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2011 DIGILAW 404 (KER)

Paul v. Biju

2011-04-06

M.SASIDHARAN NAMBIAR

body2011
JUDGMENT : Defendants in O.S. 300/1995 on the file of Munsiff Court, Kodungallur are the appellants. Plaintiffs are the respondents. Plaint A schedule property is 2.15 acres in survey No.469/3 of Payya village of Kodungallur Taluk. Item No.1 and 2 of the plaint B schedule properties are portions of the plaint A schedule property. Item No.1 is having an extent of 55 1/4 cents and item No.2 is 6.375 cents. The plaint A schedule property, admittedly originally belonged to Sreenivasa Shenoi under registered partition deed 2974 of 1964. Under Ext.A1 registered sale deed Sreenivasa Shenoi assigned the property in favour of Antony as guardian and father of respondents, who were then minors aged respectively six years and 3 years, for the minor children and any other children that may be born to Antony thereafter. Item No.1 of the plaint B schedule property was later assigned by Antony as guardian of the respondents, under Ext.B2 sale deed dated 20.4.1983 in favour of the first appellant. Using the said consideration, the property covered under Ext.B1 was purchased by father Antony in the name of the respondents on the same day. Subsequently first appellant assigned the property covered under Ext.B2, in favour of the second appellant under Ext.B4 sale deed dated 24.9.1987. Item No. 2 of the plaint B schedule property was also sold by Antony as the guardian of respondents under Ext.B3 sale deed dated 29.3.1984 in favour of the predecessor of appellants 3 to 10. Respondents on attaining majority instituted the suit seeking a decree for declaration that Exts.B2 to B5 are not valid and binding on them or the properties and they are voidable transactions. A consequential relief to set aside the documents and recovery of possession of plaint B schedule properties from the appellants on the strength of title was also sought. Respondents in the plaint contended that their father Antony was a drunkard and there was no necessity to alienate the property and respondents were not benefited by the sale and no sanction of the District Court was obtained for the alienations and therefore the documents are voidable and not binding on them. 2. Respondents in the plaint contended that their father Antony was a drunkard and there was no necessity to alienate the property and respondents were not benefited by the sale and no sanction of the District Court was obtained for the alienations and therefore the documents are voidable and not binding on them. 2. Appellants resisted the suit contending that father of respondents were competent to alienate the property and the plaint B schedule properties were alienated for valuable consideration and the sale deeds are not voidable and they are valid and binding on the respondents and the properties and therefore respondents are not entitled to the decree sought for. Appellants also contended that in any case they are entitled to the value of improvements, in case recovery of possession is granted. 3. Learned Munsiff framed the necessary issues. On the evidence of PWs.1 to 5, Dws.1 and 2 and Exts.A1 to A6 and B1 to B8 learned Munsiff found that under Ext.A1 the property belongs to the respondents and when they were minors, their father had no right to alienate the property without obtaining sanction from the District court as provided under section 28 of Guardians and Wards Act 1890 and as no sanction was obtained, Ext.B2 and B3 sale deeds are void. Learned Munsiff found that appellants who purchased the property, with the knowledge that it belongs to the respondents minors and their father had no right to alienate the property, are not entitled to claim any value of improvements. A decree was granted declaring that Ext.B2 to B5 alienations are not valid and binding on the respondents and cancelling them and directing the respondents to reconvey the plaint B schedule properties and also directing the appellants to surrender possession of plaint B schedule properties. Appellants challenged the judgment before District Court, Thrissur in A.S.163/2003. Learned District Judge on re-appreciation of the evidence confirmed the judgment of the trial court holding that a natural guardian is not entitled to transfer the property of the minors without the sanction of the District Court and Exts.B2 to B5 alienations were without obtaining sanction and they are voidable and respondents are entitled to get the alienations cancelled. Therefore the decree of the trial court was confirmed and the first appeal was dismissed. Second appeal is filed challenging the said decree and judgment. 4. Therefore the decree of the trial court was confirmed and the first appeal was dismissed. Second appeal is filed challenging the said decree and judgment. 4. Appeal was admitted formulating the following substantial questions of law. (i) Whether on the facts and circumstances of the case Courts below were right in holding that the transaction entered between the father of the plaintiffs with the defendants 1 and 2 is void for the reason that no consent from the District Court is obtained, (ii) Is not the Guardian of a minor entitled to sell the property of the minor if it is for necessity and the transaction is reasonable and proper for the benefit of the minor? (iii) Whether the courts below were right in passing the impugned direction when it is abundantly clear that it is impossible of being complied with? (iv) Whether the courts below were right in denying compensation for improvements made by the defendants in the property, they possessed, as bona fide purchasers? 5. Learned counsel appearing for the appellants and respondents were heard. 6. Learned counsel appearing for the appellants pointed out that the prohibition provided under sections 28 and 29 of the Guardians and Wards Act are applicable only in respect of alienations by guardian appointed by the court or a testamentary guardian and the prohibition is not applicable to a natural guardian who is entitled to alienate the property of a minor for the welfare of the minor or in the best interest of the property. Learned counsel submitted that the findings of the courts below that as no sanction was obtained, the alienations are bad is unsustainable in law. Learned counsel relied on the decisions of the Supreme Court in Manik Chand v. Ramchandra ( AIR 1981 SC 519 ), Thatchara Brothers v. M.K. Marymol, (1999) 1 SCC 298 ). He also relied on the decisions in Lalitha Bai v. Sampath Lakshmi, Guardian (AIR 1961 Madras 153), Soosa Anthony Decosta Nicholos Decosta v. Emakalaperumal Nadar Sivasubramonia Nadar ( 1956 KLT 177 ), Ouseph Maria v. Luca Mathai (Travancore Law Journal Vol. He also relied on the decisions in Lalitha Bai v. Sampath Lakshmi, Guardian (AIR 1961 Madras 153), Soosa Anthony Decosta Nicholos Decosta v. Emakalaperumal Nadar Sivasubramonia Nadar ( 1956 KLT 177 ), Ouseph Maria v. Luca Mathai (Travancore Law Journal Vol. IV 266) Bangarammal v. Lydia Kent (A.I.R. 1934 Madras 605) Varghese v. Mariamkutty ( 1970 KLT 1083 ) and argued that the decisions of this court establish that there is a practice and usage among the christian community whereunder the natural guardian has a right to alienate properties of the minor and therefore the right of a natural guardian is not effected by the provisions of the Guardians and Wards Act and alienations made by the father of the respondents when they were minors are not voidable for want of sanction of the District Court as found by the courts below. Learned counsel pointed out that this was the question which was considered by this court in A.S.157/1995 which was challenged before the Supreme Court in Thatchara brothers (supra) and the finding of this court that the mother being the natural guardian, is competent to alienate the property was upheld by the Honourable Supreme Court and therefore Ext.B2 and B3 alienations made by the father cannot be challenged on the ground that no sanction was obtained from the District Court. Learned counsel also pointed out that the property covered under Ext.B1 sale deed was purchased by father Antony in the name of the respondents on the same day of execution of Ext.B2, utilising the entire consideration received on alienating Ext.B2 property and the consideration was not utilised by the guardian for himself as alleged. Learned counsel pointed out that Ext.B1 establishes that the entire consideration received under Ext.B2 was in fact paid to the assignor under Ext.B1 and property was purchased in the name of the minors and hence it is to be found that the property was alienated in the interest of the minors as it was a barren land yielding no income at that time, when there could be income from the paddy fields purchased under Ext.B1. Learned counsel also pointed out that Ext.B3 sale deed by which item No. 2 of the plaint B schedule properties was sold establishes that the property was sold for the education of the minor children and in such circumstances the courts below should have found that Exts.B2 to B5 are not void and instead are valid and binding on the respondents. Learned counsel also pointed out that in any case finding of the courts below that the appellants are not-entitled to the value of improvements is unsustainable in view of the provisions of Compensation for Tenants Improvements Act as well as section 51 of Transfer of Property Act as held by this court in Veerasikku Gounder v. Korah Kurian ( 1960 KLT 213 ). Learned counsel also pointed out that when Ext.B1 shows that it was utilising the consideration obtained under Ext.B2 alienation, property was purchased under Ext.B1 in the name of respondents, setting up title based on Ext.B1, respondents have instituted O.S.897/1997 before Munsiff Court, Kodungallur challenging the sale deed executed by the father whereunder the property covered under Ext.B1 was sold by the father, on the allegation that the said property was sold without obtaining sanction of the District Court and the alienation was not for the benefit of the respondents. Ext.B9 decree was granted in their favour and respondents obtained recovery of possession of the said property. It is pointed out that the respondents could claim right and title to the property covered under Ext.B9 decree, only if they have title under Ext.B1 and when the said property was purchased with the consideration obtained under Ext.B2, they are not entitled to claim both the properties and when subsequent to the institution of the suit, respondents set up title to the property covered under Ext.B1 and obtained Ext.B9 decree, respondents are not entitled to challenge Ext.B2 sale deed and it is binding on them. 7. Learned counsel appearing for the respondents pointed out that Ext.A1 sale deed under which the plaint A schedule property was purchased in the name of respondents by the grandfather shows that the father of the minors had no power to alienate the property and it shows that the property was purchased in the name of respondents who were then minors and for their benefit and also for the benefit of children, if any born to the father thereafter. It was argued that Antony was a drunkard and it was to preserve the property for the benefit of the minors it was purchased in the name of the minors. Learned counsel argued that when the father did not obtain sanction from the court, as provided under section 30 of the Guardians and Wards Act, the alienations are voidable and when there is no evidence to prove that the alienations were for the legal necessity and the benefit of the minors, even if no sanction is to be obtained, the alienations are voidable at the option of the minors on attaining majority. Learned counsel argued that though before the enactment of Hindu Minority and Guardianship Act, a Hindu natural guardian is entitled to sell the property for the benefit of the minor, a Christian natural guardian is not competent to alienate the property of the minor children without the sanction of the court. Reliance was placed on the decision of the High Court of Bombay in Kuberdas Devchand Soni v. Jerkish Naoroji (A.I.R. 1942 Bombay 54) where the Division Bench of the Bombay High Court held that Parsi law is governed by the general principles of English law and a parsi guardian has no authority to alienate the estate of the wards, except with the permission of the court. It was argued that the said principles applies to the case of alienations by a christian father also. Learned counsel argued that even if it is to be found that no sanction of the District Court is necessary for a natural guardian to alienate the properties of the minors, such alienation is valid only if it was for the benefit of the minor and the burden is on the appellants to establish that the alienations were for the benefit of the minors and this aspect was not considered by the courts below and if so, the case is to be remanded for consideration of the said question. 8. The crucial question is whether Antony the father of respondents, their natural guardian was competent to alienate the property of the respondents, as their guardian without obtaining sanction from the District court as provided under Guardians and Wards Act and if so whether the alienations under Exts.B2 and B3 are voidable. Antony and the respondents are Christians. 8. The crucial question is whether Antony the father of respondents, their natural guardian was competent to alienate the property of the respondents, as their guardian without obtaining sanction from the District court as provided under Guardians and Wards Act and if so whether the alienations under Exts.B2 and B3 are voidable. Antony and the respondents are Christians. If it is found that a natural guardian of a christian minor is competent to alienate the property of the minor without obtaining sanction of the court, the question will arise whether Ext.B2 and B3 alienations were for the welfare or benefit of the minor. If it is to be found that the alienations are voidable then a further question will arise whether appellants are entitled to value of improvements. 9. Section 4(2) of the Guardians and Wards Act, (hereinafter referred to as the Act), defines a "guardian" as "means a person having the care of the person of a minor or of his property or of both his person and property." Thus the guardian as provided under section 4(2) of the Act includes not only a guardian appointed by the court or testamentary guardian but a natural guardian also. Section 27 of the Act provides that a guardian of the property of a ward is bound to deal therewith as carefully as a man of ordinary prudence would deal with it, if it were his own and subject to the provisions of the Chapter, he may do all acts which are reasonable and proper for the realisation, protection or benefit of the property. Section 28 limits the power of a testamentary guardian and section 29 that of a guardian appointed by the court. 10. Section 28 and 29 read :- 28. Powers of testamentary guardian-- Where a guardian has been appointed by will or other instrument, his power to mortgage or charge, or transfer by sale, gift, exchange or otherwise, immovable property belonging to his ward is subject to any restriction which may be imposed by the instrument, unless he has under this Act been declared guardian and the Court which made the declaration permits him by an order in writing, notwithstanding the restriction, to dispose of any immovable property specified in the order in a manner permitted by the order. 29. 29. Limitation of powers of guardian of property appointed or declared by the Court-Where a person other than a Collector, or than a guardian appointed by will or other instrument, has been appointed or declared by the Court to be guardian of the property of a ward, he shall not, without the previous permission of the Court- (a) mortgage or charge, or transfer by sale, gift, exchange or otherwise, any part of the immovable property of his ward, or (b) lease any part of that property for a term exceeding five years or for any term extending more than one year beyond the date on which the ward will cease to be a minor. 11. Section 30 of the Act provides that disposal of immovable property by a guardian in contravention of either of the two last foregoing sections (sections 28 and 29) is voidable at the instance of any other person affected thereby. Therefore the voidability of the transfer provided under section 30 is consequent to the contravention of Sections 28 or Section 29. Section 29 deals with the power of the guardian appointed by the court. A person appointed or declared by the court to be guardian of the property of a ward, without the previous permission of the court, shall not transfer by sale, gift, exchange or otherwise, any part of the immovable property of the minors. If a natural guardian has been declared as a guardian by the court, under section 29, his power to transfer the property is abrogated and he can transfer the property only with the previous permission of the court. 12. Antony, the natural guardian, was admittedly not appointed or declared as guardian of the respondents or their properties by any court. Hence Section 29 of the Act has no application. Section 28 applies only to a guardian appointed by a will or other instrument. Such a guardian can dispose immovable property of the minor, subject to any restriction which may be imposed by the instrument, unless he has under the Act, been declared guardian and the court which made the declaration permits him by an order in writing, not notwithstanding the restriction in a manner permitted by the order. Admittedly, Antony, the natural guardian of the respondents was not a testamentary guardian as provided under the Act. Hence section 28 of the Act also does not apply. Admittedly, Antony, the natural guardian of the respondents was not a testamentary guardian as provided under the Act. Hence section 28 of the Act also does not apply. Therefore Ext.B2 and B3 alienations made by Antony cannot be challenged for the failure to obtain previous permission of the court or in contravention of either section 28 or Section 29 of the Act. The question is when section 28 and 29 of the Act do not restrict the powers of a natural guardian to deal with the properties of the minor under the personal law to which he belongs, whether permission of the court is to be obtained to alienate the property of the minor. 13. If previous permission of the court is not necessary as provided under the provisions of Guardians and Wards Act, question is whether a natural guardian could alienate the property of the minor without the previous permission of the court. Various courts had occasion to consider the question of alienation by a natural guardian before the enactment of Hindu Minority and Guardianship Act and whether such alienations of the property of a minor is void or valid. One of the earliest decisions is Hunoomanpersaud Panday v. Mussumat Babooee Munraj Koonweree (1856) 6 MIA 393). In that case property of a minor was mortgaged to Hunoomanpersaud by the mother of the minor. The mortgage was held valid. In Mohanund Mondul v. Nafur Mondul and Others (1989) 26 Calcutta 820) alienation by the paternal grandfather was held valid. It is an authority for the power of a de facto guardian to alienate the property of a minor. In Seetharamamma and others v. Maganti Appiah and another (A.I.R. 1926 Madras 457) the alienation by a de facto guardian was held valid. In all those cases, sale was for legal necessity. High Courts of Madras and Calcutta took the view that de facto guardian of a Hindu minor can alienate the properties. When an alienation by a stepmother was challenged, the High Court of Bombay in Limbaji Ravji Hajare v. Rahi Ravji Hajare (A.I.R. 1925 Bombay 499) took the view that sale by stepmother is an unauthorised sale and set aside the sale. When an alienation by a stepmother was challenged, the High Court of Bombay in Limbaji Ravji Hajare v. Rahi Ravji Hajare (A.I.R. 1925 Bombay 499) took the view that sale by stepmother is an unauthorised sale and set aside the sale. The question was settled by the Full Bench of the High Court of Bombay in Tulsidas Jesingbhai Parikh and others v. Raisingji Fulabhai Vaghela and another (A.I.R. 1933 Bombay 15) holding that under Hindu law a de facto guardian of a minor can validly sell the property of the minor to a third person for legal necessity. A Division Bench of the High Court of Allahabad in Roshan Singh v. Har Kishan Singh (Indian Law Reports, Allahabad Series Vol.III Page 535) held that mother and guardian of a Hindu minor could deal with estate of the minor, within the limits allowed by the Hindu Law. The facts of the said case would reveal that the joint undivided family property of which the plaintiff claimed his share, was under mortgage and notice of foreclosure had been given. In order to save the property, members of the joint family, including the mother and guardian of the plaintiff joined in making a deed of conditional sale of the property to the defendants in August, 1872. It was challenged by the plaintiff on attaining majority as the transaction was not for lawful necessity and hence not binding on him. It was held that though the mother was not appointed the guardian of the minor under Act XL of 1858, acting bona fide, she may sell the estate of the minor for providing maintenance to the minor. It was held:- "Section 2 of Act XL of 1858, does not preclude the natural and legal guardian of a Hindu minor from dealing with his property, within the limits allowed by the Hindu law, without having acquired a certificate of administration from the civil court." 14. Full Bench of the Calcutta High Court in Ram Chunder Chuckerbutty v. Brojonath Mozumdar (ILR Calcutta Vol. IV 1879 page 929) decided the legality of an alienation made by a guardian without obtaining sanction as provided under Act XL of 1858. Section 18 of the said Act provides for previous sanction of the court to alienate the property of the ward. It was a case where a Hindu mother, the natural guardian, alienated the property of the minor children. Section 18 of the said Act provides for previous sanction of the court to alienate the property of the ward. It was a case where a Hindu mother, the natural guardian, alienated the property of the minor children. The mother though a natural guardian was not a certified guardian as provided under the said Act. The alienations made by her without obtaining permission of the court were challenged oh the ground that the property of the minor could be transferred only with the previous sanction of the court, as charge of the property of an infant shall vest in the civil court as provided under the Act. It was held that section 18 of that Act applies only to a certified guardian under the Act and not to a natural guardian, who is not a certified guardian under the Act. The position has been followed in Manishankar Pranjivan v. Bai Muli (1888 Vol.12 ILR Bombay page 689). Madras High Court in A.R. Krishnan Chetty v. Vellaichami Thevan (AIR 1914 Madras 648) had occasion to consider the validity of an alienation made by a natural guardian of a Hindu, without obtaining previous sanction as provided under the Guardians and Wards Act. It was held that no sanction is necessary for alienation of the property of a minor by the natural guardian, provided the alienation is for the necessity or benefit of the minor. The same position has been followed in Mt.Siddiqunnisa Bibi v. Nizamuddin Khan (AIR 1932 Allahabad 215). Thus it is clear that it is the settled law that prior to the enactment of Hindu Minority and Guardianship Act, natural guardian of a Hindu minor is competent to alienate the property of the ward for the welfare and benefit of the ward and no previous permission of the court was necessary. 15. Learned counsel appearing for the respondents relied on the decision of the Bombay High Court in Kuberdas Devchand Soni v. Jerkish Naoroji (A.I.R. 1942 Bombay 54). It was a case relating to the Parsi. Their Lordships found that there was no custom or usage by which guardians were permitted to alienate property of their wards and therefore held that a Parsi natural guardian is not competent to alienate the property of a minor. It was a case relating to the Parsi. Their Lordships found that there was no custom or usage by which guardians were permitted to alienate property of their wards and therefore held that a Parsi natural guardian is not competent to alienate the property of a minor. The relevant portion of the judgment reads:- "The next contention raised on behalf of the plaintiff is that, assuming Tehemina executed the mortgage for herself and as guardian of her children and not as administratrix, she was entitled to do so for legal necessity and in fact legal necessity is proved on the evidence of the case. But the written statement denied Tehemina's authority to mortgage the property at all, and it is argued on behalf of the defendants that a parsi guardian cannot alienate property on behalf of her wards even for legal necessity. This point was not taken at the trial, and it is contended that we should not allow it to be raised now, since it is a question which depends partly upon evidence of Parsi usage. The legal position of Parsis in the mofussil appears to be that in the absence of any statutory provision relating to them they are governed in the first place by usage, and secondly, by the rules of equity and good conscience: see 7 Bom.L.R.988 and 5 Bom.H.C.R (A.C.) 109. In 5 Bom.506 it was stated that in the absence of evidence of any specific law or usage applicable to a particular case, the law applicable to Parsis in the mofussil of the Presidency of Bombay is that of justice, equity and good conscience alone, and it was stated that in applying this rule to the facts of any particular case the Courts would be guided by the general principles of English law applicable to a similar set of circumstances. If there were any Parsi custom or usage by which guardians were permitted to alienate the property of their wards, it is difficult to believe that some of such cases would not have come before the Courts. But it does not appear that there have been any such cases, and we therefore think ourselves entitled to assume that Parsi usage is not on those lines. But it does not appear that there have been any such cases, and we therefore think ourselves entitled to assume that Parsi usage is not on those lines. In so far as Parsi law is governed by the general principles of English law, it must I think, be held that a Parsi guardian has no authority to alienate the estate of a ward except with the permission of the Court and that applies to every guardian, no matter how appointed and whether de facto or de jure. In Trevelyan's "Law Relating to Minor." Edn.5 p.167, it is so stated quite definitely with regard to guardians other than those appointed by the Court and other than Hindus and Mahomedans" Their Lordships had relied on the opinion of the E.J.Trevelyan in the Law Relating to Minors. It reads as follows:- "The law applicable to persons other than Hindus and Mahomedans does not permit guardians, other than those appointed by the Court, or having power given to them by the instrument appointing them, to sell or charge the immovable property of their wards." It is based on the said observation, the High Court of Bombay held that only Mahomedans and Hindus were permitted to alienate the properties of the wards by their natural guardian and as there is no evidence to prove any such custom or usage, a Parsi natural guardian is not competent to alienate the property of minor without the previous permission of the court. 16. The Honourable Supreme Court in Manik Chand's case (supra) considered the applicability of the provisions of Hindu Minority and Guardianship Act which under section 8 provides for obtaining sanction of the court to alienate the property by a natural guardian. Their Lordships held that position under the Hindu law before the enactment of the Hindu Minority and Guardianship Act was that a guardian has legal competence to enter into a contract on behalf of the minor for necessity or benefit of the estate. It was held that the settled position under Hindu law is that a guardian has legal competence to enter into a contract on behalf of the minor if it is for necessity or for the benefit of the estate. It was held that the settled position under Hindu law is that a guardian has legal competence to enter into a contract on behalf of the minor if it is for necessity or for the benefit of the estate. After analysing other decisions on the subject it was held:- "It is unnecessary to go into this question any further as after the passing of Hindu Minority Act, 1956, the guardian of a Hindu Minor has power to do all acts which are necessary or reasonable and proper for the benefit of the minor or for realisation, protection or benefit of the minor's estate. This provision makes it clear that the guardian is entitled to act so as to bind the minor if it is necessary or reasonable and proper for the benefit of the minor. The power thus conferred by the section is in no way more restricted than that was recognised under the Hindu Law. It is not disputed in this case that the contract entered into by the guardian is for the benefit of the minor." 17. The question is whether it applies to the case of a Christian natural guardian. Learned counsel appearing for the appellants pointed out that in Ouseph Maria's case (supra) which was subsequently referred by the Full Bench in Soosa Anthony Decosta Nicholos Decosta's case (supra) this court recognised and upheld the right of the mother, guardian of a minor, to alienate the property. It was pointed out that facts of the case disclosed in Varghese case (supra) makes it clear that there was a custom or practice prevailing in the christian community whereunder the natural guardian is competent to alienate the property of the minor. It is therefore argued that the principles laid down by the High Court of Bombay in Kuberdas Devchand Soni's case (supra) is not applicable. 18. When the Guardians and Wards Act does not provide that a natural guardian shall not without the previous permission of the court, transfer, b sale or otherwise, of the properties of the minor it is not at all necessary to obtain previous sanction of the court to effect sale or transfer. Exts.B2 and B3 alienations are therefore not bad for want of sanction. Exts.B2 and B3 alienations are therefore not bad for want of sanction. As rightly pointed out by the learned counsel appearing for the appellants, the question is whether there is any custom of usage among the Christians, permitting a natural guardian to alienate the property of the wards. 19. Halsbury's Laws of England Second Edition, Vol.XVII at page 625 has stated the English law as follows:- "Apart from statutory authority, the real estate of an infant cannot be bound by contract, nor settled or alienated by his parent or guardian or by the Chancery Division of the High Court under its general powers in reference to infants, even when it is for the benefit of the infant unless it is a case of salvage." 20. Therefore under the English Law, estate of a minor cannot be alienated by his natural guardian. But Indian Law is different. A direct authority on the law applicable to christians was not brought to my notice. A Division Bench of High Court of Travancore Cochin in Soosa Anthony Decosta Nicholos Decosta's case (supra) ( 1956 KLT 177 ) (supra) had occasion to consider the validity of an alienation by the mother of a christian minor. Facts of the case reveal that property of a christian minor, devolved on him was alienated by his mother, on the death of his father. The alienation was later challenged by the son on attaining majority. Their Lordships held:- "8. The sale deeds in question were executed before the Travancore Christian Guardianship Act, III of 1116 was enacted. Hence that Act cannot apply to the case. It is therefore necessary to see whether under the customary law governing the Christian community the mother was the legal guardian of the minor in the absence of the father. It is not disputed that according to the customary law of the community the father was the legal guardian of his minor child. As for the right of the mother to act as the guardian of her minor child in the absence of the father there is no direct decision of the Travancore High Court relating to the question. It is not disputed that according to the customary law of the community the father was the legal guardian of his minor child. As for the right of the mother to act as the guardian of her minor child in the absence of the father there is no direct decision of the Travancore High Court relating to the question. But there are reported cases in which the mother acted as the guardian of her minor children in the absence of the father and the transaction was not impeached on the around that the mother was not the legal guardian (vide Ouseph Maria v. Luca Mathai 4 T.L.J. 266 - F.B.). It was held in that case that according to the custom prevailing in the Christian community, in the absence of the father, the mother was the legal guardian of her minor children, both of their persons and their properties. The Madras High Court also took the same view in Bangarammal v. Lydia (A.I.R. 1934 Mad. 605). It was held in that case that among Christians, the father being dead, the mother was entitled to the custody of the child and to the guardianship of its property. Reference may also be made to the following passage in Trevelyan on Minors, 6th Edn., pages 167 and 168 where the learned author, speaking of communities other than Hindus and Mohammedans, says:- "Failing the father, the mother's custody of her children's property would be treated as not unlawful. Failing the father and mother, and their appointees, no person, however nearly related, is of right entitled to the custody of minors, who are neither Hindus nor Mohammedans, or to the guardianship of their property". It would appear from this that according to the learned author, in the case of communities other than Hindus and Mohammedans, the mother would be the legal guardian of her minor children in the absence of the father. We, therefore, hold that the plaintiff's mother was his legal guardian and that she was competent to execute the sale deeds Exts. VIII, X and XI in her capacity as the guardian of the plaintiff. It follows that the alienations are only voidable and not void. We, therefore, hold that the plaintiff's mother was his legal guardian and that she was competent to execute the sale deeds Exts. VIII, X and XI in her capacity as the guardian of the plaintiff. It follows that the alienations are only voidable and not void. The plaintiff was therefore bound to have them set aside within 3 years of his attaining majority Art. 44 of the Limitation Act." (underline supplied) A learned single Judge of this court in Varghese v. Mariamkutty ( 1970 KLT 1083 ) considered the validity of an alienation by the mother in respect of the properties of the father devolved on the minor children on the death of the father. The said decision also shows that there was a practise and usage among the Christian community whereunder the natural guardian is competent to alienate the property of a minor. 21. An identical question was considered by the Honourable Supreme Court in Thatchara Brothers's case (supra). The judgment of this case in A.S.157/1995, which was challenged in that case before the Honourable Supreme Court, establish that the alienation made by the guardian was challenged on the ground that sanction of the court was not obtained as provided under the Guardians and Wards Act. The alienation was effected by the mother of the minor plaintiffs. They were Christians. This court held that such a plea cannot stand because section 29 applies to cases where a person other than a collector or a guardian appointed by a will or other instrument has been declared by the court to be a guardian of the property and prior permission of the court is not required for the alienation by a natural guardian. The Honourable Supreme Court upheld position and held:- "The High Court has held that prior permission of the Court was not required for respondent 3, as guardian of the minor plaintiffs, to execute the sale deeds but it was necessary to show that in executing the sale deeds, Respondent 3 had acted like any other prudent man while dealing with the properties of the minors." In such circumstances, (it can only be found that Antony, the father and natural guardian of the christian minors, was competent to alienate the properties of the respondents for the welfare of the respondents or the benefit of the properties, as a prudent man who would deal with his properties and no previous sanction of the court is necessary for such alienations. The findings of the courts below that Ext.B2 and B3 alienations made by the natural guardian are voidable as no sanction was obtained under section 29 of the Act is unsustainable. The alienations made by Antony, the natural guardian, cannot be set aside on the ground that no previous permission was obtained from the court. 22. Then the question is whether the alienations were made by the natural guardian as a prudent man for the benefit of the property or the welfare of the minors?. As pointed out by the learned counsel appearing for the respondents, this question was not considered by either the trial court or the first appellate court. It is therefore necessary to remand the suit back to the trial court for deciding that question. 23. Though the courts below held that appellants are not entitled to the value of improvements, as the properties of the minors were purchased with the knowledge that no sanction was obtained from the court and the transactions are therefore voidable, unfortunately, the courts below omitted to take note of Section 51 of the Transfer of Property Act or the relevant provisions of Compensation for Tenants Improvements Act. This court in Veerasikku Gounder v. Korah Kurian ( 1960 KLT 213 ) considered the question whether a person who effected valuable improvements in the property obtained under a voidable sale deed is entitled to the value of improvements. In view of section 2(d) of Compensation for Tenants Improvements Act it was held that he is entitled to the value of improvements. In view of section 2(d) of Compensation for Tenants Improvements Act it was held that he is entitled to the value of improvements. Therefore findings of the courts below that appellants are not entitled to the value of improvements is not sustainable. If it is to be found that alienations are not for the legal necessity and were not made as a prudent man and therefore are liable to be set aside, appellants are definitely entitled to the value of improvements. 24. As rightly pointed out by the learned counsel appearing for the appellants when the minor respondents are avoiding the alienations made by their natural guardian, it is incumbent upon them to return the benefit obtained by them under the said transaction. Though item No.1 of the plaint B schedule property was alienated by the father under Ext.B2, on the same day utilising the entire consideration obtained under Ext.B2, the property covered under Ext.B1 assignment deed was purchased in the name of the minors. The minors could claim right and title to the property covered under Ext.B1, only if they are accepting the alienation made under Ext.B2. If they are avoiding Ext.B2 alienation, they cannot claim any right or title to the property covered under Ext.B1. As stated earlier the consideration paid for the acquisition of the property covered under Ext.B1 is the consideration obtained by the natural guardian by alienating the property under Ext.B2. Therefore if it is the case of the respondents that the alienation made under Ext.B2 is bad and they avoid the sale, they cannot claim any right over the property purchased under Ext.B1, utilising the consideration obtained thereunder and if so they cannot claim title to the property covered under Ext.B1 as the consideration paid for the said acquisition is the consideration obtained under Ext.B2. Respondents instituted O.S.897/1997 to set aside the sale of the property covered under Ext.B1 alleging that the said sale deed was executed by their father in respect of the property covered under Ext.B1 without obtaining previous sanction of the court and the alienation was not for their benefit. They sought to set aside the sale deed and claimed recovery of possession of the property covered under the said alienation. Ext.B9 judgment shows that upholding the contentions of the respondents a decree was granted in their favour in O.S.897/1997. They sought to set aside the sale deed and claimed recovery of possession of the property covered under the said alienation. Ext.B9 judgment shows that upholding the contentions of the respondents a decree was granted in their favour in O.S.897/1997. As rightly pointed out by the learned counsel appearing for the appellants, the result of Ext.B9 decree is that the respondents have asserted their right and title to the property purchased by the father under Ext.B1, which is not V possible if the respondents are avoiding Ext.B2 alienation. Learned counsel appearing for the respondents argued that O.S.897/1997 was instituted in view of the contentions raised by the appellants in the suit that utilising the consideration received under Ext.B2, property under Ext.B1 sale deed was purchased by the father, finding that the said property was also alienated by the father. It is pointed out by the learned counsel that if Ext.B2 sale deed is to be set aside, respondents are bound to give back the advantages derived by them under Ext.B2 and it is under such circumstances, the suit was filed. The position could have been appreciated if the alienation was not made by the natural guardian. When it is the case of the respondents themselves that the property obtained under Ext.B1 was alienated by the father and they did not get any benefit under the said transaction, no duty is cast on the respondents to give back the benefit obtained by he natural guardian under Ext.B2 sale deed, as even according to the respondents, they did not derive any benefit. Moreover, Ext.B9 judgment does not show that O.S.897/1997 was instituted by the respondents so as to make available that property, to be given to the appellants in case a decree is to be granted in this suit. On the other hand, that suit was instituted as if the property belongs to them and the property was alienated by their natural guardian without obtaining previous sanction of the court and also on the ground that the alienation was not for their benefit. If that be so, there is force in the argument of the learned counsel appearing for the appellants that by the conduct of instituting O.S. 897/1997., respondents established that they had not avoided Ext.B2 alienation and instead asserted their right obtained by utilising the consideration received under Ext.B2, in acquiring the property covered under Ext.B1. If that be so, there is force in the argument of the learned counsel appearing for the appellants that by the conduct of instituting O.S. 897/1997., respondents established that they had not avoided Ext.B2 alienation and instead asserted their right obtained by utilising the consideration received under Ext.B2, in acquiring the property covered under Ext.B1. This aspect is also to be considered by the learned Munsiff, as it was not considered by the courts below. The appeal is allowed. The decree and judgment passed by Munsiff,Kodungallur in O.S.300/1995 as confirmed by District Judge, Thrissur in A.S.163/2003 is set aside. O.S.300/1995 is remanded to the Munsiff Court, Kodungallur for fresh disposal. Learned Munsiff to consider whether Ext.B2 and B3 alienations made by Antony the natural guardian was as prudent man dealing with his own property and were for the necessity and benefit of the respondents and if not whether Ext.B2 and B3 and the subsequent transactions are liable to be set aside. If it is to be found that the alienations are liable to be set aside, appellants are entitled to the value of improvements which shall be fixed by the learned Munsiff or left open to be decided in the execution proceedings. Learned Munsiff shall necessarily consider whether respondents who claimed the benefit under Ext.B1 sale deed, obtained by the natural guardian in their name utilising the consideration received under Ext.B2, can avoid Ext.B2 assignment deed. Parties are directed to appear before the Munsiff Court, Kodungallur on 2.6.2011.