1. The defendant is the appellant. The plaintiff claimed the suit property as belonging to him by virtue of a purchase under a document dated 9th May 1952, executed by one Murugesa Padayachi for a sum of Rs. 500. The plaintiff was a minor at the time when this property was sold to the defendant for a sum of Rs. 1,000 on 14th July 1956 by his mother. The father of the plaintiff was then alive and he died only in September 1965. According to the plaintiff, his father was the natural guardian and during his father's lifetime, his mother could not have assumed guardianship and further there was no justification or legal necessity for the sale. He sued for declaration of his title and possession. The suit itself was filed on 12th July 1968 within 12 years of the alienation by the mother.
2. The defendant resisted the suit and contended that the plaintiff's mother was acting as his guardian even when the property was purchased and that the father, though be was alive, had relinquished his right of guardianship in favour of the mother. According to the defendant, the father was heavily indebted and he therefore left the property and the minor to the guardianship of the mother. The family was said to be in dire need and straightened circumstances at the time of the sale in favovr of the defendant. The father had attested the sale deed in favour of the defendant. It was claimed by the defendant that the suit was barred by limitation as it was not filed within 3 years of the plaintiff attaining majority. The plaintiff had claimed mesne profits for three years preceding the suit and the defendant contested this claim also. The learned District Munsif rejected all the objections of the defendant and decreed the suit. He found that the alienation was not for necessity and was therefore not valid and binding on the plaintiff. He find also that the suit was not barred by limitation. On appeal the learned Subordinate Judge of Cuddalore accepted the finding of the learned District Munsif that there was no legal necessity for the sale. He was also of the view that the suit was not barred by limitation. The defendant is now on appeal before me contesting the conclusion of the courts below.
3. The learned counsel for the appellant did not challenge the finding of the courts below on the question of legal necessity for the sale. In other words, the fact that the alienation was not made for meeting any necessity is not in dispute. Therefore the questions that require to be considered are whether the mother could act as the lawful guardian of the minor at the time when the lather was alive and if she was not lawful guardian and acted only as a de facto guardian, whether the alienation made by her was binding on the minor or was void or voidable.
4. On the question as to whether the mother could act as the lawful guardian during the lifetime of the father. It is well-settled that the father is the natural guardian of the person and the separate proper y of the minor children, and that guardianship is in the nature of a sacred trust which cannot be transferred. It is only in his absence that the mother could have acted as the natural guardian. The learned counsel for the appellant relies on the decision in Palani Gounder v. Sellppan . I.L.R 1964 Mad. 748 in support of the proposition that the mother could act as the de facto guardian even during the lifetime of the father. That was a case where the whereabouts of the father were not known and it was in those circumstances, that the mother acted as the guardian. The principles laid down in that case have to be understood in the context of the fact that the father's whereabouts were not known. I do not consider the said decision as an authority for the proposition that even during the lifetime of the father, the mother could have acted as the guard an In the present case, there is no dispute that the father was alive at the time when the alienation was made as he had attested the sate deed and therefore the alienation was made by only a de facto guardian and not by a natural guardian.
5. With reference to an alienation by a de facto guardian, the question that arises is as to whether it is void or voidable Art. 60 of the Limitation Act, 1963, provides a period of three years from the date of the minor attaining majority for setting aside a transfer of property made by the guardian of a ward. The period of three years in the present case would expire on 20th September 1963. The plaintiff was born on 20th September 1942. He would have attained majority on 20th September 1960 and the period of three years would thus have ended on 20th September 1963. The suit was filed much later than that date. If Art. 60 were to be applied, then the present suit would be beyond the period of limitation so that the plaintiff cannot recover the property.
6. On this question as to whether Art. 60 applies to a case of this nature, the learned counsel for the appellant relied very strongly on a decision of Venkatarama Ayyar, J. as he then was, in Rangasami Gounder v. Marappa Gounder . 65 L.W 919. One Ramayya Gounden had two wives, a son and two daughters by his first wife. Shortly after his death, disputes arose between the two widows and they were settled by a panchayat. On 10th December 1932, three documents came into existence. One of the documents was a deed of gift executed by one of the wives in favour of the unmarried daughter. It was that alienation which was attacked as void and not binding on the son of Pamayya Gounder. It was held that though an unauthorised alienation by a lawful guardian would be only voidable and must be set aside within the time prescribed by Art. 44 of the Indian Limitation Act of 1908, an alienation by an unauthorised person was void under the law and did not require to be set aside under that Article. It was also pointed out in that case that where a widow made a gift of certain property, without describing herself as guardian of the minor son and without making any mention of the minor in the document, it would be a case of an assertion of hostile title by her and the transfer would be void, and that a suit brought by the son after more than three years of reaching majority would not therefore re barred by limitation under Art. 44 of the Indian imitation Act of 1908, corresponding to Art. 60 of the present Act. It may be seen from the facts mentioned above that the mother in that case acted at a time when the father was no more. That would be a case of a natural or a de jure guardian. On the facts it was found that the guardian had not exercised her powers as a guardian so that the property could be recovered by the erstwhile minor after he attained majority within a period of 12 years from the date of the alienation.
7. The question at to whether Art. 44 of the Indian Limitation Act 1908, corresponding to Art. 60 of the present Act, applied to de facto guardian has been the subject of consideration in more than one decision of this court. In Ethilavulu Ammal v. Pothakkal Satyanarayana Rao, J. considered that Art. 44 of the Limitation Act of 1908 applied to a suit by a ward who had attained majority to set aside the the transfer of properly by his guardian and that the period of limitation was three years from the date of the ward attaining majority It was pointed out that the guardian contemplated under Art. 44 was either a natural guardian or a testamentary guardian or a certified guardian and no others. It was specifically observed that the Article had no application to transfer of property of a minor by a de facto guardian. In support of this proposition, a decision of a Full Bench of this court in Chennappa v. Onkarappa was cited. Subsequently in Palaniappa Goundan v. Nallappa Gowden 5. 1951-1 M.L.J 265., Viswanatha Sastri, J. held that the word ‘guardian’ in Art. 44 of the Limitation Act must be interpreted as meaning only a lawful or de jure guardian and not as including a de facto guardian or manager under the Hindu Law. It was pointed out that the law regarded a minor as a party to the alienation through his guardian and that Art. 44 allowed only a period of three years for setting aside the transfer on attaining majority, but if a de facto manager of a minor's estate improperly alienated his property, the alienation was one to which the minor is not a party through his legally authorised representative and did not require to be set aside within the period limited by Art. 44 and that the setting aside of the transaction was not a condition precedent to the minor recovering the property from the alienee and therefore the minor could sue for possession of the property within the period limited by Art. 142 or 144 of the Indian Limitation Act, 1908.
8. In view of these decisions it is clear that the alienation contemplated by Art. 60 is the alienation by a lawful or a de jure guardian and that alienation by the de facto guardian is not covered by that Article. It would therefore follow that the period of limitation prescribed under that Article would not apply to an alienation made by a de facto guardian as the one here.
9. There is no dispute that if Art. 60 is out of the way, then the present suit is within time. I therefore hold that the courts below came to the correct conclusion on the question of limitation.
10. The learned counsel for the appellant pointed out the inequity resulting from the conclusion to which the courts below have arrived. In a matter like this, the quest on of equity has absolutely no place for consideration. The matter is governed by the statute of limitation and by the personal law of the parties. If under the personal law, a person who had made the alienation, could not have entered into the transaction, then any complaint that inequities resulted from that transaction would have no relevance.
11. The second appeal fails and is accordingly dismissed. There will be no order as to costs. No leave.
VCS