in the execution of the document in his personal capacity as also his paternal uncle with a view to remove the vendee's apprehensions as regards title to the property. It was held that Article 44 would alone apply to the case as the property belonged exclusively to the minor. It follows that the question whether Article 44 will apply or not, to a case where a minor seeks to recover possession of his property from an alienee, will depend not on the form of the document but on its substance. If the minor's separate property is sold and other persons also joined in the execution of the document the transaction will not cease to be one by the minor's guardian and Article 44 would apply. Per contra ii in a conveyance of the joint family property by the manager the minor is made eo nomine a party, the transaction can nevertheless be regarded only as one entered into by the manager himself and Article 144 will apply.
That there is this vital distinction that has been noticed by the learned judges in the case cited above where they say:
'No doubt it has been held that where a Hindu father sells the joint ancestral property of himself and his minor son Article 44 will not apply even though he purported to act as his minor son's guardian in making the sale. Article 126 expressly provides for setting aside such alienations of ancestral property and the Court therefore held in those cases that the mere fact that the father executed the deed also as the guardian of his minor son made no difference to the validity of the sale as he could have passed his son's share also by executing the deed himself and therefore Article 44 was not applicable.'
The case in Raju v. Venkatasami Naidu, 1959 1 Mad LJ 118 is similar to the decision in 40 Mad LJ 475 : AIR 1921 Mad 425, where it was held that in a sale of property by the guardian of the minor exclusively possessed by the minor, the joining of another person would not make it any the less a sale by the guardian of the minor. This well marked distinction between a case of individual or separate property of the minor being sold by his guardian and a case of a manager of the family selling property, the guardian of the minor joining with him in the execution of the sale deed, has been consistently recognised in several decisions of this Court. We shall refer to a few of them. In Kathaperumal v. Ramalinga Thevan, 17 Mad LT 138 : AIR 1915 Mad 1064 it was held that a sale by a Hindu father of the ancestral property purporting to do so by himself as well as the guardian of his minor son would not attract Article 44. There are three decisions to the same effect reported in AIR 1918 Madras.
In Ganesa Iyer v. Amirthasami Odayar, AIR 1918 Mad 178, Wallis, C. J. and Kumaraswami Sastri, J. stated that the fact that a Hindu father executed a sale deed as guardian of his minor son would not take away the case out of Article 126 and bring it under Article 44 which applied to a case where the property belonging to the minor was transferred by his guardian. Referring to the latter articles it was observed.
'which applies to a case where the property belonging to a minor is transferred by his guardian. In the case of the joint family property the father is the co-owner with the sons. He sells the property as the managing member of the family and the mere fact that he describes himself as guardian of his sons would not take the case out of the express terms of Article 126.'
Although the description of the father in a joint Hindu family as co-owner is not very accurate the rule laid down in the case is supported by the later authority. In Appanna v. Appanna, AIR 1918 Mad 730 it was held that Article 44 had no application to a suit by a minor member of a joint undivided Hindu family on attaimment of majority to declare that an alienation made by his natural guardian was not valid and binding upon him, because the property was not his individual property. It was only the minor's interest in an undivided family.
10. Tirupathi Raju v. Venkataraju, AIR 1918 Mad 1038 was also a case where Article 44 was confined to a case in which a person acted as the guardian of a minor in respect of property in which he had individual rights of ownership. Therefore where the property had been alienated by the manager of a Hindu joint family describing himself as the guardian of his minor coparcener, there was no obligation on the part of the minor to set aside the sale. Article 144 was held to apply. The same rule has been accepted by other High Courts. Vide Radhuram v. Mohan Singh, 29 Ind Cas 199: AIR 1915 Lah 200, Kaka v. Faqir Chand, AIR 1934 Lah 601 and also by Wadia, J. in Madhav Rao Ganpat v. Shankar Hari; : AIR1943Bom278 .
11. The decision in : AIR1956Mad670 also recognises this difference. Goyinda Menon, J. delivering the judgment of the Full Bench observed:
'The case 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 ......... But where the minor was only a member of a joint family and She transaction is on behalf of the joint family, he could always ignore the transaction ...... as not binding on the family and seek to recover possesion.'
12. After referring to the decision of the Privy Council in Subrahmanyam v. Subbarao the learned Judge proceeded:
'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.'
Earlier, in his judgment the learned Judge had said:
'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 lelative 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 of the entirety which has a legal status and a persona 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.'
It will, therefore, follow that where coparcenery property is sold by the manager the mere fact that the guardian of the minor joins in the transaction would not in substance be anything other than sale of joint family property by the manager himself; the joining of the guardian of the minor coparcener as a vendor would not alter its essential character. It cannot, having regard to the nature of the property as well as the powers of the guardian be regarded as a sale or alienation by the minor. To such a case Article 44 will not apply. To attract this provision the property sold by the guardian should belong to the minor exclusively. We accept the view taken by Jagadisan J. in 75 Mad LW 31 as the correct one. The suit filed by the appellants in the present case cannot, therefore, be held to be barred by limitation. The appeal will be allowed with costs.