SUDRA NADAN Vs. ANNAMALAI (DEAD)

JUDGEMENT

(1.) The defendant is the appellant. This Second Appeal arises out of a suit instituted by the plaintiff for partition and possession of the plaint property. The property belonged to the plaintiff and her sister, and during the minority of the plaintiff it was sold by one Sanjeevi Nadan, the husband of another sister of the plaintiff. The plaintiff's case is that the sale is not binding on her as Sanjeevi Nadan was not her guardian in law and that she is therefore entitled to recover possession of the property. The defendant, the purchaser of the property, contended that the sale is binding, that it was for a necessary and proper purpose that the property was sold and that the plaintiff's suit is barred by limitation. The Lower Court found that Sanjeevi Nadan, though a de facto guardian, was not the proper guardian of the plaintiff, that it was not proved that the plaintiff was benefited in any way by the sale of the property and that the suit was not barred by limitation. The finding of the learned Subordinate" Judge that the plaintiff was not benefited by any portion of the money paid by the defendant is a finding of fact and is binding on me in Second

(2.) Appeal. So the only two questions remaining for consideration are whether the sale by the de facto guardian in this case is binding on the plaintiff and whether the suit is barred by limitation. The question of limitation would depend upon whether Sanjeevi Nadan for the purposes of the sale is to be considered as a proper guardian of the plaintiff or as only an unauthorised person interfering with the plaintiff's property; for, if he can be considered to be a person entitled to deal with the minor's property, then Art. 44 would apply.

(3.) The plaintiff is an Indian Christian. It is argued on her behalf that under the personal law of the parties Sanjeevi Nadan is not her proper guardian and therefore the sale by him should be considered to be a sale by an unauthorised person. The argument is that for that reason the sale is an absolutely void transaction. Under the Hindu Law it has been held in a series of cases that a sale by a de facto guardian on behalf of a minor is a voidable transaction and that Art. 44 of the Limitation Act would apply. That was also the position under the Mahomedan Law till the Privy Council finally decided that sales by de facto guardian under the Mahomedan Law are void transactions in Mata Din V/s. Ahmad Ali (1911) L.R. 39 I.A. 49 : I.L.R. 34 A. 213 : 23 M.L.J. 6 (P.C.). It has now been finally held in the case of persons governed by the Mahomedan Law following this decision (see Imambandi V/s. Mutsaddi (1918) L.R. 45 I.A. 73 : I.L.R. 45 C. 878 : 35 M.L.J. 422 (P.C.)) that sales by de facto guardian under the Mahomedan Law are void transactions. There does not appear to be any decided case with reference to the point as to who the guardians of an Indian Christian would be. In Trevelyan on Minors, 6 Ed., at p. 60, it is stated: Failing the father and mother, and their appointees, no person, however nearly related, is of right entitled to the custody of minors, who are neither Hindus nor Mahomedans, or the guardianship of their property.