Authored By : Francis Maclean, Banerjee

Francis Maclean, K.C.I.E., C.J.

1. The point we have to decide upon this appeal is a shortone, and not in my opinion a very difficult one.

2. The suit is one to set aside the sale of a certainproperty effected under the following circumstances: The sale was effected bythe grandmother of the plaintiff, who was then a minor, and it is the minor,now of age, who is seeking to set the transaction aside. The grandmother hasnot been found by the Lower Appellate Court to have been the duly appointedguardian of the infant, though the Munsif found that she was, and, for thepurpose of this decision, therefore, I will take it that she was only the defacto manager of the minors property, and that, as de facto manager of thatproperty, she sold the property in dispute, in order to pay off a debt securedby mortgage over other parts of the minors property, upon which mortgage avery high rate of interest was running.

3. The lower Court, upon the authority of the Privy Councilcase of Hunooman Pershad Panday v. Munraj Koonweree (1856) 6 Moo. I.A. 412, hasdecided that the sale was a good one, and that the de facto manager, eventhough not de jure manager, had power to sell the property.

4. It is urged, on behalf of the appellant, that decisionapplies only to the case of a mortgage by a de facto manager, and not to an outand out sale of the property. I need not dwell upon the obvious distinctionbetween the two, nor point out that from one point of view, a mortgage,inasmuch as an opportunity of redeeming is reserved, may be the more beneficialto the minor; though, on the other hand, if the money can only be raised at ahigh rate of interest, it may be more beneficial to sell a portion of theestate to pay off existing mortgages than to go on mortgaging at such high rateof interest.

5. I do not think that the distinction sought to be drawn iswell founded. Though no doubt the case cited was one of mortgage, and not ofsale, the principle of that decision is, that a de facto manager has, under theHindu law, the power to bind the estate, if he is acting honestly, and thetransaction is an honest transaction and one for the purpose of saving orbenefiting the estate. I can see no principle upon which it can be successfullyurged that he can only do this by way of mortgage, when the circumstances ofthe estate may be such as to make it obvious that it might be more beneficialto that estate to do it by way of sale. If he have the power to bind theestate, it is difficult to see why he should not have the power of deciding,assuming the most absolute bona fides in the transaction, how best, in theinterest of the estate, the matter can be dealt with as between a sale and amortgage. I am assuming of course that the circumstances would support the transaction,had it emanated from a de facto and de jure manager. I notice that in Mr.Maynes Book on Hindu Law, Section 196, he says: "When the act is done bya person who is not his guardian, but who is the manager of the estate in whichhe has an interest, he will equally be bound, if under the circumstances thestep taken was necessary, proper, or prudent." And he cites as hisauthority for that proposition, the case in the Privy Council, to which I havejust referred. Mr. Mayne is a careful and experienced author, but he draws nosuch distinction as we are now invited to make. If there were this distinction,seeing that as often as not a manager sells instead of mortgaging, it iscurious that there should be no decision upon the point, for the case must haveoccurred again and again. This absence of judicial authority suggests that thepoint has not been regarded as open to serious argument. On the contrary, thecases of Dorab Aly Khan v. Abdool Azeez I.L.R (1878) 4 Cal., 229, and GungaPershad v. Phool Singh (1868) 10 W.R., 106: 10 B.L.R., 368, note, tend directlyin the opposite direction. I am consequently against the appellant upon thepoint I have been discussing.

6. On the second point, whether there was legal necessityfor the sale, the Judge in the Court below has found that there was suchnecessity; and, although he has not stated the facts from which he draws thatinference, and perhaps it would have been more satisfactory if he had done thatseeing that he was affirming the judgment of the Munsif, it is not unreasonableto conclude that he took the same view of the facts upon this question as theMunsif had done.

7. The appeal fails on both points, and must be dismissedwith costs.

Banerjee, J.

8. I am of the same opinion. The suit was brought by theplaintiff-appellant, to recover possession of certain Immovable property on theallegation that the defendants were holding possession of the same by settingup an unauthorised alienation from the plaintiffs grandmother during hisminority.

9. The defence was that the sale by the plaintiffsgrandmother during his minority was one which was authorised by law, and thatthe defendants purchased the property in good faith for value and were entitledto retain possession.

10. The Courts below have found that the plaintiffsgrandmother, by whom the conveyance in favour of the defendants was executed,was the de facto manager of the plaintiffs estate during his minority, andthat the alienation by her was made under necessity and for the benefit of theminors estate; and they have accordingly dismissed the suit.

11. In second appeal it is contended for theplaintiff-appellant, that the Courts below are wrong in holding that theprinciple laid down in the case of Hunooman Pershad Panday v. Munraj Koonweree,6 Moo. I.A., 412, upon which they have relied, was applicable to this case, asthat was a case of mortgage, whereas the present one was a case of sale; and itis further contended that the finding upon the question of necessity is notsufficient to warrant the decree that has been made by the Courts below.

12. Now it is quite true that in the case of HunoomanPershad Panday the alienation in question was a mortgage and not a sale; and itis true also that in one respect there is a distinction between a mortgage anda sale, the distinction being that whereas in the case of a mortgage theproperty may be redeemed and recovered, in the case of a sale the minor losesall chance of recovering the property even upon repayment of the considerationmoney. But though that is so, is there any reason for holding that theprinciple that applies to the case of a mortgage by a de facto manager of aninfants estate should not apply to the case of a sale by such manager, eventhough pressure on the estate or benefit to it was established I am of opinionthat the question must be answered in the negative. The reason why a de factomanager of an infants estate has been held competent to alienate his propertyby way of mortgage would, in many cases, hold equally good where the alienationis by way of sale. Indeed, in some cases the reason for the rule in favour ofupholding an alienation by a de facto manager of an infants estate would besatisfied better if the alienation was by way of sale than if it was by way ofmortgage, for in some instances, such as in this case, as has been found by thefirst Court, the sale of a part of the minors estate may prove more beneficialto him than a mortgage. And it would not therefore be quite reasonable to holdthat the power, which the de facto manager in such cases possesses, should belimited to one of creating a mortgage only. Nor is there anything in the Hindulaw (upon which some stress was laid in the course of the argument) for drawingany such distinction, for one of the well-known passages authorising alienationby a de facto manager of the property of the minor (I mean paragraphs 28 and 29of the Mitakshara, Chapter I, section I) speaks of sale as well as mortgage. Itis true that passage has reference to cases of joint property where the defacto manager of the minors estate possesses some proprietary interest inhimself, but that does not in my opinion affect the question, because, so faras the minors interest is concerned, the right of the co-owner to dispose of itrests only on his power as manager.

13. Then there is the case of Ram Chunder Chuckerbutty v.Brojonath Mozumdar I.L.R (1879) 4 Cal. 929, in which a sale of a minorsImmovable property by the de facto manager of his estate was upheld by a FullBench of this Court. It is true that the precise question that is now raisedwas not raised in that case, but the affirmance of the principle that the defacto manager of a minors estate has power to sell his Immovable property isnecessarily involved in the decision arrived at in that case. In support of theview I take that no distinction in principle can be drawn between the power ofa manager of an infants estate to mortgage and his power to sell, I may alsorefer to a well-known work on the subject, "The Law relating toMinors" by Mr. Trevelyan, in which it is said at page 164 of the secondedition, "No distinction can be drawn between the power to charge and thepower to sell, and the need which would justify the exercise of the one wouldjustify that of the other."

14. Lastly, a distinction was sought to be drawn between thecase of the exercise of the power of mortgage or sale by the de facto managerof a minors estate who was also his natural guardian and the case of a defacto manager who was not his natural guardian according to the Hindu law.Without entering into any discussion as to whether there exists such adistinction, it will be enough in the present case to say that the de factomanager was the paternal grandmother of the minor, his father and mother bothbeing at the time dead. If that was so, it is not questioned, and it cannot bevery well questioned, that the de facto manager answers to the description ofnatural guardian in this case.

15. On these grounds I am of opinion that upon reason aswell as authority the view taken by the Courts below, that the de facto managerof the infants estate has in case of necessity or for the infants benefitpower to sell his property, is correct.

16. With regard to the second point, the finding arrived atby the Lower Appellant Court is sufficient in my opinion to warrant the decreethat has been made. The judgment of the Lower Appellate Court affirms that ofthe first Court, and therefore, though it is not very explicit, we may take itthat it in substance adopts the view taken by the Munsif with regard to thequestion of legal necessity.

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Mohanund Mondul vs.Nafur Mondul and Ors. (08.05.1899 -CALHC)