A transfer of property by a natural guardian is voidable if not challenged within the limitation period, even if the transaction predates the relevant legislative act.

JUDGMENT

The suit for partition though decreed by the trial court was dismissed in appeal. Aggrieved, the plaintiff is in Second Appeal.

2. The plaintiff and the 1st defendant are siblings. They are the children of one Narayani Amma. Defendants 2 to 5 are the children of one Malukutty. Malukutty is the sister of Narayani Amma. The 6th defendant is the assignee of a portion of property from defendants 2 to 5.

3. The plaint schedule property has an extent of

30 cents with a building. Admittedly the property belonged to Narayani Amma and Malukutty. Narayani Amma died in the year 1941 and Malukutty died in the year 1942. The plaintiff seeks for partition and separate possession of her share.

4. The defendants contended that, after the death of Narayani Amma, the rights of the plaintiff and 1st defendant was conveyed by their father as per Ext B2 of the year 1951, in favour of Malukutty. Therefore, the plaintiff is not entitled for any share, is the contention.

5. The trial court held that the transfer by a minor is void and granted a decree for partition. The first appellate court relied on the provisions of the Hindu Minority and Guardianship Act and held that Ext B2 is only a voidable document and since Ext B2 was not challenged, the claim for partition was negatived.

6. Heard the learned counsel Sri.Jacob Abraham on behalf of the appellant-plaintiff and Sri.Prasanth M.P on behalf of the contesting respondents on the following Substantial Question of Law.

“When Ext B2 assignment was executed prior coming into force of Hindu Minority and Guardianship Act , was the appellate court right in holding that the transaction was only voidable in nature?”

7. The plaintiff's claim hinges on the finding whether Ext B2 assignment executed by the father of the plaintiff in favour of Malukutty is a void or voidable transaction.

8. At the time of execution of Ext B2, the plaintiff and 1st defendant minors. The father was the natural guardian of the plaintiff and the 1st defendant. The first appellate court relied on the provisions of Hindu Minority and Guardianship Act to hold that the conveyance by a natural guardian is only voidable, and that it having not been challenged within the period of limitation, Ext B2 holds good. However, Ext B2 assignment is of the year 1951 and the came into force only in the year

1956. Therefore, the said reasoning cannot stand.

9. However, the commentaries by Mulla on Hindu Law makes it clear that, even under the pristine Hindu Law, the conveyance by a natural guardian is only voidable and not void. The relevant extract from the 18th edition Volume 1 of Mulla Hindu Law reads thus:

“Where a guardian is appointed of the property of a Hindu minor under the Guardians and Wards Act 1890, he cannot alienate the immovable property of the minor without the sanction of the court, not even in a case of necessity. If he does so, the alienation is voidable at the option of the minor. …......... The powers, however, of the natural guardian of a Hindu minor are larger than those of a guardian appointed under that Act, a natural guardian may alienate the minor's property even without the sanction of the court, provided the alienation is one for necessity for the benefit of the estate. The Guardians and Wards Act 1890, does not alter or affect the rights of natural guardians under the Hindu law.

….............. A suit by a ward, who has attained majority to set aside a transfer of property by his guardian must be brought within three years from the date when the ward attains majority. A transfer by a guardian is not void, but voidable at the instance of the ward.”

1O. Therefore, in the light of the above, Ext B2 is only voidable in nature. Substantial Question of Law is answered accordingly.

11. Ext B2 document having not been challenged within the time stipulated under the Limitation Act , the present suit for partition is not maintainable. Ext B2 is of the year 1951 and the suit is filed in the year

1996 much beyond the period of limit