KANCHERLA KANAKAYYA Vs. SRI RAJAH VENKATARAMAYYA APPARAO BAHADUR

JUDGEMENT

(1.) The question at issue in this appeal is, whether the transfer of the decree in favour of the 2nd defendant by his guardian ad litem to the 1 defendant is valid and whether the plaintiff is entitled to contend that it shall be deemed invalid. The Lower Courts have found that the transfer was not a fraudulent or colourable transaction and consequently the plaintiff cannot avoid it as being a transaction in fraud of creditors, but it is contended that inasmuch as the guardian ad litem did not obtain the sanction of the Court to the transfer it is void. This question has been considered in this Court and it has been held in Kancherla Kanakayya v. Mulpuru Kotayya . that the sanction of the Court to such a transfer even after a decree is necessary, and in this it follows the prior decision in Shaik Davud Rowther V/s. Paramaswami Pillai . which itself follows Virupakshappa V/s. Shidappa and Basappa (1901) I I R 26 B 109.

(2.) Order 32, Rule 7 (2), Civil Procedure Code, does not say that a transaction in which the sanction of the Court has not been obtained shall be void, but that it shall be voidable as against all parties other than the minor. That means that the minor can avoid the transaction on attaining majority if he thinks fit, or even earlier if some guardian on his behalf thinks fit to establish its invalidity. This has been held in Ishan Chandra Kundu V/s. Nilratan Adhikari (1923) ILR 2 Patna 538., Phulwanti Kunwar V/s. Janeshar Das (1934) 22 All. I, J 521 and Jita Singh V/s. Man Singh (1921) 62 IC 794.

(3.) It is now urged for the respondents that although the transaction is only voidable as against all parties other than the minor it is absolutely void as against the minor, but this cannot be so, otherwise the minor could not ratify it, if it were void ab initio.