9911796707
TMI Blog1969 (3) TMI 98X X X X Extracts X X X X X X X X Extracts X X X X ..... er is charged with having acted in bad faith and the sale proceeds had not been accounted for. 2. The sales that are impeached were effected in 1938 and this action in forma pauper is was commenced on April 20, 1954. the age of the plaintiff was given as 27 years as on the date of the plaint. That would imply that she attained the age of majority in 1945. The plaintiff avers that the several acts relating to management by the Ist defendant and the nature of her title were concealed form her knowledge and that the plaintiff was told when she questioned her father that there was no property of her mother. The plea advanced in the pleading is that by reason of the fraud and deception practiced by her father, she was kept in the dark as to her right to sue and she came to know about her right only about the middle of the year 1947. The suit is thus said to be saved form the bar of limitation. No relief for setting aside of the sales is prayed for and the plaintiff asked for partition and possession of her half share of the property. Her sister did not join in the suit. Nor did she support the case of the plaintiff by appearance at the trial or participation in the proceedings. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at shortly after the sales, she attained majority. In the pleading of the Ist defendant, he gives the date of birth of the plaintiff as 11-11-1924. The Ist defendant was a clerk serving under the District Board and was not a resident of the village where the lands were situate. The Ist defendant also pointed out in his pleading that the testatrix, who made the will in 1924, had only a woman's estate and there was thus a could on the title, because of the incompetence of the testatrix. If that were the correct position, the will would be inoperative and by the date of the death of the plaintiff's mother in 1932, she did not prescribe for title by adverse possession. This flaw in the title was one of the consideration that weighed with the Ist defendant in effecting the sales. The income was not regularly released and it was never more than ₹ 70/- per year. They were dry lands of poor quality and only 3 acres out of the total extent was stated to be of comparatively better quality. The rest of the extent was of saline soil. 7. The plaintiff's father-in-law was not a stranger to the Is defendant. The two families were related to each other even prior to the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion is whether the plaint fin this case fulfills the requirement of law. 9. As observed by Lord Selborne in Wallingford v. Mutual Society, (1880) 5 AC 685 to p. 697: With regard to fraud, if there be any principle which is perfectly will settled it is that general allegations however strong may be the words in which they are stated, are insufficient even to amount to an averment of fraud of which any Court ought to take notice. It is not the mere use of general words such as 'fraud' or 'collusion' that can serve as the foundation for the plea. Such expressions are quite ineffective to give the legal basis in the absence of particular statements of fact which alone can furnish the requisite basis for the action. in the present case, it is necessary to scrutinise the averments in the plaint minutely in order to ascertain whether the particulars constitution the fraud are set out with reasonable precision. If the general word, of which we find there is a superfluity, are omitted, what is it that remains in the pleading of the plaintiff? 10. The first averment is to the effect that the documents of title relating to the property we ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er averment as to fraud. In the passage extracted above, after referring to certain features, the plaintiff only described them as being tantamount to fraud in the eye of law. it is obvious that none of the features mentioned by the plaintiff with the exception of the alleged false representations can constitute fraud. 13. It is no doubt alleged that there were deliberate false representations made by the Ist defendant that the mother left no property. But no particulars are given as to when such representations were made. The allegation is very vague and is not in conformity with the requirements of Rule 6 of Order 7. It is well settled that in order to make out extension of time for the institution of suit on the ground of fraud, it should relate to the active concealment of the right of the plaintiff to institute the action. It is necessary to make out that as a result of the fraudulent design, the plaintiff has been prevented from exercising the right to sue in respect of the particular property. A mere allegation that the Ist defendant that the mother had no property, is inadequate to make out that there was any concealment, by fraudulent design, form the plaintiff be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at there was no consideration at all for the sale. We are accordingly of opinion that even on the basis of the averments in the plaint, no case for the application of the provisions of Section 18 has been made out. In any case, so far as the defendants 4 to 9 are concerned there is a conspicuous absence on the part of the plaintiff of nay averment to entitle her to the benefit of the provisions of Section 18 against them. 15. We are of opinion that the appeal should fail even on this short ground. But as the other questions also had been argued, we shall deal with them too. 16. It is admitted by the plaintiff that verified copes of the sale deeds were obtained in or about July 1947. It follows that whatever may have been the position prior to July 1947, after that date, the plaintiff did not suffer from any disability occasioned by the fraud of the Ist defendant. it is stated in paragraph 9 of the plaint, that after the plaintiff came to learn of the transactions, notices were caused to be issued early in 1948. The reference, apparently, is to Ex. B-6 dated 6th January, 1948. the plaintiff admitted that she could not pursue promptly her remedies because her father ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ised for the setting aside of alienations by guardian. No distinction is made in Article 44 between de facto or lawful guardians. There is no warrant for reading the provisions of Article 44 so as to restrict its operation to transfers effected only by lawful guardians other than de facto nes. The expression used by the legislature is 'guardian' simplicities. It admits of no doubt that a de facto guardian has competence, in certain circumstances to convey the ward's estate. Ever since the early decision in Hanuman Pershad's case, Courts have always recognised the validity of alienations made by a de factor guardian. we are unable to accept the reasoning of the learned Judge in support of his observation that a de facto guardian's sale is outside the purview of Article 44. Nor are we persuaded that the reliance placed by him on the decision in Chennapa v. Onkarappa, ILR 1940 Mad 358 (AIR 1940 Mad 33) (FB) is apposite. cases relating to the power of acknowledgment of a debt, rest on a different basis and do not furnish an acceptable analogy. The observations of the Federal Courts in Sriramulu v. Pundarikakshayya, 1950-1 Mad LJ 586 (AIR 1949 FC 218) go to show that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... guardian. if they lack justification, they are in both cases voidabel. And, when they are voidable, the application of Article 44 is an inescapable corollary. To hold that the alienations made by de facto guardian are voidable but at the same time they are voidable, the application of Article 44 is an alienations made by a de facto guardian are voidable but at the same time they are outside the purview of Article 44, is to take up an inconsistent position. This incongruity was not justified in the above cases by reference to any provision of law or principle. 22. It is, however, unnecessary for us to labour the point further, in view of the distinguishing feature of the case on hand. In respect of the property now in dispute, there was no doubt that the Ist defendant was allowed by the lawful guardians of the two married daughters to make the alienations to the defendants 4 to 9 . The position virtually is that the lawful guardians themselves effected the sales. We see no reason to depart form the conclusion of the trial Court that the Ist defendant acted with the consent of the lawful guardian. 23. In ILR 38 Mad 867 = (AIR 1915 Mad 296) (supra) while the father ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by a lawyer, he did not chose to assail the transactions of sale. There is the further circumstance that the plaintiff's husband does not choose to give evidence denying his approval of the sales, though the Ist defendant urged the plea in this pleading. The cumulative effect of all these facts or omissions is decisive and we have no reason to reject the case of the Ist defendant that the sales were made by him in his name because he was authorised to effect them by the sons-in-law and daughters. 26. The sales are, in substance, though not in form, alienations made by the dejure guardians. In a recent decision of the Madras High Court in Mayilasami Chettiar v. Kalimaal, 1969-1 Mad LJ 177 the consent of the lawful guardian was expressed in the form of an attestation of the deed executed by a de facto guardian. It was deemed sufficient to assimilate the transaction to an alienation made by the former. After reviewing some of the earlier authorities, the learned Judge observed: Thus, it is amply clear that even where there is a legal guardian in existence, any alienation of minor's property by a de facto guardian would be valid if it is for necessity. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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