Sale by guardian void or voidable:
Madras HC Madhavan Nair J., in Sundara Nadan v. Annamalai and ors, (1931) 60 MLJ 695
The defenant (purchaser of the suit property) is the Appellant.
The property belonged to the plaintiff and her sister. During plaintiff’s minority, one Sanjeevi Nadan, the husband of another sister of the plaintiff, sold it on behalf of the plaintiff as guardian.
The plaintiff’s case is that the sale is not binding on her as Sanjeevi Nadan was not her guardian in law and that she is therefore entitled to recover possession of the property.
The lower Court found that Sanjeevi Nadan, though a de facto guardian, was not the proper guardian of the plaintiff, that it was not proved that the plaintiff was benefited in any way by the sale of the property and that the suit was not barred by limitation.
The finding of the learned Subordinate Judge that the plaintiff was not benefited by any portion of the money paid by the defendant is a finding of fact and is binding on HC in Second Appeal.
So, the only questions remaining for consideration are (1) whether the sale by the de facato guardian is binding on the plaintiff; (2) whether the suit is barred by limitatation.
The question of limitation would depend upon whether Sanjeevi Nadan, for the purpose of the sale, is to be considered as a proper guardian of the plaintiff or as only an unauthorised person.
If he can be considered to be a person entitled to deal with the minor’s property, then Art. 44 of Limitation Act would apply. (sale is voidable).
(Note: If guardian is a proper guardian to sell, then the sale is voidable, suit is to be filed within 3 years, after attaining majority. If the guardian is an unauthorised person, the sale is absolutely void. Suit is to be filed within 12 years, after attaining majority or after the alienation, whichever is earlier).
It is argued by the plaintiff that the plaintiff is an Indian Christian. Under the personal law of the parties, Sanjeevi Nadan is not her proper guardian and therefore the sale by him should be considered to be a sale by an unauthorised person and therefore it is ‘absolutely void’.
Under the Hindu Law it has been held in a series of cases that a sale by a de facto guardian on behalf of a minor is a ‘voidable transaction’ and that Art.44 of the Limitation Act would apply.
That was also the position under the Mohamedan Law till the Privy Council finally decided that sales by de facto guardian under the Mohammedan Law are void transactions in Mata Din v. Ahmad Ali, (1911) LR 39 IA 49 : 23 MLJ 6 (PC). It has now been finally held in the case of persons governed by the Mohammedan Law following this decision that sales by de facto gaurdian under the Mohammedan Law are ‘void transactions. (see: Imambandi v. Mutsaddi (1918) LR 45 IA 73 : 35 MLJ 422 (PC).
There does not appear to be any decided case with reference to the point as to who the guardians of an Indian Christian would be. In ‘Trevelyan on Minors’ 6th Ed., at p.60, it is stated: “Failing the father and mother, and their appointees, no person however nearly related, is of right entitled to the custody of minors, who are neither Hindus nor Mohammedans, or the guardianship of their property.”
Again at page 167 it is stated: “The law applicable to persons other than Hindus and Mohammedans does not permit guardians, other than those appointed by the Court, or having power given to them by the instrument appointing them, to sell or charge the immovable property of their wards.”
If this law is applicable to Christians, then this transaction in question should be ‘void’.
It is difficult to see how the situation of an unauthorised guardian is bettered by describing him as a ‘de facto’ guardian. He may, by his de facto guardianship, assume important responsibilities in relation to the minor’s property but he cannot thereby clothe himself with legal power to sell it.
It must be noticed that Kumaraswami Sastri J., in this Court (Madras HC), in Ramaswami v. Kasinatha, AIR 1928 Mad 226 was inclined to apply thes observations generally. Relying on the two Privy Council decisions in Mata Din v. Ahmad Ali (1911) LR 39 IA 49 : 23 MLJ 6 (PC) and Immam bandi v. Mustasaddi (1918)LR 45 IA 73 : 35 MLJ 422 (PC), that if the matter was res integra he would on the observations of Lord robson be prepared to hold even under the Hindu Law alienations by de facto guardians are absolutely void. But having regard to the trend of decisions under the Hindu Law on the principle of stare decisis the learned Judge was not inclined to give an extended application to the observations of the Privy Council. If the observations of the learned Judges of the Privy Council can be understood as applicable to the case of alienations by de facto guardians, irrespective of the question whether the parties are Mohamedans, Hindus or Christians, then, certainly these observations support the contention of the respondent.
Having regard to the authorities I must uphold the decision of the Lower Court that the alienation in this case is a void transation and not binding on the plaintiff. If it is a void alienation, then, it is clear that Art.44 of the Limitation Act has no application, and as the plaintiff’s suit has been brought within 12 years after the alienation, it is not barred by limitation.
In the result the decision of the Lower Court is right and this Second Appeal is dismissed with costs.
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