PURUSHOTAMA RATHO Vs. BRUNDAVANA DASS

JUDGEMENT

(1.) This second appeal arises out of a suit by the plaintiff to recover certain properties purported to have been sold by his guardian on 20 March 1919 under Ex. 1 for Rs. 800 to defendants 1 to 3 and 10. Defendants 4 to 9 are members of. an undivided family along with defendants 1 to 3, and defendants 11 to 13 form one undivided family with defendant 10. The District Munsif found that the sale was not binding upon the plaintiff and gave a decree. On appeal the Subordinate Judge differing from the District Munsif found that the sale dead was executed for necessity and dismissed the plaintiff's suit. The plaintiff files this second appeal.

(2.) In second appeal plaintiff's advocate Mr. Jagannadha Das argues that there is no legal evidence in support of the necessity relied on by the defendants. But before I discuss this question it will be convenient to dispose of another point raised by Mr. Sambasiva Rao the learned advocate for the respondents as it arises first; in logical order; it is that the suit is barred by limitation. This point was raised by issue 1. Both the lower Courts have found that the plaintiff's suit was brought more than three years after he attained majority. Mr. Sambasiva Rao contends that Art. 44 applies to the suit and the suit is therefore barred by limitation.

(3.) Now suits brought by persons to set aside alienations by their guardians during their minority may be divided into three categories: (1) Where guardians are de jure guardians. Such suits are obviously governed by Art. 41, This is not denied by the appellant's advocate: see Fakirappa Limanna V/s. Luminna Mahadu [1920] 44 Bom. 712 in which certain observations suggesting the opposite view in Balappa V/s. Chanbasappa [1915] 33 I.C. 444 and Anandappa V/s. Totappa [1915] 17 Bom. L.R. 1137 were disapproved. (2) Alienations by de facto guardians. To this class Art. 44 does not apply: vide Thayummal, V/s. Kuppanna Koundan [1915] 38 Mad 1125 and Ramaswami Pillar V/s. Kasinatha Ayyar . Such alienations by de facto guardians can be ignored by a minor and he can bring a suit within me larger period, generally 12 years allowed by the general law. The transactions are not void because, if the alienations were for justifiable necessity, they may be upheld wholly or partially. They are only void able, but one has to use the term " voidable " carefully in respect of such cases. Voidability by minors of such alienation is analogous to the voidability of widows alienations by the reversioners who can ignore the widow's alienations and bring a suit within 12 years under Art. 141: see my judgment in Appavu Naicken In Re A.I.R. 1931 Mad. 377. The word " voidable " in such cases is not used in the same sense in which it is used in the law of contracts: see also In the matter of, Amrithalinga Tevan Where the alienation is made by a person who pretends to be a guardian though he is not the real guardian and is only an intermeddler just for the purpose of the transaction. It is unnecessary to discuss the incidents of the third category as it is agreed on both sides that the present suit does not fall under that category.