Madras High Court

Madras High Court

Palaniappa Goundan vs Nallappa Goundan And Ors. on 16 March, 1950
Equivalent citations: AIR 1951 Mad 817, (1951) IMLJ 265
Author: V Sastri
Bench: V Sastri
JUDGMENT
Viswanatha Sastri, J.
1. This second appeal has been preferred by deft. 1 against a decree for redemption of a usufructuary mtge.,
Ex. P. 1, dated 8-2-1922, executed by the mother & guardian of deft. 2 then a minor, in favour of Vyapuri, the
divided paternal uncle of the minor & assigned by Vyapuri to deft. 1 under Ex. D. 3, dated 22-8-1927. The
property mortgaged belonged to the minor deft. 2 as sole owner & was managed on his behalf by his mother
who died shortly after the execution of the mtge. Ex. P. 1, in 1922. Thereafter, Vyapuri, the divided uncle,
professing to act as guardian of his minor nephew, deft. 2 mortgaged the property under Ex. D. 5, dated
22-8-1927, & subsequently sold it to deft. 1 under Ex. D. 6 dated 7-6-1939 in discharge of the prior mtges. &
in consideration of a small cash payment. Deft. 2 attained majority some time later in 1939 & he sold the
same property to the pltf. the son of Vyapuri, under Ex. P. 5, dated 10-5-1943, ignoring the previous
alienation by Vyapuri under Ex. D. 6. On 7-2-1944, the pltf. filed the present suit for redemption of the mtge.
Ex. P. 1, & the suit has been decreed by the Cts. below. Hence this second appeal by deft. 1 the disappointed
purchaser from Vyapuri.
2. The Cts. below held that the mtge. Ex. D. 5, dated 22-8-1927 & the sale, Ex. D. 6, dated 7-6-1939, executed
by Vyapuri as the 'de facto' guardian of the minor deft. 2 were neither supported by necessity nor beneficial to
the minor deft. 2 & therefore not binding on him. Mr. Venkatadri, the learned advocate for the applt., could
not successfully challenge this finding on second appeal. His legal contention is that Ex. D. 6, the sale by
Vyapuri as 'de facto' guardian of the minor, was not void but merely voidable & as it had not been set aside by
deft. 2 within three years of his attainment of majority, it was not open to his purchaser, the pltf. to sue for
recovery of possession of the property, or for redemption of the mtge., Ex. P. 1, which had become
extinguished as a result of the sale, Ex. D. 6, dated 7-6-1939. In other words, he argues that Article 44,
Limitation Act, applies to transfers of the property of a Hindu minor effected by his 'de facto' guardian.
3. The expression 'de facto' guardian, however unscientific & inappropriate from the point of view of an
orthodox jurist, has become part of the vocabulary of lawyers & judges. It is now a settled rule of Hindu law
that a sale or a mtge. of a Hindu minor's property by his 'de facto' guardian is effective to convey a valid title
to the transferee if the latter establishes the transfer was for legal necessity or for the benefit of the minor or
that he took the sale or mtge. after proper enquiries & with a 'bona fide' belief in the existence of pressing
necessity. It is needless at this time of the day to enquire into the textual origin of this rule or to investigate
whether it has any real foundation in 'Hanooman Prasad v. Mt. Babooee Munraj', 6 MIA 393 : (1 Sar 552 P
C), which is the usual starting point of discussions on this topic. The whole subject has been exhaustively &
authoritatively dealt with & the entire case-law has been reviewed in the judgments of the F. C. (now the S.
C.) reported in 'Sriramulu v. Pundarikakshayya', (1949) F L J 288: (AIR (36) 1949 FC 218) & 'Bapayya v.
Pundarikakshayya', (1949) F L J 318: (AIR (36) 1949 F C 218). Suffice it to say that, in the opinion of the
learned Judges of the F. C., the dealing of a 'de facto' guardian with the estate of a Hindu minor by way of sale
or mtge. would be regarded not as void altogether but voidable at the instance of the minor, & the same tests
would have to be applied to determine the validity of such sale or mtge. as are applied in the case of a 'de jure'
guardian's sale or mtge. We are, however, concerned in this case with the interpretation of Article 44,
Limitation Act, though the rules of Hindu Law may also have a bearing on the point.
4. If there is a trespass on a minor's property, he has 12 years from the date of dispossession or three years
after attaining majoriy, whichever is the longer period, to sue for recovery of possession under Article 142. If
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the father in a joint Hindu family alienates the interest of his minor son in the family property or the manager
alienates the Interest of a minor co-parcener, the co-parcener aggrieved by the alienation can sue to set it aside
within 12 years from the date when the alienee takes possession of the property or three years after attaining
majority, whichever period is longer, under Article 126 or 144, Limitation Act. If, however, a guardian
transfers his ward's property for purposes not binding on the minor or at a gross undervalue, the minor has
only three years after attaining majority for setting aside the alienation under Article 44, Limitation Act. If an
Improper alienation of the ward's property is made by a guardian, say a year before the ward attains majority,
the ward will not have 12 years from the date of the alienation but only four years therefrom, within which
time he must sue to set aside the alienation. The alienation is only voidable & requires to be set aside by the
ward before he could recover possession of the property. He cannot disaffirm it by a mere notice of his
intention to repudiate but must sue and obtain a judicial rescission of the sale, by his guardian within the time
prescribed by Article 44. His right to recover possession of the property improperly alienated by his guardian
will be lost & his title thereto will be extinguished under Section 28, Limitation Act, on the expiry of the three
years' period prescribed by Article 44, if he does not sue to set aside the alienation within that period . The
view of Venkatasubba Rao J. in 'Ramiah v. Brahmaiah', 59 M L J 196 at p. 198: (AIR (17) 1930 Mad 821); &
of Abdur Bahim & Sadasiva Ayyar JJ. in 'Doraisami v. Nondisami', 38 Mad 118: (AIR (2) 1915 Mad 1201)
that Article 44 is merely an illustration of the combined effect of Article 144 Si Section 6, Limitation Act, that
Article 44 is controlled by the principle of Section 6 & that even if Article 44 had not been there, the result
would be the same, seems to me, with all respect unsustainable, & I would prefer the view of Sundara Ayyar
J. in 'Doraisami v. Nondisami', 38 Mad 118: (AIR (2) 1915 Mad 1201) & Varadachariar J. in 'Ankamma v.
Kameswaramma', 68 M L J 87 : (AIR (22) 1935 Mad 1), Article 144 is a residuary article & cannot be
resorted to, if a specific article like Article 44 is applicable to a suit. The Limitation Act itself recognises the
distinction between void & voidable transactions & provides a shorter period of limitation for remedies in
respect of the latter (see, for example, Articles 12 & 91). These articles would be applicable, even if the suit is
one for possession of immoveable property, if the pltf. cannot succeed without displacing an apparent title
under a Court-sale or an instrument by virtue of which the deft. is in possession. Article 44 cannot be evaded
by omitting to sue for setting aside a transfer by the guardian & by professing to sue for possession or
redemption. Numerous decisions of this & the other H. Cs. have taken this view (see ' Latchiah v.
Mukkallnga', 30 Mad 393 : (17 MLJ 220); 'Sivavadivelu v. Ponnammal', 22 MLJ 404; 'Satyalakshmi v.
Jagannadham', 34 MLJ 229 : (AIR (5) 1918 Mad 487); 'Arumugam Pillai v. Panayadian Ambalam', 40 MLJ
475 : (AIR (8) 1921 Mad 425); 'Ramaswami v. Govindammal', 56 MLJ 332: (AIR (16) 1929 Mad 313);
'Muthukumara Chetty v. Anthony Udayar', 38 Mad 867 : (AIR (2) 1915 Mad 296); 'Kandaswami v.
Irusappa', 41 Mad 102: (AIR (5) 1918 Mad 724);
Doraiswami v. Thangavelu', AIR (16) 1929 Mad 668 : (119 IC 38); 'Ankamma v Kameswaramma' 68 MLJ 87
: (AIR (22) 1935 Mad 1) & 'Fakirappa Limanna v. Lumanna', 44 Bom 742 : (AIR (7) 1920 Bom 1 FB). The
law regards a dealing with the minor's estate by his legal guardian as, in effect, an act of the minor himself
through his guardian & prescribes a short period of three years after attainment of majority for setting aside an
improper alienation by the guardian. As Article 44 is drastic in its operation it should be strictly construed &
confined in its application to cases properly falling within its scope, i.e., to transfers of a minor's property by
his legal guardian.
5. Article 44, Limitation Act, does not differentiate between guardians & wards belonging to different
communities. It does not lay down any special rule with reference to Hindu minors. At the same time, the
personal law of the parties determines who the natural guardians of a minor are. The question is whether it is
permissible to read the word 'guardian' in Article 44 so as to include a person who is loosely styled a 'de facto
guardian' & who is not known to the law applicable to Mohamadans & Christians, but who has gained a
limited recognition amongst Hindus as a result of judge-made law. In my opinion, the word 'guardian' in
Article 44 should be interpreted as referring only to guardians properly so called or legal guardians, that is to
say, natural & testamentary guardians & guardians appointed by Ct. The expression 'de facto' means the
position in fact, & not in law. Therefore, a 'de facto' guardian is not a guardian in law. Kania C. J. in 'Sri
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Ramulu v. Pundarikakshayya', (1949) FLJ 288 at p. 292: (AIR (36) 1949 PC 218), observed: "In law, there is
nothing like a 'de facto guardian'. There can only be a 'de facto' manager, although the expression 'de facto'
guardian has been used in text-books & some judgments of courts. If that description is adopted (& I consider
it to be a correct description of a person generally managing the estate of a minor without having any. legal
title to do so) the powers of a natural guardian are not brought into consideration in defining the position of
such a manager." Mahajan, J. also remarked that the expression de facto guardian' was a loose phrase & the
words 'de facto manager' used in 'Hanuman Prasad's case', 6 MIA 393 : (1 Sar 552 P C), would be more
appropriate to denote the position of a person who assumes the management of a minor's estate without legal
warrant.
6. Most systems of law recognise a guardianship by nature or nurture. Under the Mohammadan law, the
father, & under the Hindu law, the father, &, in his absence, the mother, but no others, are the natural
guardians of a minor (see 'Chennappa v. Onkarappa', ILR (1940) Mad 358: (AIR (27) 1940 Mad 33 FB). The
Guardians & Wards Act makes provision for the appointment of a guardian for a minor, to whichever
community he may belong. In these cases, the status of a guardian & the consequential right to deal with the
property of a minor arise from the legal relationship between the parties, or the order of Ct. Ties of natural
affection or the vigilance of the Ct. as the case may be, would be a sufficient safeguard against an improper
alienation of the estate of a minor by his natural or certificated guardian; &, on this basis, a shorter period of
limitation for questioning their alienations as provided in Article 44, Limitation Act, is intelligible, but a 'de
facto' guardian is a creature improvised by judicial decisions out of the necessities of the situation & In the
Interests of the minor's estate. His powers of alienation may be analogous to those of a natural guardian but he
is not a guardian properly so called. In 'Matadin v. Ahmad Ali', 34 All 213 : 39 IA 49 PC), the Judicial
Committee observed: "It is difficult to see how the situation of an unauthorised guardian is bettered by
describing him as a 'de facto' guardian."
The case related to a Mahomedan minor. With respect to Hindus, Beaumont C. J., in 'Tulsidas v. Vaghela Rai
Singji', 57 Bom 40 : (AIR (20) 1933 Bom 15 FB) held that a so-called 'de facto' guardian was no guardian at
all but was a mere inter-meddler. Kumaraswami Sastri, J. in 'Ramaswami v. Kasinatha', AIR (15) 1928 Mad
226 : (108 IC 529) was inclined to accept the description of the position of a 'de facto guardian' in 'Matadin v.
Ahmad Ali', 34 All 213 : (39 IA 49 PC) as equally applicable to Hindus. It is only as the result of a long
course of decisions & on the principle of 'stare decisis' that a 'de facto' guardian's power in case of necessity or
benefit to the minor, to charge, mtge. or sell the minor's property has been recognised under the Hindu Law
(see 'Seetharamanna v. Appiah', 49 Mad 768: (AIR (13) 1925 Mad 457) & 'Sri Ramulu v. Pundarikakshayya',
(1949) FLJ 288: (AIR (36) 1949 FC 218). But this is not to say that a 'de facto guardian' is a 'guardian' for all
purposes or a guardian within the contemplation of a statute-law which applies to all communities.
7. The expression 'de facto guardian' is further not capable of a precise definition. It is not possible to say
precisely what conditions & circumstances must exist before a person can be described as a 'de facto guardian'
(see 'Chinna Ala-gaperumal v. Vinayakathammal', 55 M L J 861 : (AIR (16) 1929 Mad 110). It was observed
by Mahajan J. in 'Bapayya v. Pundarikakshayya', 1949 FLJ 318 at p. 337: (AIR (36) 1949 FC 218) that
"a person who is not attached to the minor by ties of affection or other reasons of affinity & remains in charge
of his estate is, in truth, a mere intermeddler with his estate." as distinguished from a relation of a minor who
assumes management of his estate in his interests, who alone could, according to the learned Judge, be
properly described as a 'de facto' guardian. In the case of natural guardians, the law ascribes the guardianship
to a definite & intimate natural & legal relationship existing between the guardian & ward. Is it to be said that
precisely the same status can be acquired on the basis of any remote relationship? The existence of any
particular degree or kind of relationship between the 'de facto' guardian & the minor is not required as an
indispensable legal requisite of 'de facto' guardianship. Nor is it practicable to embark upon an enquiry into
the motives actuating the 'de facto' guardian in assuming the management of the minor's estate, whether it was
the protection of the minor's estate or a less laudable purpose. In many cases it would be difficult to say as to
whether a person who posed as a guardian in respect of a particular transaction affecting the minor's estate
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was a guardian ad hoc, or a guardian 'de facto'. It is not possible to fix any period of time during which a
person must have managed a minor's estate before he can be recognised as 'de facto' guardian or manager. Nor
is it possible to formulate any precise course of conduct in reference to the management of the minor's estate
as being necessary to create a 'de facto' guardianship. The leasing out of the properties of the minor, the
collection of rents & profits the payment of Govt. revenue, the maintenance of the minor, the discharge of
debts binding on the estate & similar acts spread over a substantial period of tone might constitute the
manager of the minor's estate a 'de facto' guardian. (Compare 'Sankaranarayanan Aiyar v. Poovananthaswami
Temple', (1949)-2 MLJ 171 at p. 187 : (AIR (36) 1949 Mad 721 FB). But no definite rule can be laid down as
to what acts constitute, or are insufficient to constitute 'de facto' guardianship. I am referring to the difficulties
that may arise in applying Article 44, Limitation Act, to transfers by 'de facto' guardians, whose status as such
depends on so many uncertain & debatable factors & is incapable of verification or ascertainment oy reference
either to natural relationship or an order of appointment by Ct.
8. Whatever be the degree of recognition accorded to 'de facto' guardians of Hindu minors by the decisions,
the Limitation Act has. not placed the 'de facto' guardian on the same footing as a natural or certificated
guardian. A 'de facto' guardian has no authority to acknowledge a debt on behalf of a minor under SB. 19 &
21, Limitation Act, & the minor's estate is not affected by such acknowledgment of liability. The 'de facto'
guardian is not a lawful guardian within the meaning of Section 21, Limitation Act (see 'Chennappa v.
On-karappa', ILR (1940) Mad 358 : (AIR (27) 1940 Mad 33 FB). For purposes of the Registration Act, a 'de
facto' guardian is not in the same position as a natural or certified guardian (see 'Amba v. Shrinivas Kamati',
26 CWN 369: (AIR (9) 1922 PC 135). There is no reason why the word 'guardian' in Article 44 should receive
a different interpretation. The very notion of a 'de facto' guardian involves & implies that there is no jural
relationship of guardian & ward; but, that is exactly what Article 44, Limtation Act, requires. Holding as I do,
in deference to authority, that the expression 'ward' in Article 44 is not limited to a minor for whom a guardian
has been appointed by Ct. & that the word 'guardian' includes natural & testamentary guardians also, I cannot
stretch the word 'guardian' so as to include a 'de facto' manager of the minor's properties. In my opinion, a
person who is not equipped with the requisite legal authority as a natural, testamentary or certificated guardian
but who is in management of a minor's estate, is only a 'de facto' "manager & not a 'guardian' within the
meaning of Article 44.
9. In 'Thayammal v. Kuppanna', 38 Mad 1125 : (AIR (2) 1915 Mad 659); 'Ramaswami v. Kasinatha', AIR
(15) 1928 Mad 226 : (108 IC 529) & 'Purushothama v. Brundavaha', 33 MLW 664: (AIR (18) 1931 Mad 597)
this Ct. held that Article 44 did not govern suits by a quondam minor for recovery of possession of property
alienated by a 'de facto' guardian, though there is not much discussion of the reasons for this conclusion. In
Chinna Alagamperumal v. Vinayakathamma', 55 MLJ 861: (AIR (16) 1929 Mad 110), an alienation by a 'de
facto' guardian not justified by necessity or benefit was treated as void & as a transfer not requiring to be set
aside within the period limited by Article 44, though in another portion of the judgment the alienation is stated
to be merely voidable. An alienation by the 'de facto' guardian of a Christian minor was held not to be
governed by Article 44 (see 'Sundara Nadan v. Annammal', 60 MLJ 695: (AIR (18) 1931 Mad 539). Mr.
Venkatadri, the learned advocate for the applt., contends that these decisions are no longer law in view of the
recognition of the validity of a transfer by the 'de facto' guardian of a Hindu minor by the F. C. in 'Sri Ramalu
v. Pundarikakshayya' (1949) FLJ 288 : (AIR (36) 1949 FC 218). He also placed reliance on the decisions in
'Bangarammal v. Lydia Kent', 57 Mad 1062 : (AIR (21) 1934 Mad 60S) & 'Adeyya v. Govindu', 58 MLJ 417 :
(AIR (18) 1931 Mad 274) & the comments on Article 44 by the learned editors of Mitra's Limitation Act
(Edn. 7, Vol. 1, at pp. 434 & 435). The argument runs as follows : Under the Hindu Law, the powers of a 'de
facto' & a 'de jure' guardian to alienate the minor's property are the same. An alienation in excess of such
powers is only voidable at the instance of the minor & not void. A voidable transfer must be set aside before
possession of the property can be recovered. Article 44 provides only a period of three years for a suit to set
aside the transfer & the residuary provision in Article 144 does not apply to the case. If the ex-minor does not
bring a suit for possession within three years of attaining his majority, his title to the properties is lost &
extinguished & the transferee's title becomes absolute & unimpeachable. A subsequent transferee of the
property from the ex-minor is in the same position as his transferor. This last proposition rests on the principle
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that a person who claims under another, whether as his legal representative or transferee, should in such
character be governed by the same rule as would apply to the person from whom he derives his title, the only
limitation being that he is not entitled to any privileges or exemptions from limitation which the latter had .
There is some authority for this view (see 'Laxmana v. Rachappa', 42 Bom 626 : (AIR (5) 1918 Bom 180) &
'Raja Rama swami v. Govindammal, 56 M L J 332. But the rest of the argument is open to question though it
is supported by the decision of Curgenven, J. in 'Adeyya v. Govindu', 58 ML J 417 : (AIR (18) 1931 Mad
274). I am unable, with all respect, to accept the reasoning of the learned Judge.
10. The expressions 'void' & 'voidable' are loosely & indiscriminately used in discussions on this topic. An
alienation by a Hindu widow without legal necessity is not void, but voidable, in the sense that the transfer has
a qualified operation even after the death of the widow & it is only the reversioner & nobody else, that has a
right to disaffirm or impugn the transfer. In this sense, the transfer is voidable. The reversioner, however, need
not sue to set aside the alienation, but can disaffirm it or treat it as a nullity & sue for possession of the
property within 12 years of widow's death. In this sense, it is void as against the reversioner ('Bijoy Gopal v.
Krishna Mahishi' 34 Cal 329: (34 IA 87 PC). 'In re Appavu Naicken', AIR (18) 1931 Mad 377 : (128 IC 695).
Similarly, an alienation by a father or manager of a joint Hindu family in excess of his powers is voidable in
this sense that only the junior members of the family can disaffirm it & no others, but it is void so far as the
junior members are concerned, for, they need not sue to set aside the alienation, but can straightway sue for
recovery of possession within the period limited by Article 126 or 144, Limitation Act. In this context, the
expression 'voidable' is not used in the sense in which it is "used in the Contract Act. 'Amirthalinga v.
Arumuga', 28 MLW 634: (AIR (15) 1928 Mad 986). I am aware that in 'Muthukumarachetti v. Anthony
Udayar', 38 Mad 867 at p. 877 : (AIR (2) 1915 Mad 296), the learned Judges in dealing with an improper
alienation of a minor's property by a duly appointed guardian, observed as follows : "We cannot uphold Mr.
Rangachariar's contention that whenever a transaction is voidable, it can be avoided only by getting a decree
of Ct. setting it aside. The party who is entitled to avoid may do so by an unequivocal act repudiating the
transaction (see 'Mata Din v. Ahmad Ali', 34 All 213 : (39 IA 49 PC) & 'Bijoy Gopal Mukerji v. Krishna
Mahishi Debi', 34 Cal 329 : (34 IA 87 PC). If Rajagopalan (the minor) after attaining majority should wish to
repudiate the lease there can be no doubt he can. do so without a suit. But can anyone else do so? The right to
avoid appears to be a personal privilege."
The reference in this context to 'Mata Din v. Ahmad Ali', 34 All 213 : (39 IA 49 PC), which was a case of an
alienation of the property of a Mahomedan minor by a 'de facto' guardian & to 'Bijoy Gopal v. Krishna
Mahishi', 34 Cal 329 : (34 IA 87 PC), which was a case of an improper alienation by a Hindu widow, is
unhappy. In those cases, the Mahomedan minor or the Hindu reversioner was not a party to the transaction
directly or in contemplation of law on any theory of representation & a suit for setting aside the alienation was
not therefore necessary, a mere repudiation being sufficient. In those two cases, Articles 144 & 141 would
govern a suit for recovery of possession of the property by the minor or the reversioner. The learned Judges
themselves in another part of their judgment held that Article 44 Limitation Act applied to the case of an
improper alienation by the guardian of a minor.
11. If a transfer by a guardian is only voidable, then as decided in 'Raja Rajeswara Dorai v. Arunachellam
Chettiar', 38 Mad 321: (AIR (3) 1916 Mad 350); a unilateral repudiation by him or rescission in 'pais' would
not be sufficient. In 'Satgurprasad v. Harnarain Das', 62 MLJ 451 : (AIR (19) 1932 PC 89), the Judicial
Committee while setting aside a conveyance, of property as having been obtained by fraud & undue influence
observed :
"Their Lordships are unable to regard the deed of 25-11-1924 merely as a contract voidable at the option of
the pltf., but good until avoided. It was, in effect, a conveyance, under which the title to the properties passed
to the deft., & 'which had to be formally set aside'."
Their Lordships also held that the pltf. exercising his option to rescind the transfer, was entitled to the rents &
profits of the property from the date of the transfer & not merely from the date of the suit.
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12. An alienation by a 'de jure' or lawful guardian of the property of the ward in excess of his powers as a
guardian is treated differently from an improper alienation by a Hindu widow or the manager of a joint Hindu
family for purposes of the Limitation Act. The transfer by the guardian is not void as against the minor, but
only voidable at his instance & the minor must sue to set aside the unauthorised transfer within the three years
limited by Article 44 or lose his title to the property. As I have already stated, the law regards the minor as
being a party to the alienation through his guardian, & Article 44 allows only a period of three years for
setting aside the transfer, the same period being allowed under Article 91 for a man who seeks to set aside his
own deed. But, if a 'de facto' manager of a minor's estate improperly alienates his property, the alienation is
one to which the minor is not a party through his legally authorised representative & does not require to be set
aside within the period limited by Article 44. The minor can sue for recovery of possession within the period
12 years allowed by Article 142 or Article 144. The word 'guardian' in Article 44 must be interpreted as
meaning only a lawful or 'de jure' guardian & not as including a 'de facto' manager of the property of a Hindu
minor, whatever be the effect of an alienation by a 'de facto' guardian or manager under the Hindu law.
13. Mr. Venkatadri's further contention is that the sale in favour of the pltf. by deft. 2 after he attained
majority, of property which had been previously sold to deft. 1 by his 'de facto' guardian, is, in effect, a
transfer of a right to sue which is prohibited by Section 6(e), T. P. Act. 'Mon Mohan v. Bidhu Bushan', AIR
(26) 1939 Cal 460 : (185 IC 6), was the only decision cited by the learned counsel on both sides on this point.
In that case, the sale of the minor's property was by his natural guardian & not by a 'de facto' guardian. Mr.
Venkatadri's contention is that this does not make any difference, for the property of sale by a 'de facto'
guardian has to be judged by the same, tests as are applicable to the case of an alienation by a 'de Jure'
guardian & a sale in excess of the power of the guardian, 'de facto' or 'de jure', can only be avoided by the
minor. In the case of an unauthorised alienation by a 'de facto' guardian, the setting aside of the transaction is
not a condition precedent to the minor recovering the property from the alienee & the minor can sue for
possession of the property within the period limited by Article 142 or 144. Assuming that a sale by a 'de facto'
guardian without necessity or benefit to the minor is only voidable, the question is whether the right to
question an excessive or improper alienation by a guardian & recover possession of the property from the
alienee is only a personal right of the minor & whether it is a mere right to sue which could not be availed of
by a transferee oE the property from the minor on his attaining majority. Sen, J. held that the right of the
minor to avoid the alienation was a mere right to sue & could not be validly transferred in 'Mon Mohan v.
Bidhu Bushan', AIR (26) 1939 Cal 460: (185 IC 6) relying on the decision in 'Jhavar Bhai Hathi Bhai v.
Kabhal Becher', 34 Bom LR 1512 : (AIR (20) 1933 Bom 42) in support of his conclusion. I may also point out
that there is an earlier decision of the Bombay H. C. (Macleod, C. J. & Coyajee J.) in 'Narasinga Charya v.
Tulsa Bai', 27 Bom LR 483: (AIR (12) 1925 Bom 320), that till an unauthorised sale by his guardian was set
aside by the minor, he had no transferable interest in the property. I am unable to accept these decisions as
embodying a correct statement of the law. There was here a sale of property by the ex-minor & not an
assignment of a mere right to sue. No doubt, the vendee from the minor had to sue the previous purchaser
from the guardian for recovery of possession of the property, but, in my opinion, that did not render the sale
by the minor a transfer of a mere right to sue. A unilateral disaffirmance or rescission in 'pais' of the
guardian's improper alienation by the minor might not be sufficient to revest title to the property in the minor
& enable him to sue for recovery of possession of property within 12 years of such repudiation under Article
144, Limitation Act. A judicial rescission may be necessary as held in cases decided under Article 91,
Limitation Act, (see 'Janaki Kunwar v. Ajit Singh', 15 Cal 58 : (14 IA 148 PC); 'Raja Rajeswara Dorai v.
Arunachalam Chettiar', 38 Mad 321 : (AIR (3) 1916 Mad 350) ; & 'Someswar Dutt v. Tribhavan Dutt', 67
MLJ 7: (AIR (21) 1934 PC 130). I have already referred to the decisions of the Ct. taking the same view of the
effect of Article 44, Limitation Act. It does not, however follow that the right to obtain a Judicial rescission of
an unauthorised & therefore voidable transfer by a guardian, is a mere personal privilege of the minor, as
observed in 'Muthukumar Chetty v. Anthony Udayar', 38 Mad 867 at p. 877 : (AIR (2) 1915 Mad 296) in the
passage already cited. It is a right annexed to the ownership of property or an interest in property & is
available to the legal representatives of a minor who dies without avoiding the transfer. Where an ex-minor
transfers property unauthorisedly sold by his guardian during his minority he transfers not a mere right to sue
but his interest in the property, though a suit may be necessary to avoid the transfer by the guardian & recover
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possession of the property from his alienee. Conversely, the liability of the transferee from the guardian is not
a liability to pay damages for the unauthorised act of the guardian, but is a liability to restore the property to
the rightful owner or his transferee (compare Sections 86, 94 & 96, Trusts Act). If, as held by Sadasiva Ayyar,
J. in 'Muthubumara Chetti v. Anthony Udayar', 38 Mad 867: (AIR (2) 1915 Mad 296), a mere repudiation by
the minor on attaining majority is sufficient to avoid the transfer, then the transfer by the ex-minor of the
property previously alienated by the guardian is a sufficient repudiation of the guardian's act.
14. It is significant that Section 60(e), Civil P. C., which is in 'pari materla' with Section 6(e), T. P. Act,
exempts from attachment & sale "a mere right to sue for damages". The right to get a reconveyance of
property through Ct. or otherwise, is a valuable right in the nature of a right of property & can be validly
transferred. The Transfer of Property Act itself recognises transfers of actionable claims as defined in the Act.
The transferee as the representative of the transferor can sue for specific performance of a contract to
reconvey land (see 'Venkateswara Ayyar v. Raman Nambudri', 3 MLW 435: (AIR (4) 1917 Mad 358) &
'Sakalaguna Naidu v. Chinna Munuswami' 55 IA 243: (AIR (15) 1928 PC 174). The prohibition of a transfer
of a mere right to sue in Section 6(e), T. P. Act is an adaptation for India of the English equitable doctrine that
a right to complain of a fraud is not a 'marketable commodity'. (see Turner, L. J. in 'De Hoghton v. Money',
(1867) 2 Ch A 164: (15 LT 403). The English Cts. of equity held that the transfer of such a right savoured of
champerty & maintenance & refused relief on that ground. But the Judicial Committee held as early as
'Ramcoomar v. Chunder Canto', 4 IA 23: (2 Cal 233 PC) that the English doctrines as to champerty &
maintenance were not in force as specific laws in India (see also 'Achalram v. Kazim Hussain', 27 All 271 :
(32 IA 113 PC) & 'Bhagwat Dayal v. Debi Dayal', 35 Cal 420 (35 IA 48 PC). Even in England, the rigour of
the rule has been considerably, relaxed, as might be found from the authoritative exposition of the present
state of the law in the judgment of Parker, J. in the Ct. of Appeal in 'Glegg v. Bromley', (1912) 3 KB 474 at
pp. 439 490: (81 LJKB 1081), approved & accepted by the Judicial Committee in 'Venkatasubhadrayyamma
v. Venkatapati', 52 IA 1 at p. 19: (AIR 11. 1924 PC 162). Parker J. laid down the law in these terms :
"Ordinary choses in action were not assignable at law, but were generally speaking, assignable in equity
whether themselves legal, or equitable choses. In the former case, equity compelled the assignor to allow his
name to be used for their recovery in legal proceedings; in the latter case, the assignee could sue in equity in
his own name. There was one exception to this rule. Equity on the ground of public policy did not give
validity to the assignment of what is in the cases referred to as a bare right of action, & this was so whether
the bare right were legal or equitable. I have looked at a good many authorities on this point, & I am satisfied
that the real reason why equity did not allow the assignment of a bare right of action, whether legal or
equitable, was on the ground that it savoured of or was likely to lead to maintenance. There is no doubt in the
cases about the rule, & there is no doubt in the cases with regard to the exception, but difficulties often arose
in deciding whether a particular right was within the exception or was within the rule. It is to be observed that
an equitable assignee of a chose in action, whether it is legal or equitable, could institute proceedings &
maintain proceedings for its recovery. The question was whether the subject matter of the assignment was, in
the view of the Ct. property with an incidental remedy for Its recovery, or was a bare right to bring an action
either at law or in equity. 'Glegg v. Bromley', (1912) 3 KB 474 at pp. 489, 490: (81 LJKB 1081)."
In my opinion, the right of the ward to recover property improperly alienated by his guardian would have been
treated in equity as property & not as a bare right of action & the same rule must prevail here. The
conveyance, Ex. P. 5, by the ex-minor in favour of the pltf. in this case is of the property itself & not of a mere
right to sue. For these reasons, I respectfully dissent from the decision of Sen J. in 'Mon Mohan v. Bidhu
Bhushan' AIR (26) 1939 Cal 460: (185 IC 6) & the observations of Macleod, C. J. In 'Narasimhachary v.
Tulsa Bai', 27 Bom LR 483 : (AIR (12) 1925 Bom 320) & Parkar & Murphy, JJ. in 'Jhavar Bhai Hathi Bhai v.
Kabhai Becher', 34 Bom LR 1512: (AIR (20) 1933 Bom 42). The decision In 'Hanumant v. Ramappa', 49
Bom 309 : (AIR (12) 1925 Bom 292) points out the difficulty of applying the language of Article 44,
Limitation Act, to a suit by a transferee from the ward & though there is a passing reference to Section 6(e), T.
P. Act, in the judgment, there is no decision on the point whether a transfer by the ward on attaining majority
is hit at by Section 6(e), T. P. Act. In that case, both the ward & his transferee were pltfs. & the Ct. held that
the transferee would get the benefit of an adjudication setting aside the improper alienation of the ward's
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property by his guardian. In 'Kamaraju v. Gunnayya', 45 ML J 240 : (AIR (11) 1924 Mad 322) & 'Ramaswami
v. Govlndammal', 56 MLJ 332: (AIR (16) 1929 Mad 313), two D. Bs. of this Ct. & 'Laxmana v. Rachappa', 42
Bom 626 : (AIR (5) 1918 Bom 180) a D. B. of the Bombay H. C. recognised, though without a discussion of
the point, the right of a transferee of property from the ex-minor to sue to set aside an improper alienation of
that property by the guardian of the minor. The Bombay H. C. itself has, in a later case, held that where the
manager of a Joint Hindu family, acting in excess of his powers, alienates the Joint family property for
himself & his minor brother, the latter continues to have an interest in the property alienated, which he can
transfer so as to clothe the transferee with a right to avoid the manager's alienation & recover possession of
the interest of tils transferor (See 'Hanumanthappa v. Dundappa' AIR (21) 1934 Bom 234: (151 IC 1043). The
same view is implicit, though not expressly stated, in 'Iburamsa Rowthen v. Thiruvenkatasami Naick' 34 Mad
269 : (7 IC 559). In 'Ramaswami v. Govindammal', 56 MLJ 332: (AIR (16) 1929 Mad 313), Article 44,
Limitation Act, was applied to a suit by the transferee from the ward & in 'Ramiah v. Brahmaiah', 59 MLJ
196: (AIR (17) 1930 Mad 821) the same article was applied to a suit by the legal representative of a ward who
died a minor. As pointed out in 'Hanumant v. Ramappa', 49 Bom 309 : (AIR (12) 1925 Bom 292) it is difficult
to bring a suit by the transferee or legal representative of a deceased minor within the language of Cols. 1 & 3
of Article 44, Limitation Act. In the view I have taken that Article 44 does not apply to transfers by 'de facto'
managers or 'de facto' guardians of a Hindu minor, a decision on this point is unnecessary. If it were, I would,
sitting singly, be bound by the decision in 'Raja Ramaswami v. Govindammal', 56 MLJ 332: (AIR (16) 1929
Mad 313) to hold that Article 44 applies even to suits by transferees from an ex-minor for recovery of
possession of property improperly alienated by the minor's guardian. For the foregoing reasons, I dismiss this
second appeal. But, having regard
to the fact that the transferee, the pltf. is no
other than the son of the 'de facto' guardian &
that there is more than a suspicion that deft. 1
is sought to be deprived of the fruits of his
purchase by the concerted action of the ward, the
'de facto' guardian & the pltf. I disallow the pltf.
his costs throughout. No leave.
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