Pollock, J.



1. This is a plaintiff's appeal arising out of a suit for possession of survey No. 20 in mauza Sonwal in the Basim taluq. This field at one time formed part of the joint family property of Mahipati and his cousins. In 1937 his cousins brought a suit for partition of the joint family property, civil Suit No. 2A of 193

7. In that suit Mahipati was described as insane and his wife Mt. Kauti acted as his guardian. By consent of the parties and with the sanction of the Court a preliminary decree for partition was passed on 24th March 1938. Mahipati was declared entitled to eight annas share in the property and it was agreed that the plaintiffs would not challenge the validity of transactions effected on his behalf by his wife Mt. Kauti, who was defendant 2 in the case, and that the property covered by such transactions would be allotted to the share of Mahipati. It was also agreed that all transactions done by Mahipati, who was described in the decree as an idiot, without the consent of the plaintiffs or Mt. Kauti, should be regarded as not binding. On 27th July 1937, Mahipati's wives, Mt. Kauti and Mt. Bayani, purporting to act as his guardians, had sold the field in suit to the plaintiff for Rs. 300. Previously, on 26th November 1936, Mahipati had gifted this field to Mt. Salunki, the minor daughter of his sister Mt. Tulsi, and Tulsi acting as guardian for Salunki sold the field to the defendant on 17th January 1938.



2. The pleadings in this case were badly drafted. The gist of the plaint was that the field in suit belonged to Mahipati who was buddhimand translated as dull of understanding, that his wives were his guardians, and that on 27th July 1937, his wives acting as his guardians sold the field in suit to the plaintiff. There was no indication how his wives derived authority to act on his behalf, and there was no pleading that the sale was for legal necessity. The defendant in his written statement denied that Mahipati was dull of understanding or that any guardian had been appointed for him; he also denied, what had not been alleged, that there was legal necessity for the sale; and he went on to plead that Mahipati had gifted the field to Salunki on. 26th November 1936, and that the defendant had acquired title from Salunki on 17th January 1938. The only point on which the plaintiff was entitled to reply was on the last point. He was however allowed to put in a written rejoinder which considerably elaborated his case; he should of course have been required to amend the plaint if he wished to do that. In his rejoinder the plaintiff alleged that Mahipati was of unsound mind and incapable of managing his affairs or effecting any con-tracts, that he was always represented by his wife Kauti in his transactions, that the consideration of Rs. 300 for the sale was required for cultivation and family expenses, and that it was not open to the defendant to challenge the validity of the sale on the ground of legal necessity, apparently, because it had been agreed in the preliminary decree in the suit of 1937 that these transactions should not be challenged. The plaintiff also contended that the alleged deed of gift was not valid because it was not open to a coparcener of a Hindu joint family to gift away his undivided interest. On these pleadings the issues, as might be expected, were unhappily framed but there was no reason why they should infringe the rule that they should be self-contained. The only issue framed on the main question in dispute, Mahipati's soundness or unsoundness of mind, was: "Were the wives of Mahipati, guardian of his person and, property for the reasons alleged by the plaintiff"

3. The trial Court held that Mahipati was not a lunatic but an idiot, apparently under the impression that idiocy is a less advanced, form of unsoundness of mind than lunacy; it is in fact the most extreme form of mental (unsoundness. In 1981 there had been an application by Mahipati's step-mother Mt. Changuni under Section 62, Lunacy Act, to have Mahipati adjudged of unsound mind and incapable of managing his affairs. The District Judge so adjudged him on 27th October 193

2. That case was finally decided by me in November 1933, and I held that as the balance of medical evidence was in favour of Mahipati's soundness of mind it was impossible to hold that Mahipati was of unsound mind : vide Mahipati v. Mt. Changuna, AIR 1934 Nagpur 2

7. In six suits between 1930 and 1939, Mahipati was represented by Kauti as his guardian, and' there is the evidence of several witnesses on both sides to show that Mahipati is of less than normal intelligence. Mahipati was however appointed a member of the Local Board in 1938, though there is no evidence that be attended any meeting or transacted any business. No evidence has been given by any doctor or by any disinterested resident of the place where Mahipati resides. The learned Additional District Judge, after discussing all the evidence, eventually came to the conclusion that Mahipati was not a lunatic.



4. That is a finding of fact, and Mr. Padhye for the appellant does not seek to challenge it. His argument is that the point to be decided is not whether Mahipati was a lunatic as defined by the Lunacy Act but whether by reason of unsoundness of mind he was incapable of understanding a contract on 27th July 1987, and of forming a rational judgment as to its effect upon his interests: vide Section 12, Contract Act. The Lunacy Act defines a lunatic as an idiot or person of unsound mind. Mahipati obviously is not and never has been an idiot, so the question is whether a man, though not of such unsound mind as to be a lunatic, yet may be of such unsound mind as to be incapable of making a con tract; a point that was not considered in the lower Courts. In England no such distinction appears to be drawn. The terms "lunatic" and "persons of unsound mind" are regarded as synonymous : vide 21 Halsbury's Laws of England, paras. 466 and 47

1. As regards contracts, the general theory is:

In all cases there must be a free and full consent to bind the parties. Consent is an act of reason accompanied by deliberation, and it is upon the ground that there is a want of rational and deliberate consent that the conveyances and contracts of persons of unsound mind are generally deemed to be invalid; or, in other words (subject to the exceptions mentioned below), there cannot be a contract by a person of unsound mind: vide para. 484.

For the purposes of Section 12, Contract Act, the test of unsoundness of mind is whether the person is incapable of understanding the business concerned and its implications, and mere weakness of mind is not sufficient. In the absence of any medical evidence, it seems to me doubtful whether it can be held that Mahipati was by reason of unsoundness of mind incapable of entering into a contract on 27th July 1937.



5. Assuming however that he was incapable of doing so, the question arises whether his wives or Kauti alone had authority to contract on his behalf. Mr. Padhye's contention is that a person incapable of making a contract by reason of unsound mind is in the same position as a minor and that, as the de facto manager of a Hindu minor's estate has authority to alienate the minor's estate in case of necessity, so the de facto manager of the estate of a Hindu adult incapable of contracting has the same authority. In this particular case the learned Additional District Judge, differing from the trial Court, held that necessity has not been proved; but Mr. Padhye's contention is that that would render the contract voidable but not void, as in the case of an alienation by the de facto manager of a minor Hindu's estate. It seems to be settled law that the de facto manager of a minor Hindu's estate has authority to alienate the estate in case of necessity: vide Tulsidas v. Vaghela Raisghji, AIR 1933 Bombay 15 and Kesheo Bharathi v. Jagannath AIR 1926 Nagpur 81 and many other cases. These cases are all based, I think, on the Privy Council decision in Hunoomanpersaud Panday v. Mt. Babooee Munraj Koonweree (1854) 6 M.I.A. 393 where their Lordships, while dealing with an alienation by a deuce guardian, stated that the de facto manager of a minor Hindu's estate had power to alienate the estate in case of necessity. A brave stand was made against this view by Beaumont C.J. in Tulsidas v. Vaghela Raisghji, AIR 1933 Bombay 15 quoting Lord Bobson's dictum in Mata Din v. Ahmad Ali (12) 34 All. 213:

It is difficult to see how the situation of an unauthorised guardian is bettered by describing him as a 'de facto' guardian. He may, by his de facto guardianship, assume important responsibilities in relation to the minor's property, but he cannot thereby clothe himself with legal power to sell it.

Except in cases where the minors are Hindu that is the general principle, but, as I have said, it must now, I think, be taken as settled that the de facto manager of a Hindu minor's estate has power to alienate in ease of necessity. This principle was explained in Kesheo Bharathi v. Jagannath AIR 1926 Nagpur 81 by Hallifax A.J.C. who stated at page 10:

It is the existence of the joint family system among Hindus that makes all the alienations under consideration valid, though they would be invalid if the minors had not been Hindus; because they were made not by their guardians but by the managers of their families.

Where the minor is one of two or more co-parceners the proposition that the manager of the joint family estate has authority to alienate the minor's share in that estate is readily intelligible, but where the minor is the sole coparcener with power to dispose of the estate as if it were his own separate property, I find difficulty to understand how his position essentially differs from that of a minor in any other community.



6. I am willing to assume that the sale of 27th July 1937, would have been not void ab initio but merely voidable, if Mahipati had been a minor, but I do not consider that this principle ought to be extended to a sale by the de facto manager of the estate of an adult Hindu incapable of contracting. Illustration (b) to Section 12, Contract Act, gives as an example of a man incapable of contracting a sane man who is delirious from fever or is so drunk that he cannot understand the terms of a contract or form a rational judgment as to its effect on his interests. Can it be said that if an adult Hindu becomes incapable of contracting for a day or two then his wife, acting as his guardian or as the manager of his estate, can alienate his property, even for necessity The guardian of a lunatic appointed by the Court has no power to alienate immovable property without the consent of the Court, and it seems to me to be going very far to hold that any person who has assumed charge of an adult Hindu's estate can alienate it merely because he was temporarily incapable of entering into a contract. Under no other system of law could this proposition be even suggested, I think, and, in my opinion, it cannot be accepted as valid under Hindu law.



7. The lower Courts have held that the deed of gift by Mahipati to Mt. Salunki on 26th November 1986, was void, and the correctness of that view has not been challenged in this Court. In effect therefore the defendant acquired no title to the property, but that is not a ground for holding that the plaintiff is entitled to possession; the plaintiff must establish his own title. It has. I may mention, been held by the lower appellate Court that he was never in possession.

8. I therefore agree with the lower appellate Court's decision, though not with the reasons for that decision, that the plaintiff acquired no title by the sale of 27th July 1937, and that his suit must therefore fail. The appeal is dismissed with costs.

Appeal dismissed.