PALANIAPPA GOUNDAN Vs. NALLAPPA GOUNDAN AND ORS.

JUDGEMENT

(1.) THIS second appeal has been preferred by deft. 1 against a decree for redemption of a usufructuary mtge., Ex. P. 1, dated 8 -2 -1922, executed by the mother & guardian of deft. 2 then a minor, in favour of Vyapuri, the divided paternal uncle of the minor & assigned by Vyapuri to deft. 1 under Ex. D. 3, dated 22 -8 -1927. The property mortgaged belonged to the minor deft. 2 as sole owner & was managed on his behalf by his mother who died shortly after the execution of the mtge. Ex. P. 1, in 1922. Thereafter, Vyapuri, the divided uncle, professing to act as guardian of his minor nephew, deft. 2 mortgaged the property under Ex. D. 5, dated 22 -8 -1927, & subsequently sold it to deft. 1 under Ex. D. 6 dated 7 -6 -1939 in discharge of the prior mtges. & in consideration of a small cash payment. Deft. 2 attained majority some time later in 1939 & he sold the same property to the pltf. the son of Vyapuri, under Ex. P. 5, dated 10 -5 -1943, ignoring the previous alienation by Vyapuri under Ex. D. 6. On 7 -2 -1944, the pltf. filed the present suit for redemption of the mtge. Ex. P. 1, & the suit has been decreed by the Cts. below. Hence this second appeal by deft. 1 the disappointed purchaser from Vyapuri.

(2.) THE Cts. below held that the mtge. Ex. D. 5, dated 22 -8 -1927 & the sale, Ex. D. 6, dated 7 -6 -1939, executed by Vyapuri as the 'de facto' guardian of the minor deft. 2 were neither supported by necessity nor beneficial to the minor deft. 2 & therefore not binding on him. Mr. Venkatadri, the learned advocate for the applt., could not successfully challenge this finding on second appeal. His legal contention is that Ex. D. 6, the sale by Vyapuri as 'de facto' guardian of the minor, was not void but merely voidable & as it had not been set aside by deft. 2 within three years of his attainment of majority, it was not open to his purchaser, the pltf. to sue for recovery of possession of the property, or for redemption of the mtge., Ex. P. 1, which had become extinguished as a result of the sale, Ex. D. 6, dated 7 -6 -1939. In other words, he argues that Article 44, Limitation Act, applies to transfers of the property of a Hindu minor effected by his 'de facto' guardian.

(3.) IF there is a trespass on a minor's property, he has 12 years from the date of dispossession or three years after attaining majority , whichever is the longer period, to sue for recovery of possession under Article 142. If the father in a joint Hindu family alienates the interest of his minor son in the family property or the manager alienates the Interest of a minor co -parcener, the co -parcener aggrieved by the alienation can sue to set it aside within 12 years from the date when the alienee takes possession of the property or three years after attaining majority, whichever period is longer, under Article 126 or 144, Limitation Act. If, however, a guardian transfers his ward's property for purposes not binding on the minor or at a gross undervalue, the minor has only three years after attaining majority for setting aside the alienation under Article 44, Limitation Act. If an Improper alienation of the ward's property is made by a guardian, say a year before the ward attains majority, the ward will not have 12 years from the date of the alienation but only four years therefrom, within which time he must sue to set aside the alienation. The alienation is only voidable & requires to be set aside by the ward before he could recover possession of the property. He cannot disaffirm it by a mere notice of his intention to repudiate but must sue and obtain a judicial rescission of the sale, by his guardian within the time prescribed by Article 44. His right to recover possession of the property improperly alienated by his guardian will be lost & his title thereto will be extinguished under Section 28, Limitation Act, on the expiry of the three years' period prescribed by Article 44, if he does not sue to set aside the alienation within that period . The view of Venkatasubba Rao J. in 'Ramiah v. Brahmaiah',, 59 M L J 196 : : AIR 1930 Mad 821; & of Abdur Bahim & Sadasiva Ayyar JJ. in 'Doraisami v. Nondisami',, 38 Mad 118:, AIR 1915 Mad 1201 that Article 44 is merely an illustration of the combined effect of Article 144 Si Section 6, Limitation Act, that Article 44 is controlled by the principle of Section 6 & that even if Article 44 had not been there, the result would be the same, seems to me, with all respect unsustainable, & I would prefer the view of Sundara Ayyar J. in 'Doraisami v. Nondisami',, 38 Mad 118:, AIR 1915 Mad 1201 & Varadachariar J. in 'Ankamma v. Kameswaramma',, 68 M L J 87 : : AIR 1935 Mad 1, Article 144 is a residuary article & cannot be resorted to, if a specific article like Article 44 is applicable to a suit. The Limitation Act itself recognises the distinction between void & voidable transactions & provides a shorter period of limitation for remedies in respect of the latter (see, for example, Articles 12 & 91). These articles would be applicable, even if the suit is one for possession of Immovable property, if the pltf. cannot succeed without displacing an apparent title under a Court -sale or an instrument by virtue of which the deft. is in possession. Article 44 cannot be evaded by omitting to sue for setting aside a transfer by the guardian & by professing to sue for possession or redemption. Numerous decisions of this & the other H. Cs. have taken this view (see 'Latchiah v. Mukkallnga',, 30 Mad 393 :, 17 MLJ 220; 'Sivavadivelu v. Ponnammal',, 22 MLJ 404; 'Satyalakshmi v. Jagannadham',, 34 MLJ 229 :, AIR 1918 Mad 487; 'Arumugam Pillai v. Panayadian Ambalam',, 40 MLJ 475 : : AIR 1921 Mad 425; 'Ramaswami v. Govindammal : AIR 1929 Mad 313 ; 'Muthukumara Chetty v. Anthony Udayar',, 38 Mad 867 : : AIR 1915 Mad 296; 'Kandaswami v. Irusappa',, 41 Mad 102:, AIR 1918 Mad 724; Doraiswami v. Thangavelu : AIR 1929 Mad 668 ; 'Ankamma v Kameswaramma', 68 MLJ 87 : : AIR 1935 Mad 1 & 'Fakirappa Limanna v. Lumanna',, 44 Bom 742 :, AIR 1920 Bom 1 . The law regards a dealing with the minor's estate by his legal guardian as, in effect, an act of the minor himself through his guardian & prescribes a short period of three years after attainment of majority for setting aside an improper alienation by the guardian. As Article 44 is drastic in its operation it should be strictly construed & confined in its application to cases properly falling within its scope, i.e., to transfers of a minor's property by his legal guardian.