Raju and Another vs Venkataswami Naidu and Others

Ramachandra Ayyar, J.—This revision petition arises from an order of the lower Court directing the Plaintiffs to pay additional court-fee on

the basis that Section 40 of the Court Fees Act of 1955, applied to the present case. The Plaintiffs are the Petitioners.

The suit is one for a declaration that the sale-deed, dated 1st May 1954, for a sum of Rs. 4,000 in favour of the first Defendant is void and not

binding on the Plaintiffs, and for possession of the property. The Plaintiffs are the sons of one Subbu Mudali. Subbu Mudali and Tirupathi Ammal,

the mother of the Plaintiffs, are alleged to have executed the sale deed on 1st May 1954 to the third Defendant in the suit. Tirupathi Ammal, the

mother, was mentioned in the sale deed as the guardian of the minor Plaintiffs. In the suit, it was alleged that the sale was not binding on the minors

as the transaction was void and, therefore, the declaration and possession of the property were prayed for. The suit was valued at a sum of Rs.

354-6-0, that is, thirty times its assessment of Rs. 11-3-0 and court-fee was paid on that value.

An objection was taken by the court-fee examiner to the court-fee paid and the learned District Munsif on a consideration of the matter, held

that the suit would properly come u/s 40 of the Court Fees Act, as it was obligatory upon the Plaintiffs to set aside the document of sale. On that

finding, the learned District Munsif directed the Plaintiffs to value the property on the basis of the consideration mentioned in the sale-deed, viz.,

Rs. 4,000. The Plaintiffs have filed the present revision petition against that order.

Section 40 states that in suits for cancellation of a document which purports or operates to create, declare, assign ... whether in the present or in

future, any right or title or interest in immovable property, the fee shall be computed on the value of the subject-matter of the suit and such a value

shall be deemed to be the value of the property for which the document was executed. Section 7 of the Act, which gives the mode for the

determination of the market-value, cannot govern this case, because it is not one of the suits contemplated under that section. The value, therefore,

is only the market-value. That the value of the property was Rs. 4,000 has not been disputed in the present case. But Mr. V. Parthasarathi, the

learned Advocate for the Petitioners, contends that the document is void transaction and as such not necessary to be set aside at the instance of the

Plaintiffs. He refers in this connection to the decision in Palani Goundan v. Vanjiakkal 1956 M.W.N. 257, for the purpose of showing that a

conveyance by a de facto guardian is void as against a minor. Founding his argument on this, he contends that the document being absolutely void,

there is no need to set aside the document. As I mentioned above, the document, though executed by the father and by the mother on behalf of the

minor sons, is, in substance, an alienation by the lawful guardian of the minors. It is well-settled that in the case of an alienation by the guardian, the

minor who claims the property should set aside the transaction before he can obtain relief by way of possession, etc. But what is contended on

behalf of the Petitioners by Mr. Parthasarathi is that the father is the lawful guardian and so long as he is alive, the mother cannot be the guardian

and, when the mother describes herself as the guardian of the minor children, she can at best be only a de facto guardian. Therefore, it is

contended that the sale is totally void and need not be set aside. It is unnecessary for the purpose of the present case to consider whether in the

case of an alienation by a de facto guardian, it is obligatory upon the minors to have the transaction set aside. I am satisfied that on the facts of the

case the alienation was by the lawful guardian. The father was a party to the transaction. The mother also joined in the transaction and was

described as the guardian of the minors. One of the two things can be inferred. The first is that the mother was the guardian with the consent of, or

by reason of the renunciation by, the father of the guardianship ; the second is that the intention was to sell the property on behalf of the minors by

the lawful guardians. In the present case, the sale being purported to be executed on behalf of the minors, if the mother could not act as the

guardian, the father should be deemed to represent the minors as the guardian, as he has joined in the conveyance. I am, therefore, of the opinion

that this is a transaction which should be set aside by the minor Plaintiffs.

In that view, the finding of the lower Court is correct and this civil revision petition is dismissed. No costs. Time for payment of court-fee--one

month.