Sudra Nadan vs Annamalai (dead) and Others

Madhavan Nair, J.—The defendant is the appellant. This Second Appeal arises out of a suit instituted by the plaintiff for partition and

possession of the plaint property. The property belonged to the plaintiff and her sister, and during the minority of the plaintiff it was sold by one

Sanjeevi Nadan, the husband of another sister of the plaintiff. The plaintiff''s case is that the sale is not binding on her as Sanjeevi Nadan was not

her guardian in law and that she is therefore entitled to recover possession of the property. The defendant, the purchaser of the property,

contended that the sale is binding, that it was for a necessary and proper purpose that the property was sold and that the plaintiff''s suit is barred by

limitation. The Lower Court found that Sanjeevi Nadan, though a de facto guardian, was not the proper guardian of the plaintiff, that it was not

proved that the plaintiff was benefited in any way by the sale of the property and that the suit was not barred by limitation. The finding of the

learned Subordinate"" Judge that the plaintiff was not benefited by any portion of the money paid by the defendant is a finding of fact and is binding

on me in Second

Appeal. So the only two questions remaining for consideration are whether the sale by the de facto guardian in this case is binding on the plaintiff

and whether the suit is barred by limitation. The question of limitation would depend upon whether Sanjeevi Nadan for the purposes of the sale is

to be considered as a proper guardian of the plaintiff or as only an unauthorised person interfering with the plaintiff''s property; for, if he can be

considered to be a person entitled to deal with the minor''s property, then Article 44 would apply.

The plaintiff is an Indian Christian. It is argued on her behalf that under the personal law of the parties Sanjeevi Nadan is not her proper guardian

and therefore the sale by him should be considered to be a sale by an unauthorised person. The argument is that for that reason the sale is an

absolutely void transaction. Under the Hindu Law it has been held in a series of cases that a sale by a de facto guardian on behalf of a minor is a

voidable transaction and that Article 44 of the Limitation Act would apply. That was also the position under the Mahomedan Law till the Privy

Council finally decided that sales by de facto guardian under the Mahomedan Law are void transactions in Mata Din v. Ahmad Ali (1911) L.R. 39

IndAp 49 : ILR 34 A. 213 : 23 M.L.J. 6 (P.C.). It has now been finally held in the case of persons governed by the Mahomedan Law following

this decision (see (1918) ILR 45 878 (Privy Council) ) that sales by de facto guardian under the Mahomedan Law are void transactions. There

does not appear to be any decided case with reference to the point as to who the guardians of an Indian Christian would be. In Trevelyan on

Minors, 6th Ed., at p. 60, it is stated:

Failing the father and mother, and their appointees, no person, however nearly related, is of right entitled to the custody of minors, who are neither

Hindus nor Mahomedans, or the guardianship of their property.

Again at page 167 it is stated:

The law applicable to persons other than Hindus and Mahomedans does not permit guardians, other than those appointed by the Court, or having-

power given to them by the instrument appointing them, to sell or charge the immovable property of their wards.

If these extracts represent the correct state of the law applicable to communities other than Hindus and Mahomedans, it must follow that in this

case the plaintiff being a Christian, the transaction in question should be void.

Mr. Vinayaka Rao on behalf of the respondent has drawn my attention to Mata Din v. Ahmad Ali (1911) L.R. 39 IndAp 49 : ILR 34 All. 213 :

23 M.L.J. 6 (P.C.) to show that even though it is a decision under the Mahomedan Law, the observations of their Lordships are general and may

well be relied upon in support of the contention that an alienation by a de facto guardian of an Indian Christian is also like the alienation of a

Mahomedan de facto guardian. The paragraph referred to is this:

It is urged on behalf of the appellant that the. elder brothers were de facto guardians of the respondent, and, as such, were entitled to sell his

property, provided that the sale was in order to pay his debts and was therefore necessary in his interest. It is difficult to see how the situation of an

unauthorised guardian is bettered by describing him as a ''de facto'' guardian. He may, by his de facto guardianship, assume important

responsibilities in relation to the minor''s property but he cannot thereby clothe himself with legal power to sell it.

The observations seem to be general; but they were made in connection with a case in which the parties were Mahomedans. It may be doubtful

whether, having regard to the facts of the case, these observations can be given an extended application. However, it must be noticed that

Kumaraswami Sastri, J. in this Court in Jamula Narayana Murthi and Others Vs. Nilambara Prudhvisinghi Santo and Others, was inclined to apply

these observations generally; and he stated relying on the two Privy Council decisions in Mata Din v. Ahmad Ali (1911) L.R. 39 IndAp 49 : ILR

34 All. 213 : 23 M.L.J. 6 (P.C.) and (1918) ILR 45 878 (Privy Council) , that if the matter was res Integra he would on the observations of Lord

Robson be prepared to hold even under the Hindu Law alienations by de facto guardians are absolutely void; but having regard to the trend of

decisions under the Hindu Law on the principle of stare decisis the learned Judge was not inclined to give an extended application to the

observations of the Privy Council. If the observations of the learned Judges of the Privy Council can be understood as applicable to the case of

alienations by de facto guardians, irrespective of the question whether the parties are Mahomedans, Hindus or Christians, then, certainly these

observations support the contention of the respondent. Having regard to the authorities I have referred to, I must uphold the decision of the Lower

Court that the alienation in this case is a void transaction and not binding on the plaintiff. If it is a void alienation, then, it is clear that Article 44 of

the Limitation Act has no application, and as the plaintiff''s suit has"" been brought within 12 years after the alienation, it is not barred by limitation.

In the result the decision of the Lower Court is right and this Second Appeal is dismissed with costs.