1. The facts here are that there were two undivided cousins and at a time when both of them were minors their mothers acting as guardians alienated certain properties belonging to them. One of the minors died later on and the suit under appeal was brought by the surviving minor to recover the property from the alienee on the ground that the alienation was beyond the power of the guardians to make. The suit was instituted within twelve years of the alienation but more than three years after the plaintiff attained majority. The point is whether Article 44, Limitation Act, applies to this case. Both the lower Courts and the second appellate Court dismissed the suit as barred by Article 44. The important facts in the case are that at the time of the alienations there were no adult co-parceners and, in spite of the contention in the lower appellate Court which was not accepted there that it is not correct to speak of the mothers who alienated the property as guardians in any legal sense, in my view, they were the de jure guardians of the minors. There is; no authority for saying that when the senior member of a co-parcenary-a father -dies leaving only minor co-parceners, the mother or mothers of the latter are not their de jure guardians; and I agree with Varadachariar, J., that the cases relied upon to show that a minor's interest in an undivided Hindu family is not such an interest or property that a guardian can be appointed or predicated in respect of it can be distinguished on the ground that in those cases there were other adult co-parceners and the legal guardianship of the minor co-parceners therefore vested in the adult co-parceners.
2. That cannot be the case here; and this distinction was pointed out by Sir Lawrence Jenkins, C.J., in Bindaji v. Mathurabai (1906) 30 Bom 152. The position is therefore, that these were alienations made by the de jure guardians of the minors and the present plaintiff was entitled to avoid the transaction and in such cases it has been hold that Article 44 is the correct article. In Arumugham Pillai v. Pandiyan Ambalam 1921 MWN 255, property inherited by a minor from his mother and belonging exclusively to him was sold by his father acting as his guardian and it was held that a suit by the minor on his attaining majority to recover the property was covered by Article 44 and not by Art 126, Limitation Act. Krishnan, J., on p. 276, states:
When a guardian acting in his capacity of guardian sells or otherwise transfers the property of his ward there can be no question that Article 44 will apply to the suit by the ward to recover that property subsequently, for he must get the guardian's transfer set aside, which is prima facie binding on him. A transfer by a guardian, however improper it may have been, is not a void transaction but only a voidable one or and when property cannot be recovered without avoiding it, it is now settled that Article 44, will apply to the suit. 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 guardian of his minor son made no difference to the validity of the sale as he would have passed his son's share also by executing the deed himself and therefore Article 44 was not applicable. Those rulings however apply only to alienations of ancestral property and are clearly distinguishable from the present case as here the property has been found to be the minor's separate property.
3. The present case would not be excepted from the operation of Article 44, for the reason that there were no other co-parceners and this was the separate property of the minors and they alone were interested in the property. Purushothama v. Brundavana 1931 MWN 417 decides that suits brought by persons to set aside alienations by their de jure guardians during the minority are governed by Article 44, whereas Article 44 does not apply to suits by minors to set aside alienations made by de facto guardians : see also Satyalakshmi Narayana v. Jagannadham 1917 MWN 854. Moreover, on a comparison between the language used in the two articles it is clear that, of the two, Article 44 is the one more applicable. I agree with the conclusion reached by the second appellate Court; and this Letters Patent appeal must accordingly be dismissed with costs.
4. I entirely agree. On the point of limitation the argument is that a man who wishes to set aside an alienation of immoveable property made by his guardian during his minority can avail himself of one of two periods of limitation whichever is longest, namely (a) three years after attaining his majority under Article 44(b), twelve years from the date of alienation under Article 144, extended of course by the operation of Section 6. But Article 144 applies to cases where the possession of the purchaser is adverse to the plaintiff and a purchaser from the guardian. of a minor does not hold the land under a title adverse to the minor, but on the contrary he derives his title from the minor and has a good title until it is shown that in selling the land to him the guardian exceeded his powers. The observations in the referring judgments in Doraiswami Serumadan v. Nondisami Saluvan 1915 88 Mad 118, which seem to support this part of the appellant's case are based on the decision of the Privy Council in Gnanasambanda Pandara Sannadhi v. Velu Pandaram (1900) 23 Mad 271, in which the alienations were bad from their inception being sales of trust property, which the minor's guardian acting on his behalf had no power to sell. The purchaser in that case did not obtain good title but was in the position of a trespasser holding adversely to the trust.