Sri Aurobindo Society, Pondicherry vs Ramadoss Naidu and other

Balasubramaniyam, J.—This second appeal raises a point about the validity of an alienation of a Hindu minor''s property by a de facto guardian. This species of guardians has been abolished by S. 11of the Hindu Minority and Guardianship Act, 1956. But, the transaction in this case arose before the Act, and hence it bears on the position of law which prevailed earlier. It also raises a point as to the appropriate steps to be followed by the minor for impugning or getting over sales by de facto guardians. The facts of this case are not in dispute. One Lakshmi Ammal had a life interest and her two sons had a vested remainder in an item of land. These were bequeathed to them under a Will. When the second son Govindarajulu was still a minor, the mother Lakshmi Ammal and her first son joined together and sold the entire bequeathed property, inclusive of the minor''s interest therein. In that conveyance, the mother purported to act as the minor''s guardian. The minor''s father was very much there at the time, but he rested content with attesting the sale deed.

The minor came of age in 1956. His mother died in 1965. Subsequently in 1967 the minor sold the half share in the property which he got under the Will to the Eurobond Society.

Meanwhile, the original aliened from Lakshmi Ammal had sold the property to another person and the latter had settled it in favour of a lady. The Aurobindo Society, as purchaser of Govindarajulu''s undivided half share filed a suit for partition and separate possession against the aliened from Lakshmi Ammal and his successors in interest. These defendants resisted the suit on various grounds. They objected to the frame of the suit and the nature of the relief claimed therein. They said that the plaintiff ought not to have straightway filed a suit for partition and separate possession. They said a suit for possession or partition would not lie so long as the sale of the minor''s property had not been set aside as not binding on him.

The trial Court held that Lakshmi Ammal was not the legal guardian of minor Govindarajulu when his father was there, and she had no authority to sell the minor''s interest in the suit land. It rejected the contention that the sale in so far as the minor''s share was concerned was in the interest of the minor and for the minor''s benefit. It accordingly directed that the sale of the minor''s interest was void. It proceeded to hold that when the sale was void, no question arose of setting aside a void sale. In this view, it upheld the maintainability of the suit as framed and gave the plaintiff a preliminary decree for partition of a half share in the property.

On appeal by the defendants, the Sub-Court reversed the trial court''s decree. It held that the sale by the mother had been affected as the minor''s de facto guardian and hence it was merely voidable and not void altogether. It further held that the question whether the sale of the minor''s share was or was not for the minor''s necessity or benefit cannot be gone into in any suit other than a suit filed for setting aside the sale. In this view, it desisted from going into the question of necessity or benefit 10 the minor''s estate in the instant suit for partition. In the end, it held that no relief can be granted to the plaintiff in the way the suit was instituted.

In this second appeal, learned counsel for the Aurobindo Society, argued that since the mother, during the father''s lifetime, cannot act as the minor''s legal guardian, her sale of the minor''s share in the property was altogether void and not merely voidable. It was hence urged that there was no need for setting aside the sale. They contended that they were entitled to ignore the mother''s transaction and straightway ask for partition and separate possession.

I must uphold this stand as Correct. 1 however, feels that the position of Lakshmi Ammal has not been accurately described in the discussion of the question so far. She was referred to by almost every one as the de facto guardian. This expression is employed in law in contradistinction to ''de jure guardian''. But, both the expressions, in my judgment, imply a relationship to the ward which is regular and Continuous and not casual or one which acts by fits and starts. In other words, what the defacto guardian lacks, as compared to a de jure guardian, is legal authority to act for the minor, In all other respects there is practically little or no difference between them. A de facto guardian however, is not one who acts for the nonce. He is a factual guardian who acts in the regular course, over a period of issue. If it were otherwise, a minor can have as many de facto guardians at there are transactions to be done on his behalf.

The arguments in this case in the courts below were on the footing that Lakshmi Ammal was a de facto guardian. It seems to me, however, that the description, de facto guardian does not fit her and is a gross overstatement of her factual position. The evidence in the case only shows that she acted for the minor in this one single transaction of sale. Her husband was there all the time and he had actually attested even the sale deed as a witness. It is not any one''s case that he was a non-entity or that he was in some way incapacitated to act as the guardian of his minor son, or that the mother had always been acting, in point of fact, as the guardian throughout this son''s minority, if not the elder son''s too. In these circumstances, it seems to me quite inapposite to describe her as a regular de facto guardian. All that can be said is that in this particular transaction she had purported to act for the minor. This can only be described as ad hoe guardianship, to employ an expression used in text books and case law.

The position in law of such ad hoe guardians is left in no doubt whatever. Their acts are null and void, and cannot bind the minor, although they are purported to be effected in the minor''s interest. For, ad hoc guardians are neither de jure nor de facto guardians. They are self-appointed guardians for the minors just for the occasion, as it come along. In Harilal v. Gurdkan 51 Bom. 1040, it was held that a sale by a guardian ad hoc was void ab initio.

I am satisfied that Lakshmi Ammal merely took it into her head to execute the sale as a guardian just this once. This casual and solitary act by no means raises her to the status of a de facto guardian properly so called. It follows that her sale is and initio void. Even on the footing that Lakshmi Ammal was acting as a regular de facto guardian during the minority of this son, not only in this transaction, but also in other transactions, for which, as I said, there is no evidence whatever in this case, still there is authority for the position that the alienation by her would be void and not merely voidable at the minor''s option. Vide: the decision of In Re: Palaniswami Goundan, .

In this case, the learned Judge held that in the case of a sale of minx''s property by a de facto guardian, without necessity or benefit to the minor, the setting aside of the transaction is not a condition precedent to the Minor recovering the property from the aliened and the minor can straight way sue for possession. According to the learned Judge, alienation by a de facto guardian is an alienation to which the minor, strictly, is not a party in the seen that he is validly represented by a legally authorized representative.

In Arumuga Chetti v. Duraiiinga Thevar 37 Mad. 38. it has been held that where a de facto guardian alienated the property from a minor for whom a guardian under the Guardians and Wards Act had been appointed, the transaction was null and void.

The position of a void transaction is that in the eye of the law, it does not exist and no title passes. The document of transfer under such a transaction is altogether a dead letter at the very start and no rights flow there under. If in this case the transaction is void, then there can be no question at all of an opinion being left to the minor whose property has been so dealt with, either to affirm the transaction or to avoid it. For, where the transaction does not exist, but is non est in law, it is not amenable either for ratification or for avoidance. Even if a minor should affirm the transaction nothing would flow from such affirmance.

The Sub-Court relied on a decision of a Division Branch of this Court in Palani Gounder v. Venjiakal 69 L.W. 276. In that, case, however, no question at all directly and properly arose about the nature of a sale by a tie facto guardian. That decision, incidentally was disapproved on another point in a recent Full Bench decision of this Court in Amirthan Kudumban v. Sornam Kudumban 1977 1 M.L.J.=89 L.W. 696.

Learned counsel referred to the Full Bench decision of this Court in Sankara-narayana v. Kandastmi ILR 1956 Mad. 1300=69 L.W. 686. This decision however, was not concerned with the transfer by a de facto guardian of the minor. It dealt with the Case of a sale deed executed by the father in which his minor son was nominee party and duly represented by his father as guardian. The Full Bench held that in such a case, it was obligatory on the part of the minor to have the transfer cancelled on the footing that it is not binding on him. This case obviously does not help us in the present case which is that of a transfer by an ad hoc guardian.

It has been held in Ponnammal and Others Vs. Gomathi Ammal (deceased) and Others, that an alienation of a minor''s property by a person who is neither a de facto nor a de jure guardian of the minor, is void and not voidable and the minor on attaining majority can Ignore such an alienation. It was further held in this case that it is not necessary for the minor to get the document set aside within three years of his attaining majority. In Ramasami v. Kasinatha AIR 1922 Mad. 226, a Bench of this Court held that even in the case of alienations by de facto guardians, strict proof would be necessary not only of necessity but also of adequate consideration.

On the evidence on record, in this case, there can be no doubt that Lakshmi Ammal''s sale of the minor''s share was not for necessity or for the benefit of the minor''s estate. The trial Court has found as a fact that the sale was avowedly effected by Lakshmi Animal for discharging a prior mortgage, but this mortgage was not an encumbrance on the minor''s estate, but was a mortgage effected by Lakshmi Ammal on her own separate property. On the basis of this clear finding, the trial court rightly held the sale not to be for the minor''s necessity or benefit. It follows, therefore, that the sale cannot stand.

As I earlier mentioned, the Sub Court did not address itself on this issue as to whether the sale was for the minor''s benefit. But, it is not necessary to send the case back to the Sub Court on this account in view of the clear cut finding of the trial Court on the issue which fairly emerges from the documents exhibited'' in the case. In the result I allow the second appeal, set aside the judgment and decree of the Sub Court and restore the judgment and decree of the trial Court. The appellant will have his costs of this appeal from the contesting respondent.