Rathinam Pillai vs Thangavelu Muthiraja alias Muthiah Muthiriar and another

Jagadisan, J.—There were two brothers, Thangavelu Muthiriar and Viswanatha Muthiriar who were members of a Hindu undivided family

owning immoveable properties. During the minority of one of the brothers, Thangavelu, his brother Viswanatha alienated an item of joint family

property under a registered conveyance dated 12th September, 1945, in favour of one Rathinam Pillai for a consideration of Rs. 2300. In this

conveyance the mother of the brothers, Sivagami joined with Viswanatha as vendor, she purporting to act as guardian of her minor son

Thangavelu. The father of these two brothers, Shanmugham, had executed a mortgage deed over the item of property sold under the aforesaid sale

deed as early as 1927 securing a debt of Rs. 1000. The amount that remained due and payable under the mortgage deed was Rs. 1800 in the year

1945 at the time of the sale. The consideration for the sale deed was the discharge of the mortgage by payment of Rs. 1800 to the mortgagee and

on alleged cash payment of Rs. 500 on the date of the sale. The vendee Ratna Pillai took possession of the property immediately after the

conveyance in his favour. Thangavelu filed the suit O. S. No. 690 of 1957 on the file of the District Munsif''s Court, Tiruchirapalli, impleading

vendee, Ratnam Pillai and his mother as defendants and sought a declaration that the sale deed dated 12th September, 1945, executed by his

mother acting as his guardian, and his brother Viswanatha, who was by then dead, was not binding upon his undivided half share in the property

sold. He prayed for a direction against the first defendant to deliver possession to him of that half share belonging to him. He contended that the

alienation by his brother and mother acting as guardian during his minority was in excess of their powers as joint family manager or guardian and

was such as not to bind his interest in the joint family properties. The alienee, the first defendant resisted the suit and contended that the alienation

was for a valid and binding purpose, that there were no grounds for the plaintiff to challenge the alienation and that in any event the suit was barred

by limitation. On the date of the institution of the suit, the plaintiff was admittedly about 28 years of age, he having attained majority ten years prior

to that date.

The learned District Munsif who tried the suit took up Issue 5 which raised the plea of limitation as a preliminary issue for trial and upheld the

first defendant''s plea that the suit was barred by limitation. He held that the suit was governed by Art. 44 of the Limitation Act and that the suit not

having been instituted within three years after the plaintiff''s attaining majority was barred by limitation. He did not record any finding on the other

issues in the case and non-suited the plaintiff. The learned District Munsif also directed the plaintiff to pay the additional court-fee of Rs. 150 due

on the plaint.

The plaintiff preferred an appeal, A.S. No. 315 of 1959 on the file of the Sub Court, Tiruchirapalli, aggrieved by the

Description of suit

By a ward who has attained majority to set aside a transfer of property by his guardian

The remedy of a ward whose property has been improperly alienated by the guardian in excess of his powers as guardian is to file a suit to have

the alienation set aside within three years after his attaining majority. It is implicit in the language of Art. 44 that the impugned transfer is one which

requires to be set aside by the ward. If the purported alienation or transfer by the guardian is a void transaction, the ward need not take the trouble

of seeking the aid of the Court to have it set aside as it is now well settled as what is void need not be set aside. A void transaction is non est in law

and can be ignored but a guardian''s alienation of the ward''s property purporting to be on behalf of a minor and ostensibly for a purpose which is

valid and binding on the minor cannot be described to be a void transaction as at its worst, it can only be avoided by the ward on attaining

majority, if he is able to satisfy the Court that the guardian has exceeded his powers. Art. 44 of the Limitation Act was invoked on the facts of the

present case because the plaintiff was represented by his mother as guardian in the impugned alienation Ex. B-1. It is not now disputed that the

property comprised in the sale was the joint family property of the two brothers who were undivided on the date of the decision of the trial Court.

The learned Subordinate Judge held that the suit was not governed by Art. 44 of the Limitation Act, and that the suit was laid in time as 12 years

had not elapsed from the date of alienation, namely, 12th September, 1945, and accordingly set aside the decree and judgment of the trial Court

and remitted the suit for fresh consideration on all the other issues arising in the case.

This civil miscellaneous appeal has been preferred by the first defendant in the suit against the said order of remand. The short point for

consideration is whether the suit is barred by limitation or not. Art. 44 of the Limitation Act which was held by the trial Court to be applicable to

the facts of the case is as follows:-

Period of Time from which

limitation period begins to run

three years When the ward

attains majority.

alienation and that Viswanathan the elder brother was the de facto and de jure manager of the family. A junior member of a Hindu undivided family

whether an adult or minor cannot predicate of his interest in the property in any defined share though in law he will be entitled to recover his share

in the event of severance and disruption of the joint family status. So long as the family continues to be joint and remains undivided the property

maintains a corporate character and what is often described as undivided interest of a junior member is only a species of proprietary right; but it

has no separate existence in law. In some States an undivided coparcener governed by Mitakshara Law is incompetent to deal with his undivided

share in the joint family property. A long current of decisions of this Court has permitted a junior member to deal with his joint family interest by

way of sale or mortgage. But a transferee from such person gets only an equitable right to work out the rights of his vendor in a properly framed

suit for a general partition. If this is the basic conception of the nature of the joint family property, during the subsistence of the family there can be

no question of any one representing or acting as guardian of a junior minor member. In Mullah''s Principles of Hindu Law, 1959 Edn., at page 680

in paragraph 519 the position of law is set out as follows:

If the minor is a member of a joint family governed by the Mitakshara law the father as kartha (manager) is entitled to the management of the whole

coparcenary property including the minor''s interest. After the father''s death, the management of the property, including the minor''s interest therein

passes to the eldest son as kartha. The mother is not entitled to the custody of the undivided interest of her minor son in the joint property, though

she is entitled to the custody of his person and of his separate properly if any.

I am clearly of the opinion that despite the fact that the plaintiff was eo nomine party to the sale Ex. B-1 having been represented by his mother

as his guardian the sale was in effect and in substance one by his brother in his capacity as manager of the joint family. This sale cannot be

characterised as sale by the guardian on behalf of the minor''s property. It is obvious that Art. 44 of the Limitation Act cannot be invoked. A

Division Bench of this Court had held in Kathaperumal Thevan v. Ramalinga Thevan 17 M.L.J. 138, that where a minor and his uncle were

members of an undivided Hindu family and certain joint family property was sold by the uncle and the mother of the minor who was put forward as

his guardian the undivided paternal uncle is the guardian-in-law of the minor and not the mother and a suit to set aside the sale does not fall under

Art. 44 of the Second Schedule to the Limitation Act. This decision is in consonance with the general principles of Hindu Law set forth by me

already. The learned Subordinate Judge was right in his conclusion that the suit was not barred by limitation. If Art. 44 is out of the way it is

conceded that the suit is in time. The appeal fails and is dismissed but in the circumstances of the case without costs.