Ethilavulu Ammal and Others vs Pethakkal and Others

Satyanarayana Rao, J.—The defendants are the appellants in this civil miscellaneous appeal preferred against the order of remand by the

learned Subordinate Judge of Dindigul. The plaintiff is the widow of one Thanipulli Naicker who died in 1933 though there is no evidence regarding

the actual date of his death. Immediately after his death, the father of the plaintiff executed a deed dated 27th June 1933 (Ex. P-1) acting as

guardian of the plaintiff who was then a minor, in favour of defendant 1 and his brother. Under the title so acquired, defendant 1 and his brother

made various alienations of the properties in favour of the several defendants in the action. The plaintiff attained majority in 1941. She filed the

present suit in forma pauperis on 23rd March 1945 to recover possession of the properties left by her deceased husband and she impeached the

deed executed by the father as not binding upon her. Various defences to the action were raised by the alienee-defendants and the principal

question on which there was a difference of opinion between the Courts below is one of limitation. The first Court dis. missed the suit on an

erroneous view of the facts and the law upholding the plea of the defendants that the suit was barred by limitation. This decision was reversed by

the learned Subordinate Judge on appeal and the suit was remanded for disposal according to law.

On behalf of the appellants it is argued that the view of the learned Judge on the question of limitation is erroneous and that the learned Judge

should have held that the suit was barred by limitation under Article 44, Limitation Act as the suit was not instituted within three years after the

plaintiff had attained majority. The question is whether this contention is right. Exhibit P-1, on the face of it, purports to be a deed of surrender and

that was also the view of the learned Subordinate Judge. The suit is admittedly within 12 years from the date of EX. P-1. As the actual date of

death of the husband of the plaintiff is not known it is not possible to say whether the suit is in time also from the date of the death of the plaintiff''s

husband. Unless the period of limitation for the institution of the suit is cut down by Article 44. Limitation Act, the plaintiff''s suit would be in time.

Article 44 applies to a suit by a ward who has attained majority to set aside a transfer of property by his guardian, and, the period of limitation

prescribed is three years from the date when the ward attains majority. In my opinion, Article 44, Limitation Act, does not apply for two reasons.

In the first place, EX. P-1 is not a transfer of property by the father acting as the guardian of the plaintiff as it purports to be a deed of surrender.

That a surrender under the Hindu law does not operate as a conveyance or transfer of property from the widow to the surrenderee cannot now be

disputed. The true view under the Hindu law is that a surrender is a voluntary act of the widow which brings about her civil death. The pro-party

devolves upon the surrenderee by operation of the Hindu law of succession and not by an act of transfer by the widow to the surrenderee. Apart

from the question whether under the Hindu law a valid surrender could be effected on behalf of a widow who is a minor by a guardian, natural or

de facto, Ex. P-1 does not purport to effect a transfer of the property and therefore Article 44 has no application,

Secondly, the father of the plaintiff was not a de jure guardian of the minor plaintiff at the time of the execution of Ex. P-1. The plaintiff was

married into another family and by reason of the marriage the guardianship of the father came to an end. It must therefore be taken that the father

assumed management of the properties of the husband of the plaintiff and executed the deed, EX. P-1. Such a person who is sometimes described

as a de facto guardian or de facto manager of the properties cannot be aptly described as a guardian within the meaning of Article 44, Limitation

Act. It has now been settled by a Full Bench of our Court in Chennappa v. Onkarappa, I. L. R. (1940) Mad. 358: A. I. R. 1940 Mad. 33, that

except the father and in his absence the mother of a Hindu minor no others are legal guardians. After marriage of a minor female the guardianship

of the father is transferred to her husband and in default of the husband no other person is entitled to act as a guardian de jure. That very Full

Bench also considered the question that a de facto guardian would not be a lawful guardian within the meaning of Section 21, Limitation Act. No

doubt in Article 44 the word ""lawful"" is not pre-fixed to guardian, but in my opinion, that does not make any difference. When the legislature used

the word ""guardian"" in the section it must have meant to apply the word only to a lawful guardian and not to persons who had assumed the power

to manage without authority. The guardian contemplated under the article is either a natural guardian or a testamentary guardian or a certificated

guardian ; no others are contemplated by the Article. In view therefore of the decision of the Full Bench in Chennappa v. Onkarappa, I. L. R.

(1940) Mad. 358: A. I. R. 1940 Mad. 33, I think that the article has no application to a transfer of property of a minor by a de facto guardian.

This was also the view taken by several decisions of this Court. Thayammal v. Kuppanna Koundan, 38 Mad. 1125 : A. I. R. 1915 Mad. 659 ;

Jamula Narayana Murthi and Others Vs. Nilambara Prudhvisinghi Santo and Others, and Ramabrahmam Vs. Gudimalla Andalamma, . The

decision in (Kaveripakkam) Bangarammal Vs. Lydia Kent and Others, , related to an alienation by a natural guardian and therefore Article 44 was

rightly applied. The decision in Raja Ramaswami (dead) and Others Vs. Govindammal and Others, , relates also to an alienation by the natural

guardian, being the father of the minor. The view, therefore, that Article 44 does not apply to art alienation by a de facto guardian is also supported

by the above decisions. The learned Subordinate Judge was therefore right in holding that the suit was not barred by limitation.

The civil miscellaneous appeal fails and is dismissed with costs. No leave.