Alienation made by de facto guardian of a minor cannot provide title on the property.

1. The petitioners are the plaintiffs in OS.No.144/1996, on the file of the District Munsif Court, Polur.

2. The plaintiffs have filed the suit for declaration of their title to the B-Schedule property and to direct the defendant to deliver vacant possession of the same and for permanent injunction.

3. The plaintiffs claim A-Schedule property under a registered Will dated 25.7.1997. At the time of the execution of the Will, the plaintiffs 3 and 4 alone were born and the plaintiffs 1 and 2 were born subsequently. The father of the plaintiffs was the defacto guardian for the minors. As per the terms of the Will, the plaintiffs are entitled to equal share in the A-Schedule property. The father and defacto guardian of the minors, without any necessity, nor for the benefit of the minors, had alienated the B-Schedule property to the defendant and the said sale is not valid and binding upon the plaintiffs.

4. The defendant filed a written statement, denying the Will relied upon by the plaintiffs and also their claims. Yet another contention raised by the defendant in the written statement is that the suit is barred by limitation, as per the provisions of Hindu Law. If the eldest male member fails to question the sale before he attains the age of 21 years, the suit would be barred as regards the other members of the family as well. The plaintiffs 3 and 4 were aged 27 and 28 years respectively, on the date of the filing of the suit and they have not chosen to question the sale in favour of the defendant and therefore, the plaintiffs 1 and 2 also precluded from questioning the sale in favour of the defendant.

5. A check slip was issued in the above case, wherein it is observed as here under:-

"This is a suit for declaration of plaintiffs title to the suit B Schedule properties, for possession of the same, for permanent injunction against the defendants restraining them from alternating or encumbering the B Schedule property for past and further mesne profits and for costs.

According to the plaint averment, the A Schedule properties have been bequeathed in favour of the plaintiffs by their paternal grand gather under a registered Will dated 21.5.1970, appointing the plaintiffs father Gopal as Guardian. The plaintiffs father died about a years ago. The plaintiffs defacto guardian/father Gopal without any necessity seems to have alienated the B Schedule property to the defendant under a registered sale deed dated 23.10.1972, during the minority of the plaintiffs. But, the registration copy of the said sale deed has not been filed by the plaintiff along with the plaint. The plaintiffs may be co-nominee parties to the said sale deed. Further it is alleged in the plaint that the plaintiffs came to know about the said alienation only ten months back. The age of plaintiffs 3 and 4 are 27 and 24 respectively, as per cause title in the plaint. As such the claim by the plaintiffs 3 and 4 is barred by limitation. The plaintiffs valued the suit under statutory minimum of Rs.300/- under Section 25(a) of the Court Fee Act and paid Rs.23.00/-. The plaintiffs ought to have prayed for cancellation of the sale deed dated 23.10.1972 and to pay Court Fee under Section 40(1) of the Court Fee Act.

Hence, the market value of B Schedule properties as on the date of the suit to be ascertained and Deficit Court Fee to be ascertained and Deficit Court Fee to be paid, besides maintainability of claim by the plaintiffs 3 and 4."

6. The plaintiffs filed objections to the Check Slip, wherein they have stated that if any alienation is made by a Defacto guardian, the same can be questioned within the period, as stated under Article 65 of the Limitation Act and not as stated under Art.60 of the Limitation Act. It is further stated that the alienation made by the father/defacto guardian need not be set aside as the plaintiffs were not parties to the said sale deed. The trial court accepted the check slip and rejected the contention of the plaintiffs and al