1. The plaintiff in this case sued to recover possession of certain Survey Numbers on the strength of a sale-deed passed in his favour by Laxman and his wife Jai who purported to act on behalf of Bhavdya, the minor son of Jai, by her first husband. It appears that the property originally belonged to Laxman but before his marriage with Jai he conveyed the property to the minor Bhavdya in 1905. After the sale deed in favour of the plaintiff, Bhavdya apparently mortgaged the property in suit to the defendants in 1916 and sold the same to them in 1918. Bhavdya's whereabouts at the date of the suit were not definitely known. The suit was filed on the 18th December 1919 and the question between the parties was really as to the merits of their respective titles.
2. The Trial Court disallowed the plaintiff's claim on the ground that the sale-deed in favour of the plaintiff was not proved.
3. The plaintiff appealed to the District Court, and that Court directed further evidence to be taken on the 1st June 1921. After the further evidence was received the learned Judge came to the conclusion that the sale-deed was proved. But the question as to whether the Sale deed was binding upon the minor Bhavdya does not appear to have been considered in the Trial Court, nor in the lower Appellate Court. It appears that in the Trial Court on the 9th September 1920 the defendants made an application requesting the Court to raise an issue as to whether the conveyance in favour of the plaintiff was for the benefit of the minor Bhavdya. They wanted to raise the question as to whether the sale-deed was really for the benefit of the minor but the Trial Court rejected the application and did not raise the issue on the ground that it was inconsistent with the defendant's contention.
4. In the lower Appellate Court it appears that the objection was taken in a different form. It was urged that the minor had repudiated the sale-deed. With reference to that point the learned Judge observed that the objection had been taken on that ground in the lower Court but it was belated and was disallowed. The point as to the repudiation of the sale deed by the minor was dealt with by the learned Judge and decided against the defendants.
5. It seems to us, however, that both the lower Courts have missed the real point at issue in connection with this sale-deed. It was a sale of the property belonging to a minor by two persons laxman and Jai. Laxman had no right whatever to deal with the property of the minor. It is not suggested that he was his legal guardian. Jai was his mother and she might be able to deal with the property as the natural guardian of her minor son for his benefit. But the test with regard to the binding nature of such an alienation upon the minor has been laid down in Hunoomanpersuad Panday v. Musammat Babooee Munraj Koonweree 6 M.I.A. 393 : 18 W.R. 81 : Sevestre 253 : 2 P.C.J. 29 : 1 P.C.J. 552 : 19 E.R. 147. It must be shown before the plaintiff can succeed that the power was exercised rightly for necessity or for the benefit of the infant. It would be open to the plaintiff to establish, as pointed oat in that case, that he had maae all proper and necessary inquiries and that he had acted in good faith in advancing the moneys to the natural guardian of the minor. 6. It has been suggested before us that Jai was not in the position of natural guardian at all after her re-marriage and that, therefore, she would not have even the limited power which the natural guardian of a Hindu infant would have, to deal with the property of the infant. We must, however, disallow this contention having regard to the fact that she was the natural mother of the minor who lived with her at the time; under the circumstances she was the natural guardian of the minor.
7. Before we can dispose of this appeal, it is necessary to have a distinct finding on the question as to whether this sale-deed has been shown to be binding upon the minor Bhavdya. We accordingly send down the following issue to the lower Appellate Court:
8. Is the sale-deed of 1912 binding upon Bhavdya?
9. Parties to be at liberty to adduce further evidence on this point. Finding to be certified in three months.