1. The main facts of this case are not disputed in this Court. Defendant No. 1 is the divided cousin of defendant No. 2, and was his de facto guardian and the manager of his property ever since his mother deserted him in his infancy. Survey No. 127 of Nagral, measuring twenty-five acres and twelve gunthas, belonged to one Shankarappa and was inherited by his cousin Fakirappa, the father of defendant No. 2. Both the lower Courts have held that after Fakirappa's death defendant No. 2 became its sole owner, and that defendant No. 1 had no interest in it. That finding cannot be, and is not, challenged in this Court. Defendant No. 2 was born on July 15, 1909, and attained majority on July 15, 1927. But before that, on December 29, 1926, when he was still a minor, he and his cousin (defendant No. 1) sold eight acres out of survey No. 127 to defendant No. 4 for Rs. 800, and jointly executed the sale-deed, exhibit 47, in his favour. The plaintiff then purchased it from defendant No. 4 on August 30, 1928, and leased it to defendant No. 1 for cultivation for one year, having taken from him a rent-note dated April 8, 1930. Thereafter, on May 13, 1930, defendant No. 2, who had then attained majority, sold to defendant No. 3 a portion of survey No. 127 measuring nineteen acres and fifteen gunthas, including the eight acres purchased by the plaintiff, for Rs. 200, and sold the remaining portion of the land to him for Rs. 500 on August 2, 1930. As defendant No. 1 did not restore possession of the1 plaintiff's land to him on the expiry of his tenancy, the plaintiff filed this suit on August 27, 1934, to recover its possession and mesne profits. Defendant No. 2 did not oppose the suit, and defendant No. 4 supported the plaintiff's claim. Defendant No. 1 contended that the sale in favour of defendant No. 4 was really a mortgage and that defendant No. 4 was only a benamidar. These contentions were not upheld by the trial Court, and he did not appeal. Defendant No. 3 alleged that defendant No. 1 had no interest in the land in suit and that as defendant No. 2 was a minor when he and defendant No. 1 passed the sale-deed, exhibit 47, the sale was void and defendant No. 4 acquired no interest in the land by that sale-deed. Both the trial Court and the lower appellate Court held that exhibit 47 was passed by defendant No. 1 as the guardian of defendant No. 2, and that as defendant No. 2 did not file a suit to have it set aside within three years of his majority, the title of defendant No. 4 became perfected under Section 28 of the Indian Limitation Act. A decree was, therefore, passed in favour of the plaintiff, and it was confirmed by the lower appellate Court. Defendant No. 3 alone has presented this second appeal.
2. Exhibit 47 purports to have been passed by defendants Nos. 1 and 2 jointly, and there is nothing in it to suggest that defendant No. 2 was then a minor and that defendant No. 1 was executing the deed in his capacity as his de facto guardian. The trial Court is not right in saying that defendant No. 1 was also the de jure guardian of defendant No. 2. He is only his cousin, and under the Hindu law he was not his de jure guardian. But both the lower Courts have held that he was his de facto guardian and was managing his property until he attained majority. Can it on that account be said that he must have passed the sale-deed (exhibit 47) in his capacity as the guardian of defendant No. 2? Prima facie he and defendant No. 2 treated the land as their joint property and passed the sale-deed each in his individual capacity, ignoring the fact that defendant No. 2 was then still a minor. The learned trial Judge relied upon the rulings in Nandan Prasad v. Abdul Aziz I.L.R. (1923) All. 497 and in Balwant Singh v. R. Clancy I.L.R. (1912) All. 296 for holding that defendant No, 1 sold the land to defendant No. 4 in his capacity as the guardian of defendant No. 2. Mr. Datar, for the appellant, relies upon the same rulings in support of his contention to the contrary. In the latter case one Sheoraj Singh mortgaged some property to the Bank of Upper India, claiming to be its exclusive owner. In fact it was the joint property of both Sheoraj Singh and his brother Maharaj Singh. Maharaj Singh did not join in executing the mortgage, but his signature was taken at the foot to show his assent to the loan and the mortgage. The deed did not indicate that he had, any share in the mortgaged property. In fact he was a minor then. In the suit by the assignee of the mortgage, against both the brothers, a decree was passed only against the half share of Sheoraj Singh. In the appeal before the Privy Council, it was contended that as Sheoraj Singh was the de facto guardian of Maharaj Singh and as the mortgage was executed in lieu of antecedent debt, the mortgage was binding on Maharaj Singh also. But their Lordships held that (p. 306):.the mortgage was not made by Sheoraj Singh as the manager of the family, or in any respect as representing Maharaj Singh, and as Maharaj Singh was then a minor, the mortgage deed as against him and his interest in the estate was not merely voidable; it was void and of no effect, and must be regarded as a mortgage deed to which he was not even an assenting party and as a mortgage deed which did not affect him or his interest in the estate.
This was followed in Nandan Prasad v. Abdul Aziz. In that case one Musammat Somari mortgaged her deceased husband's property claiming to be its sole owner under her husband's will. In the suit by the mortgagee against her and her sons, the will was held to be invalid and Musammat Somari was held to have no interest in the mortgaged property. The lower Courts nevertheless decreed the suit on the ground that she was the de facto guardian of her minor sons and the transaction was for legal necessity. The decree was reversed by the High Court, their Lordships observing that it being found that the property did not belong to Musammat Somari, any dealings with it on her part were ipso facto void, and questions as to the motives which induced her to execute the mortgage or what she did with the purchase-money were entirely irrelevant. The deciding factor in both these cases was that the de facto guardian claimed an interest in the minor's property, which he or she did not possess, and purported to mortgage that interest, and not the interest of the manor. The ratio decidendi applies equally to the facts of the present case. The sale-deed (exhibit 47) is executed by both defendants Nos. 1 and 2 jointly, and the land conveyed by it is described as being of 'our' ownership, and the consideration is stated to be required for 'our' family necessity and for the expenses of the Udki marriage of defendant No. 1. These recitals in the deed show that the land was treated as belonging to both defendants Nos. 1 and 2, and both of them purported to transfer their respective interests in it. Defendant No. 1 executed it in his personal capacity and not on behalf of or as the guardian of defendant No. 2. Defendant No. 2 was believed to have attained majority, and he himself joined in the execution of the deed.
3. The trial Court has rightly remarked that 'in each case the language of the document and the circumstances in which it was executed must be considered.' This was the observation made by Sargent C.J. in Murari v. Tayana I.L.R. (1895) 202 Bom. 286. In that case a Hindu mother, who was the guardian of her minor son, sold his property to pay off her husband's debts, without making any reference to the minor in the deed of sale. It was held that under the Hindu law, the mother, as the guardian of her minor son, had authority to sell his land in order to pay off her husband's debts, and that as she had no proprietary interest in that land, she intended to sell, and did effectively sell, her son's interest in that land, 'notwithstanding that it was not correctly described as belonging to her son.' That decision was based on the wording of the sale-deed and on the opinion of Peacock C.J. in Judoonath Chuckerbutty v. James Tweedie (1869) 11 W.R. 20 that a sale by a manager for necessity may be valid although the vendor does not describe himself as manager. In Murari's case, the mother purported to sell the land itself and not merely her interest in the land. In the present case defendant No. 1 purported to sell 'our' land, not for the benefit of his minor cousin, but partly for the benefit of both and partly for the benefit of himself alone.
4. The trial Court has particularly noted in its judgment that it finds as a matter of fact that defendant No. 1 executed exhibit 47 as the guardian of defendant No. 2, and this finding of fact being upheld by the lower appellate Court, it is contended that it cannot be challenged in second appeal. But that finding is not based on the appreciation of evidence, but is, as the trial Court says, a conclusion from 'the language of the sale-deed and the circumstances in which it was executed.' There is nothing in the language of the sale-deed to suggest that defendant No. 1. executed it in the capacity of the guardian of defendant No. 2. If anything, it indicates the contrary. The circumstances considered by both the lower Courts are : (1) that defendant No. 2 was in fact a minor, and as he was seventeen and a half years of age, it was doubtful whether he was a major or a minor; (2) that defendant No. 1 had himself no interest in the land; (3) that he was the de facto guardian of defendant No. 2; and (4) that till 1924 all the documents, executed by him with respect to defendant No. 2's property were executed by him as his guardian, and not in his own right. All these may be regarded as findings of facts, which must be accepted in second appeal; but whether from these facts it cart be inferred that defendant No. 1 passed the sale-deed exhibit 47 in his capacity as the guardian of defendant No. 2 is a matter of law. In the words of their Lordships of the Privy Council, 'The facts found need not be questioned. It is the soundness of the conclusions from them that is in question, and this is a matter of law.' Ram Gopal v. Shanskhation (1892) L.R. 19 IndAp 228. In my opinion the conclusion drawn by the lower Courts does not follow from the circumstances proved. If the age of defendant No. 2 was doubtful, defendant No. 1 should have executed the sale-deed as his guardian and defendant No. 2 also could have joined him as an executant. It is true that defendant No. 1 is now found to have no interest in the land, but he was claiming to be its joint owner. Even in 1933 he was pressing his claim in suit No. 255 of 1933, and in that suit his claim was disallowed and defendant No. 2 was held to be the sole owner of the land. There is no doubt that defendant No. 1 was managing the estate of defendant No. 2 during his minority and executed several documents in respect of his lands in that capacity. But in those documents the executant was defendant No. 2 and defendant No. 1 was shown as his guardian. That description of the executant was purposely given up in exhibit 47 as defendant No. 1 was claiming to be a co-owner of the land conveyed. If he wanted to sell the land on behalf of defendant No. 2, he would not have stated that a portion of the consideration was wanted for his own marriage. These circumstances do not warrant the conclusion drawn by the lower Courts against the plain language of the document itself.
5. It may also be noted that neither the plaintiff nor defendant No. 4 ever alleged that defendant No, 1 passed exhibit 47 on behalf of the minor defendant No. 2. On the other hand, defendant No. 4 in whose, favour exhibit 47 was passed, alleged in his deposition that defendant No. 2 represented to him that he was a major and acting on that misrepresentation he had taken the sale-deed from him. The plaintiff, who was not a party to the deed, has no personal knowledge, and defendant No. 4 who took the sale-deed indirectly denies that defendant No. 1 was acting as the guardian of defendant No. 2 when both of them executed the document. Such a case was never suggested in the pleadings or the depositions of any of the parties. Mr. Jathar for the plaintiff-respondent pointed out that it was suggested by defendant No. 3 himself in his written statement. Defendant No. 3 was not present, when exhibit 47 was executed, and all that he says in his written statement is that defendant No. 1 was in possession of the property of defendant No. 2 as his guardian, and executed this hollow sale-deed in favour of his friend, defendant No. 4, in order to defeat the right of defendant No. 2 and gain an advantage to himself. This is quite true, because in the sale-deed he claimed that he was the joint owner of the land; but defendant No. 3 never said that the sale-deed was passed by defendant No. 1 in his capacity as the guardian of defendant No. 2. No specific issue was raised and apparently this point was urged in the course of the arguments in the trial Court and was upheld. Stronger reasons are required to reach a conclusion which is at variance with the plain language of a solemnly executed document, especially when that conclusion is not suggested in the pleadings or depositions of the parties themselves. It must, therefore, be held that defendant No. 1 executed exhibit 47 in his personal capacity and not as the guardian of defendant No. 2.
6. It follows that as defendant No. 1 had no interest in the land, and as defendant No. 2, being a minor, could not validly sell his interest in the land, the sale-deed is ineffective, and defendant No. 4 acquired no interest in the land.
7. It is unnecessary to consider whether defendant No. 2 had to get the sale-deed set aside within three years of his attaining majority, since Article 44 of the First Schedule to the Indian Limitation Act, 1908, applies only to a transfer by a guardian, and not to a transfer by one who, though a de facto guardian, purports to transfer his ward's property in his own capacity and as his own property.
8. The plaintiffs suit must, therefore, be dismissed. The result is regrettable, because its benefit does not go to defendant No. 2, but to a stranger, defendant No. 3, who purchased the land in order to gamble in litigation. Out of survey No. 127 measuring twenty-five acres and twelve gunthas, defendant No. 4, who was a bona fide purchaser under exhibit 47, paid Rs. 800 for only eight acres in 1928, while defendant No. 3 paid only Rs. 200 for that portion and eleven acres and fifteen gunthas more in May, 1930. Three months later defendant No. 3 paid Rs. 500 for the remaining six acres and sixteen gunthas. This shows that in his sale-deed of May, 1930, defendant No. 3 included the portion in suit without paying anything for it, as he knew that it had already been sold to defendant No. 4. He only wanted to take his chance, and even if he failed, he still had eleven acres and fifteen gunthas for the price of Rs, 200 he had paid. Defendant No. 2 has remained aloof in this litigation. Defendant) No. 1 put up a false defence. Defendant No. 4 had no interest and need not have appeared. The plaintiff, who loses the land, must thank himself for not making proper inquiries regarding the age of defendant No. 2 and the interest of defendant No. 1 in the land when his vendor, defendant No. 4, purchased the land in suit from them. Taking all these circumstances into account, I think that the ends of justice would be served if no party is awarded his costs.
9. I allow the appeal and dismiss the plaintiff's suit. The parties to bear their own costs throughout.