Civil Appeal No951 of 1977
From the Judgment and Order dated 2971976 of the Madras High Court in SA No89 of 1972
ATM Sampath and PNRamalingam for the Appellant
SBalakrishnan and SPrasad for the Respondent
The Judgment of the Court was delivered by THOMMEN J
The appellant is the defendant in a suit insti 392 tuted by the respondent to set aside a transfer of property made by the guardian of a minor and for recovery of possession of the property
The suit was decreed and the decree was confirmed by the first appellate court as well as by the High Court
The plaintiff respondent purchased the suit property from an ex minor within three years after the minor attained majority
During his minority the property was sold by his father as his natural guardian to a person from whom the present appellant purchased the property
All the courts found that the guardian had not obtained the permission of the Court for the sale of the property as required by section 8 of the Hindu Minority  Guardianship Act 1956 the Guardianship Act and that the sale of the property was not for legal necessity
Dismissing the second appeal the High Court held that the suit was rightly instituted by the respondent as a transferee from the ex minor within three years after the minor attained majority and that the contention of the defendant that the suit by a transferee from the ex minor was hit by section 6e of the was unsustainable
The only question which arises in the present appeal as it did before the High Court is to quote the words of the High Court Whether a transferee from a minor after he attained majority can file a suit to set aside the alienation made by the minor s guardian or the said right is one to be exercised only by the minor
The relevant facts are that the suit property belonged to one Veerammal
She had a daughter by name Kaliammal
Veerammal died shortly after she purchased the property in 1948
She left behind her husband Kandayya and their duaghter Kaliammal
Subsequently Kandayya married a second time when his daughter Kaliammal was a minor
She thereupon left her father s house and resided with her maternal grand father who protected and maintained her
During her minority Kandayya sold the property on 29101959 to Jainulavudeen
On 2541966 Jainulavudeen in turn sold the property to the defendant appellant
Subsequently on 2651966 the plaintiff obtained a deed of sale of the suit property in his favour from Kaliammal who had by then attained majority
The Plaintiff thereafter instituted the present suit OS No 491 of 1968 against the appellant to set aside the transfer of property made by Kandayya and for recovery of its possession
393 The question is whether the respondent in his capacity as a transferee from the ex minor was competent to bring a suit to set aside the sale effected by the minor s guardian
It is no longer disputed that the suit was brought within three years after the minor attained majority
Nor is it any longer contended that the father of the minor as her natural guardian had obtained the permission of the Court or that the sale effected by him was one for legal necessity
These two vital points have been concurrently found against the appellant
The only contention which Mr Sampath appearing for the appellant is in a position to urge is as regards the question whether the suit is hit by section 6e of the TP Act
Counsel says that all that the ex minor was in a position to transfer was her mere right to sue to set aside the sale and recover possession of the property transferred by her father as her natural guardian
The property itself had been transferred by the father prior to its sale by the ex minor
The minor had therefore no property to sell except a right to set aside the sale
Accordingly whatever transfer that was effected by the minor in favour of the plaintiff was nothing more than a mere right to sue and such transfer was invalid by reason of section 6e of the TP Act
Mr Balakrishnan appearing for the respondent plaintiff contends that the ex minor was fully competent to bring a suit to set aside the sale within a period of three years after attaining majority and any person claiming under her is equally competent to institute action for the same purpose
He refers to the provisions of section 83 of the Guardianship Act
He contends that a suit to set aside a sale is not for the enforcement of any personal right but a right in property and is therefore not hit by section 6e of the TP Act
In any view counsel says section 83 of the Guardianship Act sepcifically allows such a suit to be brought by a person claiming under a minor and therefore such a statutory right specially granted by an enactment dealing with the protection of the minor cannot be defeated by the general provisions of an earlier enactment
The two provisions counsel says can be read harmoniously so as to avoid an artificial conflict
What the Guardianship Act intends to protect is the right of a person claiming under a minor to sue for setting aside the sale of property sold otherwise than as permitted by section 8 of the Act
On the other hand the TP Act only prohibits suits in the the nature of champerty and maintenance based on bare or naked right of litigation
The general provision contained in section 6e of the TP Act does not derogate from the special protection of the minor s interest and the interest of a person claiming under him as afforded by the Guardianship Act which is addressed to a specific problem In any view counsel says a sale by the guardian 394 otherwise than as permitted by section 8 is void and is therefore incapable of passing a title
For all these reasons Mr Balakrishna submits that the suit was competent and was rightly decreed on the facts found and the appeal by the defendant has no merits
As concurrently found by the courts below the sale effected by the guardian during the minority of his daughter was not in compliance with the provisions of section 18i of the Guardianship Act
The property was transferred by him without obtaining the previous permission of the Court and the transfer was not for the benefit of the minor
Such a sale by the minor s father who is his natural guardian is unlike in the case of transfer by a de facto guardian Section 11 not a void sale but only a voidable sale
Such a sale until set aside is sufficiently effective to pass title but being a voidable sale what the buyer has obtained is a defeasible title which is liable to be set aside at the instance of the person entitled to impeach it
Section 83 of the Guardianship Act says Any disposal of immovable property by a natural guardian in contravention of sub section 1 or sub section 2 is voidable at the instance of the minor or any person claiming under him emphasis supplied The effect of this sub section is that any disposal of immovable property by a natural guardian otherwise than for the benefit of the minor or without obtaining the previous permission of the Court is voidable
A person entitled to avoid such a sale is either the minor or any person claiming under him
This means that either the minor or his legal representative in the event of his death or his successor in interest claiming under him by reason of transfer inter vivos must bring action within the period prescribed for such a suit ie three years from the date on which the minor died or attained majority as the case may be
In the present case the suit was brought as found by the courts below within three years after the minor attained majority
Mr Sampath however contends that a person claiming under a minor referred to in section 83 can only be a legal representative of a deceased minor and not a person succeeding to the interests of the minor by reason of transfer inter vivos
He refers to the decisions in Jhaverbhai Hathibhai Patel vs Kabhai Bechar Patel  Ors  Mon Mohan Bhattacharjee  Ors
vs Bidhu Bhusan Dutta  Ors  Palani Goundan  Anr
vs Vanjiakkal  395 Anr  Premprakash Surajmal vs Maharashtra Revenue Tribunal Nagpur  Ors AIR 1969 Bom361 and Ghanshyam Dass vs Dr Shiva Shankar Lal  Ors 1980 All
Law Journal 130 and other cases in which certain High Courts have taken the view that the right of the minor is a personal right and it cannot be transferred otherwise than by inheritence
The person claiming under him mentioned under section 83 of the Guardianship Act counsel says can only be a representative and not a purchaser or transferee inter vivos
He refers to Article 60 of the and submits that the provision refers only to a legal representative and not any other successor
In Jhaverbhai Hathibhai Patel vs Kabhai Bechar Patel  Ors
  it was held what was assigned by the minor to the plaintiff in that suit was not the property in question but his right to sue for it and if he could establish his allegation to have the sale avoided this I think was no more than a right of suit and if I am correct such a transfer is forbidden by section 6 Cl
e TP Act
 Similar reasoning was adopted in the other decisions cited by Mr Sampath on the point
The rationale of these decisions is that the right to impeach a sale effected by the guradian is a personal right vested in the minor and it is not transferable inter vivos
The expression person claiming under him according to this line of reasoning must therefore be understood as a legal representative and not an assignee
On the other hand a Division Bench of the Madras High Court in P Kamaraju vs C Gunnayya  Ors AIR 1924 Madras 322 held that the right of the minor was not a bare right to sue and it was an assignable right
The High Court held 
By selling the property to the plaintiff on the footing that the sale by the mother was not binding on him he has chosen to avoid it and the result of it is that from his point of view he has got a complete title
The title no doubt will only be effective if the Court ultimately finds that the sale by the mother is not binding on him
But contingent on that event he has got a complete title and this title is not a bare right to sue and is therfore assignable   396 In Palaniappa Goundan vs Nallappa Goundan  Ors AIR 1951 Madras 817 Viswanatha Sastri J observed Where an ex minor transfers property unauthorisedly sold by his guardian during his minority he transfers not a mere right to use but his interest in the property though a suit may be necessary to avoid the transfer by the guardian  recover possession of the property from his alienee
Conversely the liability of the transferee from the guardian is not a liability to pay damages for the unauthorised act of the guardian but is a liability to restore the property to the rightful owner or his transferee
Similar view was expressed in Karnam Nagabhushana Rao vs Karnam Gowramma  Ors 1968 2 Andhra Weekly Reporter 57
These decisions on which reliance was placed by the Madras High Court in the impugned judgment are to the effect that the right of the minor is not a bare or naked right to sue but a right in property which is assignable
In Halsbury s Laws of England 4th edn
 Vol 6 paragraphs 86 87 at pages 49 50 this is what is stated A bare right of litigation such as a mere right to damages for a wrongful act is not assignable on the principle that the law will not recognise any transaction savouring of maintenance or champerty
By way of exception to the rule stated in the previous paragraph there is nothing unlawful in the purchase of property which the purchaser can only enjoy by defeating existing adverse claims or in the assignment for example by mortgage of property being the fruits of litigation
In every case it is a question whether the purchaser s real object was to acquire an interest in the property or merely to acquire a right to bring an action either alone or jointly with the vendor  
In the instant case on the facts found the transfer of the property made by the guardian was a voidable transaction and it was therefore open to the minor to challenge it and seek recovery of possession
Such a right of the minor is a right or interest in property 397 which he himself or any person claiming under him may enforce by instituting a suit Section 83 of the Guardianship Act
Any person claiming under him must necessarily include a purchaser
Section 83 confers a right of suit in the special circumstances postulated in that provision
The object of the Act being the protection of the minor the legislature has thought it fit to confer a right of suit in certain circumstances not only on the minor but also on a person to whom the minor has transferred his rights
The right transferred is an interest in property which is capable of enforcement at the instance of the transferee as it was at the instance of the ex minor prior to the transfer
Such a provision indeed specially for the protection of the interests of the minor must be read in harmony and consistently with the general provisions contained in section 6 of the TP Act
See The JK Cotton Spinning  Weaving Mills Co Ltd vs The State of Uttar Pradesh  Ors   194 and Ashoka Marketing Ltd  Anr
vs Punjab National Bank  Ors 1990 3 JT SC 417 439
The transfer made by the father during his son s minority was voidable at the instance of his son who was the real owner and any person purchasing such property from the natural guardian obtained only a defeasible title
The minor retained a right in the property to defeat existing adverse claims and such right is an assignable right
We are in complete agreement with what has been stated on the point in Palaniappa Goundan vs Nallappa Goundan  Ors AIR 1951 Madras 817 and in P Kamaraju vs C Gunnayya  Ors AIR 1924 Madras 322
We do not agree with the contrary view expressed on the point in Jhaverbhai Hathibhai Patel vs Kabhai Bechar Patel  Ors  Mon Mohan Battacharjee  Ors
vs Bidhu Bhushan Dutta  Ors and Palani Goundan  Anr
vs Vanjiakkal  Anr A construction which is unduly restrictive of the statutory provisions intended for the protection of the interest of the minor must be avoided
This is all the more so in view of section 5b of the Guardianship Act which says
Save as otherwise expressly provided in this Act a         b any other law in force immediately before the com 398 mencement of this Act shall cease to have effect in so far as it is inconsistent with any of the provisions contained in this Act
 For the reasons stated by us we see no merit in the challenge against the judgment under appeal
The appeal is accordingly dismissed
We do no however make any order as to costs
VPR Appeal dismissed


Summary:
For the academic year 1983 84 there was a vacancy for the post of Lecturer in Sanskrit in the College managed by the appellant Trust
The said post was reserved for candidate from backward classes
The first Respondent not belonging to any backward class applied for the post even before the appellant Trust issued an advertisement
An advertisement was issued later without mentioning the academic year for which the appointment was to be made though admittedly it was for the academic year 1983 84
The advertisement specifically stated that the post was reserved for a backward class candidate and if no such candidate was available a candidate from the non backward classes may be appointed for one year
Within a month the advertisement was repeated and yet no application was received from any candidate from backward classes
Hence the appellant trust appointed the First Respondent who had earlier applied from 19384 till 3041984
Again an advertisement was issued in 1984 for the academic year 1984 85
And there was no response from any candidate belonging to backward classes
The First Respondent was interviewed and appointed for one year till 1941985
For the academic year 1985 86 no advertisement was issued
The First Respondent was again appointment to the said post from July 10 1985 to April 30 1986
Thereafter her services were terminated after issue of notice
No appointment was made to the said post for the academic year 1986 87
However on 151987 an advertisement was issued inviting applications for the said post from candidates belonging to all classes 283 dereserving the post
Respondents 1 and 5 and another candidate all belonging to non backward classes applied
The 5th Respondent was selected and appointed to the said post
Thereafter in respect of non payment of salary for certain period and for setting aside her termination order the First Respondent approached the College Tribunal
The Tribunal allowed her claim for salary for the relevant periods but dismissed her claim for reinstatement holding that her appointment was purely temporary and her claim that she should be deemed to have been confirmed because she had served for two academic years was not established in the circumstances of the case
Against the Tribunal s decision the First Respondent approached the High Court by way of a Writ Petition
The High Court allowed the Writ Petition holding that notwithstanding the break in her actual appointment she was continuously in employment from March 19 1984 to April 30 1986 and hence entitled to the benefit of the resolutions of the State Government and the University directions which according to the High Court laid down that an employee who was appointed for two consecutive academic years must be deemed to have been on probation right from the time of the first appointment and therefore she should be confirmed in the post
The benefit of full back wages seniority etc
was also ordered
Aggrieved by the Judgment of the High Court the appellants preferred the present appeal by special leave
Allowing the appeal this Court HELD 1
The appellant Trust had violated the directions of the Government as well as of the University in the appointments in question as a result of which neither the appointment of the 1st respondent nor that of the 5th respondent can be said to have been validly made
Both the appointments were made without following the Government Resolutions and the University directions in the matter of reservation of seats for backward classes which are binding on the college
Unfortunately these aspects of the matter which are evident from the record were lost sight of both by the Tribunal and the High Court
287G H288A 21
Admittedly the selection of the 5th respondent was made by a committee where neither the nominee of the Vice Chancellor nor the expert nominated by the University nor the nominee of the Director of 284 Education Higher Education ie the Director of Ayurveda was present
The selection so made was therefore not valid
289F 22 There is nothing on record to show that when the appellant Trust forwarded its report on appointment of the 5th respondent it apprised the University of the absence of the expert at the time of his selection
The University has not reserved the power to relax the rule and permit selection without the presence of the expert
There is nothing in the University s letter to show why the University had condoned the absence of the expert
The approval given by the University being in ignorance of the true state of affairs and in breach of the rule is legally ineffective and cannot validate the appointment
289H290A B 3
Admittedly the post was reserved for the academic year 1983 84
The Trust had not given three advertisements within six months for any of the academic years 1983 84 1984 85 and 1985 86
On the other hand for the academic year 1983 84 it issued only two advertisements
It is not known as to why even these two advertisements were not issued at the beginning of the said academic year
As regards the second academic year 1984 85 it issued only one advertisement and no advertisement was issued for the academic year 1985 86
The initial appointment of the Ist respondent for the academic year 1983 84 and her continuation for the subsequent academic years viz 1984 85 and 1985 86 was thus in breach of the Government resolutions and the University direction and therefore illegal
Similarly since the appointment of the 5th respondent was made without following the procedure prior to dereservation viz three advertisements repeated every year for all the three academic years for which the post was to be reserved his appointment to the post as if the post stood legally dereserved was also illegal since the post could not have been dereserved to make it available for a non backward class candidate294B E 4
Even assuming that her initial appointment and subsequent continuation of service was valid the First Respondent would not be entitled to the benefit of the University direction of March 11 1987 because her entitlement to the vacation salary does not extend her period of employment up to the end of the vacation
That is a perquisite which is conferred on every teacher who has served during the academic year
It has no connection with the continuation of the employment since even those teachers whose services are validly terminated before the beginning of the vacation period are given the benefit of the salary of the vacation period
295E F 285 5
The appellant Trust shall advertise the post three times sufficiently in advance and in any case within six months from the close of the present academic year viz 1990 1991 as a post reserved for the backward class candidate and if no application is received from a suitable backward class candidate the post will be deemed to have been dereserved
The Trust will then proceed to fill in the same by a candidate belonging to non backward classes
This fact may be made clear in all the three advertisements
The 5th respondent will be entitled to apply for the post notwithstanding the fact that he has become overaged
If he is selected on the basis of his other qualifications the Selection Committee shall relax in his favour the condition with regard to the maximum age
If he is appointed to the post his appointment will be a fresh one and his past service will not count for the probation period
The Trust shall constitute a proper Selection Committee according to the rules
296D F 6
To overcome the hardship to the students the 5th respondent may be permitted to teach as a purely temporary teacher till the process is completed for the academic year 1991 92
297C