JISHA CHACKO Vs. SREELA

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. Al. Thereafter, acting as natural guardian of the minor, Balakrishnan Nair sold all the plaint items. I tern No. 4 was sold to vellan, predecessor of defendants 3 to 6, under Ext. B7 and Item Nos. 1 to 3 to the second defendant under Ext. Bl. It was thereafter that Nettyar got her appointed as guardian and filed the suit for cancellation of Exts. B1 and 7 and recover the properties, the grounds being that the sale deeds are in violation of S. 8 (2) of the Hindu Minority and Guardianship Act (for short, the act) and not to the benefit of the minor.

(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.) ARGUMENT pre-supposes the exercise of the volition personally by the minor on attaining majority and by the guardian or next friend during his minority on his behalf as two independent exercises. If that argument is accepted, no minor or other person of disability could file a suit during the period of his disability to protect his interests through a guardian or next friend. That may seriously prejudice him. Many of the benefits available by an immediate relief may be lost to the minor by lapse of time. In fact, in the suit, the real plaintiff is the minor. The guardian or next friend is not a party to the suit in the proper sense of the term. He only represents the minor's interest and acts for him as if the minor himself is acting. Because of the disability, he cannot act by himself and he could do so only through some other competent person. The action of that person is treated as that of the minor himself and is binding on him subject to vitiating factors like fraud, collusion, negligence, etc. The court is there to protect the rights of all concerned, including the minor, to decide whether the actions of the guardian are devoid of any vitiating factors and they are of such nature, which the minor himself would have resorted to if he was not incapacitated. Thus, for all factual and legal purposes, exercise of the volition by the guardian is exercise by the minor himself and permission of such exercise is necessary, in the interest of the minor or other persons of disability. That is why the statutory provisions, like those contained in Order XXXII of the Code of Civil procedure, are introduced to safeguard the interests of persons of disability. From the pleadings, evidence and circumstances, it is not possible to infer that there is the possibility of any vitiating factor, including fraud or collusion between the guardian appointed by the court and the natural guardian.