SIVANMALAI GOUNDAN Vs. ARUNACHALA GOUNDAN

JUDGEMENT

(1.) The suit has been brought by the assignee of a mortgage bond. The assignment was made by the guardian appointed under the Guardians and Wards, Act of the minor who became entitled to the mortgage. The question raised in the appeal is whether the assignment is void or voidable. Section 29 of the Act, which imposes a limitation on the powers of a guardian of the property, enacts inter alia that he shall not transfer any immovable property of his ward without the previous sanction of the Court. Then Section 30 goes on to say that a disposal by the guardian in contravention of this provision is voidable " at the instance of any other person affected thereby ". This section renders the transaction voidable and not void ab initio. Does "the fact that the statutory prohibition has been incorporated in the order appointing the guardian, clothe the prohibition with a quality which it does not otherwise possess? In other words, is the lower appellate Court right in holding that though the statute says that the transaction shall be voidable, it is nevertheless void as what has been infringed is the prohibition specially imposed by the order? The order must be taken to have done nothing more than embody the rule laid down in the section, for, that is the most effective way of bringing the rule to the notice of the guardian. When the statute says that the transaction shall be voidable, it is difficult to hold that merely because the rule is copied in the order of the Court, it can have the effect of producing a different legal result. We must therefore hold, differing from the lower Court, that the transaction is voidable and not void.

(2.) But does this advance the plaintiff's case? It is unnecessary to decide whether the words of Section 30 quoted above contemplate the avoiding of the transaction by a person other than the minor. There are certain matters which have since transpired, of which we think we are bound to take notice. The ward in question has attained majority and has avoided the transaction in the most inequitable way; he has repudiated his Guardian's Act and has filed a suit himself for the recovery of the mortgage money. Art. 44 of the Limitation Act provides that a suit to set aside a transfer of this sort by a ward who has attained majority, should be brought within a certain period. If the ward should allow-this period to elapse without bringing the suit, what would be the legal consequence? Taking the present case, would the plaintiff acquire, after the expiry of the period mentioned, an indefeasible right to the mortgage in virtue of Section 28 of the Limitation Act? In the circumstances that have happened, this question does not arise for decision. Here, that the transaction has been repudiated, is beyond controversy. It is far from correct to say that a minor cannot repudiate a transfer except by filing a suit under Art. 44 (Trevelyan on Minors, 5 Edition, p. 202; Muthukumara Chetty V/s. Anthony Udayar (1914) 29 M.L.J. 617 : I.L.R. 38 Mad. 867 at 877). It will be noticed that the statute makes the transaction voidable, it being unnecessary to enquire whether it was beneficial to the minor or not.

(3.) What, then is the position? There are two suits filed to enforce the mortgage; one by the assignee, that is, the present action and the other by the quondam minor. It is perfectly clear that both the suits cannot be decreed and it seems to us equally plain that the plaintiff cannot ask us to recognise his transfer when in fact the minor, at whose instance it is voidable, has in fact avoided it. It is said that if the minor's estate has been benefited, the benefit must be restored to the assignee before the transaction can be set aside. This is a question which arises, if at all, in the suitwhich has since been brought. In this connection we cannot help remarking that the plaintiff's conduct has been most obstructive. In the present action there were two attempts made to bring the ward on the record, one of them having been after he had attained majority. Owing to the plaintiff's opposition which we must characterise as most unwise, both the attempts failed.