1. The defendant is the appellant. The suit was filed by the respondent for a declaration that the suit property is not liable to be proceeded against in enforcement of the decree in O.S. 682 of 1967 on the file of the District Munsif Court, Mayuram. The suit property originally belonged to one Kanniah Naidu who died in 1947 leaving his wife Sulochana and a minor son Kalidoss. There was a dispute relating to the guardianship of the minor which was the subject-matter of O. P. 16 of 1948 on the file of the learned District Judge, East Tanjore. In that proceedings, the mother Sulochana was appointed as guardian. It is not also in dispute that the order of appointment prohibited the guardian from selling, leasing or otherwise encumbering the property of the minor without the sanction of the court. But contrary to this prohibition, she sold the property under Ex. A. 1 dated 16-2-1957 in favour of the plaintiff. No sanction of the court was obtained prior to the sale. The defendant in this case had advanced moneys to the said Kalidoss. For the recovery of the moneys due, he filed O. S. 682 of 1976, on the file of the District Munsif Court, Mayuram. Pending the suit, he attached the property on 18-11-1967. In the meanwhile, it appears that the minor Kalidoss, who had by then attained the age of majority filed O. S. 83 of 1966 on the file of the Sub Court, Mayuram, challenging number of alienations made by his mother as guardian and for recovery of possession. The alienation in favour of the plaintiff under the sale deed Ex. A. 1 dated 16-2-1957, was one of the items that was questioned in this suit and the present plaintiff was the 14th defendant in that suit. Subsequent to the attachment, on 27-11-1967, it appears that the plaintiff herein and the said Kalidoss settled their dispute between them and accordingly in O. S. 83 of 1966, Kalidoss exonerated the plaintiff herein and the present plaintiff was removed from the array of parties. Thereafter, the plaintiff filed the suit for declaration that the property is not liable to be attached and proceeded against in to be attached and proceeded against in enforcement of the decree in O. S. 692 of 1967.
2. Both the courts below held that Kalidoss had no interest at all in the property and Sulochana was the absolute owner of the entirety of the property and that therefore, the suit property was not liable to attachment and sale in execution of the decree in O. S. 682 of 1967 against the said Kalidoss.
3. This finding could not be supported and, in fact, the learned counsel for the respondent did not support this finding Ex. A-1, the sale deed in favour of the plaintiff itself showed that the suit property belonged to Kanniah Naidu, father of Kalidoss, and that on his death, his wife Sulochana and his son Kalidoss, become entitled to it. Certainly therefore, Kalidoss had one half interest in the property so conveyed under Ex. A. 1 dated 16-2-1967.
4. The next question for consideration is whether, on the ground that the sale in favour of the plaintiff was voidable at the instance of the minor and he has not avoided it or on the ground that it was not open to a third party to question the sale, the plaintiff is entitled to the decree declaring that the property is not liable to be proceeded against in enforcement of the decree in O. S. 682 of 1967.
5. The learned counsel for the respondent relying on Ss. 29 and 30 of the Guardians and Wards Act, 1890, contended the a sale by a court guardian without the previous sanction of the court was only voidable at the instance of the minor and that since the minor himself did not question sale, it is not open to the creditor of the minor to question it by attachment and bringing the property to sale. It is true that the sale by a guardian without the previous sanction of the court is only voidable and not void under S. 30 of the Guardians and Wards Act, 1890; but that by itself does not solve the question. It is seen from Exs. B. 9 and B. 10, which are the petition and the order in the guardianship application that minor Kalidoss was born on 10th February 1945. He could therefore avoid the transfer within three years after he attained the age of 21 years. That means, till 10-2-69, the transaction was liable to be avoided by the minor. But the attachment, in this case, was effected on 18-11-1967, long prior to the bar of limitation for filing a suit to avoid the transfer. The question, therefore, is whether the right to avoid the transfer vested in the minor is a right annexed to the ownership of the property or an interest in property which could be attached. If such a right was not a mere right to sue and is interest in immoveable property, the transfer or assignment of such a right would be possible and the assignee or transferee or successors in interest could question the sale itself.
6. The nature of the right of the minor to set aside the alienation and whether such a right was a mere right to sue or it is a right in property came up for consideration before this Court in the decision reported in Palaniappa Goundan v. Nallappa Gounden . In that case, the suit was one for redemption of a usufructuary mortgage. The property mortgaged belonged to a minor which was managed on behalf of the minor by his mother who died shortly after executing a mortgage. After the death of the mother, one Vyapuri, a divided uncle of the minor, professing to act as a guardian, mortgaged the property on 22-8-1927 and subsequently sold it to the first defendant on 7-6-1939, in discharge of the prior mortgage. After the minor attained the age of majority sometime in 1939, he sold the property to the plaintiff in that suit on 10-5-1943, ignoring the previous alienation by Vyapuri in favour of the first defendant. The plaintiff filed the suit for redemption of the mortgage on the ground that he had purchased the property from the minor. It was contended that the sale by the guardian Vyapuri was only voidable and that the minor had only a right to avoid the transaction which was in the nature of a right to sue, the transfer of which is prohibited under S. 6(e) of the Transfer of Property Act. In support of this contention, the decision in Mon Mohan v. Bidhubushan, AIR 1939 Cal 460 and a Division Bench decision of the Bombay High Court in Jhaverbhai Hathibhai v. Kabhai Becher, 34 Bom LR 1512: (AIR 1933 Bom 42) were relied on. In Monmohan v. Bidhubushan, AIR 1939 Cal 460 it was held that the right of the minor to avoid the alienation was a mere right to sue and could not be validly transferred. In support of this view, the decision in Jhaverbhai Hathibhai v. Kabhai Becher, 34 Bom LR 1512: (AIR 1933 Bom 42) was relied on. This court id not accept these two decisions as embodying the correct statement of the law. This court observed thus--
"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 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, they did not render the sale by the minor a transfer of a mere right to sue. A unilateral disaffirmance or rescission in 'pais' of the guardian's improper alienation by the minor might not be sufficient to revest title to the property in the minor and enable him to sue for recovery of possession of property within 12 years of such repudiation under Art. 144 of the Limitation Act. A judicial rescission may be necessary as held in cases decided under Art. 91 of the Limitation Act. (see Janaki Kunwar v. Ajit Singh, (1888) ILR 15 Cal 58 (PC), Raja Rajeswari Dorai v. Tribhawan Datt, ILR 9 Luck 178: (AIR 1934 PC 130). I have already referred to the decisions of this court taking the same view of the effect of Art. 144 of the Limitation Act. It does not, however, follow that the right to obtain a judicial rescission of an unauthorised and therefore voidable transfer by a guardian, is a mere personal privilege of the minor as observed in Muthukumara Chetti v. Anthony Udayan, ILR 38 Mad 867, 877: (AIR 1915 Mad 296 at p. 301) in the passage already cited. 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 the transfer. Where an ex-minor transfers property unauthorisedly sold by his guardian during his minority, he transfers not a mere 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 the property from his alienee. Conversely, the liability of the transferee from the guardian is not a liability to pay damages for the unauthorised act of the guardian, but is a liability to restore the property to the rightful owner or his transferee."
On the day when the attachment was effected, therefore, the right of the minor to have the sale set aside was not a mere right to sue but it was in interest in the property. It this right was available to the legal representatives of a minor who dies without avoiding the transfer, it would also be available to a transferee. As an interest in immovable property belonging to the minor, it could have been attached and was properly attached in O. S. 682 of 1967.
7. The learned counsel for the respondent submitted that whatever right the minor Kalidoss had to avoid the transaction was lost by the exoneration of the plaintiff here in O. S. 83 of 1966 and that, therefore, the defendant is bound by such exoneration. It might be if the decision exonerating the plaintiff in O. S. 83 of 1966 is treated as decree amounting to a decision within the meaning of S. 11 C.P.C., it might operate as res judicata even against the defendant in this case. But this point was not raised in the plaint. There, I could not decide this issue.
8. The point that has to be considered even on these findings is whether the plaintiff is entitled to the decree as prayed for.
9. As already stated, if the plaintiff wanted to question the transaction as voidable, the last date for filing such a suit would be 10-2-1969. But even if we accept the case of the defendant that the sale was void, the last date for questioning the transaction would be 16-2-1969. A mere attachment of the property would not have prevented or stopped the running of the period of limitation for filing the suit for declaration that the transaction was invalid as having been effected without the sanction of the court or on the ground that the transaction was void. The plaintiff is a third party purchaser and he has been prescribing title to the property from the date of his purchase. The right to sue and recover possession vested in the minor had been lost in Feb., 1969 itself thereby he perfected his title to the property. If that was so, the plaintiff is entitled to claim that the suit property is not liable to be proceeded against in enforcement of the decree in O. S. 682 of 1967. It is true that the suit in O. S. 682 of 1967 was filed even on 16-11-1967, prior to the bar of limitation for avoidance of the transaction and the attachment also was effected before the bar of limitation. But on this ground, the defendant-appellant could only state that in the execution proceeding in O. S. 682 of 1967, the plaintiff could put forward a claim of absolute title to the property and this suit is liable to be dismissed. But, I do not think that the plaintiff should be driven to execution proceedings to defendant his title. We know, as on date, the property had not been brought to sale and even as early as in 1969, the minor had lost his right to recover possession or avoid the transaction. Whatever right the minor had on the day when the attachment was effected had, therefore, been lost to him and if that was lost, the defendant also could not still proceed in execution as if that interest is still preserved for him. The attaching creditor is neither an assignee nor a transferee not a successor in interest of the debtor. A transferee from the minor might be bound by the attachment.
10. whatever might be said with reference to a transfer effected subsequent to the attachment, in the case of a transfer prior to the attachment the adverse possession which had already commenced would not be stopped or prevented by such attachment alone without bringing the property to sale before the expiry of the period of limitation, Since in this case the sale in favour of the plaintiff was long before the attachment and whether the sale was void or voidable, the plaintiff was holding the property in his own right and adverse to the defendant, he would have perfected title to the same by February 1969. The property was, therefore, not liable to be proceeded against in enforcement of the decree in O. S. 682 of 1967. This second appeal is, therefore, liable to be dismissed and the judgment and decree of the courts below will have to be sustained though on different grounds. The second appeal accordingly is dismissed. But there will be no order as to costs No leave.
11. Appeal dismissed.