Judgment :- 1. Plaintiffs are the appellants. 2. The suit property, 9 acres 24 cents in extent, belonged to Issac Essiah. The 4th defendant is his widow, and the defendants 5 & 6 & plaintiffs 1 to 3 are his children. On 12 71118 defendants 4 and 6, the former acting personally and as guardian of the plaintiffs and the 6th defendant, sold the property for Rs. 200/-to the 1st defendant as per Ext. V. The 2nd defendant is the assignee of the 1st defendant; and the 3rd defendant is impleaded as one holding some interest under defendants 1 and 2. Plaintiffs claim 3/5 share in the property, divided in metes and bounds, ignoring Ext. V as not binding on them. The 2nd defendant contended that Ext. V bound the plaintiffs, particularly since their right to question it had become barred under Art.44, Limitation Act. Though Ext. V recited the entire price as paid in cash at its execution, the courts below have concurred in finding that it was not supported by consideration. On that finding, the Munsiff held the sale void and therefore decreed the suit as been in time allowed by Art.144, Limitation Act; but the Subordinate Judge held the sale voidable and therefore dismissed the suit as been beyond time allowed by Art.44. In this second appeal the plaintiffs support the position taken by the Munsiff. 3. The question is whether the sale of the plaintiffs' property by their guardian without consideration was void or voidable. It is freely conceded that Art.44 applies to alienations that are voidable, but not void; and that therefore this suit has to be allowed if Ext. V is void, or dismissed if it is voidable only. 4. In Beeyyathumma v. Moidin Haji (1958 KLT. 602) Vaidialingam J., with the concurrence of Kumara Pillai J., has held that alienations by guardians, though not supported by consideration or justifiable necessity, "are not void, but only voidable requiring to be set aside under Art.44." Counsel for the appellant contended that transactions not supported by consideration cannot be put on a par with those not for justifiable necessity; and that guardian's alienations affected by the former defect would be void, while those affected by the latter defect would be voidable only; and that the dictum in 1958 KLT. 602 required reconsideration as regards alienations without consideration. 602 required reconsideration as regards alienations without consideration. It is for such reconsideration that this case has been posted before this Full Bench by the learned Chief Justice. 4A. As the dictum in 1958 KLT. 602 has apparently been drawn from precedents, a careful scrutiny of the rulings relied on is pertinent here. In Rangaswami Goundar v. Marappa Goundar (1952, 2 MLJ. 506) the "substantial contention" was "that Art.44 does not apply to the case for the reason that the alienation under Ext. D1 was made by Ramayee not as guardian of the plaintiff but in her own personal capacity". After a lengthy discussion Venkatarama Aiyar J. concluded: "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 Art.44, Limitation Act". 4B. 6 Lahore 447,9 Lahore 23,34 I. C. 138,40 MLJ. 475, AIR. 1936 Madras 346,1951-1 MLJ. 265, AIR. 1955 Madras 369, AIR. 1956 Madras 670 and AIR. 1956 T.C. 107 did not concern the effect of want of consideration in guardian's alienations. The impugnment was only of the necessity or the purpose of the alienations concerned. 4C. In Madugula Latohiah v. Pally Muklcalinga (30 Madras 393) the plaintiff's mother, who obtained a decree for possession of property mortgaged to the plaintiff, assigned the decree to the 1st defendant for Rs. 100. The court found the assignment "invalid on the ground that the consideration therefor was not such as to justify the transfer of the plaintiff's interest by the guardian and also on the ground that the assignment was without permission of the Court." It was held that the plaintiff ought to have sued to set aside the assignment within time allowed by Art.44 if he wanted to recover the property from the 1st defendant. It must be noted here that the consideration for the transfer was found though the assignment was not for any purpose binding on the minor. 4D. In Kandasami Naiken v. Irusappa Naiken (41 Madras 102) ancestral property belonging to two Hindu brothers, defendants 2 and 3, had been sold by their mother in 1893 to the plaintiff, her son-in-law, and, in doing so, she acted for herself and as guardian of the minor 2nd defendant but mentioned nothing about the 3rd defendant who was a posthumous son then in her womb. The 2nd defendant attained majority in 1903. Acting for himself and as guardian of the 3rd defendant he sold the property in 1908 to the 1st defendant; and the latter in 1909 ousted the plaintiff who had been in possession since 1893. The suit was instituted in 1912 for restoration of possession with mesne profits. The court found that the sale to the plaintiff was without consideration or justifiable necessity. Sadasiva Iyer, J. held: "As the second defendant's right to institute a suit under Art.44 for setting aside the sale of 1893 and for possession of the property from the plaintiff became barred in 1906, his right to such property became extinguished under S.28 of the Limitation Act and the plaintiff became the owner of the second defendant's interest in the property in 1906. As he has brought the suit in 1912 and as his title to the second defendant's interest of which he became the owner in 1906 subsisted at the date of the suit, his claim for possession of such interest has to be decreed ... the plaintiff cannot claim any title to the third defendant's interests in the properties." Spencer, J., delivered a separate judgment agreeing with the above reasoning. Though their Lordships have accepted the finding of the courts below that the sale to the plaintiff was for no consideration, the judgment does not advert to the effect thereof on the transaction. No doubt their Lordships assumed Art.44 to apply; but the result could not have been different under Art.144 since the plaintiff had been in possession of the property for 16 years of which six years were after the 2nd defendant had attained majority. Under S.7, Limitation Act, the 2nd defendant could not have more than 3 years after attainment of majority to evict the plaintiff, as 12 years from the date of his purchase had expired earlier. The observation "the plaintiff became the owner of the second defendant's interest in the property in 1906" indicates that their Lordships did not find title to pass under the sale of 1893 by the guardian but only as a result of continued adverse possession which became unchallengeable by him on the expiry of 3 years after attainment of majority. The observation "the plaintiff became the owner of the second defendant's interest in the property in 1906" indicates that their Lordships did not find title to pass under the sale of 1893 by the guardian but only as a result of continued adverse possession which became unchallengeable by him on the expiry of 3 years after attainment of majority. Though ordinarily great weight is attached to the decision of that eminent Judge, Sadasiva Ayyar, J., I am afraid that the same respect cannot be extended to the decision in (1917) 41 Madras 102 which was passed sub silentio. I say so because: firstly, the effect of a guardian's sale for no consideration has not been adverted to at all in the judgment; secondly, the distinction between void and voidable alienations did notarise in the case as the result would have been the same in either case; and thirdly, the applicability of Art.44 to void alienations (as distinct from voidable ones) was not considered there probably on account of the decision of the Privy Council in (1900) 23 Madras 271, where a sale by guardian was held 'void' and yet within the scope of Art.44, which decision came to be explained by a Bench of the Madras High Court in 56 MLJ. 332 decided on 1st November 1928 only, eventhough, as a matter of fact, the Privy Council had held Art.44 inapplicable to void alienations in (1911) 34 Allahabad 213 (222-3). 4E. I think it is worthwhile quoting here the passage in Salmond on jurisprudence on decisions sub silentio: "A decision passes sub silentio, in the technical sense that has to be attached to that phrase, when the particular point of law involved in the decision is not perceived by the Court or present to its mind. The court may consciously decide in favour of one party because of point A, which it considers and pronounces upon. It may be shown, however, that logically the court should not have decided in favour of the particular party unless it also decided point B in his favour; but point B was not argued or considered by the court. In such circumstances, although point B was logically involved in the facts and although the case had a specific outcome, the decision is not an authority on point B. Point B is said to pass sub silentio (Eleventh Edition, page 212)". In such circumstances, although point B was logically involved in the facts and although the case had a specific outcome, the decision is not an authority on point B. Point B is said to pass sub silentio (Eleventh Edition, page 212)". A practical application of the above principle is in 56 MLJ. 332 cited below. 4F. Gnanasambanda Pandara Sannadhi v. Velu Pandaram (23 Madras 271 P. C.) is cited by Vaidialingam, J. as authority for the proposition "that Art.44 will apply to all transactions by an authorised guardian". Though the learned judge's observation is justified on the wording of that decision, its correctness is open to doubt in view of the later decision of the Judicial Committee in 34 Allahabad 313 (mentioned supra). Even without noticing that later decision, a Division Bench of the Madras High Court, constituted by Wallace J., and Thiruvenkatachariar, J., has explained the decision in 23 Madras 271, in Raja Ramaswami v. Govindammal (56 MLJ. 332 at 342-4) thus: "The appellant's Advocate relies also on the observations of their Lordships of Privy Council in Gnanasambanda Pandara Sannadhi v. Velu Pandaram (ILR. 23 Mad. 271 at 279). In that case the minor Chockalinga's mother sold his right of management of a pagoda for a consideration. The sale was made on 17th September, 1868 and from that time the purchaser was in enjoyment of the office and its endowments. The minor attained majority in 1880 and brought the suit in August 1892 for recovery of the office and possession of the immovable properties forming the endowment of the temple. Their Lordships held that the sale by the mother of the office was void and did not give any title to the purchaser which remained in the minor and the possession which was taken by the purchaser was adverse to him. Their Lordships in upholding the plea of limitation raised by the defendant observed as follows: "Chockalinga attained majority in 1.880 and had by Art.44 of the Act three years for suing to set aside the sale by his guardian. He did not do so and by S.28 of the Limitation Act his right became extinguished. Their Lordships are of opinion that there is no distinction between the office and the property of the endowment. The one is attached to the other; but if there is, Art.144 of the same schedule is applicable to the property. He did not do so and by S.28 of the Limitation Act his right became extinguished. Their Lordships are of opinion that there is no distinction between the office and the property of the endowment. The one is attached to the other; but if there is, Art.144 of the same schedule is applicable to the property. That bars the suit after twelve years' adverse possession." This case was relied on as supporting the contention that Art.44 applies even to an alienation by the guardian which is void and under which no title passes to the purchaser. The observations of their Lordships may seem open to that construction. But when the facts of the case are looked at, it will be seen that the purchaser of the office under the void sale held possession thereof and of its endowments adversely to the minor for more than the statutory period prescribed by Art.144 and their Lordships held that the suit was also barred under that article. Whether Art.44 applies or not, the minor had three years under S.7 of the Act after he became a major for bringing the suit and as he did not bring the suit within that period his title became extinguished under S.28. In the other cases referred to above, their Lordships clearly lay down that a suit to set aside the sale has to be brought because the purchaser acquires a title under the sale, though it is defeasible at the instance of the plaintiff. In other words, Art.44 applies to transfers which are voidable and not void. The view taken in these cases must be followed as the point directly arose in them and was the basis of their Lordships decision, whereas in Gnanasambanda Pandara Sannadhi v. Velu Pandaram the suit was in any view held to be barred whether under Art.44 or Art.144. In the present case there is no question of the sale being void. We have already disposed of the contention raised on behalf of the respondent that the transfer under Ext. I was really a gift and was therefore void as one which we cannot accept as correct. We are therefore of opinion that if this suit had been brought by the 1st defendant himself it would be barred under Art.44 of the Limitation Act." The nature of the alienation concerned in 56 MLJ. I was really a gift and was therefore void as one which we cannot accept as correct. We are therefore of opinion that if this suit had been brought by the 1st defendant himself it would be barred under Art.44 of the Limitation Act." The nature of the alienation concerned in 56 MLJ. 332 case can be understood from the following observation of their Lordships at page 336 of the report: "We accept the finding that the sale was made for consideration but that it is not shown that it was made for any purpose binding on the minor to any extent." 4G. In Sankaranarayana Pillai v. Kandasamia Pillai (AIR.1956 Madras 670 F. B.) the alienation by the guardian for Rs. 1550/- was contended to be inadequate as the properties were worth Rs. 3000 - & the suit was instituted within three years of the plaintiff's attainment of majority. The question before the Full Bench was of the sufficiency of the court fee paid. The general observation "a transaction entered into by a guardian relating to the minor's properties is not void and if the minor does not sue to set it aside within 3 years of his attaining majority it becomes valid under Art.44, Limitation Act", made in the context of that case cannot be taken as laying down the law for all circumstances inclusive of a total absence of consideration for the alienation. Every ruling has to be understood in the set up of facts in which it is declared. 4H. Thus a scrutiny of the rulings cited in 1958 KLT. 602 discloses that none of them is an authority for the proposition that a guardian's alienation, though for no consideration, comes within the ambit of Art.44, Limitation Act. 5. In Sham Chandra v. Gadadhar (13 CLJ. 277) Asutosh Mookerji, J., and Coxe, J., have stated the law thus: "In order to determine whether the plaintiffs are entitled to recover possession of the property covered by the conveyance without cancellation of the instrument, it is essential to determine the true character of the transaction. If it is void and inoperative in its inception, it is not necessary for the plaintiffs to seek the cancellation of the instrument. If, on the other hand, the transaction is merely voidable and is operative so long as it is not avoided, the plaintiffs cannot recover possession till they have avoided the instrument. If it is void and inoperative in its inception, it is not necessary for the plaintiffs to seek the cancellation of the instrument. If, on the other hand, the transaction is merely voidable and is operative so long as it is not avoided, the plaintiffs cannot recover possession till they have avoided the instrument. Now, in the case before us, the plaintiffs alleged that the consideration mentioned in the conveyance was fictitious, and that it was inoperative from its very commencement ... This (Art. 44) obviously applies only to cases in which the plaintiff seeks to set aside a genuine transaction. If, therefore as the plaintiffs allege, the conveyance executed by their mother, is wholly inoperative because the consideration was fictitious, it is not necessary for them to have the sale set aside; in other words, if the facts are as alleged by the plaintiffs, the defendants never acquired any title under the conveyance, and the plaintiffs are entitled to recover possession from them as trespassers. If, on the other hand, there was consideration for the sale, although the conveyance was executed by the mother of the plaintiffs in excess of her authority, as explained by their Lordships of the Judicial Committee in Hunoomanpersaud v. Mussamat Babooee (6 MIA. 393) the plaintiffs may be entitled to have the instrument set aside and to recover possession. This was followed in Baidi Singh v. Singrai Murmu (AIR. 1962 Orissa 170). 6. Counsel for the alienee cited several rulings in which sales by managers of Hindu joint families, karnavans of Marumakkathayam tarwads and guardians of minors have been held voidable for want of necessity binding the persons affected, and contended that a sale wanting in consideration must also be held likewise voidable. We do not feel the analogy real. Nor do we think that alienations by guardians of their wards' properties can be on a par with conveyances by absolute proprietors, which latter was the subject of consideration in Chandrashankar Manishankar v. Abhla Mathur (AIR. 1952 Bombay 56) and Sukaloo v. Punau (AIR. 1961 Madhya Pradesh 176). 7. The property of a minor is never regarded as been vested in his guardian. But, a guardian is conceded a limited power to alienate the minor's property for the necessities of the minor. 1952 Bombay 56) and Sukaloo v. Punau (AIR. 1961 Madhya Pradesh 176). 7. The property of a minor is never regarded as been vested in his guardian. But, a guardian is conceded a limited power to alienate the minor's property for the necessities of the minor. He has no power to gift the minor's property, for that cannot be to meet a necessity or be beneficial to the minor. Consequently a gift of minor's property by a guardian is held incompetent and void. "Neither a general guardian nor a court has the power to dispose of a ward's property by way of a gift... the purchaser acquires no title when there is a real total failure of consideration." (Corpus Juris Secundum, Vol. 39, pages 123; and 131-2.) In Rathinasabapathy Pillai v. Saraswathi Ammal (AIR. 1954 Madras 307) it is held well-established that a Hindu father has no power to gift away, property in which his minor sons have an interest, except to a small extent for pious purposes, and "a gift otherwise is void in its inception" so that the minors can "ignore the gift and sue to enforce their rights to the property". In Mylavarapu Subba Rao v. Mangalampalli Ramamurti (AIR. 1958 Andhra Pradesh 626) a gift by the guardian of a Hindu minor's property is held "void as being beyond his competence to make." 8. Luchmeswar Singh v. Chairman of the Darbhanga Municipality (ILR.18 Calcutta 99 P-C) is a case near in point. The Court of Wards accepted a nominal compensation of Re. 1/- for acquisition of the land of its ward for the Municipality, and surrendered the land to the latter. The Privy Council held: "... the direction ... to offer one rupee compensation was a colourable way of doing indirectly what it was seen could not be done directly, viz, the guardian making a present to the town of the land of his ward ... It is not true, as the High Court seems to have thought, that, as the Maharaja, if he were of age, might waive the right to compensation, his guardian might do so. The Maharaja, if of age, might have made a present of the land to the town,.. but it was known by all parties that the manager had no power to do this. The Maharaja, if of age, might have made a present of the land to the town,.. but it was known by all parties that the manager had no power to do this. The offer and acceptance of the rupee was a colourable attempt to obtain title without paying for the land". That dictum has recently been approved by the Supreme Court in Ramrao Jankiram Kadam v. State of Bombay (AIR. 1963 SC. 827, 833). 9. The impugned sale under Ext. V, having been found lacking in consideration, must, in the words of the Privy Council, be taken to be virtually a'present' or gift of property by the guardian and therefore incompetent and void. It is well-settled that a void transaction needs no setting aside and therefore is not within the purview of Art.44, Limitation Act. The suit having been instituted in 1127 (1952), within 12 years of the impugned sale, no question of adverse possession arises here. 10. In the result, 1958 KLT. 602, so far as concerns alienations without consideration, is over-ruled, and in reversal of the decree of the Subordinate Judge, that of the Munsiff is restored to effect. The appellants will have their costs throughout.