MATHUKUTTY Vs. RUGMINI AMMA

JUDGEMENT

(1.) IS the alienation of property belonging to a minor governed by the Nair Act of 1100 by a person who is not the de jure guardian but who acts as the de facto manager valid,if it is shown to be supported by consideration and necessity and S.A.No.1259 of 1966 7 October,1970 beneficial to the interests of the minor ? This is the question which calls for a decision in this case.Though this question has been decided by this Court itself earlier,learned counsel canvasses the correctness of the view taken by this Court and according to learned counsel,the decisions require reconsideration.

(2.) THE appellant is the first defendant in the suit.He purchased plaint A schedule property which is 93/4 cents in extent belonging to the plaintiff under Ex.P2 dated 7 -4 -1954.At that time plaintiff was a minor.It was his mother,the second defendant,who purported to act as his guardian in executing that sale deed The 3rd defendant is the father of the plaintiff.He had also joined in the sale deed.not as representing the plaintiff,but as a person in whose favour a life -interest had been reserved in the property sold.In fact,the plaint property was a part of the property conveyed under Ex.P2 sale deed,the property conveyed being one obtained for the second defendant and her children under a partition in the tarwad.The tarwad of the second defendant divided the properties among its members under Ex.P1 partition in 1124.At that time second defendant had nine children including the plaintiff,of whom four were minors and one of the daughters had a child.Plaintiff obtained the 9th schedule in Ex.PL The shares of the plaintiff and other children of the second defendant as well as the second defendant's share were sold to the first defendant.The justification for such sale was that the property was practically yielding no income and with the proceeds of the sale,property which would yield more income could be purchased at Aryankavu where the father was employed.1 need not go further into this aspect of the matter,because the main question is whether the sale deed was executed by a person competent to do it.On attaining majority plaintiff has challenged the sale deed on the ground that it is wanting in consideration and necessity and is incompetent.Another minor made a similar challenge by another suit to the same sale deed so far as it affected that minor's share and that came up before me in S.A.1230 of 1966.Various questions were raised in that appeal by counsel for the alienee,and I have dealt with them therein.Possibly,in view of this,learned counsel for the appellant confined his arguments in this appeal to the question of competency of the mother,the second defendant,to execute the sale deed for the property of her minor son so as to bind the minor son.

(3.) IT is then argued that as a separate property of the minor,the mother,the de facto guardian was competent to sell it if that would result in benefit to the estate of the minor.Under the Nair Act of 1100 the mother would not certainly be the legal guardian unless she was appointed a guardian by court.Therefore even if she was acting in the best interest of the minor and that in the course of the,management of the properties of the minor,she could only be a de facto manager.If the case had to be decided by applying the principles of the Hindu Mithakshara Law,possibly,the plaintiff would have succeeded.Ever since the decision in Hanoomanpersaud Pandy v.Mussumat Babooee Munraj Koonweree(6 MIA 393)the courts in India have been consistently holding that in the case of a person governed by the Hindu Mitakshara Law "the right of a bona fide incumbrencer who has taken from a de facto manager a charge on lands created honestly,for the purpose of saving the estate,or for the benefit of the estate,is not(provided the circumstances would support the charge had it emanated from a de facto and de jure manager)affected by the want of union of the de facto with the de jure title."This principle has been extended to sales of property by a de facto manager.