A gift by a minor is not void ab initio but is merely avoidable at the option of the minor. The minor can ratify the gift after attaining majority, and such ratification validates the transfer.

1. THE Reference relates to assessment of the agricul income of Jagadish Chandra Sahoo for the assessment years 1951-52 and 1952-53 in respect of the income of the accounting years 1357 B. S. and 1358 B. S. The assessee and his brother, Jyotirmoy inherited 90.04 acres of land from their father, one Bikram Kishore Sahoo. On November 3, 1949 corresponding to Kartick 17, 1356 B. S. when the assessee and his brother were both minors, Anandamoyee, their mother and natural guardian made a gift of the property by conveying it to certain trustees upon trust for the benefit of a homoeopathic charitable dispensary and two primary schools. The deed of trust recites that the charity was made in order to fulfill the cherished desire of Bikram Kishore Sahoo. The Tribunal has found that the gift was neither for legal necessity nor for the benefit of the minors' estate. During the relevant period Jyotirmoy continued to be a minor. The assessee came of age sometime in 1950. Since then he has acted as a trustee under the deed of trust. Instead of avoiding the gift the assessee on attaining his majority has ratified it. The Department contends that the gift is void and the ratification is of no effect and that the assessee is still the owner of a half share of the property and is liable to be assessed to tax in respect of a moiety of its income. The Tribunal rejected this contention and held that the gift is avoidable and not void ab initio and that it can be validated by ratification. The Reference is made at the instance of the Commissioner of Agricultural Income-tax, West Bengal. The question is whether on the facts and in the circumstances of the case the gift of the assessee's half share in the property was void ab initio or was merely avoidable at the option of the assessee.

2. THE question referred to this Court is as follows:-

"whether on the facts and in the circumstances of the case the transfer by way of gift on the basis of a deed of trust of 90.04 acres of land belonging to the assessee and his younger brother by their mother in her capacity as their natural guardian on November 3, 1949 (corresponding to Kartick 17, 1356 B. S.) when both of them were minors, was void ab initio or merely avoidable at the option of the minor or minors on attainment of majority. "

The natural guardian of a Hindu minor has a limited power of alienating the ward's property in case of need on for the benefit of the estate of the ward. If the power is well-exercised, the transfer binds the ward. But if the transfer is beyond the powers of the natural guardian, the ward is entitled to avoid it. Instead of avoiding the transfer, the ward on attaining majority may ratify it and if he does so he is bound by the transfer.

3. AN unauthorised sale or mortgage of the ward's property is validated by the subsequent ratification of the ward on his attaining majority. Likewise an unauthorised gift of the ward's property by the natural guardian is validated by such ratification, see Amar Chandra Chakravarty v. Saradamoyee Devi, (1) A.I.R. 1929, Cal. 787. The observations in Gunduchi Sahu v. Balaram Balabantra, (2) A.I.R. 1940 Pat. 661, that an unauthorised transfer by the natural guardian cannot be so validated are really obiter because in that case the ward's guardian had already elected to repudiate the transfer. The election once made was final and the ward could not later elect to ratify the unauthorised transfer. In so far as there is a conflict between the Calcutta and the Patna decisions, we are inclined to follow the Calcutta decision.

4. IN the instant case the assessee on attaining his majority has ratified the gift and the gift therefore binds him, it is not open to the income-tax authorities to contend that the gift is invalid and inoperaive and that the income of the property given away is the income of the assessee. The assessee is no longer entitled to avoid the gift. The further question whether his title is extinguished by limitation does not ari