1. The reference relates to assessment of the agricultural income of Jagadish Chandra Sahoo for the assessment years 1951-52 and 1952-53 in respect of the income of the accounting years 1357 B. S. and 1358 B. S. The assessee and his brother, Jyotirmoy inherited 90.04 acres of land from their father, one Bikram Kishore Sahoo. On 3-11-1949, corresponding to Kartick 17, 1356 B. S. when the assessee and his brother were both minors, Anandamoyee, their mother and natural guardian made a gift of the property by conveying it to certain trustees upon trust for the benefit of a homeopathic charitable dispensary and two primary schools. The deed of trust recites that the charity was made in order to fulfil the cherished desire of Bikram Kishore Sahoo. The Tribunal has found that the gift was neither for legal necessity nor for the benefit of the minor's estate. During the relevant period Jyotirmoy continued to be a minor. The assessee came to age sometime in 1950. Since then he has acted as a trustee under the deed of trust. Instead of avoiding the gift the assessee on attaining his majority has ratified it. The Department contends that the gift is void and the ratification is of no effect and that the assessee is still the owner of a half share of the property and is liable to be assessed to tax in respect of a moiety of its income. The Tribunal rejected this contention and held that the gift is voidable and not void ab initio and that it can well be validated by ratification. The Reference is made at the instance or the Commissioner of Agricultural Income-tax, West Bengal. The question is whether on the facts and in the circumstances of the case the gift of the assessee's half share in the property was void ab initio or was merely voidable at the option of the assessee.
2. The question referred to this Court is as follows:
'Whether on the facts and in the circumstances of the case the transfer by way of gift on the basis of a deed of trust of 90.04 acres of land belonging to the assessee and his younger, brother by their mother in her capacity as their natural guardian on 3-11-1949 (corresponding to Kartick 17, 1356 B. S.) when both of them were minors, was void ab initio or merely voidable at the option of the minor or minors on attainment of majority.'
3. The natural guardian of a Hindu minor has a limited power of alienating the wards property in case of need or for the benefit of the estate of the ward. I the power is well-exercised; the transfer binds the ward. But if the transfer is beyond the powers of the natural guardian, the ward is entitled to avoid it. Instead of avoiding the transfer, the ward on attaining majority may ratify it and if he does so, he is bound by the transfer.
4. An unauthorised sale or mortgage of the ward's property is validated by the subsequent ratification of the ward on his attaining majority, Likewise, an unauthorised gift of the ward's property by the natural guardian is validated by such ratification, see Amarchandra Chakravarty v. Saradamoyee Devi : AIR1929Cal787 . The observations in Gunduchi Sahu v. Balaram Balabantra, AIR 1940 Pat 661, that an unauthorised transfer by the natural guardian cannot be so validated are really obiter because in that case the ward's guardian had already elected to repudiate the transfer. The election once made was final and the ward could not later elect to ratify the unauthorised transfer. In so far as there is a conflict between the Calcutta and the Patna decision, we are inclined to follow the Calcutta decision.
5. In the instant case the assessee on attaining his majority has ratified the gift and the gift therefore binds him. It is not open to the income-tax authorities to contend that the gift is invalid and inoperative and that the income of the property given away is the income of the assessee. The assessee is no longer entitled to avoid the gift. The further question whether his title is extinguished by limitation does not arise and need not be considered. The decisions cited at the Bar bearing on the question to limitation and the scope of Article 44 of the Indian Limitation Act are not therefore directly relevant; nonetheless it is desirable to notice them. Article 44 of the Indian Limitation Act applies to a case of unauthorised sale by the natural guardian and the ward is debarred from recovering the property unless he sues to set aside the sale within three years of the date when he attains majority. The sale is only voidable and is not void, see Gnana Sambanda Pandara Sannadhi v. Velu Pandaram 27 Ind App 69 (PC), Krishno Dhone v. Bhagaban Chandra AIR 1917 Cal 610, Brojendra Chandra, v. Prosunna Kumar 24 Cal WN 1016: AIR 1920 Cal 776. If the sale is fictitious and there is no genuine transfer Article 44 has no application, see Shamchandra Dafadar v. Gadadhar Mandal, 13 Cal LJ 277. There is a conflict of authority on the question whether in case of an unauthorised gift by the natural guardian the ward must sue to set aside the gift within the period prescribed by Article 44, see Rangaswami v. Marappa, : AIR1953Mad230 , Mylavarapu Subbarao v. Mangalampalli Ramamurthi, AIR 1958 Andh Pra 626. In the instant case, it is not necessary to resolve this conflict. I shall assume that the ward who elects to avoid the unauthorised gift may treat it as a nullity without the intervention of the Court and that he need not sue to set it aside within the period prescribed by Article 44. It does not follow however, that the gift can be treated as a nullity where the ward has not elected to avoid the transfer and where on the contrary he has elected to ratify it.
6. The decisions cited at the Bar dealing with an unauthorised gift by a manager of Hindu joint family may now be briefly noticed. There is authority for the view that such a gift is voidable at the instance of the other coparceners and is validated by their subsequent ratification and that it is not open to a third party to contend that such a gift is void, see Imperial Bank of India, Jullundar v. Mst. Maya Devi, ILR 16 Lah 714: (AIR 1935 Lah 867), Saraswati Kuar v. Mahabir Prosad, : AIR1928All476 (2), Jagesor Pandey v. Deodat Pandey AIR 1924 All 51, Raghbir Singh v. Commissioner of Income-tax, . In Tatoba Ganu v. Tarabai, (S) : AIR1957Bom280 , where the other coparceners had not ratified the gift, the donee was held not to have acquired any title to the property. The decision last cited seems to assume that such a gift may be validated by the ratification by the coparceners.
7. In this case we are concerned with the law as it stood before the passing of the Hindu Minority and Guardianship Act, 1956. It is, however, interesting to notice the provisions of Section 8 of the Hindu Minority and Guardianship Act. That section indicates clearly that in a case governed by the Act a gift or other disposal of immovable property of the minor by the natural guardian in excess of his powers is voidable at the instance of the minor or any person claiming under him and is not void.
8. In my opinion the transfer of the assessee's share in the property by the deed dated 3-11-1949 was only voidable at the option of the assessee and was not in the circumstances of the case void ab initio.
9. I would, therefore, answer the question by saying that the transfer was not void ab initio and that it was merely voidable at the option of the minor or minors on attainment of majority. The assessee is entitled to the costs of the Reference.
10. I agree.