NELSON & OTHERS Vs. LEKSHMANAN NADAR & OTHERS

JUDGEMENT

(1.) PLAINTIFFS are the appellants. The suit property, 9 acres 24 cents in extent, belonged to Isaac Essiah. The 4th defendant is his widow, and the defendants 5 and 6 and plaintiffs 1 to 3 are his children. On 12 -7 -1118 defendants 4 and 5, the former acting personally and as guardian of the plaintiffs and the 6th defendant, sold the property for Rs. 200/ - to the 1st defendant as per Ext. V The 2nd defendant is the assignee of the 1st defendant; and the 3rd defendant is impleaded as one holding some interest under defendants 1 and 2. Plaintiffs claim 3/5 share in the property, divided in metes and bounds, ignoring Ext. V as not binding on them. The 2nd defendant contended that Ext. V. bound the plaintiffs, particularly since their right to question it had become barred under Article 44, Limitation Act. Though Ext. V recited the entire price as paid in cash at its execution, the courts below have concurred in finding that it was not supported by consideration. On that finding, the Munsif held the sale void and therefore decreed the suit as been in time allowed by Article 144, Limitation Act; but the Subordinate Judge held the sale voidable and therefore dismissed the suit as been beyond time allowed by Article 44. In this second appeal the plaintiffs support the position taken by the Munsif.

(2.) THE question is whether the sale of the plaintiffs' property by their guardian without consideration was void or voidable. It is freely conceded that Article 44 applies to alienation that are voidable, but not void; and that therefore this suit has to be allowed if Ext. V is void, or dismissed if it is voidable only.

(3.) IN Sham Chandra v. Gadadhar (13 C. L. J. 277) Asutosh Mookerji J. and Coxe J. have stated the law thus: