Kancherla Kanakayya vs Sri Rajah Venkataramayya Apparao Bahadur and Others

Phillips, J.—The question at issue in this appeal is, whether the transfer of the decree in favour of the 2nd defendant by his guardian ad litem

to the 1st defendant is valid and whether the plaintiff is entitled to contend that it shall be deemed invalid. The Lower Courts have found that the

transfer was not a fraudulent or colourable transaction and consequently the plaintiff cannot avoid it as being a transaction in fraud of creditors, but

it is contended that inasmuch as the guardian ad litem did not obtain the sanction of the Court to the transfer it is void. This question has been

considered in this Court and it has been held in Kancherla Kanakayya Vs. Mulpuru Kotayya and Others, . that the sanction of the Court to such a

transfer even after a decree is necessary, and in this it follows the prior decision in Shaik Davud Rowther and Others Vs. Paramasami Pillai, .

which itself follows Virupakshappa v. Shidappa and Basappa I I R (1901) B 109.

Order 32, Rule 7 (2), Civil Procedure Code, does not say that a transaction in which the sanction of the Court has not been obtained shall be

void, but that it shall be voidable as against all parties other than the minor. That means that the minor can avoid the transaction on attaining

majority if he thinks fit, or even earlier if some guardian on his behalf thinks fit to establish its invalidity. This has been held in Ishan Chandra Kundu

v. Nilratan Adhikari ILR (1923) Patn 538., Phulwanti Kunwar v. Janeshar Das (1934) 22 All. 521 and Jita Singh v. Man Singh (1921) 62 IC

794.

It is now urged for the respondents that although the transaction is only voidable as against all parties other than the minor it is absolutely void as

against the minor, but this cannot be so, otherwise the minor could not ratify it, if it were void ab initio.

Then there seems to be no ground for allowing a third party to intervene in a transaction of this sort and to plead that it is void ab initio when

neither of the parties to the transaction accept that contention. The transaction must be either ratified or impeached by the minor and it is not open

in this case for the plaintiffs to say that it is not valid. The plaintiffs cannot consequently set aside this transaction and their suit therefore fails and is

dismissed with costs throughout.