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Gottukkula Surapa Raju Vs. Gottumkkula Venkayya and anr. - Court Judgment

LegalCrystal Citation
SubjectFamily
CourtChennai
Decided On
Judge
Reported in32Ind.Cas.802
AppellantGottukkula Surapa Raju
RespondentGottumkkula Venkayya and anr.
Cases ReferredBalwant Singh v. Reckwell Clancy
Excerpt:
hindu law - alienation, suit to set aside--minors--limitation, running of--alienation by managing member and mother as guardian of minor for necessity, validity of--interests of minor--court, duty of. - - under these circumstances both the appeals fail and are dismissed with costs. very strong authority is required for upholding such a contention. if that requirement is satisfied, courts will be slow to set aside an alienation......these circumstances both the appeals fail and are dismissed with costs.seshagiri aiyar, j.3. the sale-deed in question was executed by the brother of the plaintiff, who was then of age and the manager of the joint family, and by plaintiff's mother as his guardian. the courts below have found that the sale was effected to enable the brother to meet the necessary expenses of the family. the finding is not disputed in second appeal. therefore, if the brother alone had executed the document, there can be no question that the alienation will be binding on the plaintiff. mr. ramesam argues that as the mother has joined in the execution of the deed as guardian of the plaintiff, the sale is a nullity and that plaintiff is entitled to recover his share of the property. very strong authority is.....
Judgment:

Spencer, J.

1. In respect of the alienation of the plaintiff's mother as guardian of her minor sons with which Second Appeal No. 99 of 1913 is concerned and the alienation by the same individual as guardian of her minor sons under Exhibit II in Second Appeal No. 98 of 1913, we find that the matter is governed by the Full Bench decision in Doraisami v. Nondisami Saluvan 21 Ind. Cas. 410: 25 M.L.J. 405; 14 M.L.T. 401; 38 Ma. 118, which decided that limitation begins to run from the date of the elder brother attaining majority.

2. With regard to the other alienation under Exhibit I effected by the elder brother after attaining majority and by the mother as guardian of the minor plaintiff, I have had the advantage of perusing the judgment which my learned brother has written and I agree with him in thinking that the sale by the manager of the undivided family which has been found to be for a bona fide family purpose was binding on the family and that the mere fact of the plaintiff's mother joining in the deed, though unnecessary, did not detract from the validity of the transaction. No question of limitation arises in the case. Under these circumstances both the appeals fail and are dismissed with costs.

Seshagiri Aiyar, J.

3. The sale-deed in question was executed by the brother of the plaintiff, who was then of age and the manager of the joint family, and by plaintiff's mother as his guardian. The Courts below have found that the sale was effected to enable the brother to meet the necessary expenses of the family. The finding is not disputed in second appeal. Therefore, if the brother alone had executed the document, there can be no question that the alienation will be binding on the plaintiff. Mr. Ramesam argues that as the mother has joined in the execution of the deed as guardian of the plaintiff, the sale is a nullity and that plaintiff is entitled to recover his share of the property. Very strong authority is required for upholding such a contention. Mr. Ramesam with his usual fairness recognised the anomaly which the acceptance of his contention would involve, but stated that on the decided cases his client is entitled to a decree.

4. The decision of the Judicial Committee in Mata Din v. Ahmad Ali 13 Ind. Cas. 976; (912) M.W.N. 183; 34 Aa. 213; 16 C.W.N. 338; 11 M.L.T. 145; 9 A.L.J. 215; 15 CRI.L.J. 270; 14 Bom. L.R. 192; 15 O.C. 49; 23 M.L.J. 6; 39 I.A. 49 does not help the appellant. In that case, certain persons who were not entitled to act as guardians under the Muhammadan Law alienated property belonging to the minor. The Privy Council pointed out that the de facto guardian although he may assume responsibilities cannot clothe himself with legal power to sell' property. The question whether, if the sale was for legal necessity, it would bind the minor, was left open. This decision is only authority for the position that a minor is not bound by acts done by persons who presume to act on his behalf without any power to do so. But when the alienation is made by a person who is competent to represent the minor, the sale cannot be vitiated because he has asked somebody else who has no right to do so to join with him in the execution of the document. It has to be remembered that the mother is the guardian of the person of her minor son, and apparently it was ex abundanti cautela that she joined in the sale-deed. It was argued that as the brother did not purport to act in his capacity as manager, his acts will not bind the minor. It was pointed out by the Judicial Committee in Bijraj Nopani v. Sreemutty Pura Sundary Dasee 24 Ind. Cas. 296; 41 I.A. 191; (19:4) M.W.N. 679; 27 M.L.J. 93; 1 L.W. 555; 18 C.W.N. 1313; 16 M.L.T. 338; 12 A.L.J. 1185; 16 Bom. L.R. 796; 20 Cri.L.J. 368; 42 C. 56 that where an executant covenants to convey all the interest of which he is then possessed, the fact that the various capacities in which that interest vests in him are not specifically referred to in the conveyance will not affect the right of the purchaser. The principle of this decision applies to this case. It was competent to the brother to sell family property for justifiable purposes, and he has done so. The non-mention of the fact that he executed the conveyance as a managing member will not render the deed, any the less effective. Mr. Ramesam relied upon the decision of the Judicial Committee in Balwant Singh v. Reckwell Clancy 14 Ind. Cas. 629; (1912) M.W.N. 462; 31 A. 296; 11 M.L.T. 344; 9 A.L.J. 509; 15 CRI.L.J. 475; 16 C.W.N. 577; 14 Bom. L.R. 422; 23 M.L.J. 18; 39 I.A. 109. In that case the vendor claimed an absolute right in the property sold. In the suit by his brother, It was found that he had only a joint interest with the plaintiff. Then the alienee sought to justify the alienation to him on the ground that the vendor as the manager of the family was competent to execute the sale-deed. It was pointed out that as the brother expressly claimed a right in the property to the exclusion of the plaintiff, he cannot be said to have represented the plaintiff in this transaction. In the present case, the brother arrogated no such right to himself. Reliance was also placed on an unreported decision of this Court in Second Appeal No. 2475 of 1912. All that was decided in that case was that the period of limitation was 12 years under Article 144 and that Article 44 did not apply. As no question of limitation arises in this case, it is not necessary to say what the proper Article will be under similar circumstances. After all what the Courts have to see is that the interests of the minor have been properly represented. If that requirement is satisfied, Courts will be slow to set aside an alienation. This rule is subject to the exception that it is not open to every one to intermeddle with the estate of the minor on the ground that he is acting for the minor's benefit. That would be encouraging unauthorised interference with an infant's property. The present case steers clear of this difficulty. The brother who is entitled to protect the minor's rights was a party to the deed. The minor's personal guardian also joined in it, although it was not necessary for her to do so; and it has been found that the sale was for proper and binding purposes. On no principle of law or equity can such a transaction be set aside.


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