MATHUKUTTI Vs. RUGMINI AMMA & OTHERS

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 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. 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. P1. 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. I 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.

(2.) THOUGH it was contended on the strength of the decision of the Full Bench of this Court in Cherian v. Bhasura Devi and another ( : 1967 K.L.J. 529) that property obtained by a male member in a partition continues to be tarwad property and therefore the mother would be the guardian, this line of argument was not seriously pursued since apparently it would not be of assistance to sustain the plaintiff's case. The short answer to that contention would be that if the property is that of a tarwad consisting of that minor member alone, the mother who is a stranger to that unit cannot deal with the property belonging to that unit. There will be no question of guardianship in that event. This again is dealt with in my judgment in S.A. 1230 of 1966.

(3.) INDEPENDENT of the dictum in Hanoomanpersaud Pandy Mussumat Babooee Munraj Koonweree (6 M.I.A. 393) the Privy Council had occasion to consider alienation effected by a de facto manager under circumstances which would show that the alienation was one for pressing necessity. The Privy Council expressed the view that whatever may be the justification for such an alienation, so long as the person who alienated has no authority to do so, such alienation was held to be incompetent. This view taken by the Privy Council in Mata Din v. Ahamad Ali (I.L.R. 34 All. 213) was reiterated in Imambandi v. Mutsaddi (I.L.R. 45 Cal. 878). The person who acts on behalf of the minor in such cases is not possessed of the authority of a guardian by having been declared to be so by the law governing the minor or by having been appointed as such by the court. Such a person would have no authority to deal with the property of the minor and in such a case his intentions or the ultimate good that may accrue to the minor are foreign to the question of validity of the transfer. It is, no doubt, true that it is very difficult to reconcile this with the dictum in Hanoomanpersaud's case. The two latter cases of the Privy Council concerned alienations by the de facto managers, of the property of Muslim minors. The law laid down by the Privy Council in Hanoomanpersaud's case continued to be applied to alienations of the properties of Hindu minors. By decisions ranging for about a century the law as regards Hindu minors has become settled though, off and on, learned Judges have doubted the correctness of the view in Hanoomanpersaud's case and the justification for the departure from the principle laid down in Imambandi v. Mutsaddi (I.L.R. 45 Cal. 878) in the case of Hindu minors. The principle of stare decisis was often the answer. Some learned Judges felt that if the question was res integra, there would be no doubt that the logical view expressed by the Privy Council in Imambandi v. Mutsaddi (I.L.R. 45 Calcutta, and the earlier decision in Mata Din v. Ahamad Ali (I.L.R. 34 All 213) should apply to Hindu minors also. In this connexion I may extract a passage from the judgment in Ramaswamy v. Kasinatha (A.I.R. 1928 Mad. 226).