KAILASH CHANDRA PRADHAN Vs. RAJANI KANTA PANDA

JUDGEMENT

(1.) This is an appeal by defendant 1 against a decision of the Additional Subordinate Judge of Cuttack reversing a decision of the Munsif of Balasore and granting to the plaintiff-respondent a decree de-daring his title and awarding him possession of 3.94 acres of land. There is no dispute that this land did belong to the plaintiff but defendant 1, the appellant, claimed the land by virtue of a document executed by defendant 2 in his favour on 18 July 1980. Defendant 2 is the step-mother of the plaintiff and before us it has not been disputed that she was the de facto guardian of his property during his minority. The document of 18 July 1930 was a sale deed with a conditional right of repurchase and was executed by defendant 2 on behalf of the plaintiff.

(2.) The only question now before us is whether the suit was barred by limitation. The trial Court held that the suit was barred under Art. 44, Limitation Act, as the plaintiff had attained majority more than three years before he filed the suit. The lower appellate Court held that Art. 44 did not apply but that Art. 144 applied and the suit was in time as having been brought within 12 years of the date of alienation. The learned Subordinate Judge on appeal relied on certain decisions for the conclusion that Art. 144 and not / rt. 44 was applicable. Of the cases cited by him in sup- port of this proposition, those reported in Thayammal v. Kuppanna Koundan A.I.R. 1915 Mad. 659, Ramaswamy Pillai V/s. Kasinatha Iyer A.I.R. 1928 Mad. 226 and Purushotama Ratho V/s. Brundavana Das A.I.R. 1931 Mad. 597 held that Art. 44 was not applicable to suits regarding alienations made by de facto guardians.

(3.) On behalf of the appellant the decisions in Dipohand V/s. Munni Lal and Bangarammal V/s. Lydia Kent A.I.R. 1934 Mad. 605 were cited to prove that Article 44 is not restricted -to alienations made by guardians appointed by the Court under the Guardians and Wards Act. But the former of these two cases dealt with a Hindu mother acting as guardian of her minor son and although it is not specifically stated in the judgment that she was his natural guardian the whole judgment proceeded on this assumption and there is no (reference to de facto guardian. The second of the these cases dealt with an alienation by a Christian widow acting as guardian of her two minor daughters and she was treated by the Court as the natural guardian though it was stated that the powers of a mother as guardian in communities not governed by the Hindu or by the Mahomedan law did not appear to have formed the subject of express judicial decision. I do not think it follows that the same article of the Limitation Act will necessarily apply in the case of alienations by a de facto guardian. The learned advocate for the appellant was unable to cite any case of an alienation by a person who was clearly a de facto guardian and not a natural guardian or a guardian appointed by the Court in which Art, 44 had been applied. He argued, however, that the three decisions mentioned above on which the learned Subordinate Judge relied followed the Privy Council decision in Mata Din V/s. Ahmed Ali (12) 34 All. 213 in which it was held in a case governed by the Mahomedan law that where elder brothers had alienated property acting as guardians of their minor brothers for payment of an ancestral debt, though the alienation was not proved to be made for necessity or beneficial to the minor, the minor was not bound by the transaction and that a suit brought by him to recover possession after redeeming a valid mortgage on the property was not barred by Art. 44. It is urged for the appellant that this decision of the Privy Council proceeded on the basis that an alienation by the elder brothers was void and not merely voidable, whereas it has been decided in the case of alienations by a de facto guardian of Hindu minors that such alienations are not void but merely voidable and if made for legal necessity are valid. Now I do not find that their Lordships of the Judicial Committee in Mata Din V/s. Ahmed Ali (12) 34 All. 213 used the word "void" in respect of the alienations with which they were dealing though from the statement of facts this word appears to have been used by the lower Courts. Their Lordships also clearly left open the question whether according to the Mahomedan law a sale by a de facto guardian if made of necessity or for the payment of an ancestral debt affecting the minor's property and if beneficial to the minor was altogether void or merely voidable. I do not think it is necessary to refer to all the decisions in which it has been held that in the case of a Hindu minor, alienations by the de facto guardian may be valid if made for legal necessity. It is sufficient to refer to the Full Bench decision of the Bombay High Court in Tulsidas Jesingbhai V/s. Vaghela Raisingji and the cases there cited. The appellant cited various decisions to show that alienations by de facto guardians of Hindu minors are voidable and not void including Seetharamamma V/s. Appiah A.I.R. 1926 Mad. 457 and Adeyya V/s. Govindu A.I.R. 1931 Mad. 274.