Judgment :- 1. Defendants 4 and 5 in O.S. No. 21 of 1981, on the file of Sub Court, Ariyalur, are the appellants in S.A. No. 1194 of 1988, and 6th defendant in the same suit is the appellant in S.A. No. 1720 of 1988. 2. O.S. 21 of 1981 was instituted on 5.3.1979 by the plaintiffs therein as indigent persons. Plaintiffs, four in number, filed the said suit for partition claiming 6/7 shares in the plaint item. It is alleged in the plaint that plaintiffs 2 to 4 and defendants 2 and 3 are brothers and sisters of first plaintiff. First defendant is the mother of plaintiffs and defendants 2 and 3. Appellants are purchasers of portions of the plaint property. 3. It is further averred that the plaint property originally belonged to one Muthu Vijaya Oppilada Malavaraya Nayanar, father-in-law of first defendant and grandfather of plaintiffs. On his death, all his properties including the suit schedule property were inherited by his son Velusamy Vijaya Oppillada Malavaraya Nayanar, who was the husband of first defendant and father of defendants 2 and 3. The father died leaving behind him plaintiffs 1 to 4 and defendants 1 to 3 as his heirs. The property being joint family property of plaintiffs 1 and 2 along with their deceased father, each was entitled to one-third share. On the death of their father, his one-third share devolved on plaintiffs 2 and 3 and defendants 1 to 3, each getting 1/21 shares. Thus, plaintiffs 1 and 2 are each entitled to 8/21 shares and plaintiffs 3 and 4 and defendants 1 to 3 are each entitled to 1/21 shares. Plaintiffs put together are entitled to 6/7 shares in the plaint property. 4. It is further stated that on 8.5.1976, defendants 1 to 3 and plaintiffs who are minors represented by their maternal uncle Jayaraman Sethupathy executed a sale deed in favour of 4th defendant for a stated consideration of Rs. 11,000/- in respect of half of the schedule property. It is further said that out of the sale consideration of Rs. 11,000/-, Rs. 5,000/- was directed to be paid in discharge of four prior mortgages alleged to have been executed by plaintiffs father, and Rs. 6,000/- was received in cash by the so called guardian Jayaraman Sethupathy before the Sub Registrar. It is further said that out of the sale consideration of Rs. 11,000/-, Rs. 5,000/- was directed to be paid in discharge of four prior mortgages alleged to have been executed by plaintiffs father, and Rs. 6,000/- was received in cash by the so called guardian Jayaraman Sethupathy before the Sub Registrar. On the same day, defendants 1 to 3 and plaintiffs, represented by their maternal uncle named above, acting as their guardian, executed another sale deed, again, for Rs. 11,000/-, in favour of the 5th defendant, who is none other than the brother of the 4th defendant, in respect of the remaining portion of the schedule property. The consideration is made up of Rs. 2,000/- paid in advance and Rs. 9,000/- paid to the first defendant, before the Sub Registrar. Both the sale deeds, which are marked as Exs. B-1 and B-2, or Exs. A-2 and A-3 were registered at the residence of the first defendant. The maternal uncle who has been impleaded as 7th defendant in the suit is neither a natural guardian nor a lawful guardian. He is not even a de facto guardian of the plaintiffs. On the death of their father, first defendant became their natural guardian. Even the natural guardian has no power to sell the property without previous permission of the Court. The sale deeds executed by the 7th defendant representing the minors are void transactions and, therefore, plaintiffs are entitled to ignore those sale deeds and recover possession of their 6/7 shares. It is further averred that on 11.12.1978, defendants 4 and 5 executed a sale deed in respect of a portion of the property which they had purchased in favour of the sixth defendant. The contents of the documents are all make-belief recitals and they are not binding on the plaintiffs. It is stated that the sale deeds in favour of defendants 4, 5 and 6 are all void in law, and the sale price mentioned in those documents is not the real market value. In fact, the documents are without consideration and they have been written for a very low price. First plaintiff was born on 4.4.1960 and he became a major on 4.4.1978. He therefore filed the plaint for himself and on behalf of plaintiffs 2, 3 and 4. 5. In fact, the documents are without consideration and they have been written for a very low price. First plaintiff was born on 4.4.1960 and he became a major on 4.4.1978. He therefore filed the plaint for himself and on behalf of plaintiffs 2, 3 and 4. 5. In the written statement filed by defendants 4 and 5, they disputed the right of the plaintiffs to claim a partition. It is their case that the property really belonged only to the 7th defendant and they came to know about the real right only after the documents were taken. It was further contended that the documents are supported by consideration and they are bona fide purchasers for value. It is further stated that there is no necessity to obtain previous permission under the Hindu Minority and Guardianship Act, 1956. It is their case that the mother is also a party to the sale deeds, and even if the property belonged to the minor plaintiffs, since the mother has consented by executing the sale deeds, the documents are valid. At any rate, plaintiffs are not entitled to ignore the sale deeds since they are only voidable transactions. But such a plea is only to be dismissed, for, no relief is sought for in the plaint. 6. Regarding consideration also, they contend that the documents are supported by consideration and they also represent the real market value. It is also their case that long before execution of Exs. B-1 and B-2, an agreement for sale was executed, as evidenced by Ex. B-9. That agreement for sale was executed by the first defendant representing the minor plaintiffs. That also supports their case that it is the natural guardian who has executed the documents in their favour. It is pursuant to the agreement for sale, Exs. B-1 and B-2 were executed. They have contended that under Ex. B-10, a portion of the property was conveyed to the 6th defendant. They prayed for dismissal of the suit. 7. The 8th defendant, who is also an alienee, has filed a written statement. Since his rights are not matters in issue, his contentions are not extracted. 8. 6th defendant supported the contention of defendants 4 and 5 and prayed that as far as possible portions purchased by him may be allowed to be retained by him, and they may be excluded from the partible items. 9. Since his rights are not matters in issue, his contentions are not extracted. 8. 6th defendant supported the contention of defendants 4 and 5 and prayed that as far as possible portions purchased by him may be allowed to be retained by him, and they may be excluded from the partible items. 9. On the above pleadings, trial Court took oral and documentary evidence. Exs. A-1 to A-18 were marked on the side of plaintiffs, and Exs. B-1 to B-25 were marked on the side of the defendants. Commissioners Plan and Report were marked as Exs. C-1 and C-2. First plaintiff got himself examined as P.W. 1. Defendants 5, 4, and 6 got themselves examined as D.Ws. 1, 3 and 4 respectively. Another witness was also examined on their side as D.W. 2. 10. After evaluating the entire evidence, trial Court came to the conclusion that the plaint property belonged to the family of the plaintiffs and defendants 1 to 3. 7th defendant has no authority to represent the minors in Exs. A-2 and A-3 (i.e., Exs. B-1 and B-2) and those transactions are not binding on the plaintiffs. Since the 7th defendant has no authority, the documents executed by him are void, and the same need not be set aside. Plaintiffs can ignore the same as if there are no such documents at all. Trial Court found that the plaintiffs are entitled to 2/3rd share of the plaint items and a preliminary decree was passed permitting them to have the same partitioned by metes and bounds. 11. The matter was taken in Appeal before the lower Appellate Court by defendants 4, 5 and 6 by filing A.S. No. 246 of 1985, and also by 8th defendant who filed A.S. No. 275 of 1985. Both the Appeals were clubbed together and, after hearing counsel on both sides, the lower Appellate Court did not find any reason to interfere with the preliminary decree passed by the trial Court. Both the Appeals were dismissed. It is against the concurrent judgment, defendants, 4, 5 and 6 have preferred these Second Appeals. 12. Both the Appeals were clubbed together and, after hearing counsel on both sides, the lower Appellate Court did not find any reason to interfere with the preliminary decree passed by the trial Court. Both the Appeals were dismissed. It is against the concurrent judgment, defendants, 4, 5 and 6 have preferred these Second Appeals. 12. At the time of admission of the Second Appeals, the following (common) substantial question of law was raised for consideration:— “Whether the principle laid down under Section 8(3) of the Hindu Minority and Guardianship Act, 1956 has been properly appreciated by the Courts below and the reliance placed on 99 L.W. 110 is correct?” 13. Subsequent to the filling of the Second Appeals, first plaintiff died. He being unmarried and issueless, first defendant was recorded as his legal representative. In view of the sub-sequent event, learned Senior counsel for the appellants also contended that the right of the first plaintiff which has now devolved on the 1st defendant goes to the benefit of the alienees under Section 43 of the Transfer of Property Act, and therefore, the preliminary decree passed by the lower Court requires interference. Learned Senior Counsel further submitted that apart from the question of law raised at the time of admission of the Second Appeals, the question whether Exs. A-2 and A-3 (Exs. B-1 and B-2 respectively) are void or voidable also requires consideration. Learned Senior Counsel also submitted that both the Courts below have not taken into consideration Ex. B-9, which has materially affected the decision. He further pleaded that under Section 35 of the Transfer of Property Act, if an alienation is set aside, the benefit of which the alienor has obtained, has to be returned, and in this case, they have discharged certain loans. The above point was also not taken into consideration by the Courts below while passing the preliminary decree. Learned Senior Counsel submitted that all these questions may be considered as questions of law raised. Learned Senior Counsel for respondents also did not raise any objection for considering the above matters. 14. Therefore, the following additional substantial questions of law are also formulated for consideration:— 1) Whether Exs. A-2 and A-3 (Exs. B-1 and B-2) are void or voidable? Learned Senior Counsel submitted that all these questions may be considered as questions of law raised. Learned Senior Counsel for respondents also did not raise any objection for considering the above matters. 14. Therefore, the following additional substantial questions of law are also formulated for consideration:— 1) Whether Exs. A-2 and A-3 (Exs. B-1 and B-2) are void or voidable? 2) Whether the contention of the appellants that they are entitled to benefits of Section 43 of the Transfer of Property Act in view of the death of first plaintiff subsequent to the filing of Second Appeals, could be entertained? 3) Whether the argument that the appellants are entitled to the benefits of Section 35 of the Transfer of Property Act is tenable? 4) What are the equities, if any, to which the parties are entitled at the time of partition?” 15. I will first consider the question of law framed at the time of admission of the Second Appeals and also the first question of law that was framed at the time of arguments, namely, whether the documents are void or voidable. 16. Even though the appellants contended in the written statement that the properties originally belonged only to the 7th defendant, that contention was subsequently withdrawn by filing an amendment. It is now conceded that the property belonged to the grandfather of the plaintiffs, and on his death, it became the joint family property of the plaintiffs and defendants 1 to 3. Further evidence is there regarding the nature of the property, and both the Courts below have concurrently found that the property is joint family property. That finding is not challenged by the appellants. 17. At the time when plaintiffs father died, there were three male members, plaintiffs 1 and 2 and their deceased father. Under Section 6 of the Hindu Succession Act, the father must be deemed to have been divided at the time of death, and his one-third share in the property has to devolve as if he died intestate. Plaintiffs 1 and 2 are each entitled to one-third share and the remaining one-third of the father devolved on plaintiffs 1 to 4 and defendants 1 to 3 in equal shares. 18. Exs. B-1 and B-2 are two sale deeds dated 8.5.1976. Plaintiffs 1 to 4 are represented by 7th defendant who is the maternal uncle, i.e., first defendants brother. Plaintiffs 1 and 2 are each entitled to one-third share and the remaining one-third of the father devolved on plaintiffs 1 to 4 and defendants 1 to 3 in equal shares. 18. Exs. B-1 and B-2 are two sale deeds dated 8.5.1976. Plaintiffs 1 to 4 are represented by 7th defendant who is the maternal uncle, i.e., first defendants brother. He has executed the sale deeds as if the property also belonged to him, representing the minor plaintiffs. Even though the mother is also a party to both the sale deeds, she did not represent the minors. She is the natural guardian of the minors. Since there was no other elder male member in the family, the 7th defendant cannot be treated as a member of the family, for, he is only the maternal uncle of plaintiffs. 19. What is the consequence of the said representation by the 7th defendant. The documents have come into existence after the Hindu Minority and Guardianship Act came into force. Even though the properties covered by these documents are not the separate properties of the minors, the sale transactions are in respect of their undivided share in the joint family property. The maternal uncle is not a natural guardian. Section 11 of the Hindu Minority and Guardianship Act says that after the commencement of this Act, no person shall be entitled to dispose of or deal with the property of a Hindu minor merely on the ground of his or her being the de facto guardian of the minor. 20. Commenting on Section 11 of the Hindu Minority and Guardianship Act, in Maynes ‘Hindu Law & Usage’ - 14th Edition (1996) the learned author has said that this Section applies even to the family properties of the minor. A de facto guardian is not entitled to deal with even the family properties of a minor. At page 587 of the book, the learned author has said thus:— “The language in this Section is unqualified unlike the language in Section 6 and Section 9 wherein it is expressly provided that the property does not include the undivided share of a minor in the joint family property...” 21. At page 587 of the book, the learned author has said thus:— “The language in this Section is unqualified unlike the language in Section 6 and Section 9 wherein it is expressly provided that the property does not include the undivided share of a minor in the joint family property...” 21. In 1992-II-M.L.J. 116=1991-2-L.W. 635 (Dhanasekaran v. Manoranjithammal and others), a Division Bench of this Court has held thus (at page 129, Para 49):— “we hold that Section 11 will apply to all properties of a minor, including the minors interest in the joint family property..” 22. Learned Senior Counsel for the appellants, on the basis of the decision reported in 1959-I-M.L.J. 118=72 L.W. 671 (Raju and another v. Venkataswami Naidu and others), contended that in Exs. B-1 and B-2, mother is also a party, and, even though the minors are represented only by their maternal uncle, she must also be treated as a consenting party to the transactions and, therefore, the documents are voidable. It is his case that the uncle must be treated as a de facto guardian, competent to enter into the transactions on behalf of the minors, and if they could be challenged, the same will have to be set aside. But the plaintiffs cannot treat the same as void. In the case cited, a sale was executed by the mother as guardian of her minor sons, the father also being a party to the deed, in the suit filed by the minor for declaration and possession of the property on the ground that the sale deed is void and not binding on them, this Court held that the alienation was by the legal guardian and therefore under Section 40 of the Madras Court Fees and Suits Valuation Act, the document must be set aside, and court-fee has to be paid on the market value of the property. Learned Senior Counsel submitted that, on the basis of this decision, the documents in question are only voidable, and since there is no prayer for setting aside the deeds, the suit is not maintainable. How far the said decision applies to this case, will be considered in the subsequent portion of this judgment. 23. Before proceeding further, we have to consider whether the maternal uncle can be said as a de facto guardian at all. 24. How far the said decision applies to this case, will be considered in the subsequent portion of this judgment. 23. Before proceeding further, we have to consider whether the maternal uncle can be said as a de facto guardian at all. 24. In A.I.R. 1948 Nagpur 100 (Mt.Kasubai v. Mt.Chandrabhaga), a question came for consideration regarding the alienation effected by a senior widow as guardian of the minor co-widow. On the death of their husband, the major co-widow executed a sale deed representing the minor widow. Both of them were under the protection of their mother-in-law. Considering the status of the major co-widow, a Division Bench of the Nagpur High Court held that the major co-widow cannot be regarded as a de facto guardian of the minor co-widow when both of them are living under the protection of their mother-in-law, who was managing the estate, and no one can be a de facto guardian unless he looks after the property of the minor as well as takes care of the person of the minor. (Emphasis) In paragraph 10 of the judgment, their Lordships said thus:— “A person is a de facto guardian only when he is found to intermeddle with the estate of the minor for reasonable length of time.. No one is a de facto guardian unless he looks after the property of the minor as well as takes care of the person of the minor..” In that case, their Lordships said that if this is the qualification for a de facto guardian, the senior co-widow can never be treated as such and alienation effected by her is void. 25. In A.I.R. 1956 Madras 476=69 L.W. 276 (Palani v. Vanjiakkal), a Division Bench of this Court held thus:— “A de facto guardian is one who is not a legal guardian or a testamentary guardian or a Court Guardian, but who being interested in the minor, though a stranger, takes charge of the management of the minors property. This rules out cases of a fugitive or isolated act of a person with regard to the minors property and which would not make him a de facto guardian of the minor. This rules out cases of a fugitive or isolated act of a person with regard to the minors property and which would not make him a de facto guardian of the minor. In order to enable one to become a de facto guardian, there must be a continuous course of conduct as guardian of the minor in regard to his property; the length of the period required to constitute one a de facto guardian being dependent upon the circumstances of each case. The first act of intermeddling with the estate of the minor would not be the act of a de facto guardian, if he had not become one before that act; nor would subsequent management of the estate of the minor by such person make the first act which is one of the alienation of the minors property, the act of a de facto guardian.” (emphasis supplied) 26. In 1980-I-M.L.J. 118=93 L.W. 59 (Sri Aurobindo Society v. Ramadoss Naidu), a minors property was sold by the mother when the father was alive and who was never incapacitated. The mothers act of alienation was a single act. While considering the same, a learned Judge of this Court (V. Balasubrahmanian, J.) said that the mother cannot be treated as a de facto guardian but only as an ad hoc guardian. Learned Judge held thus:— “The expressions de facto guardian and de jure guardian imply a relationship to the world which is regular and continuous and not casual or one which acts by fits and starts. In other words, what the de facto guardian lacks as compared to a de jure guardian is the legal authority to act for the minor. In all other respects there is practically little or no difference between them. A de facto guardian however is not, one who acts for the nonce. He is a factual guardian who acts in regular course, over a period of time. If it were otherwise, a minor can have as many de facto guardians as there are transactions to be done on his behalf. (Para 8) The position of ad hoc guardians is left in no doubt whatever. Their acts are null and void, and cannot bind the minor, although they purported to be effected in the minors interest. For ad hoc guardians are neither de jure nor de facto guardians. (Para 8) The position of ad hoc guardians is left in no doubt whatever. Their acts are null and void, and cannot bind the minor, although they purported to be effected in the minors interest. For ad hoc guardians are neither de jure nor de facto guardians. They are self appointed guardians for the minors just for the occasion, as it comes along.” (Para 10) 27. If this is the legal position, it is for the alienees to prove that the maternal uncle was managing the properties and was taking care of the minors prior to Exs. B-1 and B-2 for quite a long time. Apart from Exs. B-1 and B-2, which are of the same date there is no evidence in this case to show that the 7th defendant was acting on behalf of the minors. Apart from the lack of evidence on the part of the appellants, there is one more evidence to show that the 7th defendant was not acting as guardian of the minors. That is Ex. B-9, an agreement for sale put forward by the appellants themselves. In that agreement, the minors are represented by their mother, who is the natural guardian. 7th defendant is also a party to it That itself is sufficient to hold that the 7th defendant is not a de facto guardian, but, he is, for the first time, attempting to execute sale deeds in favour of defendants 4, 5 and 6, on behalf of the minors as well. The legal consequence is, they are void documents. 28. An argument is advanced by learned Senior Counsel for appellants on the basis of the decision reported in 1959-I-M.L.J. 118=72 L.W. 671 (supra), that when mother is also a party to the document, she must be deemed to have consented to the transaction and, therefore, she must be deemed as representing the minors also. If that be so, the documents are only voidable. A document will have to be interpreted according to its terms and tenor. When the 7th defendant says that he is representing the minors and as their guardian, to interpret the same that the mother also had been representing the minors, cannot be accepted. 29. Assuming that such a contention could be raised, what is the legal consequence of that? I do not think that the appellants will be benefited by such an argument in any way. 29. Assuming that such a contention could be raised, what is the legal consequence of that? I do not think that the appellants will be benefited by such an argument in any way. In (1993) 2 SCC 402 =1993-2-L.W. 15 (G. Annamalai Pillai v. District Revenue Officer and others), father of a minor executed a lease deed for a period of five years. When the tenant was sought to be evicted, he claimed the benefits of a cultivating tenant and moved an application before the Tahsildar to have his name registered under the Tamil Nadu Agricultural Lands Record of Tenancy Rights Act, 1069. The minor, who by that time had become a major, contested the said proceeding on the ground that the land was his property, and his father did not have any right or title to deal with the same and the transaction being contrary to the provisions of Section 8 of the Hindu Minority and Guardianship Act, 1956, is not binding on him. The Revenue Authorities held that the tenant has no right over the property in view of the invalidity of the transaction. Even though writ petition was filed, this Court also confirmed the same. It was against the said judgment of this Court, tenant filed Special Leave Petition before the Supreme Court. At page 403 in para 5 of the judgment, their Lordships considered this question. This Court, while repelling the contention of the tenant, had followed a decision of the Privy Council reported in A.I.R. 1932 P.C. 89=35 L.W. 667 (Satgur Prasad v. Harnarain Das). The Supreme Court accepted the legal principle enunciated by this Court and held thus:— “We have heard learned counsel for the parties. We have been taken through the orders of the Revenue authorities, judgment of the learned single Judge and of the Division Bench of the High Court in Writ Appeal. The Division Bench of the High Court, in a lucid judgment, answered the question-posed by us in the beginning-in the affirmative and against the appellant - Annamalai Pillai on the following reasoning: We have already seen that clause (3) of Section 8 of the Hindu Minority and Guardianship Act, 1956, specifically makes the transaction voidable. The lease executed by the guardian in this case is prohibited and in that sense it was without any authority. The lease executed by the guardian in this case is prohibited and in that sense it was without any authority. On the legal efficacy and the distinction between valid, void and voidable agreements, we find the following passage in Salmond on Jurisprudence, Twelfth Edition at page 341: “A valid agreements is one which is fully operative in accordance with the intent of the parties. A void agreement is one which entirely fails to receive legal recognition or sanctions, the declared will of the parties being wholly destitute of legal efficacy. A voidable agreement stands midway between these two cases. It is not a nullity, but its operation is conditional and not absolute. By reason of some defect in its origin it is liable to be destroyed or cancelled at the option of one of the parties to it. On the exercise of this power the agreement not only ceases to have any efficacy but is deemed to have been void ab initio. The avoidance of it relates back to the making of it. The hypothetical or contingent efficacy which has hitherto been attributed to it wholly disappears, as if it had never existed. In other words, a voidable agreement is one which is void or valid at the election of one of the parties to it.” This distinction has also been judicially noticed in the Privy Council judgment reported in Satgur Prasad v. Harnarain Das AIR 1932 P.C. 89=35 L.W. 667 and in the Division Bench judgment in S.N.R. Sandara Rao and Sons, Madurai v. CIT AIR 1957 Madras 45. The Division Bench held, following the said Privy Council Judgment as follows: “When a person, who is entitled to dissent from the alienation, does so, his dissent is in relation to the transaction as such and not merely to the possession of the alienee on the date of such dissent. The effect of the evidence is, therefore, to get rid of the transaction with the result that in law it is as if the transaction had never taken place. The effect of the evidence is, therefore, to get rid of the transaction with the result that in law it is as if the transaction had never taken place. We have, therefore, no doubt that when the fifth respondent avoided the lease executed by his father, the fourth respondent, the lease became void from its inception and no statutory rights, could, therefore, accrue in favour of the appellant herein.” We agree with the reasoning and the conclusion reached by the Division Bench of the High Court and as such this appeal has to be dismissed.” 30. In that case (referred to supra), their Lordships have also followed the principle enunciated by Salmond on Jurisprudence about the valid, void and voidable agreements, and how far voidable agreement becomes void. 31. On the basis of this legal principle, I do not think, the setting aside of the documents is required. When the minors exercise an option by seeking recovery of the property, it follows that they are treating the transactions as void. A voidable transaction when avoided by the person entitled to it, becomes void from its very inception and no right could be conferred on the transferee. 32. In the decision reported in (1993) 4 SCC 38 =1994-1-L.W. 40 (Pannilal v. Rajinder Singh), where a mother executed a document on behalf of the minor children when the father was alive, who also attested it, the question was, what is the effect of the transaction, it was held thus:— “The provisions of Section 8 are devised to fully protect the property of a minor, “even from the depredations of his parents. Section 8 empowers only the legal guardian to alienate a minors immovable property provided it is for the necessity or benefit of the minor or his estate and it further requires that such alienation shall be effected after the permission of the Court has been obtained. In the present case, there is no evidence to show that the father of the respondents was not taking any interest in their affairs or that they were in keeping and care of the mother to the exclusion of the father. In fact, his attestation of the sale deed shows that he was very much existent and in the picture. In the present case, there is no evidence to show that the father of the respondents was not taking any interest in their affairs or that they were in keeping and care of the mother to the exclusion of the father. In fact, his attestation of the sale deed shows that he was very much existent and in the picture. If he was, then the sale by the mother, notwithstanding the fact that the father attested it, cannot be held to be a sale by the father and natural guardian satisfying the requirements of Section 8. It is difficult, therefore, to hold that the sale was voidable, not void, by reason of the fact that the m other of the minor respondents signed the sale deed and the father attested it.” 33. In 1978 K.L.T. 532 (Ayyappan Ezhuthachan and others v. Antonyand others), a similar question came for consideration. There, an agreement for sale was executed by the father, natural guardian of the minors, representing them. After executing the agreement for sale, he obtained permission from Court also, permitting him to alienate the property. Thereafter, he did not turn up to execute the document. The mother of the minors executed the deed representing the minors. The question was what is the effect of the document? It was held thus:— “Under the Hindu Minority and Guardianship Act, the father of the minor children is the natural guardian of the minors and it is only in the absence of the father or when he is disqualified to become the natural guardian that the mother is the natural guardian. Under Section 11 of the Act, no person shall be entitled to dispose of or deal with the property of a minor and the power of disposal of the minors property is only with the natural guardian. This Court in Thomas v. Gopala Pillai (1968 K.L.T. 388) while considering some of the relevant provisions of the Act, held that, by virtue of Ss. This Court in Thomas v. Gopala Pillai (1968 K.L.T. 388) while considering some of the relevant provisions of the Act, held that, by virtue of Ss. 6, 8 and 11 of the Hindu Minority and Guardianship Act, the natural guardian of the Hindu minor boy is firstly, the father and after him the mother; that the power of disposal of the minors property is only with the natural guardian and not with a de facto guardian and that the mothers alienation is, therefore, void and that the person who did not get any such right under such a void document has no locus standi to challenge a document executed by the minors father. Ex. D-1 was executed by the mother of the minors, at a time when the father of the minors was alive and was not disqualified and therefore, Ex. D-1 is void, and the appellants, who are now claiming rights in the disputed property on the basis of Ex. D-1 cannot be said to be persons claiming under the minors, as no rights have been passed over or created in their favour under the said document. It is seen from paragraph 21 of the judgment of the lower Appellate Court that the first defendant obtained permission of the Court for selling the suit properties as guardian of the minors, in accordance with the provisions contained in S. 8(2) of the Act.” The document was declared to be void, and the transferee was declared entitled to no relief on the basis of the sale deed. 34. In A.I.R. 1984 Kerala 118 (P.T. Chathu Chettiar v. K.K. Kanaran), Justice K.S. Paripoornan, as he then was, considered a similar question. There also, the mother represented the minors as their legal guardian even though the father also jointly executed the deed. The question was, what is the effect of such a transaction. After elaborately considering the entire legal position, learned Judge said that there is no necessity to have the document set aside and the same is void. It was held thus:— “Under S. 6 (of Hindu Minority and Guardianship Act, 1956) in the case of a boy, his father is the natural guardian. It is only when the father is disqualified or is no more, the mother becomes the natural guardian. It was held thus:— “Under S. 6 (of Hindu Minority and Guardianship Act, 1956) in the case of a boy, his father is the natural guardian. It is only when the father is disqualified or is no more, the mother becomes the natural guardian. When the father is alive and is not disqualified to act as the guardian of the minor, it is incompetent for the mother to interpose herself as the guardian of the minors. Any alienation or disposal of the property by the mother acting as the guardian of the minors is unauthorised and is totally devoid of any effect. As such, where the mother of the minor sons acting as their guardian disposed of their shares in a property held by the minors and their father jointly even though the father of the minors, their natural guardian, was alive and not disqualified from acting as guardian, the alienation was void and that being so in the suit filed by the minors for partition and separate possession of their share in the joint property after ignoring the alienation made by their mother it was not n ecessary for the minors to claim for the cancellation of the alienation.” 35. On the basis of the above decisions, it is clear that Exs. B-1 and B-2 are void so far as the minors shares are concerned. The 7th defendant was not even a de facto guardian and he was an utter stranger so far as the minors properties are concerned. Therefore, the documents are void ab initio, and no rights will flow on the basis of such transactions. 36. Now let us consider the decision relied on by learned Senior Counsel for the appellants, i.e., 1959-1-M.L.J. page 118=72 L.W. 671 (supra). There, the document was of the year 1954 before the Hindu Minority and Guardianship Act came into force. Under the pristine Hindu Law, a de facto guardian also had the authority to deal with the property. In that case, their Lordships further held that whether the transaction is void or voidable, need not be considered. There, the document was of the year 1954 before the Hindu Minority and Guardianship Act came into force. Under the pristine Hindu Law, a de facto guardian also had the authority to deal with the property. In that case, their Lordships further held that whether the transaction is void or voidable, need not be considered. This is what their Lordships have said:— “It is unnecessary for the purpose of the present case to consider whether in the case of an alienation by a de facto guardian, it is obligatory upon the minors to have the transaction set aside..” Thereafter, their Lordships said that on the facts of that case, the transaction was entered into by the legal guardian himself. In the case on hand, the suit transactions are after the enactment, namely, Hindu Minority and Guardianship Act. There is statutory prohibition under Section 11 of the said Act from entering into any such transaction by a de facto guardian. In view of the statutory prohibition and also in view of the various decisions of the Supreme Court cited supra, I do not think the judgment relied on by learned Senior Counsel for the appellants is valid at present. I hold that Exs. B-1 and B-2 are void transactions and defendants 4 and 5 are not entitled to get any benefit on the basis of those transactions so far as the minors shares are concerned. The question of law raised at the time of admission of the Second Appeal and substantial question of Law No. 1 raised at the time of arguments are found against the appellants. 37. Question No. 2 formulated at the time of arguments :— An argument was advanced by learned Senior Counsel for the appellants that since the first plaintiff died after the death of the Second Appeal, and the mother is now recorded as the legal heir, the alienees are entitled to Section 43 of the Transfer of Property Act. It was contended that at least to the extent of the share of the first plaintiff, the sale deeds are valid. Learned Senior Counsel submitted that by the principle of feeding the grant by estoppel, whenever the first defendant gets her rights augmented, the benefit automatically goes to the purchaser. 38. Though the argument seems to be attractive, I do not think the same could be accepted. Learned Senior Counsel submitted that by the principle of feeding the grant by estoppel, whenever the first defendant gets her rights augmented, the benefit automatically goes to the purchaser. 38. Though the argument seems to be attractive, I do not think the same could be accepted. In a recent decision of the Supreme Court reported in (1994) 4 SCC 730 (Kartar Singh (dead) by L.R.S. and others v. Harbans Kaur), this question was considered. In that case, the mother executed a sale deed on her behalf and also on behalf of her minor son. The son, on attaining majority, filed a suit to declare that the sale is void so far as his share is concerned and to recover the same. A decree was granted. But before he could take possession of the property, he died. On the death of her son, the guardian (mother) who executed the deed on behalf of the minor, became the legal heir. A contention was taken as in this case tha t when the mother has become the legal heir of the son-and when she became the owner on the death of her son, under Section 43 of the Transfer of Property Act, the transferee is not liable to be dispossessed. Rejecting the said contention, their Lordships said in paragraphs 6 and 7 thus:— “It is settled law that the transferee must make all reasonable and diligent enquiries regarding the capacity of the transferor and the necessity to alienate the estate of the minor. On satisfying those requirements, he is to enter into and have the sale deed from the guardian or manager of the estate of the minor. Under the Guardians and Wards Act, the estate of the minor cannot be alienated unless a specific permission in that behalf is obtained from the District Court. Admittedly, no such permission was obtained. Therefore, the sale of the half share of the interest of Kulwant Singh made by his mother is void.” Section 43 feeds its estoppel. The rule of estoppel by deed by the transferor would apply only when the transferee has been misled. The transferee must know or be put on notice that the transferor does not possess the title which he represents that he has. The rule of estoppel by deed by the transferor would apply only when the transferee has been misled. The transferee must know or be put on notice that the transferor does not possess the title which he represents that he has. When note in the sale deed had put the appellant on notice of limited right of the mother as guardian, as a reasonable prudent man the appellant is expected to enquire whether on her own the mother as guardian of minor son is competent to alienate the estate of the minor. When such acts were not done the first limb of Section 43 is not satisfied. It is obvious that it may be an erroneous representation and may not be fraudulent one made by the mother that she is entitled to alienate the estate of the minor. For the purpose of Section 43 it is not strong material for consideration. But on declaration that the sale is void, in the eye of law the contract is non sest to the extent of the share of the minor from its inception. The second limb of Section 43 is that the contract must be a subsisting one at the time of the claim. A void contract is no contract in the eye of law and was never in existence so the second limb of Section 43 is not satisfied. The ratio of this Court in Jumma Masjid case is thus:— “Section 43 embodies a rule of estoppel and enacts that a person who makes a representation shall not be heard to allege the contrary as against a person who acts on that representation. It is immaterial whether the transferor acts bona fide or fraudulently in making the representation. It is only material to find out whether in fact the transferee has been misled. For the purpose of the section, it matters not whether the transferor acted fraudulently or innocently in making the representation, and that what is material is that he did make a representation and the transferee knows as a fact that the transferor does not possess the title which he represents he has, then he cannot be said to have acted on it when taking a transfer. Section 43 would then have no application and the transfer will fail under Section 6(a).” This Court in the later part has made it clear: “that where the transferee knows as a fact that the transferor does not possess the title which he represents he has, then he cannot be said to have acted on it when taking a transfer, Section 43 would then have no application and the transfer will fall under Section 6(1) of the Transfer of Property Act. In view of the finding that no diligent and reasonable enquiries were made regarding the entitlement of the mother to alienate the half share of the minors estate, it cannot be said that the appellant had acted reasonably in getting the transfer in his favour.” (Emphasis supplied) 39. In view of the later decision which fully applies to the facts of this case, I do not think I should consider the decisions referred by learned Senior Counsel for the appellants reported in A.I.R. 1985 S.C. 694 (Ram Pyare v. Ram Narain and others) and A.I.R. 1985 S.C. 1102 (Brahmvart Sanathan Dharam Mahamandal, Kanpur v. Prem Kumar) (Paragraphs 9 to 12 at pages 1105 to 1107). On going through the facts of those cases, I am of the view that they are not relevant for the purpose of this case. 40. In this case, none of the alienees has a case that there was a fraudulent representation by the mother and they acted on that representation. They have also no case that they made any bona fide enquiry. In fact, the 7th defendant represented the minors in the sale deed. Therefore, there could not have been any representation by the mother so as to get the benefit under Section 43 of the Act. The mother has also joined in the execution of Exs. B-1 and B-2 only as one of the legal heirs of her husband so far as his one-third share is concerned. Regarding that share, there is no misrepresentation, and the suit also does not pertain to the share alienated by the first defendant. Either way, Section 43 has no application. Therefore, substantial question of law No. 2 is also answered against the appellants. 41. Substantial question of Law No. 3 raised at the time of arguments :— Section 35 of the Transfer of Property Act deals with the principles of election. Either way, Section 43 has no application. Therefore, substantial question of law No. 2 is also answered against the appellants. 41. Substantial question of Law No. 3 raised at the time of arguments :— Section 35 of the Transfer of Property Act deals with the principles of election. The argument of learned Senior Counsel is that when a transaction is set aside, the benefit derived on the transaction must be returned. If the plaintiffs are not prepared to return the benefit, they cannot have the transaction set aside. I do not think the said argument merits acceptance. There is no evidence in this case to show that the minors were benefited by any of the transactions. When the transaction is declare d void, in the eye of law, there is no transaction at all. If that be so, the question of return of any benefit also will not arise. The principle of election has no application in such cases. Therefore, this question also is found against the appellants. 42. It is the argument by learned Senior Counsel for the 6th defendant, who is the appellant in Second Appeal No. 1720 of 1988, that he has purchased the property from defendants 4 and 5 under Ex. B-10. His claim is that as far as possible, the property in his possession should be allowed to be retained by him. The said contention could be answered only against the appellants in view of a recent decision of the Supreme Court reported in (1995) 6 S.C.C. 150 (K. Adivi Naidu and Others v. E. Duruvasulu Naidu and Others). At page 151 of the judgment, their Lordships said thus:— “It is settled law that alienees of the alienees have no right to equities..” The argument is answered in that sentence of the above decision. No other argument was put forward by the appellants in Second Appeal No. 1720 of 1988. 43. At the fag end of arguments, learned Senior Counsel for the appellants in Second Appeal No. 1194 of 1988 contended that as per Ex. B-9 agreement for sale, the mother has received a sum of Rs. 8,000/- and that is a transaction where she hereself has represented as natural guardian of the minors. Learned Senior Counsel submitted that at least regarding the same, they are entitled to get reimbursement to the extent of the plaintiffs share, if Exs. B-1 and B-2 are set aside. B-9 agreement for sale, the mother has received a sum of Rs. 8,000/- and that is a transaction where she hereself has represented as natural guardian of the minors. Learned Senior Counsel submitted that at least regarding the same, they are entitled to get reimbursement to the extent of the plaintiffs share, if Exs. B-1 and B-2 are set aside. 44. Learned Senior Counsel further submitted that it was pursuant to Ex. B-9, Exs. B-1 and B-2 were executed. None of these arguments could be accepted. Ex. B-9 is an agreement for sale executed by the first defendant also on her own behalf and also on behalf of the minor plaintiffs. There, she agreed to execute a sale deed for a sum of Rs. 30,000/-. But, when Exs. B-1 and B-2 were executed in favour of the appellants, each sale deed was for Rs. 11,000/- only. That means, the total consideration was only Rs. 22,000/-. Whether the mother has received that Rs. 8,000/- is also doubtful. When the defendants 4 and 5 were examined, they said that they have paid a total consideration of only Rs. 22,000/-. If that be so, it is for the appellants to prove that Ex. B-9 was supported by consideration. In fact, this argument is put forward for the first time before this Court. The same is also, therefore, rejected. 45. Consequently, I answer all the substantial questions of law against the appellants and both the Second Appeals are dismissed with costs.