CHACKO Vs. SREEJA

JUDGEMENT

(1.) IN O.P. No. 61 of 1975, District Judge, Thalasserry appointed Kamalakshy Nettyar (for short, Nettyar) as guardian of her minor daughter, Sreeja. First defendant, Balakrishnan Nair, is the husband of Nettyar and father of Sreeja and as such, her natural guardian. Fearing that Balakrishnan Nair, said to be a spend -thrift and drunkard, may compel her to sell all her assets and deprive the minor of the future benefits of the properties, Nettyar gifted the four plaint schedule items, which belonged to her, to Sreeja under Ext. A1.

(2.) APPELLANTS are defendants 2 to 6. They said that the sale deeds are only voidable at the option of the minor and the option could be exercised only by the minor on attaining majority and not by the guardian appointed by court. The original petition and this suit were said to be fraudulent and collusive. It was also contended that the sale deeds were beneficial to the minor. Item No. 4 was said to be sold respecting Ext. B5 agreement for sale executed by Nettyar. But both the courts below found that Ext. B5 is not a genuine document and there was no agreement for sale. It is said that with Ext. B1 sale consideration, Ext. B2 property was purchased in the name of the minor and when that property was also sold, Ext B3 sale deed was taken in the name of minor with that consideration. The further claim is that if Ext. B1 is set aside, Ext. B3 property must be given to the second defendant.

(3.) MAIN contention was regarding maintainability of the suit by the guardian. The natural guardian of a Hindu minor, under Section 8(1) of the Act, has power to do all acts necessary or reasonable and proper for the benefit of the minor, or for the realisation, protection or benefit of the minor's estate. But that power is subject to Section 8(2), which says that the documents specified therein shall not be executed by the natural guardian without previous permission of the court. There is thus a prohibitory injunction. The consequence of violation of Sub -sections (1) and (2) is that the transaction shall be voidable at the instance of the minor or any person claiming under him. Therefore, the argument was that only the minor is having the personal right either to ratify or avoid the transaction, which could be exercised by him alone on attaining majority and that right cannot be allowed to be meddled by a guardian intervening and avoiding the transaction, thereby depriving the minor of the option to ratify the transaction when he becomes a major. The argument may, at first blush, find appealing, but it is not actually so.