The guardian's exercise of volition is treated as that of the minor himself, and the surrender of benefits received under voidable transactions is required.

In O.P. No. 61 of 1975, District Judge, Thalasserry appointed Kamalakshy Nettyar (for short, Nettyar) as guardian of her minor daughter, Sreeja. First defendant, Balakrishnan Nair, is the husband of Nettyar and father of Sreeja and as such, her natural guardian. Fearing that Balakrishnan Nair, said to be a spend-thrift and drunkard, may compel her to sell all her assets and deprive the minor of the future benefits of the properties, Nettyar gifted the four plaint schedule items, which belonged to her, to Sreeja under Ext. Al. Thereafter, acting as natural guardian of the minor, Balakrishnan Nair sold all the plaint items. I tern No. 4 was sold to Vellan, predecessor of defendants 3 to 6, under Ext. B7 and Item Nos.1 to 3 to the second defendant under Ext.Bl. It was thereafter that Nettyar got her appointed as guardian and filed the suit for cancellation of Exts. B1 and 7 and recover the properties, the grounds being that the sale deeds are in violation of S.8(2) of the Hindu Minority and Guardianship Act (for short, the act) and not to the benefit of the minor.

2. 'Appellants are defendants 2 to 6. They said that the sale deeds are only voidable at the option of the minor and the option could be exercised only by the minor on attaining majority and not by the guardian appointed by court. The original petition and this suit were said to be fraudulent and collusive. It was also contended that the sale deeds were beneficial to the minor. Item No. 4 was said to be sold respecting Ext. B5 agreement for sale executed by Nettyar. But both the courts below found that Ext. B5 is not a genuine document and there was no agreement for sale. It is said that with Ext. B1 sale consideration, Ext. B2 property was purchased in the name of the minor and when that property was also sold, Ext.,B3 sale deed was taken in the name of minor with that consideration. The further claim is that if Ext. B1 is set aside, Ext. B3 property must be given to the second defendant.

3. Trial court repelled the contentions and decreed the suit. The claim for return of Ext. B3 property was rejected on the basis of the decision in Chinnaswami Reddi v. Krishnaswami Reddi and others (1918 (35) M.L.J. 652), which held that where a guardian sells his ward's property not binding on the ward and the sale price is utilised for the purchase of lands for the ward, not contemplated at the time of the sale, the lands so purchased for the ward do not constitute "the benefit" within the meaning of S.64 of the Contract Act and need not be conveyed to the vendee from the guardian, when the ward avoids the sale by the guardian. The appeal was also dismissed.

4. Main contention was regarding maintainability of the suit by the guardian. The natural guardian of a Hindu minor, under S.8(1) of the Act, has power to do all acts necessary or reasonable and proper for the benefit of the minor, or for the realisation, protection or benefit of the minor's estate. But that power is subject to S.8(2), which says that the documents specified therein shall not be executed by the natural guardian without previous permission of the court. There is thus a prohibitory injunction. The consequence of violation of Sub-sections (1) and (2) is that the transaction shall be voidable at the instance of the minor or any person claiming under him. Therefore, the argument was that only the minor is having the personal right either to ratify or avoid the transaction, which could be exercised by him alone on attaining majority and that right cannot be allowed to be meddled by a guardian intervening and avoiding the transaction, thereby depriving the minor of the option to ratify the transaction when he becomes a major. The argument may, at first blush, find appealing, but it is not actually so.

5. Argument pre-supposes the exercise of the volition personally by the minor on attaining majority and by the guardian or next friend during his minority on his behalf as two independent exercises. If that argum