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Buddhoo Alias Gulab Dass Vs. Sheo Charan and Bhagwan Dass - Court Judgment

LegalCrystal Citation
CourtAllahabad
Decided On
Judge
Reported inAIR1924All875; 82Ind.Cas.328
AppellantBuddhoo Alias Gulab Dass
RespondentSheo Charan and Bhagwan Dass
Cases ReferredBankey Lal v. Swami Dayal
Excerpt:
guardians and wards act (viii of 1890), sections 29 and 31(2) - sanction for sale--necessity--inquiry by purchaser. - - it is the duty of the court to which an application is made under section 29 of the act for sanction of the sale of a minor's property, to satisfy itself by enquiry that the transaction is necessary and is for the minor's benefit, and a creditor is entitled to rely on an order of sanction as evidence that the court has satisfied itself on this point and that the transaction is a proper one this view has quite recently been taken by the madras high court in nattaka venkatasami v......is necessary and is for the minor's benefit, and a creditor is entitled to rely on an order of sanction as evidence that the court has satisfied itself on this point and that the transaction is a proper one this view has quite recently been taken by the madras high court in nattaka venkatasami v. rajam virranna 65 ind. cas. 964 : 45 m. 429 : 15 l.w. 373 : 42 m l.j. 333; (1922) m.w.n. 357; (1922) a.i.r. (m) 135 : 31 m.l.t. 484. it is also in accordance with the observations of their lordships of the privy council in gangapershad sahu v. maharani bibi 11 c. 379 at p. 383 : 12 i.a. 47 : 4 sar. p.c.j. 621 : 9 ind. jur. 158 : 5 ind. dec. (n.s.) 1012 (p.c.) where they say:their lordships think that when an order of the court has been made authorising the guardian of an infant to raise a.....
Judgment:

1. This appeal arises out of a suit brought by the plaintiff to enforce a mortgage of a house belonging to the appellant Buddhoo. The appellant impeaches the transfer on the ground that it was made by his father as his guardian without legal-necessity. It was also suggested that his father was spendthrift and an immoral person, but this plea has now disappeared. The appellant's father Bhagwan Das was the certificated guardian of his son, and the mortgage was made with the sanction of the District Judge recorded under Section 31 of the Guardians and Wards Act. Both the Courts below have held that this sanction is prima facie evidence that the transaction was justified and that it was sufficient to relieve the creditor of the necessity of making any further enquiry. We think that this view is correct. It is the duty of the Court to which an application is made under Section 29 of the Act for sanction of the sale of a minor's property, to satisfy itself by enquiry that the transaction is necessary and is for the minor's benefit, and a creditor is entitled to rely on an order of sanction as evidence that the Court has satisfied itself on this point and that the transaction is a proper one This view has quite recently been taken by the Madras High Court in Nattaka Venkatasami v. Rajam Virranna 65 Ind. Cas. 964 : 45 M. 429 : 15 L.W. 373 : 42 M L.J. 333; (1922) M.W.N. 357; (1922) A.I.R. (M) 135 : 31 M.L.T. 484. It is also in accordance with the observations of their Lordships of the Privy Council in Gangapershad Sahu v. Maharani Bibi 11 C. 379 at p. 383 : 12 I.A. 47 : 4 Sar. P.C.J. 621 : 9 Ind. Jur. 158 : 5 Ind. Dec. (N.S.) 1012 (P.C.) where they say:

Their Lordships think that when an order of the Court has been made authorising the guardian of an infant to raise a loan on the security of the infant's estate, the lender of the money is entitled to trust to that order, and that he is not bound to inquire as to the expediency or necessity of the loan for the benefit of the infant's estate. If any fraud or underhand dealing is brought home to him that would be a different matter; but, apart from any charge of that kind, their Lordships think he is entitled to rest upon the order.

2. Two other points have been raised by the appellant in argument. The first is that the sanction is not a legal sanction because the necessity for the mortgage was not recited in the order as required by Section 3l.(2) of the Act, and the other that the reasons given by the plaintiff's father in his original application are not sufficient to justify the transaction.

3. As to the second point, it is sufficient to say that the question is one which might have involved the taking of evidence, and that it was never raised in either of the Courts below. We, therefore, decline to enter into it. The first question also was not raised in either of the Courts below, and we need not therefore go into it, but in any case we consider that the mere omission to recite the necessity in the order is no more than an irregularity and that it does not render the sanction altogether illegal. In this respect we prefer the view of the Calcutta High Court in Maharaja Sir Rameshwar Singh Bahadur v. Dhanpat Singh 5 Ind. Cas. 334 : 11 C.L.J. 197 to that taken by the Judicial Commissioner of Oudh in Bankey Lal v. Swami Dayal 56 Ind. Cas. 328 : 23 O.C. 72 : 7 O.L.J. 207 : 2 U.P.L.R. (O.) 82. Except for the omission to recite the necessity, the order appears on the face of it to have been passed with due care, for the learned Judge has been careful to lay down the condition that the interest on the mortgage to be effected should not exceed 12 per cent. For these reasons we dismiss the appeal with costs including in this Court, fees on the higher scale.


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