Palaniappa Goundan vs Nallappa Goundan and Others

Viswanatha Sastri, J.—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.

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.

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 , 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 AIR 1949 218 (Federal Court) & AIR

1949 218 (Federal Court) . 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.

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 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 u/s 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 : AIR 1930 Mad 821; & of Abdur Bahim & Sadasiva Ayyar JJ. in ''Doraisami v. Nondisami'', 38 Mad

118: AIR 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 1915 Mad 1201 &

Varadachariar J. in Koya Ankamma Vs. Konaganchi Kameswaramma and Others, , 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 Immovable 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

1918 Mad 487; Arumugam Pillai and Others Vs. Panayadian Ambalam and Another, ; Raja Ramaswami (dead) and Others Vs. Govindammal

and Others, ; V. Muthukumara Chetty Vs. Anthony Udayar and thirty Ors., ; ''Kandaswami v. Irusappa'', 41 Mad 102: AIR 1918 Mad 724;

Doraiswami Reddiar and Others Vs. Thangavelu Mudaliar and Others, ; Koya Ankamma Vs. Konaganchi Kameswaramma and Others, &

''Fakirappa Limanna v. Lumanna'', 44 Bom 742 : AIR 1920 Bom 1 . 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.

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 Ramulu v. Pundarikakshayya'', (1949) FLJ 288 :

AIR 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, would be more appropriate to denote the position of a person who

assumes the management of a minor''s estate without legal warrant.

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 Karinagisetti Chennappa Vs. Karinagisetti Onkarappa, . 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 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 Jesingbhai Parikh and Others Vs. Raisingji Fulabhai

Vaghela and Another, held that a so-called ''de facto'' guardian was no guardian at all but was a mere inter-meddler. Kumaraswami Sastri, J. in

Jamula Narayana Murthi and Others Vs. Nilambara Prudhvisinghi Santo and Others, 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 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 P.M. Subramania Pillai Vs. Corera and Others, & AIR 1949 218

(Federal Court) . 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.

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 China Alagumperumal Karayalar Vs. Vinayagathammal

and Others, . It was observed by Mahajan J. in AIR 1949 218 (Federal Court) 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 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. Sankaranarayanan Iyer Vs. Sri Poovananathaswami Temple and Others, . 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.

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 Karinagisetti Chennappa Vs. Karinagisetti Onkarappa, . 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 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.

In ''Thayammal v. Kuppanna'', 38 Mad 1125 : AIR 1915 Mad 659; Jamula Narayana Murthi and Others Vs. Nilambara Prudhvisinghi Santo

and Others, & Ramabrahmam Vs. Gudimalla Andalamma, 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 China

Alagumperumal Karayalar Vs. Vinayagathammal and Others, , 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 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 AIR

1949 218 (Federal Court) . He also placed reliance on the decisions in ''Bangarammal v. Lydia Kent'', 57 Mad 1062 : AIR 1934 Mad 60 S &

''Adeyya v. Govindu'', 58 MLJ 417 : AIR 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 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 Laxmava Huchappa Nasipudi Vs. Rachappa Chanbasappa Karveershetti, . 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 1931 Mad

I am unable, with all respect, to accept the reasoning of the learned Judge.

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 . In Re: Appavu Naicken and

Others, . 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. In Re: Amirthalinga Thevan, . I am aware that in V.

Muthukumara Chetty Vs. Anthony Udayar and thirty Ors., , 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 & ''Bijoy Gopal Mukerji v. Krishna Mahishi Debi'', 34 Cal 329 : 34 IA 87 . 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 , 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 , 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.

If a transfer by a guardian is only voidable, then as decided in ''Raja Rajeswara Dorai v. Arunachellam Chettiar'', 38 Mad 321: AIR 1916

Mad 350 ; a unilateral repudiation by him or rescission in ''pais'' would not be sufficient. In AIR 1932 89 (Privy Council) 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.

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

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.

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 Bhattacharjee and Others Vs. Bidhu Bhusan Dutta and Others, , 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 Bhattacharjee and

Others Vs. Bidhu Bhusan Dutta and Others, relying on the decision in Jhaverbhai Hathibhai Patel Vs. Kabhai Becher Patel, 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 Narsingacharya

Gopalacharya Shurpali Vs. Tulsabai Rambhat Dandavati, , 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 ; ''Raja Rajeswara Dorai v. Arunachalam Chettiar'', 38 Mad 321 : AIR 1916 Mad 350 ; & Someshwar Datt v. Tribhuban Datt . 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 V. Muthukumara Chetty Vs. Anthony Udayar and thirty Ors., 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 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 V. Muthukumara Chetty Vs.

Anthony Udayar and thirty Ors., , 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.

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 1917 Mad 358 & ''Sakalaguna Naidu v. Chinna Munuswami'' 55 IA 243: AIR 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 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 & ''Bhagwat Dayal v. Debi Dayal'', 35 Cal

420 35 IA 48 . 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 : 81 LJKB 1081, approved &

accepted by the Judicial Committee in ''Venkatasubhadrayyamma v. Venkatapati'', 52 IA 1 : 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 , : 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 Bhattacharjee and

Others Vs. Bidhu Bhusan Dutta and Others, & the observations of Macleod, C. J. In Narsingacharya Gopalacharya Shurpali Vs. Tulsabai

Rambhat Dandavati, & Parkar & Murphy, JJ. in Jhaverbhai Hathibhai Patel Vs. Kabhai Becher Patel, . The decision In Hanmant Gurunath

Kulkarni Vs. Ramappa Lagamappa Ilager, 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 property by his guardian. In Putrevu

Kamaraju Vs. Chunduri Gunnayya and Others, & Raja Ramaswami (dead) and Others Vs. Govindammal and Others, , two Laxmava Huchappa

Nasipudi Vs. Rachappa Chanbasappa Karveershetti, 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 Hanmantappa Ramappa Ilagar

Vs. Dundappa Bin Fakirappa Huilgol, The same view is implicit, though not expressly stated, in ''Iburamsa Rowthen v. Thiruvenkatasami Naick''

34 Mad 269 : 7 IC 559. In Raja Ramaswami (dead) and Others Vs. Govindammal and Others, , Article 44, Limitation Act, was applied to a suit

by the transferee from the ward & in ''Ramiah v. Brahmaiah'', 59 MLJ 196: AIR 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 Hanmant Gurunath Kulkarni Vs. Ramappa Lagamappa Ilager, 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 (dead) and Others Vs. Govindammal and Others, 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.