Judgment :- 1. This second appeal was filed by the 4th defendant in the suit and on his death his legal representatives have come in as additional appellants 2 to 5. The appeal arises from a suit for partition of the plaint properties which is claimed as that belonging to the predecessor-in-interest of the plaintiffs, defendants 1 to 3 and 5 to 16. Two sale deeds, Exs. D-1 and D-2, have been executed for these properties, but according to the plaintiffs those sale deeds are not binding on the interests of the plaintiffs and therefore partition is prayed for avoiding these sale deeds. Kochuvareed, the father of the plaintiffs, to whom the suit properties belonged, died on 15101117 leaving his heirs. His children were plaintiffs, defendants 2 and 3, one Lonappan, father of defendants 5 to 7, and Anthony, husband of the 8th defendant and father of defendants 9 to 16 and also his second wife, the first defendant. The 4th defendant obtained Ex. D 1 sale deed dated 12 21951 from Anthony, Lonappan and the first defendant for items 1 and 2 in the plaint schedule and Ex. D 2 sale deed dated 22-3-1952 from the 3rd defendant for item No. 3 in plaint schedule. In joining Ex. D-1 sale deed the first defendant who was the mother of the plaintiffs and the second defendant purported to act as their guardian also. But the case of the plaintiffs is that in the sale deed Ex. Dl an oral partition was set up and in the written statement of the 4th defendant it is contended that the oral partition is said to have conferred the right over plaint items 1 and 2 to Anthony and Lonappan alone, so much so, according to the plaintiffs, first defendant did not join in Ex. D1 so as to convey any rights in items 1 and 2. With regard to the sale of item 3 under Ex. D2 the case of the plaintiffs is that even on the face of it would not operate to assign the interest of the plaintiffs as it does not purport to convey their interest, unless the 4th defendant is able to succeed in his case as to the oral partition between the legal heirs of the deceased Kochuvareed. The case of oral partition mentioned in Exs. D1 and D2 are denied by the plaintiffs. The case of oral partition mentioned in Exs. D1 and D2 are denied by the plaintiffs. According to the law governing the parties the first plaintiff would be entitled to 1/16th share and second plaintiff to 3/16th share and a division of those share in respect of the suit properties is claimed in the plaint. The 4th defendant who contests the claim of the plaintiffs relies on the oral partition and subsequent alienations in respect of the plaint items by the persons who obtained those properties under the said oral partition. In the alternative it is contended that these deeds are binding on the plaintiffs as being supported by consideration and necessity binding on the minors. It is also contended that in any view of the matter the suit should be deemed to be barred by limitation, the first plaintiff having been a major even on the date of Ex. D1 and the second plaintiff having become a major more than three years before the institution of the suit. 2. A contention was urged in the court below and that has found acceptance by the court to the effect that the document Ex. D-1 is not binding upon the plaintiffs for the reason that first defendant has not purported to convey any interest of the minors in executing Ex. D-1. The question of avoidance of a document by any person would arise only if the interest of such person has been conveyed under the transfer. It is not because Ex. D-1 on the face of it does not purport to convey any interest of the first defendant or her minor children that the courts below have come to its conclusion. The 4th defendant relies upon an oral partition and if the oral partition is true, then the properties conveyed under Ex. D-1 having not been obtained by the first defendant or her children, there would be no conveyance of any interest of the minors by executing Ex. D1. Therefore, the court below has assumed that in the face of the pleadings of the 4th defendant it cannot be said that first defendant joined in Ex. D-1 for the purpose of conveying her rights or the rights of her minor children. Certainly this approach does not appear to be correct. The document Ex. D1. Therefore, the court below has assumed that in the face of the pleadings of the 4th defendant it cannot be said that first defendant joined in Ex. D-1 for the purpose of conveying her rights or the rights of her minor children. Certainly this approach does not appear to be correct. The document Ex. D-1, on the face of it, purports to convey the rights of the executants and the plaintiffs represented by their mother being also executants of this document what is purported to be conveyed under the document must be taken as the rights of the plaintiffs also. The case of oral partition set up by the 4th defendant has been found to be not true and therefore the legal rights of the parties cannot be determined on the basis of such a plea. There is no plea in the written statement of the 4th defendant that the interests of the minors were not conveyed under Ex. D-1. To read the plea of oral partition to interpret the legal effect of Ex. D-1 in the manner it has been done is certainly not a correct approach to this question I therefore disagree with the court below in its reading of Ex. D-1 as a document not conveying the interest of. the plaintiffs. It purports to convey such interest and in the face of the finding that the oral partition is not proved, it does in fact convey the rights of the plaintiffs also so far as suit items 1 and 2 are concerned. How far that conveyance would be effective is another question and that I propose to consider here. 3. The case regarding oral partition need not detain me because the courts below have concurrently held against the 4th defendant on this plea, and it is a finding on a question of fact. It has further been found that Ex. D-2 sale deed is not binding on the plaintiffs because even the guardian is not a party to Ex.D-2. That is executed solely by the 3rd defendant who certainly cannot convey any interest of the plaintiffs. Hence the challenge to Ex. D-2 must necessarily succeed. It has also been found by the court below that on the date of execution of Ex. D-1 the first plaintiff had already become a major. She is no party to the document. That is executed solely by the 3rd defendant who certainly cannot convey any interest of the plaintiffs. Hence the challenge to Ex. D-2 must necessarily succeed. It has also been found by the court below that on the date of execution of Ex. D-1 the first plaintiff had already become a major. She is no party to the document. There is no question therefore of any representation of the Ist plaintiff through a guardian, and therefore so far as the first plaintiff is concerned Ex. D-1 also must fail. The only other question is whether Ex. D-1 will bind the second plaintiff who was a minor on the date of execution of that document and who was purported to be represented therein by the mother. The second plaintiff challenges Ex. D-1 on the ground that it is wanting in consideration as well as necessity binding on her. On the question of consideration second plaintiff has not succeeded in the courts below and it has not been found by the courts that the document is wanting in consideration, and I see no reason to interfere with this. But what is urged before me is that the findings of the courts below amount to a finding of absence of necessity for execution of Ex. D-1 sale deed. That of course is so. On the face of it no justification has been shown for alienating the property in which second plaintiff had also an interest. No necessity binding the minor has been proved and therefore I must take it, on the findings of the courts below and on the evidence before me, that Ex. D-1 though supported by consideration is not supported by necessity binding upon the second plaintiff. Normally that would have been sufficient to uphold a claim of the second plaintiff to her share in respect of the properties covered by Ex. D-1. But the alienee, the 4th defendant meets this with the answer that, the suit having been instituted after three years of the second plaintiff attaining majority, though within 12 years of Ex. D-1, the suit would be barred by limitation as the Article applicable to the suit would be Art.44 of the Limitation Act of 1908. This would depend upon the question whether Ex. D-1 is void so far as the second plaintiff is concerned or it is only voidable. If Ex. D-1, the suit would be barred by limitation as the Article applicable to the suit would be Art.44 of the Limitation Act of 1908. This would depend upon the question whether Ex. D-1 is void so far as the second plaintiff is concerned or it is only voidable. If Ex. D-1 is void as against second plaintiff, there is no necessity to set aside that document. If possession has passed to the alienee under such a document it is sufficient if recovery of possession is sought for within 12 years of the date of suit and the appropriate Article of the Limitation Act would be Art.144. But if, on the other hand, the document is only voidable, and would be binding upon the minor unless it is set aside within the time limited by the provisions of the Limitation Act then the document will have to be avoided within the period prescribed. In the case of a minor whose property is transferred by the guardian and the transfer has to be set aside by a suit the Article of Limitation Act that would be applicable is Art.44. In this case the suit having been brought beyond the period of three years of attaining majority and that being as provided under Art.44 of the Limitation Act of 1908 the suit would be barred if Ex. D-1 is considered as voidable as against the second plaintiff. The suit would be within time only if I hold that Ex. D-1 sale deed which is found to be supported by consideration but not by necessity binding upon the minor is not avoidable but is void and that is the contention urged before me by the learned counsel for the respondents. 4. There was divergence of opinion on the point whether a sale deed executed by a guardian of a minor which is not shown to be supported by consideration is voidable or void. This Court in the earlier case reported in Beeyyathumma v. Moidu Haji 1958 KLT. 602 took the view that such a document would be voidable only and not not void. A Full Bench overruled this decision and held that if unsupported by consideration the alienation by a guardian of a minor would not only be voidable but would be void and there is no question of applying Art.44 of the Limitation Act of 1908 to such a case. A Full Bench overruled this decision and held that if unsupported by consideration the alienation by a guardian of a minor would not only be voidable but would be void and there is no question of applying Art.44 of the Limitation Act of 1908 to such a case. That was in the decision reported in Esaya Nelson v. Adichan Nadar Lekshmanan Nadar 1963 KLT. 878. What is contended before me is that if this view is true as regards consideration it must equally be held to be true as regards the absence of necessity binding on a minor. It is the contention of learned counsel for the respondents that the same reasoning must apply if it is found by a court that a document executed by the legal guardian of minor is not supported by legal necessity. I do not think that the decision of the Full Bench is of assistance to the respondents' counsel in this respect. From the discussion of the cases referred to in the earlier decision of the Kerala High Court namely 1958 KLT. 602 by the Full Bench, it is seen that the Full Bench has attempted to draw a distinction between cases of alienations by the guardians of minors unsupported by consideration and cases where they are unsupported by necessity. Reliance has also been placed on a passage in the decision in Sham Chandra Dafadhar v. Gadadhar Mandal XIII Calcutta Law Journal 277 wherein Asutosh Mookerjee and Coxe JJ. have considered this question. The passage from that decision is extracted by the Full Bench and I may extract the same passage here. "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. 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. 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; mother 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 Hanooman - persaud v. Mussamat Baboose (6 MIA. 393) the plaintiffs may be entitled to have the instrument set aside and to recover possession". The case of a conveyance in excess of authority, as explained by the decision of the Privy Council in Hanoonmanpersaud v. Mussamat Baboose 6 MIA. 393, has been placed on a footing different from a case of alienation by the guardian which is unsupported by consideration. In the one case it is an act by a guardian who is competent to act but who exceeds the authority to act. In the other case though the guardian is competent to act, the act is incompetent in as much as a guardian is certainly not expected to gift the properties of the minor. Therefore, want of competency may arise both in a case of want of capacity in the person acting as guardian and also want of capacity in so far as the act performed is not one which is within the competence of the guardian. Therefore, want of competency may arise both in a case of want of capacity in the person acting as guardian and also want of capacity in so far as the act performed is not one which is within the competence of the guardian. In both these cases the acts purported to be that exercised on behalf of the minor by the guardian will not be binding on the minor, but that may not be the case where the guardian who is competent to act and whose act is within his competence does act, but in doing so exceeds the authority, and that is the case where an alienation is not supported by necessity. 5. I need not refer to the earlier case law on this question which has been brought to my notice in view of the fact that the Full Bench has noticed the decisions relied on in the earlier decision of this Court reported in 1958 KLT. 602. The discussion in Para.4-B, 4-C, 4-F and 4-G of the judgment of the Full Bench would show that the court treated cases where alienations were challenged mainly on the ground of want of consideration as standing on a different footing from the cases where the alienations were bad on the ground of absence of necessity binding on the minors. 6. Therefore, in view of what I have said above 1 do not think it is open to me to read the decision of the Full Bench of this Court as authority for the proposition that any alienation by a guardian of a minor which is shown to be not supported by necessity binding on the minor is void and not voidable only, and that it stands on the same footing as alienation not supported by consideration. If so, it follows that Art.44 of the Limitation Act applies to Ex. D-1 in so far as it concerns the interests of the second plaintiff. Ex. D-1 will be valid to the extent of the second plaintiff's share. He has 3/16 in items Nos.1 and 2. To this extent the judgment of the court below requires modification . In other respects the appeal has to be dismissed. In the circumstances I modify the decree of the court below by dismissing the suit in regard to the claim of the second plaintiff to share in plaint items 1 and 2 covered by Ex D-1. To this extent the judgment of the court below requires modification . In other respects the appeal has to be dismissed. In the circumstances I modify the decree of the court below by dismissing the suit in regard to the claim of the second plaintiff to share in plaint items 1 and 2 covered by Ex D-1. In other respects the decree of the court below will stand. In the circumstances, parties will suffer costs in this Second Appeal.