1. The suit in respect of which these appeals arise was filed by the plaintiff for recovery of possession of a house and a land alienated by his maternal uncle as his guardian. As regards the house defendant 2 who has purchased it from the maternal uncle of the plaintiff pleaded that the sale is for the benefit of the plff. who was a minor at the time and it is therefore binding on him. The learned Munsiff upheld his contention and dismissed the suit. But this decision of the learned Munsiff was set aside by the Additional Subordinate Judge, Mysore in R. A. 37/48-49. The learned Subordinate Judge was of opinion that there was no necessity to sell the house and he directed that possession of the property should be delivered to the plaintiff on his paying Rs. 90/- to defendant 4 who had subsequently purchased the property from defendant 2 as, in his opinion, the plaintiff has been benefited to the extent of that sum.
2. As regards the alienation by a 'de facto' guardian, it is settled law that he has, in case of necessity or benefit to the minor, power to sell or mortgage his property. It has been observed in -- 'Chennappa v. Dumania Thippe Rudrappa', 19 Mys LJ 199 (A) that
'Under the Hindu Law the acts of such 'a de facto' guardian if beneficial to the minor or
for necessity are recognised and held binding on the minor.'
3. The point for consideration therefore is whether the maternal uncle of the plaintiff under whose care the plaintiff came after the death of his parents sold the second item of the plaint schedule property for the benefit of the minor. It must be remembered that it was in a village different from that in which the guardian and the minor lived. It was an old and dilapidated house and but for the fact that the plaintiff's maternal uncle was able to find a purchaser for it is likely that it would have fallen down and the retention of that property would not have been of any help to the plaintiff. On the other hand, the property was sold for a sum of Rs. 125/-. Out of this amount another house was purchased for a sum of Rs. 50/- and plaintiff's maternal uncle obtained a usufructuary mortgage of a dry land for Rs. 50/-.
Considering the circumstances of the case, the sale of a small dilapidated house situated in a village in which neither the plaintiff nor the persons under whose care he came after he became an orphan lived, must be regarded as being beneficial to the plaintiff, and the learned Munsiff was right in dismissing plaintiff's suit with reference to this item of property. The appeal in S. A. 16 of 1949-50 is therefore allowed. The judgment and decree of the learned Subordinate Judge are set aside and the plaintiff's suit in respect of the second item of the plaint schedule is dismissed. In the circumstances of the case the parties will bear their own costs throughout.
4. The plaintiff's case as regards the first item of the plaint schedule is that the sale of this item by his maternal uncle is not binding on him. It is not disputed that the plaintiff's father and defendant 1 had hypothecated both the plaint schedule properties in favour of D. W. 1. The latter filed a suit against the plaintiff and obtained a decree. This debt was outstanding. In order to discharge this debt the plaintiff's maternal uncle sold the first item of the plaint schedule property to the fatherof defendant 1 for Rs. 400/-. Out of this consideration a sum of Rs. 150/- was paid for the discharge of the decree debt and the balance of Rs. 250/- was retained by the vendee, who however hypothecated for that amount the very property purchased by him, along with other properties of his own for this sum and executed Ext. IV in favour of the plaintiff.
The point again for consideration is whether this act of the maternal uncle of the plaintiff is for necessity or benefit of the minor. It has to be noticed that but for the prompt manner in which the maternal uncle of the plaintiff managed to discharge the decree debt, it might have ended in a court sale of not only the first item of the plaint schedule but also in the sale of the other item of the hypothecated properties and it is not unusual that in court sales valuable properties are knocked off by decree-holders for the decree amounts alone. The maternal uncle of the plaintiff who it has not been shown had anything but love towards the plaintiff acted for the benefit of the minor in selling away one of the two properties and in discharging the decree debt.
It is contended that the other item of property which was a dilapidated house could have been sold. But there is nothing to show that at that time there was any prospect of his finding a purchaser for it. It is no doubt true that he had to sell away the first item of the plaint schedule for Rs. 400/- though he had to discharge a debt of Rs. 150/- only. It is contended that he could have secured the decree amount by hypothecating the property to some one, particularly when one of the D. Ws. says that there were people ready to advance money on the mortgage of that property.
I am not sure that it is more advantageous to borrow money on the hypothecation of a property than to sell it for a fair price, as it is not unusual that the property hypothecated will ultimately have to be sold for the money due on the hypothecation bond and the interest thereon. To my mind, the maternal uncle of the plaintiff acted wisely and in the very best interest of the minor. It has to be remembered that out of the sale amount of Rs. 400/- the amount necessary for the discharge of the debt binding on the minor was only Rs. 150/-. It is therefore a case of an alienation by a 'de facto' guardian for consideration. A good number of cases was cited before me to show what has to be done in cases of this kind. It has been observed in -- 'Ramaswami Pillai v. Kasinatha Iyer : AIR1928Mad226 which has been followed in -- 'Kenchayya v. Subbiah', 15 Mys LJ 43 (C) that:
'Where a Court finds that an alienation by 'de facto' guardian is not wholly binding on minor plaintiff's, there are three courses open as regards granting relief. The first course is to set aside the sale altogether and direct the plaintiffs to pay the vendee the consideration which is binding on them (plaintiff's) with interest. The second course is to direct the purchasers to pay the plaintiff's the difference between the actual value of the land and the consideration which is binding on them with interest. The third course is to divide the lands in proportion to the value of the lands and the actual consideration found payable.'
It may also be stated that generally it would be correct to uphold alienations in full only where the necessity for the alienation is established in respect of a very substantial portion of the consideration. As pointed out in the case reported in -- '6 Mys LJ 595' (D), if the amount found to be necessary to be raised as compared with the amount of the consideration the alienee may have to be compensated by a charge on the property to that extent and the plaintiff whose outstanding interest in the estate is larger may be allowed to get possession of the property on payment of the said sum. It would however be hard to lay down any general rule as to what course Courts have to take in such cases. Each case depends upon the particular circumstances of that case.
'6 Mys LJ 595' (D), for instance was dealing with a case of a reversioner, who had filed a suit for recovery of possession of the property alienated by a widow, who had not accounted for the major portion of the consideration while the amount required by her for legal necessity was very much less. In this case as already observed there is not even a suggestion in the plaint that the property was sold for anything less than what it was worth. It has not been shown that without selling the property it was possible to avoid the sale of the property in execution of the hypothecation decree. The maternal uncle who was no doubt his well-wisher got a hypothecation deed in favour of the plaintiff for the sum of Rs. 250/-, which is the balance out of Rs. 400/- for which he had sold the property.
5. On the whole considering all the circumstances of the case, I am inclined to think that tin's is a case in which the alienation must be upheld in full. The appeal of the plaintiff in respect of this item No. 1 of the plaint schedule concerning S. A. 281/49-50 stands dismissed. But considering the particular circumstances of the case, it is ordered that parties do bear their own costs throughout.
6. Order accordingly.