M. Natesan, J.
1. The defendants who have failed in both the Courts below are the appellants and the only question is whether the suit is barred by limitation, the plaintiff having otherwise a good case on the merits. As will be seen presently, the plaintiff unfortunately will have to fail under the inexorable law of limitation. Learned Counsel for the respondent urged the merits of his client's case; but the Courts have no discretion in the matter of applying the law of limitation and when it does fall on the facts of the case it has to be applied.
2. The properties in the suit, two items, belonged to the plaintiff's mother Dawood Bivi, and on her death in 1947 the plaintiff got 3/4th share in the properties, the plaintiff's father getting the remaining 1/4th share. The plaintiff's mother had purchased the two items on 15th February, 1932, under Exhibit B-5 for a sum of Rs. 1,000. At the time of purchase the second item of the suit properties was subject to an othi for Rs. 275 and this othi had to be discharged by the purchaser. The other item was subject to a simple mortgage for Rs. 85. On the 13th March, 1949, the plaintiff's father as guardian and protector of the plaintiff and on his own behalf conveyed the suit properties under the registered sale deed Exhibit A-1 (original of Exhibit A-5) for a consideration of Rs. 2,000 to the first defendant in the suit, the first appellant herein. The second defendant in the suit, the other appellant, is a lessee from the first defendant. The first defendant, it must be pointed out, had taken an assignment of the othi on the second item. On the date of transfer by the plaintiff's father (Exhibit B-5) the plaintiff was a minor aged about 12. The items of consideration for the sale were Rs. 275 for discharge of the othi, Rs. 225 for payment of kist and family expenses and Rs. 1,500 cash received before the Sub-Registrar for purchasing some other lands. The suit out of which this second appeal arises was filed on 8th July, 1960, when the plaintiff was about 24 years old, seeking partition and separate possession of the plaintiff's 3/4th share in the suit properties and for an account of the income from the said share. The plaint referred to an obstruction put forward by the first defendant to her having possession of the properties, claiming title under the alleged sale in his favour by plaintiff's father. She pleaded that the sale was not binding on her and her properties. Apart from seeking to justify the alienation on the merits, in defence the bar of limitation was set up, the contention being that Article 44 of the Indian Limitation Act, 1908 applied and the suit filed more than three years after the plaintiff had become a major was barred. The Courts below have concurred in finding that none of the conditions necessary under the Muhammadan Law to give power to a legal guardian to effect alienation of the immovable properties belonging to a minor was available in this case. They, however, held that it was Article 144 and not Article 44 that applied to the case and, therefore, the suit was in time. The appellate Court, however, has directed that the plaintiff could have partition only on depositing into the lower Court her three-fourth share in the othi amount.
3. There can be no doubt that the alienation in question is in excess of the powers of the guardian. The father is no doubt the legal guardian of a minor. But under the Muhammadan Law the powers of even legal guardian are limited. As pointed out in Principles of Mahomedan Law, Mulla, fifteenth edition, at page 297,
A legal guardian of the property of a minor has no power to sell the immovable property of the minor except in the following cases, namely, (i) where he can obtain double its value; (ii) where the minor has no other property and the sale is necessary for his maintenance; (ii) Where there are debts of the deceased, and no other means of paying them; (iv) where there are legacies to be paid, and no other means of paying them; (v) Where the expenses exceed the income of the property; (vi) Where the property is falling into decay; and (vii) where the property has been usurped, and the guardian has reason to tear that there is no chance of fair restitution.
The Courts below have rightly rejected the contention on behalf of the alienee that the property in the case has been sold for double its value. As I understand it, the property must have been sold at cent per cent bargain at the time of sale. The mere fact that a property purchased in 1932 for Rs. 1,000 has been sold in 1949 for Rs. 2,000 will not come under the category of a sale for double the value. No doubt the second item was under an othi: but it is not quite clear from the evidence whether there was necessity at all for the sale of the properties to pay off the othi and redeem the second item. In fact, the document recites that a cash of Rs. 275 has been received for discharging a hand loan borrowed for paying off the othi. It looks as if the othi had been discharged much earlier.
4. Now to take up the question of limitation, Article 44 provides for a period of three years after the ward has attained majority to set aside a transfer of property by his guardian. The guardian under this Article may be a natural guardian or a testamentary guardian or a guardian appointed by Court. Under Section 7 of the Transfer of Property Act every person competent to contract and entitled to transfer property or authorised to dispose of transferable property not his own is competent to transfer such property. A guardian has no title to the property of a minor; but he may be authorised under the personal law to which the minor is subject to alienate the property of the minor. The power of the guardian to alienate his ward's property will have to be determined by the personal law or any statutory law that may be applicable. While under the Muhammadan Law any transfer of the minor's immovable property by a de facto guardian is wholly void, till the passing of the Hindu Minority and Guardianship Act of 1956 even the de facto guardian of a Hindu minor could in certain circumstances alienate the properties of a minor. The short question for consideration is whether an alienation by a legal guardian beyond his powers, that is an unauthorised alienation by an authorised person, is void or voidable.
5. In Khushia v. Faiz Muhammad Khan I.L.R.(1927) Lah. 33, Sir Shadi Lal, C.J., delivering the Judgment for the division Bench observed:
Now, it is not disputed that the mother was the guardian of the property of her minor son, but it is contended that. as the Courts below have held the alienation to be without necessity, the transaction was void, and that it Was not necessary to impeach it Within the period of three years prescribed fey Article 44. To this contention We are unable to accede. An alienation by a natural guardian of the minor's property is a voidable and not a void transaction; and the fact that it was not for necessity does not alter the nature of the transaction. In other words, it was an unauthorised transfer by an authorised guardian, and the limitation to set aside such a transfer is prescribed by Article 44...,
6. In Arumugham Pillai v. Panayadian Ambalam (1920) 40 M.L.J. 475, it is stated:
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 and when property cannot be recovered without avoiding it, it is now settled that Article 44 will apply to the suit.
7. The cases referred to above no doubt are cases relating to Hindus. But I fail to see any distinction in regard to the applicability of Article 44 when dealing with a lawful guardian, whether the ward be a Hindu or a Muhammadan, and their Lordships of the Judicial Committee in Mata Din v. Ahmad Ali (1912) L.R. 39 IndAp 49 : (1912) 23 M.L.J. 6 : I.L.R.(1911) All. 213, have indicated that Article 44 would apply also to a sale by a lawful guardian of a Muhammadan minor. The case arose out of a suit for redemption by a Muhammadan, the equity of redemption having been sold away by the plaintiff's elder brother. The plaintiff treated the same as nullity and the defendant pleaded that Article 44 of the Limitation Act applied. While discussing the Article of Limitation Act applicable their Lordships observed:
Unless, therefore, the plaintiff's remedy is barred by the Indian Limitation Act XV of 1877 he is now entitled to the relief prayed for...
As to the plea of limitation, the appellant defendant placed reliance on Articles 44 and 144 of the Indian Limitation Act, 1877.
Article 44 prescribes a period of three years within which a ward, who has attained majority, may set aside a sale made by his guardian, the time running from the date of the ward's majority. This provision has no application to the present case, for the sale here was effected, not by a guardian, but by a wholly unauthorised person.' (The emphasis is mine).
In Rustomji's Law of Limitation, sixth edition, at page 412, it is thus stated:
If the person effecting an alienation of the minor's property is not a guardian, it would be a misuse of language to call him 'unauthorised guardian.' He must be regarded as a 'wholly unauthorised person' whose alienation is void ab initio and beyond the purview of Article 44. On the other hand if the expression 'unauthorised guardian' is used in the sense that the alienor, though a guardian is not authorised to effect the particular alienation in question, it is submitted that such an alienation is merely voidable and clearly comes Within the scope of Article 44.
Article 44, as I see it, presupposes that the alienation is unauthorised. It is an alienation by a lawful guardian who could transfer the property. But the circumstances in which the transfer is made are such that the transfer will not bind the minor's property; the personal law of the ward does not permit a transfer in the circumstances. If Article 44 is not attracted to such a case, I fail to see to what other alienation it would apply. An alienation by a person who is wholly unauthorised cannot, under the Transfer of Property Act, transfer any title even when the circumstances may justify a transfer. The following observations of Leach C.J., in the Full Bench case in Hussain Sahib v. Ayesha Bibi : AIR1941Mad481 , overruling Rahima Bi v. Abdul Vakil Sahib and Ors. Appeal Suits No. 526 of 1931, unreported, and holding that a sale by a guardian of properties of a Muhammadan minor appointed under the Guardians and Wards Act without obtaining Court's permission to sell is not void but only voidable and the suit by the quondam minor to set aside such a sale after three years of attaining majority is barred by Article 44 of the Indian Limitation Act seem to indicate that any sale by a de jure guardian must be prima facie presumed to be valid and the quondam minor must sue to set aside the sale:
The guardian (in Rahimd Bi v. Abdul Vakil Sahib Appeal Suit No. 526 of 1931 unreported) applied to Court for permission to sell certain properties and permission was given subject to a condition which was not fulfilled. The question was whether in those circumstances the sale was a valid one. Ramesam, J., who delivered the judgment of the Bench after observing,
'Whereas in the case of a sale by a de jure guardian or a sale by a Court guardian who has obtained the permission of the Court and who has complied with the conditions precedent to the sale, if any the sale is presumed to be prima facie valid and the quondam minor has to sue to set aside the sale, and therefore Article 44 will become applicable.
went on to say:
But if the case is of a sale by a de facto guardian or by a Court guardian without obtaining sanction or With out complying with the conditions precedent imposed by the Court granting sanction, then the minor is not bound to set aside the sale'
These two statements are in conflict and the second statement ignores altogether the provisions of Section 30 of the Guardians and wards Act. while the statement that an unlawful sale by a de facto guardian does not bind the minors can be taken to be correct so far as a guardian of Muhammadan minor is concerned, it is certainly not the case where a guardian appointed by the Court under the Guardians and wards Act has conveyed property without the sanction of the Court. As I have already observed, the transaction is voidable and not void and operates as a valid transfer unless set aside at the instance of the minor or minors concerned within the period allowed by the Law of Limitation.
8. The Courts below have not discussed this aspect of the matter, but overruled the applicability of Article 44, as the suit has been framed as one for partition and separate possession of the plaintiff's three-fourth share. Reference is made by the Courts below to the decision in Khadersa Hajee Bappu v. Puthen Vettil Ayissa Ummah : (1910)20MLJ288 , where it has been held by the Full Bench that Article 144 applied to a suit by a Muhammadan to recover his share in his wife's estate. The Full Bench points out only that when a Muhammadan dies intestate his estate at once vests in his heirs as tenants-in-common. The Courts below overlooked that it is well settled that it is not the form of relief claimed which determines the real character of the suit for the purpose of determining under which article of the Limitation Act the suit falls. In Alamelu Ammal v. Krishna Chetty I.L.R. (1955) Mad. 625 : (1954) 1 M.L.J. 294,Satyanarayana Rao and Balakrishna Ayyar, JJ., observed:
It has been held that the Article 44 applies only to an alienation by a legal guardian and not by a de facto guardian. It has also been held that though the Article in terms is confined to a suit by a Ward who had attained majority to set aside a transfer of property by his guardian it applies also to a suit to recover possession of the property alienated by the guardian, as in such an event it is incumbent upon the ward to set aside the transfer, that is, to remove the legal impediment in the way of his recovering possession, and if he fails to do that Within the period allowed by law, namely, three years after he attained majority, his title to the property itself would be extinguished under Section 28 of the Limitation Act... It is also settled law that the Article applies only to void able and not to void transanction..
In Kandasami v. Irusappa : (1917)33MLJ309 , it is observed:
It is also established by that decision (Madugula Latchiah v. Pally Mukkalinga) I.L.R.(1907) Mad. 393 : (1907) 17 M.L.J. 220 that, though. Article 44 describes the suit to be brought by the Ward as a suit merely to set aside the transfer of his property by his guardian, if the transferee has obtained, and is in, possession and the ward has therefore to add a prayer for the relief of possession, Article 44 alone still applies to the suit though brought for both the reliefs.
The position of a lawful guardian of a minor is not the same as that of a Hindu widow or the manager of a Hindu joint family or an unauthorised person in management of the minor's property. A guardian as in the present case has under certain circumstances power of transfer and that in the title of the minor. If the occasion justifies the transfer it will be valid. When a minor finds a transfer by his guardian an obstacle in the way of securing his property and that he must have the obstacle removed he has to come to Court for that purpose. If he filed a suit impugning the transfer, it may be that he is asking for reliefs of partition and possession, still in effect he is seeking also to have the transfer set aside. Unless the transfer is set aside, he will not be able to secure the further relief of partition and separate possession but he cannot have the relief of setting aside the transaction unless he comes within three years after becoming a major. The quondam minor cannot simply ignore such a sale. If the protection of the limitation in favour of the transferee is to be confined only to suits which seek no other relief than a declaration that the sale ought to be set aside and is to vanish directly some other relief consequential on the annulment of the sale is sought as observed by the Judicial Committee in Malkarjun v. Narhari , the protection is exceedingly small.
9. In the light of the above discussion it follows that this suit instituted beyond three years after the minor becoming major is clearly barred by limitation. The second appeal is, therefore, allowed and the suit dismissed. In the circumstances the parties will bear their respective costs throughout. No leave.