NELSON & OTHERS Vs. LEKSHMANAN NADAR & OTHERS
LAWS(KER)-1963-8-57
HIGH COURT OF KERALA
Decided on August 26,1963

Nelson And Others Appellant
VERSUS
Lekshmanan Nadar And Others Respondents




JUDGEMENT

Madhavan Nair, J. - (1.)PLAINTIFFS are the appellants. The suit property, 9 acres 24 cents in extent, belonged to Isaac Essiah. The 4th defendant is his widow, and the defendants 5 and 6 and plaintiffs 1 to 3 are his children. On 12 -7 -1118 defendants 4 and 5, the former acting personally and as guardian of the plaintiffs and the 6th defendant, sold the property for Rs. 200/ - to the 1st defendant as per Ext. V The 2nd defendant is the assignee of the 1st defendant; and the 3rd defendant is impleaded as one holding some interest under defendants 1 and 2. Plaintiffs claim 3/5 share in the property, divided in metes and bounds, ignoring Ext. V as not binding on them. The 2nd defendant contended that Ext. V. bound the plaintiffs, particularly since their right to question it had become barred under Article 44, Limitation Act. Though Ext. V recited the entire price as paid in cash at its execution, the courts below have concurred in finding that it was not supported by consideration. On that finding, the Munsif held the sale void and therefore decreed the suit as been in time allowed by Article 144, Limitation Act; but the Subordinate Judge held the sale voidable and therefore dismissed the suit as been beyond time allowed by Article 44. In this second appeal the plaintiffs support the position taken by the Munsif.
(2.)THE question is whether the sale of the plaintiffs' property by their guardian without consideration was void or voidable. It is freely conceded that Article 44 applies to alienation that are voidable, but not void; and that therefore this suit has to be allowed if Ext. V is void, or dismissed if it is voidable only.
In Beeyathumma v. Moidin Haji ( : 1958 K. L. J. 1210 :, 1958 K. L. T. 602) Vaidialingam J. with the concurrence of Kumara Pillai J. has held that alienations by guardians, though not supported by consideration or justifiable necessity, "are not void, but only voidable requiring to be set aside under Art. 44." Counsel for the appellant contended that transactions not supported by consideration cannot be put on a par with those not for justifiable necessity, and that guardian's alienations affected by the former defect would be void while those affected by the latter defect would be voidable only, and that the dictum in : 1958 K. L. J. 1210(1958 K. L. T. 602) required reconsideration as regards alienations without consideration. It is for such reconsideration that this case has been posted before this Full Bench by the learned Chief Justice.

4 -A. As the dictum in : 1958 K. L. J. 1210(1958 K. L. T. 602) has apparently been drawn from precedents, a careful scrutiny of the rulings relied on is pertinent here.

In Rengaswami Gounder v. Karappa Gounder (1952 -2 M. L. J. 506) the "substantial contention" was "that Article 44 does not apply to the case for the reason that the alienation under Ext. D 1 was made by Ramayee not as guardian of the plaintiff but in her own personal capacity". After a lengthy discussion Venkatarama Aiyar J. concluded:

On these facts, the alienation in question must be held to be void, as being a transfer by a guardian in assertion of a hostile title. The present suit is accordingly not governed by Art. 44, Limitation Act.

4 -B. 6 Lahore 447, 9 Lahore 33,, 34 I. C. 188,, 40 M. L. J. 476, : A. I. R. 1936 Mad. 346, 1951 -1 M. L. J. 268,, A. I. R. 1955 Mad 369, : A. I. R. 1956 Madras 670 and, A. I. R. 1956 T. C. 107 did not concern the effect of want of consideration in guardian's alienations. The impugnment was only of the necessity or the purpose of the alienations concerned.

4 -C. In Madugula Latchiah v. Pally Mukkalinga (30 Madras 393) the plaintiff's mother, who obtained a decree for possession of property mortgaged to the plaintiff, assigned the decree to the 1st defendant for Rs. 100. The court found the assignment "invalid on the ground that the consideration therefor was not such as to justify the transfer of the plaintiff's interest by the guardian and also on the ground that the assignment was without permission of the Court." It was held that the plaintiff ought to have sued to set aside the assignment within time allowed by Article 44 if he wanted to recover the property from the 1st defendant. It must be noted here that the consideration for the transfer was found though the assignment was not for any purpose binding on the minor.

4 -D. In Kandusami Naiken v. Irusappa Naiken (41 Madras 102) ancestral property belonging to two Hindu brothers, defendants 2 and 3, had been sold by their mother in 1893 to the plaintiff, her son -in -law; and in doing so she acted for herself and as guardian of the minor 2nd defendant but mentioned nothing about the 3rd defendant who was a posthumous son then in her womb. The 2nd defendant attained majority in 1903. Acting for himself and as guardian of the 3rd defendant he sold the property in 1908 to the 1st defendant; and the latter in 1909 ousted the plaintiff who had been in possession since 1893. The suit was instituted in 1912 for restoration of possession with mesne profits. The court found that the sale to the plaintiff was without consideration or justifiable necessity. Sadasiva Ayyar J. held:

As the second defendant's right to institute a suit under Article 44 for setting aside the sale of 1893 and for possession of the property from the plaintiff became barred in 1906, his right to such property became extinguished under section 28 of the Limitation Act and the plaintiff became the owner of the second defendant's interest in the property in 1906. As he has brought the suit in 1912 and as his title to the second defendant's interest of which he became the owner in 1906 subsisted at the date of the suit, his claim for possession of such interest has to be decreed................................the plaintiff cannot claim any title to the third defendant's interests in the properties.

Spencer J. delivered a separate judgment agreeing with the above reasoning.

Though their Lordships have accepted the finding of the courts below that the sale to the plaintiff was for no consideration, the judgment does not advert to the effect thereof on the transaction. No doubt their Lordships assumed Article 44 to apply; but the result could not have been different under Article 144 since the plaintiff had been in possession of the property for 16 years of which six years were after the 2nd defendant had attained majority. Under Section 7, Limitation Act, the 2nd defendant could not have more than 3 years after attainment of majority to evict the plaintiff, as 12 years from the date of his purchase had expired earlier. The observation "the plaintiff became the owner of the second defendant's interest in the property in 1906" indicates that their Lordships did not find title to pass under the sale of 1893 by the guardian but only as a result of continued adverse possession which became unchallengeable by him on the expiry of 3 years after attainment of majority. Though ordinarily great weight is attached to the decision of that eminent Judge, Sadasiva Ayyar J., I am afraid that the same respect cannot be extended to the decision in (1917) 41 Madras 102 which was passed sub silentio. I say so because: firstly, the effect of a guardian's sale for no consideration has not been adverted to at all in the judgment; secondly the distinction between void and voidable alienations did not arise in the case as the result would have been the same in either case; and thirdly, the applicability of Article 44 to void alienations (as distinct from voidable ones) was not considered there -probably on account of the decision of the Privy Council in, (1900) 23 Mad 271, where a sale by guardian was held 'void' and yet within the scope of Article 44, which decision came to be explained by a Bench of the Madras High Court in, 56 M. L. J. 332 decided on 1st November 1928 only? even though, as a matter of fact, the Privy Council had held Article 44 inapplicable to void alienations in, (1911) 34 All 213 (222 -223).

4 -E. I think it is worthwhile quoting here the passage in Salmond on Jurisprudence on decisions sub silentio:

A decision passes sub silentio, in the technical sense that has to be attached to that phrase, when the particular point of law involved in the decision is not perceived by the Court or present to its mind. The Court may consciously decide in favor of one party because of point A, which it considers and pronounces upon. It may be shown, however, that logically the Court should not have decided in favor of the particular party unless it also decided point B in his favor; but point B was not argued or considered by the Court. In such circumstances, although point B was logically involved in the facts and although the case had a specific outcome, the decision is not an authority on point B. Point B is said to pass sub silentio. (Eleventh edition, page 212).

A practical application of the above principle is in, 56 M. L. J. 332 (cited below).

4 -F. Gnamsambanda Pandara Sannadhi v. Velu Pandaram (23 Mad 271 P.C.) is cited by Vaidialingam J, as authority for the proposition "that Article 44 will apply to all transactions by an authorized guardian". Though the learned Judge's observation is justified on the wording of that decision, its correctness is open to doubt in view of the later decision of the Judicial Committee in 34 Allahabad 213 (mentioned supra). Even without noticing that later decision, a Division Bench of the Madras High Court, constituted by Wallace J. and Thiruvenkatachariar J. has explained the decision in 23 Madras 271 in Raja Ramaswami v. Govindamm (56 M. L. J. 332 at -342 -344) thus:

The appellant's Advocate relies also on the observations of their Lordships of the Privy Council in Ganasambanda Pandara Sannadhi v. Velu Pandaram (I. L. R. 23 Mad. 271 at 279). In that case the minor Chockalinga's mother sold his right of management of a pagoda for a consideration. The sale was made on 17th September, 1868 and from that time the purchaser was in employment of the office and its endowments. The minor attained majority in 1880 and brought the suit in August 1892 for recovery of the office and possession of the immovable properties forming the endowment of the temple. Their lordships held that the sale by the mother of the office was void and did not give any title to the purchaser which remained in the minor and the possession which was taken by the purchaser was adverse to him. Their Lordships in upholding the plea of limitation raised by the defendant observed as follows:

Chockalinga attained majority in 1880 and had by Art. 44 of the Act three years for suing to set aside the sale by his guardian. He did not do so and by section 28 of the Limitation Act his right became extinguished. Their Lordships are of opinion that there is no distinction between the office and the property of the endowment. The one is attached to the other; but if there is, Art. 144 of the same schedule is applicable to the property. That bars the suit after twelve years' adverse possession.

This case was relied on as supporting the contention that Article 44 applies even to an alienation by the guardian which is void and under which no title passes to the purchaser. The observations of their Lordships may seem open to that construction. But when the facts of the case are looked at, it will be seen that the purchaser of the office under the void sale held possession thereof and of its endowments adversely to the minor for more than the statutory period prescribed by Art. 144 and their Lordships held that the suit was also barred under that Article. Whether Art. 44 applies or not, the minor had three years under section 7 of the Act after he became a major for bringing the suit and as he did not bring the suit within that period his title became extinguished under section 78. In the other cases referred to above, their Lordships clearly lay down that a suit to set aside the sale has to be brought because the purchaser acquires a title under the sale, though it is defeasible at the instance of the plaintiff. In other words, Article 44 applies to transfers which are voidable and not void. The view taken in these cases must be followed as the point directly arose in them and was the basis of their Lordships decision, whereas in Gnanasambanda Pandara Sannadhi v. Velu Pandram, the suit was in any view held to be barred -whether under Art. 44 or Art. 144. In the present case there is no question of the sale being void. We have already disposed of the contention raised on behalf of the respondent that the transfer under Ext. 1 was really a gift and was therefore void as one which we cannot accept as correct. We are therefore of opinion that if this suit had been brought by the 1st defendant himself it would be barred under Art. 44 of the Limitation Act.

The nature of the alienation concerned in, 56 M. L. J. 332 case can be understood from the following observation of their Lordships at page 336 of the report:

We accept the finding that the sale was made for consideration but that it is not shown that it was made for any purpose binding on the minor to any extent.

4 -G. In Sankaranarayana Pillai v. Kandasamia Pillai (A. I. R. 1956 Mad 670 F.B.), the alienation by the guardian for Rs. 1,550/ - was contended to be inadequate as the properties were worth Rs. 3,000/ - and the suit was instituted within three years of the plaintiff's attainment of majority. The question before the Full Bench was of the sufficiency of the court -fee paid. The general observation "a transaction entered into by a guardian relating to the minor's properties is not void and if the minor does not sue to set it aside within 3 years of his attaining majority it becomes valid under Article 44, Limitation Act", made in the context of that case cannot be taken as laying down the law for all circumstances inclusive of a total absence of consideration for the alienation. Every ruling has to be understood in the set up of facts in which it is declared.

4 -H. Thus a scrutiny of the rulings cited in : 1958 K. L. J. 1210(1958 K. L. T. 602) discloses that none of them is an authority for the proposition that a guardian's alienation, though for no consideration, comes within the ambit of Article 44, Limitation Act.

(3.)IN Sham Chandra v. Gadadhar (13 C. L. J. 277) Asutosh Mookerji J. and Coxe J. have stated the law thus:
In order to determine whether the plaintiffs are entitled to recover possession of the property covered by the conveyance without cancellation of the instrument, it is essential to determine the true character of the transaction.. If it is void and inoperative in its inception, it is not necessary for the plaintiffs to seek the cancellation of the instrument. If, on the other hand, the transaction is merely voidable and is operative so long as it is not avoided, the plaintiffs cannot recover possession till they have avoided the instrument. Now, in the case before us, the plaintiffs alleged that the consideration mentioned in the conveyance was fictitious, and that it was inoperative from its very commencement......................................This (Art. 44) obviously applies only to cases in which the plaintiff seeks to set aside a genuine transaction. If, therefore as the plaintiffs allege, the conveyance executed by their mother, is wholly inoperative because the consideration was fictitious, it is not necessary for them to have the sale set aside; in other words, if the facts are as alleged by the plaintiffs, the defendants never acquired any title under the conveyance, and the plaintiffs are entitled to recover possession from them as trespassers. If, on the other hand, there was consideration for the sale, although the conveyance was executed by the mother of the plaintiffs in excess of her authority, as explained by their Lordships of the Judicial Committee in Hanoomanpersaud v. Mussumat Babooee (6 M. I. A. 393), the plaintiffs may be entitled to have the instrument set aside and to recover possession.

This was followed in Baidi Singh v. Singrai Muran ( : A. I. R. 1962 Ori 170).

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