Alienation of minors property by mother held void.

( 1 ) THIS second appeal raises a point about the validity of an alienation of a hindu minors property by a facto guardian. This species of guardians has been abolished by S. 11 of the Hindu Minority and Guardianship Act 1950. But the transaction in this case arose before the Act, and hence it bears on the position of law which prevailed earlier. It also raises a point as to the appropriate steps to be followed by the minor for impugning or getting over sales by de facto guardians.

( 2 ) THE facts of this case are not in dispute. One Lakshmi Ammal had a life interest and her two sons had a vested remainder in an item of land. These were be quoted to them under a Will. When second son Govindrajulu was still a minor, the mother Lakshmi, Ammal and her first joined together and sold the entire bequeathed property, inclusive of the minors interest there in. In that conveyance, the mother purported to act as the minors guardian. The minors father was very much there at the time, but he rested content with attesting the sale deed.

( 3 ) THE minor came of age in 1956. His mother died in 1965. Subsequently in 1967 the minor sold the half share in the property which, he got under the Will to the Aurobindo Society.

( 4 ) MEANWHILE, the, original alienee from Lakshmi Ammal had sold the pro perty to another person and the latter had sold the property to another person and the latter had settled it in favour of a lady. The Aurobindo Society, as purchaser of Govinda rajulus undivided half share filed a suit for partition and separate possession against the alienee from Lakshmi Ammal and his successors in interest. These defendants resisted the suit on various grounds. The objected to the frame of the suit and they nature of the relief claimed therein. They said that the plaintiff ought not to have straightway filed a suit for partition and separate possession. They said a suit for possession or partition would not lie so long as the sale of the minors property hand not been set aside as not binding on him.

( 5 ) THE trial Court held that Lakshmi Ammal was not the legal guardian of minor govindarajulu when his father was there, and she had no authority to sell minors interest in the suit land. It rejected the contention that the sale in so far as the minors share was concerned was in the interest of the minor and for the minors benefit. It accordingly directed that the sale of the minors interest was void. It proceeded to hold that when the sale was void, no question arose of setting aside a void sale. In this view, it upheld the maintainability of the suit as framed and gave the plaintiff a preliminary decree for partition of a half share in the property.

( 6 ) ON appeal by the defendants; the Sub-court reversed the trial courts decree. It held that the sale by the mother had been effected as the minors de facto guardian and hence it was merely voidable and not void altogether. It further held that the question whether the sales of the minors share was or was not for the minors necessity or benefit cannot be gone into in any suit other than a suit filled for setting aside the sale. In this view it desisted from going into the question of necessity or benefit to the minors estate in the instant suit for partition. In the end, it held that no relief can be granted to the plaintiff in the way the suit was instituted.

( 7 ) IN this second appeal, learned counsel for the Aurobindo Society, ed that since the mother, during the fathers lifetime, cannot act as the minors legal guardian, her sale of the minors share in the property was altogether void and not merely voidable. It was hence urged that there was no need for setting aside the sale. They contended that they were entitled to the mothers transaction and straightway ask for partition and separate possession.

( 8 ) I must uphold this stand as correct. I however, feel that the position of lakshmi Ammal has not been accurately described in the discussion of the question go far. She was refe