1. This is a Second Appeal preferred against the decree and judgment of the learned Additional Subordinate Judge of Coimbatore in A.S. No 105 of 1950 confirming the preliminary decree and judgment of the learned District Munsif of Coimbatore in O.S. No 521 of 1946.
2. The facts are:-The property in dispute belonged to one Karuppa Goundan, the plaintiff's father. He died in 1931 leaving surviving him his widow Chinna Karupayee, a minor son Chinnan alias Karuppan born on 25th September, 1925, and two daughters, the plaintiff and the 4th defendant. The widow managed the properties on behalf of the minor son till her death in 1939. Subsequently the plaintiff was managing by cultivating the property and maintaining her minor brother Chinnan. The plaintiff and the 4th defendant fell out. It is the case for the plaintiff that in order to defeat her sister she executed a registered lease deed Exhibit B-5 dated 19th June, 1942, in favour of Kandaswami Gounder for five years in respect of the suit property at Rs. 80 per annum. This family dispute was settled by an arrangement dated 29th June, 1942 (Exhibit A-1). The first defendant who is related to the parties, on the intervention of the mediators, was made the de facto guardian of this minor Chinnan and he was entrusted with this property for being managed by him. He undertook that the maintenance of the minor would thereafter be his concern and that he was paying that day a sum of Rs. 100 found due to the plaintiff and that without alienating the property would hand it over to the minor Chinnan on his attaining majority. On 2nd July, 1942, under Exhibit B-1 the de facto guardian executed a sale of this property in favour of the 3rd defendant for Rs. 2,600 made up of (1) a sum of Rs. 572-14-0 directed to be paid in discharge of a mortgage dated 9th September, 1931, executed by the minor's father for Rs. 500, carrying interest at 10 per cent per annum; (2) Rs. 237-14-0 towards a promissory note dated 24th June, 1939, executed by the minor's mother; (3) Rs. 100 towards a promissory note to the minor's sister viz-, the plaintiff; (4) Rs. 189-3-4 to be paid before the Sub-Registrar and which went towards the payment of Rs. 200 to the 4th defendant towards the jewellery to be given to her at the time of her marriage which took place then and in regard to which the aforesaid sum of Rs. 100 had been incurred by the plaintiff and her husband; and (5) the balance of Rs. 1,500 adjusted by execution of a mortgage in favour of the minor bringing an interest of Rs. 90 per annum. The minor died by throwing himself into a well on account of stomach ache on 7th March, 1945. It is undisputed that for a period of two years after the execution of the sale deed the 4th defendant has been receiving the interest amount of Rs. 90 per annum under the mortgage and been expending it towards the maintenance of her minor brother. The 3rd defendant sold the property to the 2nd defendant on 26th May, 1943, under Exhibit B-2. In 1946 the plaintiff filed this suit to recover possession of the suit property with mesne profits, past and future, and costs. The 1st defendant appears to have died during the pendency of the suit leaving no legal representative. Both the Courts below upheld the claim of the plaintiff and a preliminary decree in her favour has been given. The defeated defendants 2 and 3 have filed this second appeal.
3. The points for determination in this second appeal are fourfold; viz.,(a) whether the 1st defendant was the de facto guardian; (b) if so, what was the scope and extent of the powers of alienation of this de facto guardian; (c) the rights of the minor in regard to such an alienation and (d) the rights of the heirs of the minor to avoid a transaction voidable at the instance of the minor and which the minor neither during his minority nor within three years after attaining majority has repudiated or challenged more formally by bringing a suit.
4. Point (a): 'The expression de facto guardian' as pointed out by Viswanatha Sastri, J., in Palaniappa Goundan v. Nallappa Goundan : AIR1952Mad175 ,
however unscientific and inappropriate from the point of view of an orthodox jurist, has become part of the vocabulary of lawyers and Judges.
A de facto guardian is one who is not a legal guardian in the sense that he is either a natural guardian or a testamentary guardian or a Court guardian, but who being interested in the minor, though a stranger, takes charge of the management of the minor's property. This rules out cases of a fugitive or isolated act of a person with regard to the minor's property and which would not make him a de facto guardian of the minor. In order to enable one to become a de facto guardian, there must be a continuous course of conduct as guardian of the minor in regard to his property; the length of the period required to constitute one a de facto guardian being dependent upon the circumstances of each case. The first act of intermeddling with the estate of a minor would not be the act of a de facto guardian, if he had not become one before that act; nor would subsequent management of the estate of the minor by such person make the first act which is one of alienation of the minor's property, the act of a de facto guardian: Chinna Alagamperumal Karayalar v. Vinayagathammal : AIR1929Mad110 , Thayammal v. Kuppanna Goundan : AIR1915Mad659(2) , and Adhar Chandra v. Kirtibash 12 Cri.L.J. 586 : 6 Ind.Cas. 638.
5. In the present case by means of a panchayat to which the minor's sister? including the plaintiff were parties, the properties were handed over to the 1st defendant under an arrangement that he should maintain the minor and manage the property. So, by consent he was made the de facto guardian. It is quite true that within four days thereafter the sale deed Exhibit B-1 had been executed. But this cannot be, in the context of this case, described as a fugitive or isolated act of a person with regard to the minor's property. Therefore, as found by the learned District Munsif and confirmed by the learned Subordinate Judge and which is also the position taken by the plaintiff herself in her pleadings, the 1st defendant was the de facto guardian of the minor Chinnan.
6. Point (b) : The powers of alienation of a de facto guardian under the Hindu Law can be conveniently summarised by reproducing the following extracts from the standard commentaries on Hindu Law.
7. Principles of Hindu Law by Mulla (10th Edn.), pp. 600-601 :
A de facto guardian has the same power of alienating the property of his ward as a natural guardian. A bona fide mortgage executed by the de facto guardian of a Hindu minor for the benefit of his estate and with due regard to his interests cannot be impeached on the sole ground that he is merely a de facto guardian, for example, if it is effected for the marriage of the minor's sister. The High Courts of Bombay and Madras have held that a sale by a step-mother, though she was in each case the de facto manager of the minor's estate is a sale by an unauthorised person, and is therefore void. The question as to the validity of a mortgage by a step-mother arose before the Judicial Committee in Bunseedhur v. Bindesree (1866) 10 M.I.A. 454, where it was held that the transaction being fraudulent, the minor was not bound by it. But the power of a step-mother to alienate the minor's property as a de facto guardian was not questioned. The Bombay decision has since been overruled by the Full Bench decision of the same Court: Tulsidas v. Vaghela Raisinghji IL.R. (1932) Bom. 40.
An alienation by a de facto guardian, which is neither for necessity nor for the benefit of the estate of the minor, is not void, but only voidable, and it may therefore be ratified on the minor attaining majority.
A sale by a guardian ad hoc, e.g., by a separated uncle who has never intermeddled or acted as a guardian, is void'. (Harilal v. Gordhan (1927) I.L.R. 51 Bom. 1040).
8. Raghavachariar's Hindu Law (3rd Edn.), pages 213-215:
The powers of alienation of a de facto guardian under the Hindu Law are the same as those of a lawful guardian.
The right of a bona fide incumbrancer who has taken from a de facto manager a charge on lands created honestly, for the purpose of saving the estate, or for the benefit of the estate, is not affected by the want of union of the de facto with the de jure title. A de facto guardian can validly sell the minor's property to a third party for legal necessity, or benefit and recoup himself for the expenses incurred by him on behalf of the minor by alienating the said property. A minor is also liable on a contract entered into by the de facto guardian if it is in respect of a liability of the minor under his personal law.
But a de facto guardian cannot extend the period of limitation by payment or acknowledgment. Nor can he execute on the minor's behalf a promissory note for necessity, so as to be binding on the minor's estate. So also an unauthorised or improper alienation of a minor's property by a de facto guardian is absolutely void and does not require to be set aside. Alagamperumal v. Vinayagathammal : AIR1929Mad110 ; Seetharamamma v. Appiah (1925) 50 M.L.J. 689 : I.L.R. 49 Mad. 768.
Coming to decided cases, it was held in Mohanund Mondul v. Nafur Mondul L.R. (1899) Cal. 820; on the authority of the Privy Council case in Hanumanprasad Pandey v. Mussamat Babooee Munraj Kunwaree (1854) 6 M.I.A. 393 that a sale by a de facto guardian (it was the grandmother) in case of necessity was valid. And in Arunachala Reddi v. Chidambara Reddi : (1903)13MLJ223 , White C.J. and Benson J., held that it is well settled that an alienation may be validly made by a de facto guardian (assuming of course necessity).
In Ganjayya v. Ramaswami : (1913)24MLJ428 , it was held that the natural mother was a ' lawful guardian ' for the purpose of Section 21 of the Limitation Act, even though there was a testamentary guardian named in the will of the adoptive father who was unwilling to act. In Nathooram v. Shoma Chhagan L.R. (1890) Bom. 562, a debt contracted by the father's cousin for necessary purposes was held to bind the minor. Although it is no authority in the sense of its being a judicial decision, I may state in Adhurchandra Dutta v. Kirtibagh Bairagee 12 Cri.L.J. 586, such an eminent lawyer as Dr. Rash Behari Ghosh conceded that the powers of a de facto guardian (of a Hindu) were the same as those of a de jure guardian '. Seetharamamma v. Appiah (1925) 50 M.L.J. 689 : I.L.R. 49 Mad. 768
9. Mayne's Hindu Law (nth Edn.), pages 296-297 :
A de facto guardian of an infant's estate has, in case of necessity or benefit to the minor, power to sell or mortgage his property. Conversely, a de facto guardian or manager who takes possession of a minor's estate will be bound to account to him for his management as it is open to the minor on attaining majority to elect to sue him either for damages or for an account. In two judgments, the Federal Court of India has recently held that a de facto guardian has no power to bind a minor or his estate by a promissory note executed by him or by his acknowledgment of liability even though the money was borrowed for a necessary purpose; for a power to borrow does not in itself imply a power to execute a negotiable instrument in respect of the debt. Such a promissory note cannot form a valid consideration for the sale of the minor's property by the de facto guardian and the sale would be without consideration as against the minor. A person who has no authority under the personal law applicable to the minors to enter into a contract or to make a compromise or family-settlement on their behalf cannot bind them by any such transaction'. Kanhayalal v. Harsingh I.L.R. (1944) Nag. 198.
10. To sum up, in the words of Viswanatha Sastri, J., in Palaniappa Goundan v. Nallappa Goundan : AIR1952Mad175 , it is now a well settled rule of Hindu Law, as laid down in Sree Ramulu v. Pundarikakshayya (1950) 1 M.L.J. 586, and Bapayya v. Pundarikakshayya (1950) 1 M.L.J. 612, that the dealing of a de facto guardian with the estate of a Hindu minor by way of sale or mortgage would be regarded not as void altogether but voidable at the instance of the minor, and the same tests would have to be applied to determine the validity of such sale or mortgage, viz., that the transfer was for legal necessity or for the benefit to the minor or that the sale or mortgage was taken after proper enquiries and with a bona fide belief in the existence of pressing necessity.
11. The evidence in this case shows that the transaction was for the benefit of the minor. The estate of the minor was bound to repay a mortgage carrying interest at 10 per cent. per annum for Rs. 500 executed as early as 1931 by the father of the minor and secondly, a promissory note debt incurred by the minor's mother obviously for binding purposes on the minor's estate. In addition, towards the marriage expenses of the 4th defendant, a binding purpose on the minor's estate Rs. 300 had been incurred. The plaintiff had therefore to be paid Rs. 100 and the 4th defendant had to be paid Rs. 200 out of it. The property could fetch only an income of Rs. 80 per year under the registered lease deed, Exhibit B-5 dated 9th June, 1942, executed in favour of the plaintiff as guardian of the minor. Even assuming that the rental was low and that double the amount could be secured, these obligations had to be met only by the sale of the property and the property was apparently marketable only when it was sold in a lot. In addition, a mortgage for Rs. 1,500 had been taken and it was fetching the minor an income of Rs. 90 per annum and in fact the 4th defendant has been receiving that interest for two years and maintaining the minor out of it. The 4th defendant who is sailing with the plaintiff has stated that about Rs. 50 was required for the minor Chinnan per year and that out of the amount of Rs. 90 the minor, a mad sister and herself were being maintained. It will also be seen that the 4th defendant never challenged this transaction until the filing of this suit. In fact the transaction itself had been challenged four years after the sale deed was executed. The minor had at no time thought of repudiating through a next friend. This transaction went towards the discharge of legitimate pressing debts binding on the minor's estate and also enured to the benefit of the minor who was to get a fixed income of Rs. 90 per annum after the discharge of the liabilities. It has been found by the trial Court that the sale was not for an inadequate price and there is no suggestion of any collusion between the vendor and the vendee and in fact the entire family has participated in the sale and the vendee was a bona fide transferee for valuable consideration. Therefore, this was not a void transaction but only a voidable transaction which could either be affirmed by the minor or repudiated by him during his minority through a next friend or after attaining majority within three years thereafter by making out that the transaction was not binding on him as it was not for necessity or for his benefit, which we have just now shown could not have been established by him.
12. Point (c) :-The rights of a minor in regard to an alienation which is not void has been set out by Trevelyan in his 'Law Relating to Minors', 5th edition, page 168, as follows:
An alienation by a guardian which does not bind the minor, is not void, but voidable at the instance of the ward. Subject to the repayment of such money as he may have obtained the benefit of, the minor is entitled, before or after attaining his majority, to recover such of his property as by the wrongful or unauthorised act of his guardian has come into the hands of other persons.
When in consequence of the absence of necessity or for any other defect in the power of the person acting for the minor, the Court is unable to give effect to a sale or mortgage, the person who advanced the money is entitled to a charge upon the property for such money as may have actually been applied for the benefit of the minor, or of which the minor has in any way obtained the benefit, provided that the object of the debt was a legitimate one.
In this case the minor has not repudiated the transaction through a next friend during his minority and in fact he had died before he became a major.
13. Point (d) :-To determine the rights of the heirs of a quondam minor who has not disaffirmed a voidable transaction by a de facto guardian, we must first of all find out what exactly is the nature of the right which the minor had. In S.A. No. 1861 of 1950 (Ramasawami Reddiar v. Veerama Reddiar and Ors.), one of us Govinda Menon, J., has pointed out as follows:-
Is it a right which is alienable and heritable or is it a personal right which comes to an end with the death of the individual Discussing the nature of a similar right Sadasiva Iyer and Spencer, J.J., in Muthukumara Chetty v. Anthony Udayar I.L.R. (1914) Mad. 867, we're of the opinion that a party who is entitled to avoid a transaction may do so by an unequivocal act repudiating the transaction or by obtaining a decree of Court setting it aside. But when a guardian of a minor has given a lease a succeeding guardian of the same minor cannot set it aside by a mere act of repudiation. He can only do so by obtaining a decree of Court in a suit which may be instituted on behalf of the minor during the period of his minority but the succeeding guardian's action in bringing a suit has no greater effect than his mere act of repudiation. At page 877 the learned Judges made the following observations:-
'If Rajagopalan after attaining majority should wish to repudiate the lease, there can be no doubt he can do so without a suit? but can any one else do so The right to avoid appears to be a personal privilege. No doubt a suit may be instituted by the minor through a next friend to set aside a transfer by a guardian even during the time of the minority but the suit should be by the minor himself and the setting aside of the transaction would be the act of the Court. The Court is parens patriae and has the right to set aside transactions affecting minors. Thus it has been held that although a minor cannot make an alienation, a Court of equity may do so on his behalf. Even when a suit has been instituted a next friend cannot make an election but a guardian ad-litem may with the consent of the Court, in which case the election is practically made by the Court. It is stated that a next friend cannot make a waiver. It has also been held that a minor is not bound by an election '.
It will be seen from these observations that the right to avoid an alienation is a personal right. In Mitra's Limitation Act Vol. I at page 429 there is a discussion on this subject as also in a recent book.' The Law relating to Minors by Pradhan'. At page 107 after quoting a number of cases the learned author is of the opinion that
in the case of a voidable transfer by the guardian of the minor's property the only interest left to the minor in the property transferred is a mere right to sue which he cannot assign to others. The right to avoid the transfer is a personal privilege, and though the minor may sue through a next friend to set aside the transfer even during his minority, he and he alone can exercise this personal privilege.
Muhammad Hafzullah Khan v. Balaqi L.R. (1923) Lah. 156, and some other Bombay decisions. Narsingacharya v. Tulsabai (1925) 87 Bom.L.R. 483, Javerbhai v. Kabhai : AIR1933Bom42 , Hanmantappa v. Dundappa I.L.R. (1933) Bom. L.R. 474, are cited in support of the observations above. In Javerbhai v. Kabhai : AIR1933Bom42 there are certain observations to show that in the case of an alienation by a guardian it would be valid unless the same is set aside by the minor after his attaining majority, and it is only the minor that can bring a suit and none else and if the minor has withdrawn from the suit he has virtually elected to acquiesce in the sale by his guardian and the interest of the minor in the property is extinguished under Article 44 of the Limitation Act and therefore the subsequent purchaser has no right to continue the suit. Here again there is no clear exposition as to whether the right to avoid a transaction passes with the property or not. The facts of that case show that when the minor withdrew from the suit that right came to an end with such withdrawal. Even this case does not afford any assistance. Similar observations can be found at page 464 in Manohan v. Bidu Bushan : AIR1939Cal460 , but there Sen, J., expresses the view that the interest which a minor possessed in the property is a mere right to sue to have the sale set aside and the transfer of such a right is clearly prohibited by Section 6(e) of the Transfer of Property Act. Further such a personal right can be exercised by the minor on his attaining majority and an alienee from the minor does not acquire that right. The learned Judge refers to the decision in Javerbhai v. Kabhai. : AIR1933Bom42
14. In Palaniappa Goundan v. Nallappa Goundan : AIR1952Mad175 , Viswanatha Sastri, J., was of the view that '
even assuming that the right of a minor to question a transaction entered into by a de facto guardian without necessity or benefit is only voidable, it is a valuable right in the nature of a right to property and not a mere right to sue and can validly be transferred. The learned Judge did not agree with the observations of Sadasiva Iyer and Spencer, JJ., in Muthukumara Chetti v. Anthony Udayari (1914) 29 M.L.J. 617 : I.L.R. 38 Mad. 867 quoted above. He also refers to the Calcutta cases in Mon Mohan v. Bidhu Bushan : AIR1939Cal460 . From this decision it would seem that if a minor dies without affirming or avoiding a transaction entered into by his guardian, then that right would descend to the minor's heirs. The learned Judge has also referred to the dictum of Parker, J., in Glegg v. Bromley L.R. (1912) K.B. 474, approved by the Judicial Committee in Venkata Subhadrayamma v. Venkatapathi . In a more recent case in Alamelu Ammal v. Krishna Chetti (1954) 1 M.L.J. 294, Satyanarayana Rao, and Balakrishna Ayyar, JJ., have assumed that such a right is heritable and transferable. In that case the guardian of the minor effected an alienation. On the death of the minor the reversioners brought a suit for setting aside that alienation. The question was whether a suit brought more than three years after the death of the minor but within 12 years of the date of the alienation is barred by limitation. The learned Judges held that the disability attaching to a minor that he must sue within three years of his attaining majority applies to persons claiming through the minor either as transferees or as legal representatives and therefore a suit filed by them more than three years from the date of the minor attaining majority would be barred by limitation. The question whether the right to avoid or affirm a transaction is heritable or transferable was not discussed, but the learned Judges took it for granted that such a right is heritable. There seems to be a conflict between the view expressed by Sadasiva Ayyar and Spencer, JJ., in Muthukumara Chetti v. Anthny Udayar : AIR1939Cal460 and that of Viswanatha Sastri, J., in Palaniappa Goundan v. Nallappa Goundan : AIR1952Mad175 . I am inclined to accept the view laid down in Muthukumara Chetti v. Anthony Udayar (1914) 29 M.L.J. 617 : I.L.R. 38 Mad. 867.
The arguments heard by us have not dislodged the four cardinal positions which have become settled law, viz., that the powers of a de facto guardian stand equated to those of a de jure guardian; secondly, that when alienation is made: by such a guardian ostensibly for necessity or for the benefit of the minor, it is only voidable at the instance of the minor who can repudiate it or more formally challenge it by bringing a suit either through a next friend during his minority or after attaining majority within the period of limitation allowed by law; thirdly, that the right to avoid the transfer is a personal privilege and that the minor and minor alone can exercise that personal privilege; and fourthly, this right to avoid is nothing more than a right to sue and is not heritable.
15. In the result, this appeal is allowed and the decrees and judgments of the lower Courts are set aside and the suit is dismissed. No costs.