JUDGMENT : Chitambaresh, J. 1. A daughter questions the propriety of her Mahomedan father in having acted as her guardian in the alienation of her share in the property after she had attained puberty and married also thought was a minor. The issue needs to be resolved with reference to the exposition of Mahomedan Law by SIR DF Mulla edited by M. Hidayatullah and Arshad Hidayatullah followed by courts over decades. 2. The plaint schedule property originally belonged to Sooppy Haji who was the father of the plaintiff and defendant nos.1 and 2 under a registered deed (Document No.661/1942, S.R.O., Nadapuram). Sooppy Haji assigned his right over the property in favour of the plaintiff and defendant nos.1 and 2 under Ext.B1 sale deed dated 30.6.1957 at a time when the plaintiff and defendant no.2 were minors. Defendant no.1 who was the elder brother of the plaintiff and defendant no.2 acted as their guardian in getting executed Ext.B1 sale deed from Sooppy Haji. It was contended that defendant no.1 was holding the property as a co-owner for and on behalf of the plaintiff and defendant no.2 and hence the suit was laid for partition of one-third share. 3. Defendant no.1 contended that he had constructed a building in the property after obtaining consent from Sooppy Haji who was the legal guardian of the plaintiff and defendant no.2 at that time. It is his case that Sooppy Haji acting as the legal guardian of the plaintiff and defendant no.2 subsequently executed Ext.B2 sale deed dated 24.7.1962 in favour of defendant no.1. Defendant no.1 asserting exclusive title had also executed Exts.B4 and B5 deeds dated 8.6.1982 and 25.6.1982 in favour of his wife and children impleaded as defendant nos.3 to 13. The suit for partition was resisted mainly on the ground that the plaintiff has no subsisting right over the property in view of Ext.B2 sale deed assigning her rights. The court below has accepted the contentions of defendant nos.1 and 3 to 13 and dismissed the suit against which the plaintiff has come up in appeal challenging the decree. 4. We heard Mr. G.Shrikumar, Senior Advocate on behalf of the appellant/plaintiff and Mr. Parthasarathy, Advocate on behalf of the contesting respondents/defendants. 5. The court below has accepted the contentions of defendant nos.1 and 3 to 13 and dismissed the suit against which the plaintiff has come up in appeal challenging the decree. 4. We heard Mr. G.Shrikumar, Senior Advocate on behalf of the appellant/plaintiff and Mr. Parthasarathy, Advocate on behalf of the contesting respondents/defendants. 5. The plaintiff does not dispute Ext.B1 sale deed wherein defendant no.1 who was a major and her elder brother acted as her guardian in purchasing the property under which she obtained one-third right. But Ext.B2 sale deed wherein Sooppy Haji who was her father acted as her guardian in selling her one-third right in the property to defendant no.1 is very much in dispute. The plaintiff contends that she was married on 9.4.1959 (evidenced by Ext.A2 certificate issued by the Juma Masjid) and had become a major attaining puberty before Ext.B2 sale deed dated 24.7.1962. The plea in short is that the father of the plaintiff was ineligible to act as her guardian in Ext.B2 sale deed when her husband was available to act so. A 'minor' means a person who has not completed the age of 18 years as per Section 348 of the Mahomedan Law read with Section 3 of the Indian Majority Act, 1875 applicable to one domiciled in India. The plaintiff was only 16 years of age on the date of Ext.B2 sale deed and hence a minor who could be represented by a legal guardian, court guardian or de-facto guardian. This is so notwithstanding the fact that the minority of a male or female is presumed to terminate when he or she attains puberty as per the pristine Islamic law. 6. The following persons are entitled in the order mentioned below to be guardians of the property of a minor as per Section 359 of Mahomedan Law: (i) The father; (ii) The executor appointed by the father's Will; (iii) The father's father; (iv) The executor appointed by the Will of the father's father. It is clear therefore that Sooppy Haji as the father was competent to act as the guardian of the plaintiff in executing Ext.B2 sale deed conveying her one-third right over the property in favour of defendant no.1. It is clear therefore that Sooppy Haji as the father was competent to act as the guardian of the plaintiff in executing Ext.B2 sale deed conveying her one-third right over the property in favour of defendant no.1. A duty to appoint a court guardian for the protection and preservation of the property of the minor arises only in default of the legal guardian as per Section 360 of the Mahomedan Law. There was also no de-facto guardian who had voluntarily placed himself in charge of the person and property of the minor as per Section 361 of the Mahomedan Law. 7. A reference to the decision in Meethiyan Sidhiqu v. Muhammed Kunju Pareeth Kutty and others ( AIR 1996 SC 1003 ) will be profitable and is extracted below: “5. Mulla's 'Principle of the Mohammadan Law' (Nineteenth Edition) by Justice M.Hidayatullah, former Chief Justice of this Court and Arshad Hidayatullah, deals with legal property guardians of a Muslim minor in Section 359. In the order, only father, executor appointed by the father's Will, father's father and the executor appointed by the Will of the father's father, are legal guardians of property. No other relation is entitled to be the guardian of the property of a minor as of right; not even the mother, brother or uncle but the father or the paternal grandfather of the minor may appoint the mother, brother or uncle or any other person as his executor or executrix of his Will in which case they become legal guardian and have all the powers of the legal guardian as defined in Sections 362 and 366 of the above Principles.” 8. True it is that a legal guardian of the property of a minor has no power to sell the immovable property of the minor except in the following cases as per Section 362 of the Mahomedan Law: (i) Where he can obtain double its value; (ii) Where the minor has no other property and the sale is necessary for his maintenance; (iii) Where there are debts of the deceased and no other means of paying them; (iv) Where there are legacies to be paid and no other means of paying them; (v) Where the expenses exceed the income of the property; (vi) Where the property is falling into decay; and (vii) When the property has been usurped and the guardian has reason to fear that there is no chance of fair restitution. The plaintiff asserts that none of the contingencies enumerated above arose in the case on hand in which case Sooppy Haji as her legal guardian had no power to sell her share in the property scheduled to the plaint. 9. The evidence on record is insufficient to hold that any one of the contingencies enumerated as per Section 362 of the Mahomedan Law existed empowering Sooppy Haji to sell the share of the plaintiff in the property. But such a sale borne out by Ext.B2 sale deed is only voidable at the instance of the minor or any other person affected thereby as per Section 363 of the Mahomedan Law. The relevant part of Section 363 of the Mahomedan Law is extracted below for the purpose of clarity: “..........A disposal of immovable property by a guardian in contravention of the foregoing provisions is voidable at the instance of the minor or any other person affected thereby........' (emphasis supplied) The disposal of the immovable property by the legal guardian Sooppy Haji in contravention of the foregoing provisions of Section 362 of the Mahomedan Law was voidable at the instance of the plaintiff. 10. Only a de-facto guardian has no power to transfer any right or interest in the immovable property of the minor as per Section 364 of the Mahomedan Law and such a transfer is not merely voidable but void. Sooppy Haji was neither the court guardian nor the de-facto guardian and had acted only as the legal guardian in Ext.B2 sale deed which was perhaps in contravention of Section 362 of the Mahomedan Law. Sooppy Haji was neither the court guardian nor the de-facto guardian and had acted only as the legal guardian in Ext.B2 sale deed which was perhaps in contravention of Section 362 of the Mahomedan Law. Ext.B2 sale deed is only voidable at the instance of the plaintiff and is not void which can be ignored and the suit for partition simplicitor laid 28 years after she had attained majority is not maintainable in law. The plaintiff not having filed the suit within three years after she attained majority under Article 60 of the Limitation Act was bound to fail and the court below was correct in its conclusion. 11. The other contention of the plaintiff is that Ext.B2 sale deed in respect of her share is without consideration and therefore void relying on Esaya Nelson v. Adichan Nadar Lekshmanan Nadar [ 1963 KLT 878 (FB)]. This is on the premise that even the consideration for Ext.B1 sale deed was paid by defendant no.1 out of his pocket as spoken to by him in evidence as D.W.1. But there is explicit recital in Ext.B2 sale deed that a sum of Rs. 700/- was received as consideration from defendant no.1 towards the two-third share of the plaintiff and defendant no.2. The first attesting witness to Ext.B2 sale deed examined as D.W.2 also deposed that he was present at the time of execution and saw the passing of consideration of Rs. 700/-. It is difficult to hold that Ext.B2 sale deed alienating the share of the minor is not supported by consideration and hence void which needs no setting aside in the eye of law. 12. It should be mentioned that Esaya Nelson's case (supra) overrules Beeyyathumma v. Moidin Haji [ 1958 KLT 602 (DB)] only in so far as it concerns alienation of the property of the minor without consideration. Beeyyathumma's case (supra) to the extent that a transaction by a legal guardian which is not beneficial to the minor is only voidable requiring it to be set aside still holds good. The plaintiff could have avoided the transaction had she filed a suit impugning Ext.B2 sale deed within three years after she had attained majority. The court below has also noticed that defendant nos.3 to 13 who are assignees of the property from defendant no.1 have remitted tax and included the property in their ceiling proceedings. The plaintiff could have avoided the transaction had she filed a suit impugning Ext.B2 sale deed within three years after she had attained majority. The court below has also noticed that defendant nos.3 to 13 who are assignees of the property from defendant no.1 have remitted tax and included the property in their ceiling proceedings. The plaintiff has miserably failed to show that she has any subsisting partible right and the decree of the court below disallowing partition calls for no interference in this appeal. The Appeal Suit is dismissed. No costs.