JUDGMENT Venkatarama Aiyar, J.

1. The plaintiff is the appellant in this second appeal. He is the son of one Ramayya Goundan who died sometime in 1931. The family of Ramayya Goundan consisted, at that time, of his two wives, Ponnammal and Ramayee, two daughters by his first wife, Ponnammal, the elder of whom, Marayee, was married to Marappa Goundan the second defendant in the suit and the younger Karupayee was unmarried and the appellant who was his son by the second wife, Ramayee and at that time a minor aged about ten years. The properties which Ramayya Goundan owned were a land known as Kandan Kadu in which he owned 3 acres & 81 1/2 cents & a land called That tan Kadu in which he owned 2 acres and 82 cents subject to a usufructuary mortgage for Rs. 450 of which half was payable by him, and a house. Shortly after his death, disputes arose between the two widows and it is stated that they were settled by a panchayat.

On 10-12-1932, three documents came into existence and it is the validity of one of them that is in question in the present litigation. Ex. D. 3 is a deed of release executed by Ponnammal in favour of Ramayee giving up her right of maintenance over the estate; and Ex. D. 5 is a deed of maintenance executed by Ramayee in favour of Ponnammal fixing her annual maintenance at Rs. 50 and charging the land known as Kandan Kadu for its payment. Ex. D. 1 is a deed of gift of the land known as Thattan Kadu executed by Ramayee in favour of Karuppayee the second daughter of Ponnammal. It is this alienation that is attacked by the appellant as void and not binding on him. On 14-4-1943, Karupayee sold the properties, gifted to her under Ex. D. 1 to the second defendant her sister's husband for a consideration of Rs. 875, under Ex. D. 2 and he is the contesting defendant in this action.

2. The plaintiff challenges the validity of the gift under Ex. D. 1 on the ground that Ramayee acted in the transaction on her own behalf and not as his guardian; and that even viewed as an alienation by his guardian, it is not binding on him for the reason that it was beyond the power of the guardian to make a gift and that it could not be supported on the ground of any necessity. The defendant, apart from demurring to these allegations, pleaded that the suit was barred by limitation as it was filed more than three years after the plaintiff had attained majority and that he was further estopped from disputing the transaction as he had attested the sale deed Ex. D. 2. The learned District Munsif of Erode held that Ex. D. 1 was not executed by Ramayee as guardian of the plaintiff, that even otherwise the gift was invalid as it was greatly disproportionate to the status of the family, that there was no for of limitation and that further the plaintiff was not estopped by his attestation of Ex. P. 2 from raising the question of the validity of Ex. D. 1. In the result he decreed the suit.

The second defendant appealed against this decree and the District Judge who heard the appeal came to a different conclusion. He held that the gift must be taken to have been made by Bamayee as guardian of the plaintiff and that as the suit had been filed more than three years after the plaintiff had attained majority it was barred under Article 44 of the Limitation Act. In this view he did not consider it necessary to go into the question whether the allegation was binding on the plaintiff though he indicated that he would be prepared to up-hold it as valid. He also held that the plaintiff must have attested Ex. D. 2 with the knowledge of its contents and therefore, he was estopped from disputing the validity of Ex. D. I. In the result he allowed the appeal and discussed the suit. Against this judgment, the plaintiff prefers this second appeal.

3. The first question that arises for determination is whether the suit is barred by limitation. If it is, then no further question arises. It is contended on behalf of the respondent that as Ramayee was the natural guardian of the plaintiff under the Hindu law, any alienation by her must be set aside within the time limited by Article 44; that the plaintiff attained majority in 1939 and the suit instituted in 1945 is barred by limitation. This is not disputed by Mr. Parasurama Aiyar, the learned advocate for the appellant. He, however, contends that the present suit is not governed by Article 44 firstly because Ramayee had no power to make a gift under the Hindu law and the transaction was, therefore, beyond her competence and secondly because she did not purport to act as guardian of the plaintiff and there was no alienation by a guardian such as will fall within the purview of Article 44, Before dealing with these contentions, it is necessary to set out the material recitals in Ex. D. 1. It runs as follows:

"Deed of gift executed on the 19th day of December 1932 in favour of Karupayee Ammal, daughter of Ramayya Gounden, Vellala caste, ryot, residing at Melapalayam, Attavanaipidariyar village, Erode taluk, by Ramayee Animal, the junior wife of the said Ramayya Goundan aforesaid caste and calling, at the aforesaid village.

As you are the daughter of my husband's senior wife and due to the affection I have towards you I have given you the property worth Rs. 500 as a gift for the purpose of celebrating your marriage and making presentations etc. to you. Therefore, you, yourself shall hold and enjoy the said property with absolute rights and powers of alienation by way of gift, sale etc., from son to grandson and so on in succession."

In the schedule of property are included

"Government survey number 212 of the extent of acres 5-97 cents assessed at Rs. 8-3-0 out of which one-twelfth share belonging (to me) punja acre 0-49 9/12 assessed at Re. 0-11-3; punja bearing Government survey No. 213 of the extent of acres 9-34 assessed at Rs. 12-14-0 out of which on the east and to the west of the road, punja of the extent of acres 2-33 2/4 cents assessed at Rs. 3-3-6 belonging (to me) the lands of the above extents inclusive of the fruit bearing and timber trees therein."

4. On this deed, the first contention of Mr. Parasurama Aiyar is that it is void because Ramayee had no power as guardian to make any marriage gift. It is conceded that the estate of Ramayya Goundan would be liable to meet the marriage expenses of Karupayee but it is argued that it could not be burdened with a gift to her and that the power of a father or widow to make such a gift could not be exercised by the guardian of a minor. That contention is supported by the decision of a Bench of this court reported in -- 'Palanianimal v. Kothandaraman', ILR 1944 Mad 418 and Ex. D. 1 will, therefore, be prima facie not binding on the plaintiff. Mr. B. V. Viswanatha Aiyar the learned advocate for the respondent contended that Ex. D. 1 was not a gift to a married woman as in -- 'K. Palaniammal v. Kothandarama', ILR 1944 Mad 418 but a transfer made in discharge of an obligation to marry her.

It is somewhat difficult to follow this argument. When the appellant succeeded to the estate of Ramayya Goundan, he took it subject to the obligation of getting Karupayee married. Any alienation made for discharging this obligation will without question be binding on him, but Ex. D. 1 is not of that character. It is not a sale or a mortgage for raising funds for the marriage of Karupayee or for discharging any debts contracted in connection therewith. In fact Karupayee was married only two years later. It is difficult under those circumstances to construe Ex. D. 1 as anything but what it purports to be, that is a gift made to her out of affection, etc. In that view, the decision in -- 'Palaniammal v. Kothandaraman', ILR 1944 Mad 418 will apply and it must be held that it would not be binding on the plaintiff.

5. But it does not follow from this that the alienation is not one which is required to be set aside under Article 44 of the Limitation Act. Under the law, when a natural guardian having authority to alienate the properties of the ward for proper purposes effects a transfer which is in excess of that authority it cannot be put in the same position as an alienation by an unauthorised person. An unauthorised alienation by a lawful guardian is only voidable and must be set aside within the time prescribed by Article 44, unlike an alienation by an unauthorised person, which is void under the law and does not require to be set aside under that article. In -- 'Labhamal v. Malakram', 6 Lab, 447: AIR 1925 Lah 619 dealing with an alienation by a mother which was found to be not supported by any necessity, Shadi Lal C. J. observed as follows:

"Now, it is beyond dispute that the mother is, under the Hindu Law, a guardian of the property of her minor sons; and a conveyance by her is not a void transaction but voidable at the instance of the minors. It is true that the courts below have held that the sale was not for necessity, but that finding does not affect the nature of the transaction, which should be treated as an unauthorised transfer by an authorised guardian. If a sale Is effected by a person who is not the minor's guardian either according to his personal law or by appointment by the court, such a sale is a nullity and does not affect the minor's property. If on the other hand, the sale is made by a natural guardian who goes beyond the scope of his authority the transaction cannot be regarded as a nullity and will bind the minor unless he succeeds in impeaching it within the period prescribed by law. There is ample authority for the view that an unauthorised alienation by a guardian recognised by law is voidable and not void, vide 'inter alia' -- 'Lamaya v. Rachappa', 42 Bom. 626, -- 'Fakirappa Limanna Patil v. Lumanna Bin Mahadu Dhamnekar', 44 Bom 742 and -- 'Brojendra Chandra Sarma v. Prosunna Kumar Dhar, 24 C. W. N. 1016."

6. This view was reiterated in the decision reported in -- 'Khusiah v. Faiz Muhammad Khan', 9 Lah 33: AIR 1928 Lab 115, the court observing:

"An alienation by a natural guardian of the minor's property is a voidable and not a void transaction and the fact that it was not for necessity does not alter the nature of the transaction. In other words, it was an unauthorised transfer by an authorised guardian and the limitation, to set aside such a transfer is prescribed by Article 44. Vide inter alia -- 'Labha v. Malak Ram', AIR 1925 Lah. 619."

7. We are not here concerned with a deed which is void under some other provision of law such as Transfer of Property Act or Registration Act in which case there is in existence no transfer of property and therefore, no question of setting aside such a transfer. But where the transfer is operative and the question is whether it is binding on the ward or not it has to be set aside within the time prescribed by Article 44--Vide -- 'Sri Raja Sobhanadri Apparao Bahadur v. Raja Muganti Venkatarama Rao', 54 Mad 352 and -- 'Raja Ramasami v. Govindammal, 56 M.L.J. 332. It, therefore, follows that though the alienation by Ramayee under Ex. D. 1 was not binding on the plaintiff for the reason that it was not for a proper purpose, it was nevertheless one which had to be set aside under Article 44 and not having been so set aside the suit would be tarred.

8. It is next contended that Article 44 does not apply to the present case for the reason that the alienation under Ex. D. 1 was made by Ramayee not as guardian of the plaintiff but in her own personal capacity. This in fact is the substantial contention that arises for determination in this case. It cannot be doubted that if a person is not a party to a deed there is no need on his part to have it set aside and when the property of a minor is transferred under a deed executed by his guardian, he is under no obligation to have it set aside unless he is a party to it. The question, therefore, to be decided is whether on a fair construction of the deed of transfer, the minor can be held to be party to it and whether the transfer thereunder is made on his behalf. If the answer is in the affirmative, he is bound to have it set aside within the time prescribed by Article 44; if in the negative, he is entitled to ignore the transaction and a suit by him to establish his rights will not be governed by Article 44. The law on the subject is thus stated by Mulla:

"No act done by a person who is the guardian of a minor binds the minor unless the act was done by him in his capacity of guardian. It is a question of fact in each case whether a particular act done by a person was done by him in his capacity of guardian or on his own behalf and on his own account. In the former case the act binds the minor provided it was otherwise within the power of the guardian; in the latter case it does not. The mere fact that the name of the minor is not mentioned in a contract or in a deed of sale or mortgage is not conclusive proof that the transaction was not entered into on behalf of the minor."

9. In -- 'Watson & Co. v. Shamlal Mitter', 15 Cal 8 the mother and guardian of a minor executed two 'kabuliyats' and they were signed by her "as Haimabathi Dasi mother of Sham Lal Mitter, minor". In holding that the deed was in substance executed by Haimabathi Dasi as guardian of the minor, the Privy Council observed as follows:

"The addition of Haimabathi Dasi's name to the words 'Mother of Sham Lal Mitter' minor must in their Lordships' opinion be considered as meaning that she was contracting as the mother and guardian of her infant son and it cannot be presumed that Haimabathi Dasi claimed the estate adversely to her son and the substance of the case is that the estate being under her management as his natural guardian and the appellants being able to sue for an enhancement of the rent, she came to what appeared to be and she was advised was, a proper arrangement with them. If there were any doubt as to the capacity in which she acted it should be presumed that she did so in her lawful capacity."

This decision is authority for the position that if the minor's name is disclosed in some manner in the document it would be proper to presume that the guardian acted on behalf of the minor and not in her own right.

10. In -- 'Murari v. Tayana', 20 Bom 286 the facts were that the mother of the minor executed a sale deed in her own name without mentioning the name of the minor in the deed. It was held that though the sale deed did not purport to be on behalf of the minor it would be binding on him as it was the intention of the mother to deal with the interest of the minor. Reliance was placed on the decisions in which alienations by managers of joint Hindu families were upheld if they were for proper purposes, even though the transferor was not described as manager.

11. In -- 'Nathu v. Balwanand Rao', 27 Bom 390 the mother alienated the property on the footing that it belonged to her and not to the ward, and debts binding on the minor had been discharged with the sale proceeds. The minor challenged the alienation after he attained majority and it was held that the sate was not binding on him,

12. In -- 'Ammani Ammal v. Ramaswami Naidu', 37 M L J 113 the mother sold certain, properties of her minor son, asserting that they belonged to her. It was found that the consideration was applied in discharging debts binding on the minor. It was held that the alienation was not binding on the minor and that the decisions in which transfers by managers of joint family were upheld even though there were assertions of an exclusive title by the transferor, were distinguished, the court observing:

"Further in those cases documents of alienations were not mere waste paper conveying no title or interest whatever in the property alienated as in this case but did affect at least a part-ownership right of the legal alienor."

In that case, there was also a prayer by the plaintiff for cancellation of the sale deed. With reference to this prayer, Sadasiva Aiyar J, observed as follows:

'He also prayed in his plaint for the cancellation, if necessary, of the deed of February 1904 executed by his mother. I might at once say that not only is no such cancellation necessary but that the plaintiff has no legal cause of action to get the relief of the cancellation of a document which was not executed and which does not even purport to have been executed by himself or by anybody from' whom he traces his title."

The result of this decision is that when the guardian alienates the property of the minor setting up his or her own title it cannot be upheld as an alienation by that person in the capacity of a guardian and it is wholly void.

13. In -- 'Nandan Prasad v. Abdul Aziz', 45 All 497 the mother mortgaged the properties of her minor sons not as guardian but as the full owner but the amount raised by the mortgage was utilised for the benefit of the sons. In a suit to enforce the mortgage it was held that the mortgage was not binding on the minors as the mother must be taken to have acted not as their guardian but in her own capacity and the decision in -- 'Balwant Singh v. Clancy', 34 All 296 was followed. There the alienation was effected by an elder brother who claimed that the property belonged to him exclusively. It was held by the Privy Council that the younger brother who was a minor was not bound by the transaction.

14. In--'Muthiah Chettiar v. Rayalu Aiyar', 1943-2-M L J 548 which was a case of an alienation of joint family property Patanjali Sastri J. referring to the above cases observed as follows:

"In all these cases it will be observed that the transferor was really asserting an absolute title to the property in himself adversely to another person and could not, therefore, be considered as having represented that other person in making the transfer; for the position assumed by the former was quite inconsistent with any intention to act on behalf of the latter whose interest in the property transferred he was repudiating."

15. The result of the authorities may thus be summed up:

(1) Where there is an alienation of the property of a minor it will not be binding on him. unless he is a party thereto. 'Ammani Ammal v. Ramaswami Naidu', 37 M L J 113.

(2) Where the name of the minor is disclosed in the body of the document he must be held to be a party thereto notwithstanding any error or defect in description. 'Watson & Co. v. Shamlal Mitter', 15 Cal 8.

(3) Where the name of the minor is not disclosed in the deed of transfer, -- 'Murari v. Tayana', 20 Bom 286 is an authority for the position that that is not conclusive to show that the transfer was not made on behalf of the minor. This decision goes to the very verge of the law and its correctness is open to doubt in view of the observations in -- 'Margaret Lornie v. Abu Bucker Sait'. 1939-1-M L J 664 where it is pointed out that the transaction to be binding on a minor must purport to be on his behalf and in view of the observations in -- 'Ammani Ammal v. Ramaswami Naidu', 37 M L J 113 that alienations by a manager of a joint family do not furnish a proper analogy where there is an alienation by a guardian; which is one of the grounds on which the decision in -- 'Murari V. Tayana', 20 Bom 286 is based.

(4) Where the guardian alienates the property under an assertion of hostile title, the transfer cannot be regarded as one made by a guardian and it will be void.

16. In the light of the above observations, the terms of Ex. D. 1 may now be examined: It is a transfer "by Ramayee Ammal the junior wife of the said Ramayya Goundan" and not by the appellant represented by her as his guardian. His name is not even so much as mentioned anywhere in the deed. In the description of property also it is described as "belonging to me". Though in the original which is in Tamil there is no word equivalent to "to me", that is implied in the context and the official translation correctly brings it out. On these features the appellant argues that the alienation cannot in any sense be treated as effected by Ramayee in her character as guardian of the appellant.

The respondent on the other hand refers to Exs. D. 3 and D. 5 and argues that all the three deeds form part of one transaction and must be read together and that they show that there was one family arrangement with reference to the estate of Ramayya Goundan and as the appellant was the person entitled to it, it is reasonable to infer that Ramayee acted in these transactions on behalf of her minor son. There is considerable force in this reasoning but when we turn to the contents of Ex. D. 3 and Ex. D. 5 it is found that there is no mention of the appellant anywhere in these documents either. He has been sadly ignored. Turning to the description of the properties in those deeds, while Ex. D. 5 is couched in the same terms as Ex. D. 1 the language of Ex. D. 3 is explicit. It expressly declares that the properties belonged to the executant, Poonammal.

The studied omission of any reference to the appellant in all the three documents becomes significant when regard is had to the defence set up by the second defendant. His case is that on the eve of his death Ramayya Goundan gave oral directions as to how the properties are to be taken after him and that the three deeds were executed in pursuance of those directions. This is sought to be established by the evidence of himself and of several witnesses examined on his side. It is also stated that when disputes arose between the two widows, the panchayatdars asked them to act according to the wishes of their husband. Apart from Ex. D. 1, no title is now put forward to the properties on the basis of the directions stated to have been given by Ramayya Goundan treating them as non-curative will.

Indeed such a claim would he void under Section 57, Succession Act, Act 39 of 1925, but it is clear that in executing Ex. D. 1 Ramayee acted not as the guardian of her minor son but as the hand of her deceased husband carrying out his directions. In other words, she acted as the executrix of her husband under the non-curative will and it is for this reason that the minor is altogether ignored. There is, therefore, considerable force in the contentions of the appellant that Ex. D. 1 is not an alienation of the appellant's property by his legal guardian Ramayee but an alienation by Ramayee in her own right, and, in her assumed character as the executrix under an alleged non-curative will of her deceased husband.

17. On these facts, the alienation in question must be held to be void, as being a transfer by a guardian in assertion of a hostile title. The present suit is accordingly not governed by Article 44, Limitation Act, and as the property was in the possession of the usufructuary mortgagee, the suit is in time.

18. It remains to deal with the question of estoppel. The defendant pleaded that the appellant had himself brought about the sale in his favour, Ex. D. 2, that he attested it, that he had become a major at that time and that, therefore, he is estopped from disputing the alienation. If these facts are established, the plff will be precluded from laying any claim to the property. But what is found is that the appellant must have known about the nature of the transaction when he attested Ex. D. 2 and that he is, therefore, estopped. If the transaction was voidable, that finding will be sufficient to non-suit the plaintiff because attestation with knowledge of the contents of the sale deed must be hold to amount to an election to affirm the transaction under Ex. D. 1 and in the view taken by the learned District Judge that in substance the alienation under Ex. D. 1 must be considered as one made by Ramayee as guardian of the plaintiff, the conclusion would be correct.

But when it is held, as I now hold, that Ex. D. 1 is void, then there is no question of any election to affirm or disaffirm it and the plaintiff will not be precluded from recovering the property, merely by attesting Ex. D. 2. If there had been something more than mere attestation, if the plaintiff had himself brought about the transaction and held out Karuppayee as the true owner, then it would strictly be a case of estoppel. Indeed that was the plea of the defendant but that was shattered by the evidence of Karupayee who admitted as D. W. 2 that the plaintiff did not take part in the negotiations of the sale under Ex. D. 2. Therefore the plaintiff is not disentitled to relief by reason of his attestation.

19. In the result, the appeal must be allowed and the suit decreed with costs throughout. The plaintiff, however, is bound to pay to the second defendant the amount paid by him for discharging the usufructuary mortgage on the property with interest thereon at six per cent per annum from 13-5-1943, before he can recover possession of the properties. Leave refused.