Article 60: (Art. 44 of the Act of 1908):
(a) The period of limitation for a suit to set aside a transfer of property made by the guardian of a ward by the ward who has attained majority is three years and the period of limitation starts to run when the ward attains majority.
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ADVERTISEMENTS:
(b)(i) The period of limitation for a suit to set aside a transfer of property made by the guardian of a ward by the ward’s legal representative when the ward dies within three years from the date of attaining is three years and the period of limitation begins to run when the ward attains majority.
(b)(ii) The period of limitation for a suit to set aside a transfer of property made by the guardian of a ward by the ward’s legal representative when the ward dies before attaining majority is three years and the time of limitation starts to run when the ward dies.
Article 60 applies to a suit to set aside a transfer made by a guardian of the property belonging to the minor brought by him after attaining majority.
Article 60 is attracted when the following conditions are fulfilled, namely:
ADVERTISEMENTS:
(i) The suit will be for setting aside a transfer;
(ii) There should be a transfer of property of the minor; and
(iii) That the transfer should be made by guardian of the minor.
Article 60 is not restricted to transfers made by a guardian appointed or declared under the Guardians and Wards Act, 1890. It applies to the transfer made by natural guardians as well. The guardian contemplated by Art. 60 is either a natural guardian or a testamentary or a certificated guardian.
ADVERTISEMENTS:
In Keluni Devi v. Kanhai Sahu, (AIR 1972 Ori. 28), it has been held that the word ‘guardian’ must be interpreted as meaning only a lawful or de jure guardian and not including as de facto manager or guardian of the property of a minor. However, a suit set aside a transfer made by a de facto guardian with the concurrence of the lawful guardian of the minor is governed by Article 60.
In Kuppuswami v. Rama Chandran, (AIR 1964 Mad. 356), it has been held that a suit by a minor coparcener on attaining majority to recover his share from the alienee from the manager of a joint Hindu family is not governed by Article 60.
The Article 60 applies to a suit to set aside the partition made by the plaintiff’s mother as guardian during his minority because the mother is the natural guardian of the minor son after the death of the father.
Article 60 applies only to two cases where the transfer complained of is binding on the ward and has to be set aside, that is, what the transfer is voidable and requires to be set aside the order to be avoided.
In Janab H.A.H. Rowthar v. Samunnisa, [ILR (1967) 2 Mad. 365], it has been held that an unauthorised transfer by the authorised person, namely, a lawful guardian is voidable under the law and such transfer is required to be set aside and the Article 60 will be applicable to set aside such transfer.
Following transfers by the guardian of the ward’s property are voidable and attracts the Article 60—
(i) Transfer by natural or other legal guardian in excess of authority (Nidhi v. Bherindra, AIR 1963 Ori. 133).
(ii) The transfer by certified guardian by practising fraud even if permission is obtained from the Court for such transfer (Ramcharitter v. Sirajtali, AIR 1932 All. 108).
(iii) Transfer of property by certificate guardian without the permission of the Court (Prannath v. Balkisan, AIR 1959 Punj. 313).
(iv) When the guardian transferred the property of the minor without legal necessity it is voidable but not so when he is not competent to make a gift of the minor’s property and the same is void [Vargese v. Martian Kutty, (70 Ker.L.T. 1083)].
(v) When a challenge is made to alienation by a naturaj guardian of the property of the minor without the sanction of the Court and without legal necessity, the alienation is voidable (Vishwambhar v. Laxmi Narayan, (AIR 2001 SC 2607).
The transfers which are void do not attract the Article 60. In Prasanna v. Tulsinath, (AIR 1965 Ass. 16), it has been held that when a minor’s property sold by another person even if he is the guardian of the minor but claiming the property to be his own, the minor’s interest is not affected, for such transfer is void and the Article 60 has no application to a suit to set aside such transfer.
In Madhukar Viswanath v. Mahadeo, [(1999) 9 SCC 446], the Supreme Court held that if the minor seeks to set aside the alienation made by de facto guardian of a Hindu minor on the ground that there was no legal necessity to alienate the property, the suit is governed by Article 60 of the Limitation Act and the suit filed seven years after attaining majority is barred by limitation.
In Panchu v. Hrikesh, (AIR 1960 Cal. 146), it has been held that Article 60 does not apply to defence. When the minor continues in possession even after the transfer and the transferee sues him for possession he can resist the suit on the ground that the transfer is voidable at his instance though the time prescribed for the suit to set aside such voidable transfer has expired.
In Amirthan v. Sarnam, (AIR 1991 SC 1256), it has been held that when a natural guardian of a Hindu minor has transferred the minor’s property without any legal necessity, the same is voidable and Section 8(3) of the Hindu Minority and Guardianship Act, 1956 confers a right of suit not only upon the minor on attaining the majority to get the transfer set aside but also upon a person to whom the minor transferred his right. So the transferee of the ex-minor within the period of three years of the minor attaining minority can file the suit to set aside such transfer.
In Prohlad v. Ram Saran, (AIR 1924 Cal. 420), it has been held that it is for the plaintiff to prove that the suit is within the period of limitation and when a suit is filed by the ex-minor to set aside the alienation made by his guardian during his minority the onus of proving that the suit is within time is upon the plaintiff.
Under clause (a) of the Article 60, the limitation commences on the date when the ward attains majority. Under clause (b)(i) for any suit filed by the legal representative of the ward when the ward dies within three years of attaining majority, the starting point of limitation is also the date when the ward attains majority.
In C.R. Sahoo v. V.S. Nag, (AIR 1988 Ori. 136), it has been held that when the property of the minor is in the custody of the Court of Wards, the minor attains majority on completion of 21 years of age.
In Patel Meghji v. Patel Jeevraj, (AIR 1984 Guj. 32), it has been held that when a suit is brought by the ex-minor for setting aside alienation and it is not known from which date the limitation to file the suit starts, the Court cannot dismiss the suit on the ground of limitation.