Alienation by a de facto guardian of a minor's property is void ab initio under Section 11 of the Hindu Minority and Guardianship Act, 1956, and the minor is not liable to refund the consideration.

G. K. MISRA, J.

( 1 ) THE second defendant is the natural mother of the first defendant who was a minor The disputed property belongs to defendant 1 and was inherited from his adoptive father. The adoptive parents of the first defendant are dead. The second defendant as guardian of the first defendant sold to the plaintiff homestead land of 9 x 150 cubits for Rs. 500/- on 6-6-57 by a registered sale deed Ex. 1. The sale was effected for repayment of mortagage dues under Kx. 2 dated 20-7-53 executed by the adoptive father of the first defendant in favour of one Bai mahapatrani. Plaintiff's case is that the possession of a portion of the land measuring 4 x 38 cubits (disputed portion) was not delivered. He accordingly brought the suit for recovery of the disputed portion, not delivered, or in the alternative for refund of Rs. 200/- out of the sale consideration representing the proportionate value of the disputed portion. Defendants 1 and 2 filed separate written statements. Defendant-1 contested the suit alleging that there was not legal necessity for the transfer, that defendanf-2 was not his guardian and that the plaintiff fraudulently purchased the homestead at a low price though the real value of the properly was Rs. 500/ -. Defendant-2 admitted execution of the sale deed and receipt of Rs. 500/-towards consideration. She pleaded that the plaintiff promised to pay Rs. 200/- more and that she was prepared to take back the land on return of the entire consideration money.

( 2 ) THE learned Munsif held that defendant-2 was not the guardian of the minor first defendant and the transfer was void. He, however, dismissed the plaintiff's suit on the finding that the contract cannot be split up and a suit for recovery of a portion of the consideration does not lie. The learned Subordinate Judge held that the first defendant lived with the second defendant who was his de facto guardian. He also held that the sale was for consideration and legal necessity and that the transfer by the de facto guardian for legal necessity was voidable and not void. On these findings he decreed the plaintiff's suit for recovery of Rs. 200/- representing the value of the disputed portion. Against the reversing appellate Courts decree, the second appeal has been filed.

( 3 ) THE following questions arise for consideration in the second appeal-

i. Os the alienation by the de facto guardian of the minor void or voidable? ii. Is the minor liable to refund the proportionate consideration? iii. Is the guardian liable to refund the same? iv. Is the plaintiff entitled to refund under Sections 88 and 41 of the specific Relief Act in the facts and circumstances of this case?

( 4 ) ALIENATION by a de facto manager of minor's property for legal necessity was valid under the old Hindu Law. This doctrine was enunciated in Hunooman Pershad pandey's case, in (1854-67) 6 Moo. Ind. App. 393 (PC ). Hindu jurists protected transaction entered into by persons interested in the minor for the minors benefit or necessity. The learned Subordinate Judge's finding is based on this old view of hindu law. This law has, however, been abrogated by Section 11 of the Hindu minority and Guardianship Act (Central Act XXXII of 1956) which came into force on 27-8-56. The suit transaction was on 8-6-1957 and would be governed by this section. It lays down that after commencement of this Act, no person shall be entitled to dispose of or deal with the property of a Hindu minor merely on the ground of his or her being the de facto guardian of the minor. Thus an alienation by a de facto guardian is void ab initio. He is incompetent under the statute to make an alienation on behalf of the minor. The alienee from the de facto guardian would be a rank trespasser.

( 5 ) THE next question for consideration is whether the minor is liable to refund the consideration. Section 2 (g) of the Contract Act says that an agreement not enforceable by law is said to be void. Ex. 1 executed by defendant-2 as t