VASU PILLAI Vs. PRABHAKARAN NAIR

JUDGEMENT

(1.) The question raised in this appeal is whether anybody other than the legal guardian of a minor can validly convey the properties belonging to the minor. The question is raised in respect of Nairs governed by the Travancore Nair Act, Act II of 1100. The present suit was instituted by the two plaintiffs who are the children of one Krishnan Nair Parameswaran Nair, who had executed a will dated 16.9.1101 in respect of the suit property. By virtue of that testament these plaintiffs became entitled to a half share in this property. When the father died both these plaintiffs were minors and before they attained majority, the entire property had been conveyed under two sale deeds Exts. I and II in favour of deceased Devaki Amma Narayani Amma, the mother of defendants 1 to 4. These defendants are in possession of the property on the strength of these two sale deeds. The first sale deed Ext. I was executed on 30.6.1107 and it is in respect of 35 cents out of the plaint property. The second sale deed Ext. II was executed on 21.3.1116 and it is in respect of the remaining 24 cents of the property. These sale deeds were executed on behalf of these plaintiffs also. The plaintiffs elder sister Bharathi Amma figured as their guardian in executing Ext. II. They had an elder brother Kesvan Nair Krishnan Nair, and it was he who figured as the guardian of these plaintiffs in executing Ext. I. This Kesavan Nair Krishnan Nair, was not the son of the aforesaid Parameswaran Nair and hence he did not acquire any right in the suit property. He was the son of the plaintiffs mother by her first husband. The plaintiffs have impeached both the sale deeds as absolutely void documents so far as their half share in the property is concerned for the reason that the persons who purported to act as their guardian in conveying their share had no legal authority to convey their property. It is also contended that there was no necessity to execute these sale deeds and that the documents are unsupported by consideration and have not conferred any benefit on the plaintiffs. The Trial Court held that the documents were executed by competent persons and that the plaintiffs are bound by the same. Accordingly their claim for partition and recovery of their half share in the property was disallowed and the suit dismissed. The lower appellate court came to a different conclusion and held that Krishnan Nair and Bharathi Amma who figured as the guardians of these plaintiffs in Exts. I and II respectively, had no authority to convey the plaintiffs share in the suit property and that the plaintiffs are entitled to ignore the sale deeds as void documents and to claim their share subject to the liability of their share of the fathers debt which is a subsisting charge on the property. The suit was therefore remanded to the Trial Court for passing decree for partition and for allotment to the plaintiffs their half share in the property. The contesting defendant has preferred this appeal challenging the correctness of the view taken by the lower appellate court on the question of the validity and binding nature of Exts. I and II.

(2.) The question as to who were the persons legally competent to act as the guardians of these plaintiffs during their minority, has necessarily to be determined in accordance with the personal or special law applicable to them. Such is the law embodied in the Nair Act, Act II of 1100. S.10 of the Act provides for the guardianship of the minor children in respect of their person and property. Sub-s.(1) of S.10 states that:

(3.) The principle is well settled that a minors property can be dealt with only by a person who has legal authority to act on behalf of the minor. A person who is not a lawful guardian of the minor cannot sell away the minors property. This principle was enunciated and emphasised by Lord Robson in Mata Din v. Ahmad Ali (ILR 34 Allahabad 213, PC) in the following words while dealing with the question whether the elder brothers of a Muslim minor who were functioning as the minors guardians could not sell away the minors property for discharging the debts binding on the minor: