Right of minor to set aside alienation.

This second appeal has been preferred by the first defendant against a decree for redemption of a usufructuary mortgage, Exhibit P-1, dated 8th February, 1922, executed by the mother and guardian of the second defendant, then a minor, in favour of Vyapuri, the divided paternal uncle of the minor and assigned by Vyapuri to the 1st defendant under Exhibit D-3, dated 22nd August, 1927. The property mortgaged belonged to the minor second defendant as sole owner and was managed on his behalf by his mother who died shortly after the execution of the mortgage, Exhibit P-1 in 1922, Thereafter, Vyapuri, the divided uncle, professing to act as guardian of his minor nephew, the second defendant, mortgaged the property under Exhibit D-5, dated 22nd August, 1927, and subsequently sold it to the first defendant under Exhibit D-6, dated 7th June, 1939 in discharge of the prior mortgages and in consideration of a small cash payment. The second defendant attained majority some time later in 1939 and he sold the same property to the plaintiff, the son of Vyapuri, under Exhibit P-5, dated 10th May, 1943, ignoring the previous alienation by Vyapuri under Exhibit D-6. On 7th February, 1944, the plaintiff filed the present suit for redemption of the mortgage, Exhibit P-1 and the suit has been decreed by the Courts below. Hence this second appeal by the first defendant, the disappointed purchaser from Vyapuri.

The Courts below held that the mortgage, Exhibit D-5, dated 22nd August, 1927, and the sale, Exhibit D-6, dated 7th June, 1939, executed by Vyapuri as the de facto guardian of the minor second defendant were neither supported by necessity nor beneficial to the minor second defendant and therefore not binding on him. Mr. Venkatadri, the learned Advocate for the appellant, could not successfully challenge this finding on second appeal. His legal contention is that Exhibit D-6, the sale by Vyapuri as de facto guardian of the minor, was not void but merely voidable and as it had not been set aside by the second defendant within three years of his attainment of majority, it was not open to his purchaser, the plaintiff, to sue for recovery of possession of the property, or for redemption of the mortgage, Exhibit P-1, which has become extinguished as a result of the sale, Exhibit D-6, dated 7th June, 1939. In other words he argues that Article 44 of the Limitation Act applies to transfers of the property of a Hindu minor effected by his de facto guardian.

The expression “de facto” guardian, however unscientific and inappropriate from the point of view of an orthodox jurist, has become part of the vocabulary of lawyers and judges. It is now a settled rule of Hindu law that a sale or a mortgage of a Hindu Minor’s property by his de facto guardian is effective to convey a valid title to the transferee if the latter establishes that the transfer was for legal necessity or for the benefit of the minor or that he took the sale or mortgage after proper enquiries and with a bona fide belief in the existence of pressing necessity. It is needless at this time of the day to enquire the textual origin of this rule or to investigate whether it has any real foundation in Hunooman Persad’s case1, which is the usual starting point of discussions on this topic. The whole subject has been exhaustively and authoritatively dealt with and the entire case-law has been reviewed in the judgments of the Federal Court (now the Supreme Court) reported in Sree Ramulu v. Pundarikakshayya2and Bapayya v. Pundarikakskayya3 Suffice it to say that, in the opinion of the learned Judges of the Federal Court, the dealing of a de facto guardian with the estate of a Hindu minor by way of sale or mortgage would be regarded not as void altogether but voidable at the instance of the minor, and the same tests would have to be applied to determine the validity of such sale or mortgage as are applied in the case of a de jure guardian’s sale or mortgage. We are, however, concerned in thi