1. Plaintiffs are the appellants.

2. The suit property, 9 acres 24 cents in extent, belonged to Issac Essiah. The 4th defendant is his widow, and the defendants 5 & 6 & plaintiffs 1 to 3 are his children. On 12 71118 defendants 4 and 6, the former acting personally and as guardian of the plaintiffs and the 6th defendant, sold the property for Rs. 200/-to the 1st defendant as per Ext. V. The 2nd defendant is the assignee of the 1st defendant; and the 3rd defendant is impleaded as one holding some interest under defendants 1 and 2. Plaintiffs claim 3/5 share in the property, divided in metes and bounds, ignoring Ext. V as not binding on them. The 2nd defendant contended that Ext. V bound the plaintiffs, particularly since their right to question it had become barred under Art.44, Limitation Act. Though Ext. V recited the entire price as paid in cash at its execution, the courts below have concurred in finding that it was not supported by consideration. On that finding, the Munsiff held the sale void and therefore decreed the suit as been in time allowed by Art.144, Limitation Act; but the Subordinate Judge held the sale voidable and therefore dismissed the suit as been beyond time allowed by Art.44. In this second appeal the plaintiffs support the position taken by the Munsiff.

3. The question is whether the sale of the plaintiffs' property by their guardian without consideration was void or voidable. It is freely conceded that Art.44 applies to alienations that are voidable, but not void; and that therefore this suit has to be allowed if Ext. V is void, or dismissed if it is voidable only.

4. In Beeyyathumma v. Moidin Haji (1958 KLT. 602) Vaidialingam J., with the concurrence of Kumara Pillai J., has held that alienations by guardians, though not supported by consideration or justifiable necessity, "are not void, but only voidable requiring to be set aside under Art.44." Counsel for the appellant contended that transactions not supported by consideration cannot be put on a par with those not for justifiable necessity; and that guardian's alienations affected by the former defect would be void, while those affected by the latter defect would be voidable only; and that the dictum in 1958 KLT. 602 required reconsideration as regards alienations without consideration. It is for such reconsideration that this case has been posted before this Full Bench by the learned Chief Justice.

4A. As the dictum in 1958 KLT. 602 has apparently been drawn from precedents, a careful scrutiny of the rulings relied on is pertinent here.

In Rangaswami Goundar v. Marappa Goundar (1952, 2 MLJ. 506) the "substantial contention" was "that Art.44 does not apply to the case for the reason that the alienation under Ext. D1 was made by Ramayee not as guardian of the plaintiff but in her own personal capacity". After a lengthy discussion Venkatarama Aiyar J. concluded:

"On these facts, the alienation in question must be held to be void, as being a transfer by a guardian in assertion of a hostile title. The present suit is accordingly not governed by Art.44, Limitation Act".

4B. 6 Lahore 447,9 Lahore 23,34 I. C. 138,40 MLJ. 475, AIR. 1936 Madras 346,1951-1 MLJ. 265, AIR. 1955 Madras 369, AIR. 1956 Madras 670 and AIR. 1956 T.C. 107 did not concern the effect of want of consideration in guardian's alienations. The impugnment was only of the necessity or the purpose of the alienations concerned.

4C. In Madugula Latohiah v. Pally Muklcalinga (30 Madras 393) the plaintiff's mother, who obtained a decree for possession of property mortgaged to the plaintiff, assigned the decree to the 1st defendant for Rs. 100. The court found the assignment "invalid on the ground that the consideration therefor was not such as to justify the transfer of the plaintiff's interest by the guardian and also on the ground that the assignment was without permission of the Court." It was held that the plaintiff ought to have sued to set aside the assignment within time allowed by Art.4