(1) This second appeal is preferred by two plaintiffs, who brought the suit for a declaration that a certain alienation of an item of joint family property made by the first defendant was a sham and nominal transaction not binding on them and for other incidental reliefs but not recovery of possession. The first plaintiff is the son of the first defendant and the second plaintiff is the wife of the first defendant. The first defendant was the joint family manager of this family consisting of himself, his minor son, the first plaintiff, and his wife, the second plaintiff. He died after the institution of the suit in the court of the District Munsif of Koilpatti. The alienation which was impeached in the suit was in favour of defendants 2 to 5. The second defendant is the divided brother of the first defendant. The date of the alienation (Ex. A-4) was 4-12-1956. It was a sale in respect of 91/2 acres of family lands in favour of defendants 2 to 5 for a consideration which, according to the plaintiffs, was never paid. The District Munsif accepted the contention of the plaintiffs and granted a decree. An appeal was preferred against that decree by defendants 2 to 5, who are respondents before me in this second appeal. When this appeal came up for bearing before the Subordinate judge of Tuticorin, the learned Subordinate Judge did not go into the merits of the case, of either party but reversed the decision of the District Munsif on the ground that the frame of the suit was improper, because the plaint did not contain a prayer for setting aside the sale. In support of this position the learned Subordinate Judge, relied upon the Full Bench decision in Sankaranarayana Pillai v. Kandaswamia Pillai : AIR1956Mad670 . Unfortunately, the learned Subordinate Judge failed to comprehend the import of this decision because Govinda Menon, J. who pronounced the judgment on behalf of the Full Bench has even in the opening part of his judgment clearly indicated the principle that would apply to a case like the one before him. I am reproducing the passage which embodies this principle.
'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 relative 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 in the entity which has a legal status and a person and therefore such a transaction cannot be deemed to he 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 he 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.'
The learned judge in formulating this principle, relied upon an earlier decision in Unni v. Kunchi Amma, ILR 14 Mad 26, which was approved by the Full Bench in Ramaswami v. Rangachariar : AIR1940Mad118 . The extract from the decision in ILR 14 Mad 26, relied upon by Govinda Menon, j., brings out the principle of distinction very well. If the alienation is made by a guardian acting on behalf of the minor in respect of property solely belonging to the minor, it amounts to a transaction on behalf of the minor and the minor is eo nomine a party to such a transaction. The minor who wants to avoid such a transaction must necessarily pray to setting aside the alienation. But in the case of, a minor who is a junior member of a joint family and the alienating member is the father or 'kartha' who has the, power of alienation not only of his share but also of the minor's share on the existence of certain circumstances the transaction stands on a different footing. in such a case where the minor alleges or denies the existence of the facts which would justly the alienation as binding upon him, it would not be a case of the minor being called upon to set aside the alienation before asking for relief on the basis that the alienation was not binding on him. The learned Subordinate Judge was therefore clearly wrong where he relied upon : AIR1956Mad670 , as authority for the conclusion to which he came. Even otherwise.. where a transaction made by the father is impeached as a nominal and sham transaction for which no consideration passed and which was not intended to pass title, the law is very clear that it would not he necessary for a minor member of a joint family impeaching the said transaction to ask for cancellation of that sale deed. Authority for that position is found in Sahul Hameed Rowther v. Mohideen Pichai, ILR 1948 Mad 883: AIR 1948 Mad 451. The headnote to that decision reproduced below accurately enunciates the rule of law on the matter,
'If a transaction is sham and nominal there is no need to have the transaction set aside and it can be ignored.'
The learned Subordinate Judge was therefore wrong in reversing the decision of the learned District Munsif on the view that the frame of the suit was improper. The decree of the learned Subordinate Judge is set aside and the appeal is remanded for fresh hearing. The Subordinate Judge will restore the appeal to its original number and rehear it and dispose of it according to law. The court-fee paid on the appeal memorandum will be refunded to the appellants. The costs of this appeal will he provided for by the Subordinate Judge in the revised decree to he passed. No leave.
(2) Case remanded.