Amberson Marten, Kt., C.J.
1. [His Lordship after stating the facts of the case, proceeded:] It is not necessary for us in the present case to define what particular circumstances must exist before a person can be described as a 'de facto guardian', or have such powers that may properly belong to a de facto guardian, But speaking for myself 1 think there must be some course of conduct in that capacity before a person can be described as a guardian de facto. I am not prepared to extend that expression to a guardian ad hoc. In other words, I am not prepared to say that a person who over many years has never intermeddled or acted as a guardian can then come forward and claim to be a guardian de facto and authorised to sell property on behalf of a minor. In the view I take such a person would be a guardian ad hoc and not a guardian de facto. Accordingly I would hold that the evidence before us was wholly insufficient to establish that Rangila was guardian de facto at the material dates, and that the lower appellate Court was not entitled in law to arrive at the contrary conclusion on that evidence. That being so, it follows, in my judgment, that this sale was unauthorised.
2. Under those circumstances it is unnecessary to give any decision on the larger and even more important question as to whether a de facto guardian is entitled in Hindu law to sell a minor's property at all. We know that as regards Muhammadans it has been held in Imambandi v. Mustaddi 20 Bom. L.R. 1022 and Mata Din v. Sheikh Ahmad Ali (1912) L.R. 39 IndAp 49 27 Bom. L.R. 621 14 Bom. L.R. 192 that a Muhammadan de facto guardian has not that power. We know from In re Manilal (1900) 3 Bom. L.R. 411. that even though it was held that the Court has jurisdiction to authorise a Hindu father and manager to sell property on behalf of his infant son, still that power has to be exercised with the greatest caution. And if one turns to Limbaji Ravji v. Rahi I.L.E. (1925) 49 Bom. 576 it was held by Sir Norman Macleod and Mr. Justice Crump in effect that a Hindu step-mother has no such power. One may feel a difficulty as regards the latter case, because the authorities such as they are in favour of the proposition are not referred to. I mean Hunoomanpersaud Panday v. Mussumat Babooee Munraj Koonweree (1856) 6 M.I.A. 393 and a further reference in Mohanund Mondul v. Nafur Mondul I.L.R. (1899) 26 Cal. 820. It may be therefore that if it had been necessary for that point to bo determined in the present case we should have thought it advisable to have the matter settled by a full bench, having regard to its great importance. But in view of our decision on the first point that is unnecessary. I only wish to add by way of warning that nothing that I have just said is to be taken as meaning that I necessarily disagree with the decision of Limbaji Ravji v. Rahi.
3. But that does not dispose of the case. The respondents relied on Section 51 of the Transfer of Property Act, and claimed that in any event they are entitled to the benefit conferred by that section, having regard to the improvements which they have made on the property. It is argued for the appellants that that section only applies if the transferor is not the evictor. But in our judgment that is not the true view of the section, and we see no reason why its operation should be cut down in the way suggested. On the contrary in Durgozi Row v. Fakeer Sahib I.L.R. (1906) 30 Mad. 197 a case of Muhammadans, where a mother purporting to act as de facto guardian of her minor son sold property and it was held that the sale was not binding, Sir Arnold White and Mr. Justice Subrahmanya Ayyar held that Section 51 of the Transfer of Property Act applied. Accordingly the transferee from the mother was held entitled to have an account taken of the improvements effected by him.
4. We have been referred to a decision of Mr. Justice Chandavarkar and Mr. Justice Pratt in Vinayakrao v. Vidyashankar : (1907)9BOMLR404 and to Vrijbhukandas v. Dayaram I.L.R. (1907) 32 Bom 32 s.c. 9 Bom. L.R. 1181 The sale in question in the former case was made in 1884 which was prior to the coming into operation in this Presidency of the Transfer of Property Act. Moreover the case there was one of a Hindu widow purporting to sell under a certificate of administration, But no reference, as far as I can see, was made to Section 51 of the Transfer of Property Act. Then as regards Hans Raj v. Musammat Somni I. L.R. (1922) All. 665 and Rajrup Kunwar v. Gopi4, the former again is a case of a Hindu widow whose interest prima facie is confined to her life. Rajrup Kunwar v. Gopi is not a case of* absolute owners at all, but a case as between an alleged permanent lessee and his landlord. There also a Hindu widow was purporting to transfer the property.
5. The words of the section are that the transferee is to believe 'in good faith that he is absolutely entitled thereto.' In the present ease I think these conditions were satisfied and accordingly that the respondents are entitled to the benefit of that section. They must accordingly make their election under the section, and I would propose that it be notified to their opponents and to the Court of first instance within two months from this day. The case will be remitted back to the Court of first instance for further directions according to the election made by the respondents.
6. As regards costs, each party in substance has in part succeeded and in part failed. Accordingly, I would direct each party to bear their own costs up to and including this Court including costs of cross-objections. Further costs and further directions reserved to be dealt with in the lower Court.
7. I agree, but I desire to add a few remarks. I must admit that I am not precisely enamoured of the term 'de facto guardian', because it appears to me to be debatable in the extreme, and incapable of exact definition. I take it to mean, so far as it can be defined, a person who being neither a legal guardian nor a guardian appointed by Court, takes it upon himself to assume the management of the property of the minor as though he were a guardian. But if that be the real meaning of the term, I agree with the learned Chief Justice that it implies some continuity of conduct, some management of the property beyond the isolated act of sale which comes into question in this suit. Looking at the evidence here I can find nothing which would justify the Court in holding that Rangila acted as guardian of the minors on any occasion except that of the sale deed which is now attacked. And, therefore, whatever may bo the inference that can be legitimately drawn as regards a do facto guardian from the remarks of their Lordships of the Privy Council in Hunoomanpersaud's case, those remarks will hardly apply to a case such as we have here. Their Lordships there were dealing with a lady who had for several years managed the estate, and therefore it might be correct to say that she was at least de facto manager even if she had not a de jure title. The present is quite a different case, and I agree that the most that can be said here is that Rangila was a guardian ad hoe and that he could not in those circumstances validly alienate the property of the minors. It is thus unnecessary to consider the case of Limbaji Ravji v. Rahi I.L.R. (1925) 49 Bom. 576 27 Bom. L.R. 521 to which I was a party. The important question as to the precise powers of a de facto guardian, to use that debatable terra once more, will have to be decided when it arises in a proper case.
8. I agree also in the interpretation which my Lord the Chief Justice has placed on Section 51 of the Transfer of Property Act. I see no reason why it should be cut down in the manner attempted by the appellants' pleader. The words are wide enough to cover the present case, and the principle which they embody appears to me I to be applicable here. As regards the question of good faith the Courts below have found that the purchaser acted honestly and therefore he acted with good faith even though he may have been to some extent negligent in enquiring into Rangila's authority to sell the property. It follows that the transferee is entitled to take the benefit of that section, and I therefore agree in the order proposed.
9. We have suggested that the parties might, in view of the course which the case took before us, find it expedient to effect a compromise, but unfortunately they have not so far found it possible to do so.
10. Appeal allowed; declare respondents entitled to the benefit of Section 51 of the Transfer of Property Act, and order that they make their election under that (section within two months from to-day, such election to be signified to the appellants and also to the trial Court, Remit suit to trial Court accordingly. Each party to bear their own costs throughout to date. Further costs and further directions reserved to be dealt with by trial Court subject to any further rights of appeal. The value of the improvements under Section 51 has if necessary to be estimated as at the time of the eviction. Similarly, the market value of the property has if necessary to be ascertained as at the time of eviction.