V. Ratnam, J.
1. An interesting question of law relating to limitation arises in this second appeal at the instance of the legal representatives of the deceased second defendant in the suit. Respondents 1 and 2 and their father Arumugham constituted members of a joint family and the plaint 'A' Schedule properties belonged to that family. In 1949, Arumugha died leaving behind him his sons, respondents 1 and 2 and his widow, the third respondent. According to the case of respondents 1 and 2, after the death of Arumugha, their mother, the third respondent, did not look after the family and did not attend to the family affairs, but launched programme of alienating the family properties. Defendants 2 to 9, according to the plaintiffs, were such alienees and those alienations were not binding on the sons, respondents 1 and 2 herein, who were minors. Respondents 1 and 2 characterised these alienations as void ones and prayed for partition and separate possession after setting aside the alienations in favour of the defendants Though there were several alienations which were no challenged by respondents 1 and 2 in the suit, what survives in this second appeal is only the alienation in favour of the second defendant dated 10th October, 1957 by the third respondent herein, who is the mother of respondents I and 2. It would therefore suffice to notice the defence of the second defendant to the suit. According to him, the first respondent was over 26 years of age and the second respondent was of 22 years of age on the date of the institution of the suit and the suit not having been filed within 3 years of their attaining majority is barred by limitation. In addition, a plea was also raised by the second defendant that the third respondent executed a registered mortgage deed on 24th March, 1950 in favour of one Nallan Padayachi to discharge the debts incurred by her husband In order to discharge those debts, the sale of items 1 and 2 of the plaint ''A' schedule properties was effected by the third respondent herein for a sum of Rs. 750. The second defendant further claimed that it was the third respondent who was looking after the family and as the income from the family properties was not sufficient to maintain the family, the debts were incurred and the alienations were therefore for the benefit of the family, A plea of collusion between respondents 1 and 2 and the third respondent in order to defeat the right of the second defendant was also raised.
2. The learned District Munsif Kallakurichi, who tried the suit held that the impugned transaction is only voidable and, therefore, respondents 1 and 2 should have taken steps to set aside the alienation within three years of attaining majority and the suit having been filed beyond that time, was barred by limitation. A further finding was also given that the second defendant was entitled to claim a refund of the consideration under the impugned alienation. However, in view of the finding on the question of limitation, the suit was dismissed. Aggrieved by that, the plaintiffs, preferred an appeal in A.S. No. 273 of 1970, Sub-Court, Cuddalore. The learned Subordinate Judge held that the appropriate Article which would apply to the alienation sought to be impugned in this case would be Article 65 and not Article 60 and in this view, having regard to the vital finding that the first respondent was born prior to May, 1942 and the second respondent was born before September, 1945, the suit instituted on 15th February, 1967, being within 12 years from the date of the alienation by the third respondent herein, would be in time. On the finding, the learned Subordinate Judge proceeded to hold that the alienation in respect of items 1 and 2 will not be binding in so far as 2/3rd share of respondents 1 and 2 herein is concerned; but that respondents 1 and 2 will be entitled to a preliminary decree for partition of their 2/3rd share subject to their depositing into Court their proportionate share in a sum of Rs, 650 paid towards the discharge of a prior mortgage dated 24th March, 1950 which was wiped out by the impugned alienation. Further respondents 1 and 2 were also held entitled to mesne profits from the date of deposit of their proportionate share in the sum of Rs 650 and two months' time was granted for depositing that amount. In other respects, the suit was dismissed.
3. In this second appeal, at the instance of the legal representative of the deceased second defendant, the only question that arises for consideration is whether the suit instituted by respondents 1 and 2 herein on 15th February, 1967 is in time. A decision on that question would depend upon the appropriate Article applicable to the facts and circumstances of the case. The factual findings of the lower Appellate Court that the first respondent was born prior to May, 1942 and that the second respondent should have been born before September, 1945 are not in any manner disputed. it is on the basis of these factual findings with reference to the dates of birth of respondents 1 and 2 that the question of limitation has to be considered. It is also not disputed that if respondents 1 and 2 should have resorted to Court before the expiry of three years after attaining majority on the footing that Article 60 of the Limitation Act would apply then the suit would be barred. Equally, it is beyond dispute that if Article 65 of the Limitation Act should apply then the suit having been instituted within 12 years from the date of alienation, it would be well within time. Before proceeding to consider the appropriate Article applicable, it is necessary to ascertain the precise interest of respondents 1 and 2 in the property, which was alienated by the third respondent herein purporting to act as the guardian on behalf of respondents 1 and 2. That respondents 1 and 2 and their father Arumugha Padayachi constituted members of an undivided Hindu joint family, that items 1 and 2 of the suit properties belonged to that family and that Arumughadied in the year 1949 are admitted. At the time of Arumugha's death, respondents 1 and 2 herein, his sons, were admittedly minors. As the law then stood, the third respondent herein, the widow of Arumugha, succeeded to the interest of her husband under the provisions of the Hindu Women's Rights to Property Act as extended to agricultural lands. Though the third respondent thus stepped into the shoes of her husband with reference to his interest, yet, she could not in any manner be considered as a member of the coparcenary, though respondents 1 and 2 were entitled to an undivided 2/3rd share and the third respondent was entitled to the remaining 1/3rd share.... It must also be remembered that the interest of respondents 1 and 2 remained unchanged as before viz., as an undivided interest in the joint family properties. The third respondent, mother of respondents 1 and 2, could not have occupied the position of a manager, she being a woman and not being a coparcener. In this situation, the legal effect of the alienation made by the third respondent with reference to the undivided 2/3rd interest of respondents 1 and 2 in the joint family properties purporting to act as their guardian has to be considered. The alienation by the third respondent for herself and as guardian of the minor respondents 1 and 2 is under Exhibited B-5, dated 10th July, 1957 and it is not disputed that respondents 1 and 2 were then minors and that the provisions of the Hindu Minority and Guardian-ship Act (XXXII of 1956) which had come into force on 25th August, 1956 would be applicable. Section 5 of that Act gives overriding application to the provisions of the Act and in effect lays down that in respect of matters dealt with by it, it seeks to repeal all existing law on the matters dealt with. The result of this overriding effect the Act is that on and from 25th August, 1956, the law of guardianship applicable to Hindus by virtue of any text, rule or interpretation of Hindu Law or any custom or usage having force of law ceases to have effect with respect to all the matters dealt with in the Act. Under Section 6 of that Act, the natural guardian of a Hindu minor in respect of the minor's person as well as in respect of the minor's property (excluding his or her undivided interest in joint family property) are in the case of a boy or unmarried girl, the father and after him, the mother. In the instant case, we are not concerned with the natural guardian of an illegitimate boy or an illegitimate unmarried girl or in the case of a married girl in respect of which provision has been made in Section 6(b) and (c). A perusal of Section 6 indicates that in respect of the undivided interest of respondents 1 and 2 in the family property in the absence of the father, the mother cannot be the natural guardian Section 8 which confers power on a natural guardian to do all acts which are necessary or reasonable and proper for the benefit of the minor or for the protection and benefit of the minor's estate and which enables such a natural guardian to dispose of property with the permission of the Court, does not apply to the mother, the third respondent in the instant case because with reference to the interest of respondents I and 2 she cannot be the natural guardian. Sections 11 and 12 of the Act are important provisions which have a vita! bearing upon the contentions that have been advanced in the instant case Section 11 states that after the commencement of the Hindu Minority and Guardianship Act, no person shall be entitled to dispose of, or deal with the property of a Hindu minor merely on the ground of his or her being the de facto guardian of the minor Section 12 states that where a minor has an undivided interest in joint family property and the property is under the management of an adult member of the family, no guardian shall be appointed for the minor in respect of such undivided interest. The proviso to that section states that nothing in this section shall be deemed to affect the jurisdiction of a High Court to appoint a guardian in respect of such interest. Section 11 has brought about a complete change with reference to the powers relating to alienations by guardians designated as de-facto guardians and it had totally annihilated the authority of a person to deal with or dispose of any property of a Hindu minor on the ground of his being de facto guardian of such a minor The faint argument addresses by the learned Counsel for the appellant that the alienation was made by the third respondent on behalf of respondents 1 and 2 purporting to act as their de facto guardian has to rejected in limine in view of the clear and categorical interdict on such de facto guardians with reference to their powers of disposal or dealings with the property of a Hindu minor. Another argument raised by the learned Counsel for the appellant is that 'the property' referred to in Section 11 in confined only to cases of the separate property of a minor and therefore, the alienation by a de facto guardian of the undivided interest of a minor in the joint family properties is not contemplated under Section 11. This contention, in my opinion, has no substance. While Sections 6, 9 and 12 take care to exclude the undivided interest of a minor in the family properties from the scope of the property guardianship of a natural guardian viz, the father or the mother, Section 11 does not contain any such restriction with reference to the property of a Hindu minor. In the absence of any distinction between the separate property of a Hindu minor and the undivided interest of a Hindu minor in the joint family property, the provision in Section 11 must be held to apply equally to both the categories of properties. Otherwise, the object behind Section 11 of preventing the de facto guardians from dealing with the property of a Hindu minor would be totally frustrated inasmuch as a de facto guardian, while being prevented from dealing with the separate property of a Hindu minor under Section 11, would be at liberty to deal freely with the undivided interest of a Hindu minor in the family property. Having regard to the object with which Section 11 has been enacted, it is difficult to place any such restriction on the word ''property' used in that section. In addition, such a construction is fortified by the decision in Ranganatha Gounder and Anr. v. Kuppuswami Naidu and Ors. M.P. Nagpur and Bhandara v. Seth Govindram Sugar Mills : 57ITR510(SC) , that under Hindu Law, coparcenership is a necessary qualification for the managership of a joint Hindu family and as the widow is not admittedly a coparcener, she has no legal qualifications to become the manager of a joint Hindu family. In doing so, the Supreme Court approved the following observations of Viswanatha Sastri, J., in V. M. N, Radha Ammal v. Commissioner of Income-tax Madras : 18ITR225(Mad) ,
The managership of a joint Hindu family is a creature of law and in certain circumstances, could be created by an agreement among the coparceners of the joint family. Coparcenership is a necessary qualification for managership of a joint Hindu family ... It will be revolutionary of all accepted principles of Hindu law to suppose that the seniormost female member of a joint Hindu family, even though she has adult sons who are entitled as coparceners to the absolute ownership of the property, could be the manager of the family. She would be the guardian of her minor sons till the eldest of them attains majority but she would not be the manager of the joint family for she is not a coparcener.
In the context in which Section 12 has been enacted with a view to preserve the management of co-arcenary properties by the kartha thereof, undeterred by any interference by the Court by the appointment of a guardian in respect of the undivided interest of a minor in such property it is difficult to conceive of the mother of respondents 1 and 2 as the kartha of coparcenary consisting of two minor members and in my view the management of an adult member of the family referred to in Section 12 contemplates only a case of male member of the family being in management. Recognition of a mother as an adult member of the family for the purpose of Section 12 would not clothe her with the powers to bind the interest of the minors by alienating the undivided interest of such minors. If the mother is regarded as an adult member of the family in management of the properties which includes the undivided interest of a minor in the family property, Section 12 merely enacts that no guardian shall be appointed for the minor in respect of such undivided interest. The mother in the absence of the father, being only the natural guardian and the guardian of the separate property of the minor, is not empowered to deal with the undivided interest in the joint family property under Section 6 and therefore any such alienation by the mother would only be hit by Section 11 because the mother, in those circumstances, would still continue to be only a de facto guardian with reference to the undivided interest of a minor in the joint family property and therefore, the alienation would be interdicted by Section 11 as stated earlier
4. In Mayne' Treatise on Hindu Law and usage, Eleventh Edition, at page 285 the learned author has stated as follows:
when all the coparceners of a Mitakshara joint family are minors, the Court can appoint a guardian of the property of the minors, though in such a case as soon as the eldest member of the family attains majority, the guardianship is ipso facto determined as regards all the members.
In Sri Rajah Yenumula Suryanarayanamurthy Dora Garu v. Sri Chitrappu Buchi Venkayya Pantulu (1949) M.L.J. 774 : (1949) M.W.N. 803, the aforesaid statement of law had been approved and it has been held that the Court has power under the Guardians and Wards Act to appoint a guardian for the whole of the joint family property incase there are no adult male members and where all the members of a joint family are minors, when one of the members become a major, he is ipso facto entitled to the resumption of the entire property and be could act as the natural guardian of the minors and not as the certificated guardian. The proviso to Section 12 furnishes a solution to such a situation wherein it might be open to the parties to approach the Court for the appointment of a guardian in respect of the undivided interest of such minors and if such guardian, is appointed by Court, it would always be open to such guardian, even if she be the mother to apply for and obtain necessary directions for the sale of any property of the minor, if it becomes necessary to do so. The learned Counsel for the appellants relies upon the judgment reported in E. Venkatakrishna Reddy and Ors. v. Minor Amarababu and Ors. : (1971)2MLJ466 , On the special facts of that case as stated by the learned Judges at page 477. it was held that the fourth defendant, acting as the mother and natural guardian of the eldest son. who is the kartha of the joint family, or as the natural guardian of all the minor coparceners as one group and of the property of that group as a whole did have authority to enter into the contract of sale in question, provided it was for the benefit or for the necessity of the minor coparceners. The decision therein must, therefore, be confined to the special facts of that case even as stated therein. In view of the above considerations, she alienation effected by the third respondent, mother of respondents 1 and 2, in favour of the second defendant in the suit must be treated as an alienation which had been affected by a person who had no legal competency to act on behalf of respondents I and 2 either as a natural guardian or as a guardian appointed by Court. It is equivalent to an alienation made by an intermeddler. So, the impugned alienation cannot be in any manner considered to be one effected by a guardian as such and therefore. Article 44 of the Limitation Act of 1908, corresponding to Article 60 of the Limitation Act, 1963 cannot have any application to the instant case. The appropriate Article that would be applicable is Article 65 inasmuch as respondents 1 and 2 have title to the property and alienation has been effected on their behalf by a person who had absolutely no legal authority whatever to act and therefore, the alienation is void ab initio and the suit having been brought within 12 years from the date of such an alienation, the suit would be well within time. The result therefore, is that the conclusion of the lower appellate Court that the suit is in time has to be upheld, though for totally different reasons altogether. The judgment and decree of the lower Court are therefore, confirmed and the second appeal is dismissed. No costs.
5. I must place on record the valuable assistance rendered by Sri A. Varadarajan, who appeared as amicus curiae for the respondents at the request of the Court.