Kailash Chandra Pradhan vs Rajani Kanta Panda and Another

Beevor, J.—This is an appeal by defendant 1 against a decision of the Additional Subordinate Judge of Cuttack reversing a decision of the Munsif of Balasore and granting to the plaintiff-respondent a decree de-daring his title and awarding him possession of 3.94 acres of land. There is no dispute that this land did belong to the plaintiff but defendant 1, the appellant, claimed the land by virtue of a document executed by defendant 2 in his favour on 18th July 1980. Defendant 2 is the step-mother of the plaintiff and before us it has not been disputed that she was the de facto guardian of his property during his minority. The document of 18th July 1930 was a sale deed with a conditional right of repurchase and was executed by defendant 2 on behalf of the plaintiff.

The only question now before us is whether the suit was barred by limitation. The trial Court held that the suit was barred under Article 44, Limitation Act, as the plaintiff had attained majority more than three years before he filed the suit. The lower appellate Court held that Article 44 did not apply but that Article 144 applied and the suit was in time as having been brought within 12 years of the date of alienation. The learned Subordinate Judge on appeal relied on certain decisions for the conclusion that Article 144 and not / rt. 44 was applicable. Of the cases cited by him in sup-'' port of this proposition, those reported in Thayammal v. Kuppanna Koundan AIR 1915 Mad. 659, Ramaswamy Pillai v. Kasinatha Iyer AIR 1928 Mad. 226 and Purushotama Ratho v. Brundavana Das AIR 1931 Mad. 597 held that Article 44 was not applicable to suits regarding alienations made by de facto guardians.

On behalf of the appellant the decisions in Dip Chand Vs. Munni Lal and Another, and Bangarammal v. Lydia Kent AIR 1934 Mad. 605 were cited to prove that Article 44 is not restricted -to alienations made by guardians appointed by the Court under the Guardians and Wards Act. But the former of these two cases dealt with a Hindu mother acting as guardian of her minor son and although it is not specifically stated in the judgment that she was his natural guardian the whole judgment proceeded on this assumption and there is no (reference to de facto guardian. The second of the these cases dealt with an alienation by a Christian widow acting as guardian of her two minor daughters and she was treated by the Court as the natural guardian though it was stated that the powers of a mother as guardian in communities not governed by the Hindu or by the Mahomedan law did not appear to have formed the subject of express judicial decision. I do not think it follows that the same article of the Limitation Act will necessarily apply in the case of alienations by a de facto guardian. The learned advocate for the appellant was unable to cite any case of an alienation by a person who was clearly a de facto guardian and not a natural guardian or a guardian appointed by the Court in which Art, 44 had been applied. He argued, however, that the three decisions mentioned above on which the learned Subordinate Judge relied followed the Privy Council decision in Mata Din v. Ahmed Ali (12) 34 All. 213 in which it was held in a case governed by the Mahomedan law that where elder brothers had alienated property acting as guardians of their minor brothers for payment of an ancestral debt, though the alienation was not proved to be made for necessity or beneficial to the minor, the minor was not bound by the transaction and that a suit brought by him to recover possession after redeeming a valid mortgage on the property was not barred by Article 44. It is urged for the appellant that this decision of the Privy Council proceeded on the basis that an alienation by the elder brothers was void and not merely voidable, whereas it has been decided in the case of alienations by a de facto guardian of Hindu minors that such alienations are not void but merely voidable and if made for legal necessity are valid. Now I do not find that their Lordships of the Judicial Committee in Mata Din v. Ahmed Ali (12) 34 All. 213 used the word "void" in respect of the alienations with which they were dealing though from the statement of facts this word appears to have been used by the lower Courts. Their Lordships also clearly left open the question whether according to the Mahomedan law a sale by a de facto guardian if made of necessity or for the payment of an ancestral debt affecting the minor''s property and if beneficial to the minor was altogether void or merely voidable. I do not think it is necessary to refer to all the decisions in which it has been held that in the case of a Hindu minor, alienations by the de facto guardian may be valid if made for legal necessity. It is sufficient to refer to the Full Bench decision of the Bombay High Court in Tulsidas Jesingbhai Parikh and Others Vs. Raisingji Fulabhai Vaghela and Another, and the cases there cited. The appellant cited various decisions to show that alienations by de facto guardians of Hindu minors are voidable and not void including Seetharamamma v. Appiah AIR 1926 Mad. 457 and Adeyya v. Govindu AIR 1931 Mad. 274.

The words "void" and "voidable" are used in different senses on different occasions. In the case reported in Bijoy Gopal v. Krishna Mahishi Devi (07) 34 Cal. 329 their Lordships of the Judicial Committee of the Privy Council had to deal with the question whether Article 91 or Article 141 would apply to a suit by a reversioner brought to recover possession of property of which the widow had granted an ijara lease. Their Lordships held that the Chief Justice of Calcutta had correctly stated the question when he laid down that if the plaintiffs were to recover possession without setting aside the lease, then Article 141 would apply and not Article 91, but if they could not so succeed without getting rid of the lease then the case would fall within Article 91. Their Lordships then proceeded:

But they differ from the learned Judge aa to the answer to be given to the question so put, and they think that it is not answered by merely saying that the ijara was voidable only and not void. In the case before this Board cited by the learned Judge, the question was whether the acceptance of rent payable under the putni and other circumstances afforded evidence of an eleotion by the Raja to oon-firm the putni and treat it as valid. If it was ipso facto void it could not of course be confirmed ; and the acceptance of rent would be evidence only of the , creation of a new tenancy. A Hindu widow is not a tenant for life, but is owner of her husband''s property subject to certain restrictions on alienation and subjeot to its devolving upon her husband''s heirs upon her death. But she may alienate it subject to certain conditions being complied with. Her alienation is not, therefore, absolutely void but it is prima facie voidable at the election of the reversionary heir. He may think fit to affirm it, or he may at his pleasure treat it as a nullity without the intervention of any Court, and he shows his election to do the latter by commencing an action to recover possession of the property. There is, in fact, nothing for the Court either to set aside or cancel as a condition precedent to the right of action of the reversionary heir.

Even if the position is accepted that in the present case the alienation by the plaintiff''s step-mother was voidable and not void, in the sense that he could affirm it, I think that the last two sentences in the passage just quoted from their Lordships'' judgment are applicable to the circumstances of the present case equally with the case to which their Lordships were applying. I come, therefore, to the conclusion that the learned Subordinate Judge was right that Article 144 and not Article 44, Limitation Act, applied to the present suit. The appeal, therefore, fails and must be dismissed with costs.

Chatterji, J.

I agree that Article 44 of the Schedule to the Limitation Act is not applicable to the present case. Apart from the question whether the word "guardian"'' in this article includes a de facto guardian, on which I feel great doubt, it is obvious that this article can have no application unless the transfer sought to be set aside is voidable in the sense that it is binding on the minor until it is set aside. It may be assumed for the present purpose that under the Hindu law an alienation by a natural guardian, not for necessity, is voidable in this sense, so that a suit to set aside such alienation will be governed by Article 44. It may also be regarded as well settled by judicial decisions that under the Hindu law an alienation by a de facto guardian, if for necessity, is binding on the minor. But it does not follow that an alienation by a de facto guardian, not supported by necessity, is voidable in the sense that it is binding on the minor until it is set aside. Mr. B. Mahapatra on behalf of the appellant laid great stress on the observation in some of the decided cases that the powers of a de facto guardian are the same as those of a legal guardian : see Seetharamamma v. Appiah AIR 1926 Mad. 457, Ramaswamy Pillai v. Kasinatha Iyer AIR 1928 Mad. 226 and Bangarammal v. Lydia Kent AIR 1934 Mad. 605. But if these decisions are closely examined, it will appear that this observation has reference to cases where the alienation is for necessity, whether made by the legal guardian or by de facto guardian. In the last-mentioned case Curgenven J. clearly stated that a de facto guardian under the Hindu law

is in the same position as a de jure guardian so far as aots done for the minor''s benefit are concerned.

To extend this analogy to cases where the alienation by a de facto guardian is not for the benefit of the minor would be to assign to the de facto guardian the same position as that of a legal guardian under the Hindu law, a position for which I find no justification. In Adeyya v. Govindu AIR 1931 Mad. 274, however, Curgenven J., sitting alone, observed:

If a de facto guardian, equally with adjure guardian, can alienate for necessity, it is not very easy to perceive why, if not so supported, the one , should be only voidable and the other void. Even to alienate for necessity connotes some power to deal with the property and indeed not only is such a power recognized in a de facto guardian but the view seems to be that in all such dealings no distinction can be drawn between the powers of the two classes of guardians.

But, with all respect, the distinction between the powers of the two classes of guardian lies in the fact that while the de jure guardian is under the law clothed with authority to deal with the minor''s property, the de facto guardian is not clothed with similar authority, though if the latter alienates the minor''s property for his benefit, the Court will uphold the transaction. In the case of an alienation by a de jure guardian, not for the benefit of the minor, the guardian acts in excess of his authority derived under the law, whereas in the case of a similar alienation by a de facto guardian, his act is wholly unauthorized. In the latter case, however, the minor may choose to ratify the transaction, though it is not binding on him. To that extent the'' alienation is voidable. The position is the same as in the case of an alienation by a Hindu widow, unsupported by legal necessity, which, as pointed out by the Privy Council in 5 Cri. L. J. 334 may be affirmed by the reversioner, though it is not binding on him, and is in that sense voidable.