SANTHA Vs. CHERUKUTTY

JUDGEMENT

(1.) A short question of law, riddled with difficulties and conflicting precedents, falls for decision is these second appeals. I must express right at the outset my deep appreciation of the thoroughness with which counsel for the respondent, Shri. T. P. Kelu Nambiar, argued the case, of course, doing his duty to the court by bringing to my notice rulings, reported and unreported, speaking for and against his standpoint.

(2.) A decree for partition was passed in O.S. No. 138 of 1952 whereby the C schedule properties thereto were allotted to the widow and minor daughter of the 2nd defendant who died pending the suit and was represented thereafter by his widow and only daughter. Thereafter, on 12-4-1957 the mother, i. e. the widow of the deceased 2nd defendant, transferred the property so allotted to the plaintiff, Kannan, acting for herself and as guardian of her minor daughter. It may be mentioned right away that the mother and daughter were entitled to equal shares in the C schedule property. The minor thereafter married and her husband took a different view of the situation. For, he felt that the assignment was wrongful and injurious to his wife's interests and, ignoring the transfer to the plaintiff, proceeded to execute the partition decree acting as the guardian of his minor wife. The respondent, i.e. the plaintiff, raised the plea that the minor daughter could not execute the decree without setting aside the transfer effected on her behalf and as her guardian by her mother. If the transfer was void or had been avoided validly without the intervention of the court, there was no need to set aside the sale as such by suing in that behalf. But if the transfer had to be get rid of only by a decree setting it aside, the execution petition could not be sustained since the minor had lost her property by Exts. P1 and P2 and could not regain it until a decree had been passed setting them aside. It must be assumed for the purpose of this discussion that the mother when she executed Exts. P1 and P2 on 12-4-1957 was the natural guardian of the minor. The key question is as to whether a minor, whose property had been transferred by her natural guardian, can avoid it or should get it set aside by a decree even if the sale be in contravention of S.8 of the Hindu Minority and Guardianship Act, 1956, it being admitted that the parties are Hindus governed by that Act.

(3.) A manager of a Joint Hindu family alienating family property has only limited powers. So also a Hindu widow vis a vis the reversioners to the estate of her husband. A guardian of a minor or a trustee of a temple stands more or less on the same footing. It has been laid down more than a century ago in Hanuman Prasad's case that the power of the manager of an infant heir to charge an estate, not his own, is, under the Hindu Law, a limited and qualified power. The question in that case was as to the extent of the power of the mother as manager of the estate of her minor son to alienate the estate, but the principles laid down in that case have been held to apply to alienations by the managers of joint families, of religious endowments, of the estates of lunatics and by Hindu widows. Supposing an alienation were made by a person authorised, only under circumstances in their nature variable, to dispose immovable property and transfers such property in excess of his powers, how can such an alienation be got rid of Can it be done by a unilateral repudiation by the affected party or can it be said that even that is not necessary, the transaction being void or a nullity Is there force in the other extreme contention that a transaction so entered into is neither void nor can be avoided by the affected party by a unilateral act, but could be got rid of only by a suit to set aside the transaction The basic decision which throws considerable light on the controversy high lighted by me now is the one reported in Ramaswami Aiyangar v. Rangachariar ( 1940 (1) MLJ 32 ) where Leach, C. J., discussed these precise problems and held that such transactions in excess of the limited authority of the manager or guardian or widow did not require to be cancelled or set aside through court. In cases where minors are involved, the property may be owned by the joint family and although a junior member's presence or junction may be unnecessary, be may be joined in the transaction and got represented by the Kartha or some other person as his guardian. It may also be that where the property belongs to the minor and not to a joint family, a guardian may act on his behalf and that way it may be stated that the minor is eo nomine a party to the transaction. Leach, C. J., took the view that where decrees have been passed in suits to which junior members or guardians have been made eo nomine a party, "such decrees bind him until set aside, and therefore he cannot seek to obtain a decision on the footing that his interest in the joint family property is not affected by them". However, where transactions had not ripened into decrees, the learned Judge held that there was a substantial difference in the substantive law. His Lordship continued to deal with it and observed: