1. The guardians of the plaintiff, during the minority of the latter, lent 1st defendant a sum of Rs. 20,000 on the security of certain lands.
2. Subsequently, the guardians released a portion of the property from liability to the mortgage on the ground that the remainder of the property, was sample security for the loan of Rs. 20,000, The property so released was subsequently mortgaged by the 1st defendant to the 14tb defendant for Rs. 8,000. The minor, having afterwards attained majority, brought the present suit to recover his money by sale of all the lands originally mortgaged to his guardians, including the portion afterwards released by them and mortgaged to the 14th defendant. The 14th defendant contended that the lands mortgaged to him having been released, were not liable for the plaintiff's debt. The Subordinate judge disallowed this.plea and gave plaintiff a decree, against all the lands. Against this decree the 14th defendant now appeals.. The question which we have to decide is whether the release granted by the plaintiff's guardians is valid and binding on the. plaintiff? It. is admitted that the release was not made on account of any neces sity connected with.the plaintiff's estate or for the purpose of securing any benefit to the plaintiff's estate, nor did it, in fact; secure' any sueh benefit. It is also admitted that the, 14th defendant his mortgage with knowledge of the prior mortgage to the plaintiff and of the release.
3. The appellant's contention before us is that the plaintiff's interest in the land is limited to his right to recover the. debt due to him, and that if it can be shown that the release has not, substantially affected this right the remaining land being still security for the debt, the release should be held to be binding on the plaintiff. No direct authority in support of, this proposition has been cited at the bar. We were, however, referred to certain observations by the author in Dart's Vendors and Purchasers, 6th Edition', page 689, with reference to the question whether trustees who are mortgagees can.release a portion of the security without receiving any portion, of the purchase money towards the reduction of the mortgage debt. His conclusion is that ' where the trust instrument contains the usual power to vary securities, the preponderance''of professional opinion is in favour of the absolute competency of trustees to release under such a power and of the right of a purchaser of a part of the land to assume that they. use their power properly and, to abstain from making coquires if there be nothing in the transaction suggestive of fraud.' We were also referred to Section 43 of the Indian Trusts. Act (II of 1882) which declares the powers of trustees to compound, release, and so forth.
4. It was argued that as the liabilities of a guardian are the same as those of a trustee, so his powers are also the same. We are unable to accede to this contention. No doubt, as a general rule, the guardian is liable to his ward as a trustee is to his beneficiary but as regards the alienation of the ward's property the powers of the guardian are strictly limited by law. Even a guardian appointed by the court under the Guardian and Wards Act (VIII of 1890) cannot alienate in any way the ward's property without the previous permission of the court (Section 29), and the power of the court is expressly limited to 'cases of necessity or for an evident advantage to the ward,' and it is obvious that what is denied to the court and to a guardian appointed by the court cannot be conceded to a guardian not so appointed, but acting as such under the ordinary law. It appears to us, therefore, that the powers of a guardian are not co-extensive with those of a trustee. The appellant also relied on Temmakal v. Subbammal 2 M.H.C.R. 47 where it was observed that 'all acts of the guardian, which are such as the infant might, if of age, reasonably and prudently do for himself, must be upheld when done for him by his guardian. These words must be understood with reference to the facts of the case, which related to the question of the guardian's power to submit to a caste panchayet a question of customary partition connected with the minor's . estate. It may well,have been for the advantage of the minor to have done so in that case, but the words quoted cannot be taken to completely define the powers of a guardian. The test whether the act was such as a man of ordinary prudence would do with reference to his own property should, we think, be confined to matters relating to 'the realization, protection or benefit of the property' of the minor (Section 27, Guardians and Wards Act). A release like the present, for which there was no necessity and from which the minor's estate derived no benefit, does . not fall within this category. It is obvious that such a release may, in many unforeseen ways, prove to be eventually injurious to the minor, though at the time it may appear unlikely to be so. Property is liable to deteriorate in value, and what is ample security to-day may become insufficient with lapse of time. To lay down that security once acquired for the minor's property may, at the mere discretion of the guardian and without benefit to the minor, be diminished, from time to time, to what the guardian considers sufficient, would be to introduce a rule for which there is no authority, and which would certainly, in many cases, prove detrimental to the interests of the minors.
5. We think that, in all cases where such release is made, it must in law be held to be necessarily prejudicial to the minor without attempting to estimate the precise extent of the ultimate injury which may actually result.
6. We do not think that, so far as the present question is concerned, any sound distinction can be drawn, as the apellant wishes us to do, between the interest possessed by a minor in property belonging to him as his own and the limited interest possessed by him in property mortgaged to him. His interest is entitled to equal protection in both cases. Without, therefore, going into the question of the sufficiency of the security apart from the property released, we hold that the plaintiff's right to proceed against the whole property is unaffected by the release.
7. We have been asked at least to direct that the sale of the appellant's property should be postponed until the plaintiff had proceeded against the remainder of the security. We, however, find that the appellant's property has been already sold, and that the sale has been confirmed, and suits for contribution between the subsequent mortgagees have been instituted.
8. We think that, in these circumstances, it is too late to modify the decree as suggested, even if it could have been done in the lower Court without prejudice to the rights of the other subsequent mortgagees.
9. We must, therefore, dismiss the appeal with costs.