Alienation of property of minor by de-facto guardian.

The second defendant in O.S.No.320 of 1980 on the file of the Court of District Munsif, Valangaiman at Kumbakonam, who lost before both the courts below, is the appellant in the above second appeal.

2. The said suit has been filed for recovery of possession of the suit properties on the claim made by the plaintiff that the sale in favour of the second defendant-appellant under a registered sale deed dated 37. 1979 marked as Ex.B-4 is void and non est in the eye of law and therefore, the plaintiff is entitled to recover possession, the suit having been presented within twelve years from the date of such alienation. The further case of the plaintiff was that on 28. 1968, Lakshmi Ammal, the mother, sold under Ex.B-1 item No.1 of ‘B’ schedule properties to her another son, Venkataraman, which alienation was not for the benefit of the plaintiff or her sister and that it is also hit by Sec. 11 of the Hindu Minority and Guardianship Act and consequently, the subsequent sale by the said purchaser in favour of the second defendant also does not have the consequence of conveying lawful title.

3. Defendants 1 and 3 were absent and set ex parte and the 4th defendant submitted to a decree. It is the second defendant, who filed a written statement contending that the settlement deed dated 15. 1934 is a void document, that the default clause incorporated in the settlement deed is invalid, as also the subsequent partition and if at all, the alienation in question is questionable only by defendants 3 and 4 and not by the plaintiff and that inasmuch as the alienation by the mother was for the purpose of celebrating the marriage of the plaintiff, it was for the necessities of the then minor plaintiff and consequently, the suit not having been filed as envisaged under Art.60 of the Schedule to the Limitation Act within three years from the date of attaining majority the suit claim is barred and that the provisions of the Hindu Minority and Guardianship Act has no application to the case on hand.

4. The learned trial Judge, after conclusion of the trial and considering the respective claim of parties on the basis of the materials placed on record, came to the conclusion that by virtue of Sec. 11 of the Hindu Minority and Guardianship Act, while the 4th defendant, father, was alive, the mother as a de facto guardian, cannot alienate the properties of the minor without the sanction of the court and therefore, the same was void and as such, the plaintiff’s claim was sustained and the suit came to be decreed also holding that the suit has been filed within the period of limitation prescribed under Art.65 of the Schedule to the Limitation Act, 1963, which alone applied to the case on hand. Aggrieved, the second defendant filed A.S.No.60 of 1983 before Sub Court, Kumbakonam. The learned Subordinate Judge also concurred with the view expressed as also the conclusions arrived at by the learned trial Judge and dismissed the appeal. It may be pointed out here that both the courts below, apart from finding the necessary factual issues in favour of the plaintiff, have applied the principles of law as laid down in several decisions of this Court as indicated in the judgments of the courts below. Not satisfied, the second defendant has pursued the matter before this Court by filing the above second appeal.

5. The learned Senior Counsel for the appellant, Mr.T.R. Chandramouli, while elaborating substantial questions of law formulated at the time of admission of the, appeal, contended that the sale under Ex.B-1 is not a void document and that in any event inasmuch as the said sale was effected by the de facto guardian, namely, the mother in the absence of any active interests shown by the further in the affairs after family or to administer the estate of the minor, and by his father participation in the sale transaction by attesting the document the transaction stood rendered legal for all purposes and the provisions contained in the Hindu Minority a