1. This second appeal raises a point about the validity of an alienation of a Hindu minor's property by a facto guardian. This species of guardians has been abolished by S. 11 of the Hindu Minority and Guardianship Act 1950. But the transaction in this case arose before the Act, and hence it bears on the position of law which prevailed earlier. It also raises a point as to the appropriate steps to be followed by the minor for impugning or getting over sales by de facto guardians.
2. The facts of this case are not in dispute. One Lakshmi Ammal had a life interest and her two sons had a vested remainder in an item of land. These were be quoted to them under a Will. When second son Govindrajulu was still a minor, the mother Lakshmi, Ammal and her first joined together and sold the entire bequeathed property, inclusive of the minors interest there in. In that conveyance, the mother purported to act as the minor's guardian. The minor's father was very much there at the time, but he rested content with attesting the sale deed.
3. The minor came of age in 1956. His mother died in 1965. Subsequently in 1967 the minor sold the half share in the property which, he got under the Will to the Aurobindo Society.
4. Meanwhile, the, original alienee from Lakshmi Ammal had sold the pro perty to another person and the latter had sold the property to another person and the latter had settled it in favour of a lady. The Aurobindo Society, as purchaser of Govinda rajulu's undivided half share filed a suit for partition and separate possession against the alienee from Lakshmi Ammal and his successors in interest. These defendants resisted the suit on various grounds. The objected to the frame of the suit and they nature of the relief claimed therein. They said that the plaintiff ought not to have straightway filed a suit for partition and separate possession. They said a suit for possession or partition would not lie so long as the sale of the minor's property hand not been set aside as not binding on him.
5. The trial Court held that Lakshmi Ammal was not the legal guardian of minor Govindarajulu when his father was there, and she had no authority to sell minor's interest in the suit land. It rejected the contention that the sale in so far as the minor's share was concerned was in the interest of the minor and for the minor's benefit. It accordingly directed that the sale of the minor's interest was void. It proceeded to hold that when the sale was void, no question arose of setting aside a void sale. In this view, it upheld the maintainability of the suit as framed and gave the plaintiff a preliminary decree for partition of a half share in the property.
6. On appeal by the defendants; the Sub-court reversed the trial court's decree. It held that the sale by the mother had been effected as the minor's de facto guardian and hence it was merely voidable and not void altogether. It further held that the question whether the sales of the minor's share was or was not for the minors necessity or benefit cannot be gone into in any suit other than a suit filled for setting aside the sale. In this view it desisted from going into the question of necessity or benefit to the minors estate in the instant suit for partition. In the end, it held that no relief can be granted to the plaintiff in the way the suit was instituted.
7. In this second appeal, learned counsel for the Aurobindo Society, ed that since the mother, during the father's lifetime, cannot act as the minor's legal guardian, her sale of the minor's share in the property was altogether void and not merely voidable. It was hence urged that there was no need for setting aside the sale. They contended that they were entitled to the mother's transaction and straightway ask for partition and separate possession.
8. I must uphold this stand as correct. I however, feel that the position of Lakshmi Ammal has not been accurately described in the discussion of the question go far. She was referred to by almost every one as the de facto guardian. This expression is employed in law in contradistinction to 'de jure guardian'. But both the expressions, in my judgment, imply a relationship to the ward which is regular and continuous, and not casual or one which acts by its and starts. In other words, what the de facto guardian lacks, as compared to a de jure guardian, is legal authority to act for the minor. In other respects there is practically little or no difference between them. A de facto guardian however is not one who acts for the nonce. He is a factual guardian who acts in the regular course, over a period of issue. If it were other i.e., minor can have as many de facto guardians as there are transactions to be done on his behalf.
9. The arguments in this Case in the courts below were on the footing that Lakshmi Ammal was a de facto guardian. It seems to me, however, that the description do facto guardian does not fit her and is a gross overstatement of her factual position. The evidence in the ewe only shows that she acted for the minor in this one single transaction of sale. Her husband was there all the time and he had actually attested even the sale deed as a witness. It is not any one's case that he was a nonentity or that he was in some way incapacitated to act as the guardian of his minor son, or that the mother had always been acting point of fact, as the guardian this son's minority, if not the elder son's too. In these circumstances, it seems to me quite inapposite to describe her as a regular de facto guardian. All that can be said is that in this particular transaction she had purported to act for the minor. This can only be described as ad hoc guardianship to employ an expression used in text books and case law.
10. The position in law, of such ad hoc guardians is left in no doubt whatever their acts are null and void, and cannot bind the minor, although they are purported to be effected in the minor's interest. For ad hoc guardians are neither de jure nor de factodians. They are self-appointed guardians for the minors just for the occasion, as it comes along. In Harilal v. Gordhan (1927)ILR51 Bon1040: (AIR 1927 Bom 611) : : AIR1927Bom611 it was held that a sale by a guardian ad hoc was void ab initio.
11. I am satisfied that Lakshmi Ammal merely took it into her head to execute the sale as a guardian just this once. This casual and by no means raises her to the status of a de facto guardian, properly so-called. It follows that her sale is ab initio void. Even on the footing that Lakshmi Ammal was acting as a regular de facto guardian during the minority of this son, not only in this transaction, but also in other transactions, for which, as said, there is no evidence whatever in this case, still there is authority for the position that the alienation by her would be void and not merely voidable at the minor's option. Vide the decision of Viswanatha Sastri J. in Palaniappa v. Nallappa : AIR1951Mad817 .
12. In this case, the learned judge held that in the case of a sale of minor's property by a de facto guardian, without necessity or benefit to the minor, the setting aside of the transaction is not a condition precedent to the minor recovering the property from the alienee and the minor can straightway sue for possession. According to the learned judge, an alienation by a de facto guardian is an alienation to which the minor, strictly, is not a party in the sense that he is validly represented by a legally authorised representative.
13. In Arumu Cheth Duraisinga Thevar (1914) ILR 37 Mad 38 (AIR 1914 Mad 648), it has been held that where a de facto guardian alienated the property a minor for whom a guardian under the Guardians and Wards Act had been appointed, the transaction was null and void.
14. The position of a void transaction is that in the eye of the law, it does not exist and no tide passes. The document of transfer under such a transaction is altogether a dead letter at the very start and no rights flow there under. If in this case the transaction is void, then there can be no question at all of art option being left to the Minor whose property has been so dealt with, either to affirm the transaction or to avoid it. For, where the transaction does not exist, but is non est in law, it is not amenable either for ratification or for avoidance. Even if a minor should affirm the transaction, nothing would flow from such affirmance.
15. The Sub-Court relied on a decision of a Division Bench of this court in Palani Gounder v. Vanjiakkal 1956 09 Mad LW 276: AIR 19M Mad 476. In that case, however, no question at all directly and properly arose about the nature of a sale by a de facto guardian. That decision, incidentally was disapproved on another point in a recent Fill Bench decision of this court in Amirthan Kadurnban v. Sornam Kudumban : AIR1977Mad127 .
16. Learned counsel referred to the Full Bench decision of this court in Sankaranarayana v. Kandasamia, ILR (1956) Mad 1300: (AIR 19% Mad 670). This decision however, was not concerned with the transfer by a de facto guardian of the minor. It dealt with the case of a sale deed executed by the father in which his minor son was eo nomine party and duly represented by his father as guardian. The Full Bench hold that in such a case it was obligatory on the part of the Minor to have the transfer cancelled on the footing that it is not binding on him. This case obviously does not help us in the present case which is that of a transfer by an ad hoc guardian.
17. It has been held in Ponnammal v. Gomathi Ammal, AIR 1936 Mad 884 that an alienation of a minor property by a person who is neither a nor a dejure guardian of the minor, is void and not voidable and the minor on attaining majority can ignore such an alienation. It was further held in this ease that it is not necessary for the minor, to get the document aside within three years of his attaining majority In Rarasswanat v. Kasinathan : AIR1928Mad226 , a Bench of this court held that even in the case of alienations by de facto guardians, strict proof would be necessary not only of necessity but also of adequate consideration.
18. On the evidence on record in this case, there can be no doubt that Lakshmi Ammal's sale, of the minor's share was not necessity or for the benefit, of the minor's estate. The trial court has found as a fact that the sale was avowedly effected by Lakshnni Ammal for discharging a prior mortgage, but this mortgage was not an encumbrance on the minor's estate, but was a mortgage effected by Lakshmi Ammal an her own separate property. On the basis of this clear finding, the trial court rightly held the sale not to be for the minor's necessity or benefit. It follows, therefore, that the sale cannot stand.
19. As I earlier mentioned; the Sub-Court did not address itself on this issue as to whether the sale was for the minor's benefit. But it is not necessary to send the case back to the Sub-Court on this account in view of the clear out finding of the trial court on the issue, which fairly emerge from the documents exhibited in the case.
20. In the result I allow the second appeal set aside the judgment, and decree of the Sub-court and restore the judgment and decree of the trial court. The appellant will have his costs of this appeal the contesting respondent.
21. Appeal allowed.