Muthalu Ammal vs A.V. Amudham alias Pichamani

V. Sethuraman, J.—The defendant is the appellant. The plaintiff claimed the suit property as belonging to him by virtue of a purchase under a

document dated 9th May, 1952 executed by one Muruga Padayachi for a sum of Rs. 500. The plaintiff was a minor at the time when this property

was sold to the defendant for a sum of Rs. 1,000 on 14th July, 1956 by his mother. The father of the plaintiff was then alive and he died only in

September, 1965. According to the plaintiff, his father was the natural guardian and during his father''s lifetime his mother could not have assumed

guardianship and further there was no justification or legal necessity for the sale. He sued for declaration of his title and possession. The suit itself

was filed on 12th July, 1968 within 12 years of the alienation by the mother.

The defendant resisted the suit and contended that the plaintiff''s mother was acting as his guardian even when the property was purchased and

that the father, though he was alive, had relinquished his right of guardianship in favour of the mother. According to the defendant, the father was

heavily indebted and he therefore left the property and the minor to the guardianship of the mother. The family was said to be in dire need and

straightened circumstances at the time of the sale in favour of the defendant. It was claimed by the defendant that the suit was barred by limitation

as it was not filed within three years of the plaintiff attaining majority. The plaintiff had claimed mesne profits for three years preceding the suit and

the defendant contested this claim also. The learned District Munsif rejected all the objections of the defendant and decreed the suit. He found that

the alienation was not for necessity and was therefore not valid and binding on the plaintiff. He found also that the suit was not barred by limitation.

On appeal the learned Subordinate Judge of Cuddalore accepted the finding of the learned District Munsif that there was no legal necessity for the

sale. He was also of the view that the suit was not barred by limitation. The defendant is now on appeal before me contesting the conclusion of the

Courts below.

The learned Counsel for the appellant did not challenge the finding of the Courts below on the question of legal necessity for the sale. In other

words, the fact that the alienation was not made for meeting any necessity is not in dispute. Therefore the questions that require to be considered

are whether the mother could act as the lawful guardian of the minor at the time when the father was alive and if she was not a lawful guardian and

acted only as a de facto guardian, whether the alienation made by her was binding on the minor or was void or voidable.

On the question as to whether the mother could act as the lawful guardian during the lifetime of the father, it is well-settled that the father is the

natural guardian of the person and the separate property of the minor children, and that guardianship is in the nature of a sacred trust which cannot

be transferred. It is only in his absence that the mother could have acted as the natural guardian. The learned Counsel for the appellant relied on the

decision in Palani Gounder v. Sellappan ILR (1964) Mad. 748, in support of the proposition that the mother could act as the de facto guardian

even during the lifetime of the father. That was a case where the whereabouts of the father were not known and it was in those circumstances that

the mother acted as the guardian. The principles laid down in that case have to be understood in the context of the fact that the father''s

whereabouts were not known. I do not consider the said decision as an authority for the proposition that even during the lifetime of the father, the

mother could have acted as the guardian. In the present case, there is no dispute that the father was alive at the time when the alienation was made

as he had attested the sale-deed, and therefore the alienation was made by only a de facto guardian and not by a natural guardian.

With reference to an alienation by a de facto guardian, the question that arises is as to whether it is void or voidable. Article 80 of the Limitation

Act, 1963, provides a period of three years from the date of the minor attaining majority for setting aside a transfer of property made by the

guardian of a ward. The period of three years in the present case would expire on 20th September, 1963. The plaintiff was born on 20th

September, 1942. He would have attained majority on 20th September, 1960 and the period of three years would thus have ended on 20th

September, 1963. The suit was filed much later than that date. If Article 60 were to be applied, then the present suit would be beyond the period

of limitation so that the plaintiff cannot recover the property.

On the question as to whether Article 60 applies to a case of this nature, the learned Counsel for the appellant relied very strongly on a decision

of Venkatarama Ayyar, J., as he then was, in Rangaswami Goundar Vs. Marappa Gounder and Others, . One Ramayya Goundan had two wives,

a son and two daughters by his first wife. Shortly after his death disputes arose between the two widows and they were settled by a panchayat. On

10th of December, 1932, three documents came into existence. One of the documents was a deed of gift executed by one of the wives in favour

of the unmarried daughters. It was that alienation which was attacked as void and not binding on the son of Ramayya Goundar. It was held that

though an unauthorised alienation by a lawful guardian would be only voidable and must be set aside within the time prescribed by Article 44 of the

Indian Limitation Act of 1908, an alienation by an unauthorised person, was void under the law and did not require to be set aside under that

Article. It was also pointed out in that case that where a widow made a gift of certain property, without describing herself as guardian of the minor

son and without making any; mention of the minor in the document, it would be a case of an assertion of hostile title by her and the transfer would

be void, and that a suit brought by the son after more than three years of reaching majority would not therefore be barred by limitation under

Article 44 of the Indian Limitation Act of 1908 corresponding to Article 60 of the present Act. It may be seen from the facts mentioned above that

the mother in that case acted at a time when the father was no more. That would be a case of a natural or de jure guardian. On the facts it was

found that the guardian had not exercised her powers as a guardian so that the property could be recovered by the erstwhile minor after he

attained majority within a period of 12 years from the date of the limitation.

The question as to whether Article 44 of the Indian Limitation Act, 1908, corresponding to Article 60 of the present Act, applied to de facto

guardians has been the subject of consideration in more than one decision of this Court. In Ethilavulu Ammal and Others Vs. Pethakkal and

Others, . Satyanarayana Rao, J., considered that Article 44 of the Indian Limitation Act, 1908, applied to a suit by a ward who had attained

majority to set aside the transfer of property by his guardian and that the period of limitation was three years from the date of the ward attaining

majority. It was pointed out that the guardian contemplated under Article 44 was either a natural guardian or a testamentary guardian or a certified

guardian and no others. It was specifically observed that the Article had no application to transfer of property of a minor by a de facto guardian. In

support of this proposition, a decision of a Full Bench of this Court in Karinagisetti Chennappa Vs. Karinagisetti Onkarappa, was cited.

Subsequently in In Re: Palaniswami Goundan, , Viswanatha Sastri, J., held that the word ""guardian"" in Article 44 of the Limitation Act must be

interpreted as meaning only a lawful or de jure guardian and not as including a de facto guardian or manager under the Hindu Law. It was pointed

out that the law regarded a minor as a party to the alienation through his guardian and that Article 44 allowed only a period of three years for

setting aside the transfer on attaining majority, but if a de facto manager of a minor''s estate improperly alienated his property, the alienation was

one to which the minor was not a party through his legally authorised representative and did not require to be set aside within the period limited by

Article 44 and that the setting aside of the transaction was not a condition precedent to the minor recovering the property from the alienee and

therefore the minor would sue for possession of the property within the period limited by Article 142 or 144 of the Indian Limitation Act, 1908.

In view of these decisions it is clear that the alienation contemplated by Article 60 is the alienation by a lawful or a de jure guardian and that

alienation by a de facto guardian is not covered by that Article. It would therefore follow that the period of limitation prescribed under that Article

would not apply to an alienation made by a de facto guardian as the one here.

There is no dispute that if Article 60 is out of the way, then the present suit is within time. I therefore hold that the Courts below came to the

correct conclusion on the question of limitation.

The learned Counsel for the appellant pointed out the inequity resulting from the conclusion to which the Courts below have arrived. In a

matter like this, the question of equity has absolutely no place for consideration. The matter is governed by the statute of limitation and by the

personal law, of the parties. If under the personal law, a person who had made the alienation, could not have entered into the transaction, then any

complaint that inequities resulted from that transaction would have no relevance.

The second appeal fails and is accordingly dismissed. There will be no order as to costs. No leave.