1. The suit is for a declaration that the sale of the plaint property to the 1st defendant by the plaintiff's mother during her minority is not binding on her and for its possession. The Subordinate Judge decreed the suit and the 1st defendant has preferred this appeal. The facts are these. One Muthukrishna Karayalar of Padmanabhamangalam village in Srivaikuntam Taluk, Tinnevelly District, died in March, 1915 leaving him surviving the plaintiff, his wife, a minor aged 15 years. On the 2nd June, 1915, the plaintiff's mother as protector and guardian of the plaintiff executed a sale-deed, Ex. XV, in favour of the 1st defendant, the divided step-brother of the plaintiff's husband, conveying all the properties inherited from the husband, except a small portion, for a consideration of Rs. 10,000 to be paid to various creditors including the 1st defendant. On the 15th June, 1915, the 1st defendant executed what is called an indemnity bond, but in reality a security bond, Ex. XXIX, in favour of the plaintiff's guardian, in which he made provision for the maintenance of the plaintiff out of the income of 94 cents of land and undertook to discharge her husband's debts and provided for her enjoying other property belonging to him in case any loss was caused to her by his not discharging the debts. The plaintiff attained majority in 1918 and filed this suit on the 23rd December, 1920 for setting aside the sale as not binding on her and for recovery of possession of the property conveyed under Ex. XV. The 1st defendant pleaded that, as the estate was heavily burdened with debt, it was necessary to sell the property and that he purchased it bona fide for adequate consideration from her guardian, and that the plaintiff, after attaining majority, ratified the sale, and that, in case the sale was set aside, he should be paid at least Rs. 12,000 being the amount that he spent to save the property from creditors and to effect improvements. The Additional Subordinate Judge of Tinnevelly found there was no justifiable necessity to sustain the validity of the sale and decreed the suit. He also found that the plaintiff did not ratify the sale and appellant's vakil did not argue the point.
2. The main question in this appeal is, is the sale evidenced by Ex. XV binding on the plaintiff? In order to answer this question satisfactorily two points have to be considered : (1) had the plaintiff's mother authority to bind the plaintiff by her acts in her capacity as guardian, and (2) if the first question is answered in the affirmative, was the sale for purposes which would bind the plaintiff? The plaintiff was a minor aged 15 years at the time of her husband's death in March, 1915. The mother did not become the legal guardian after the death of the plaintiff's husband. According to Hindu Law, the 1st defendant, who is the elder step-brother of the plaintiff's husband, became her guardian on her husband's death. Trevelyan in his 'Law relating to Minors' at page 53 says:
After the husband's death, the guardianship of his minor widow, and the management of her property, devolve upon the husband's heirs, that is, upon those who arc entitled to inherit his estate after her death in preference even to her own father
and he relied upon a number of authorities for his statement. Mayne in paragraph 211 (page 277) of the 8th edition says:
The husband's relations, if any exist within the degree of a sapinda, are the guardians of a minor widow in preference to her father and his relations.
3. In Khudiram Mukherjee v. Bonwari Lal Roy I.L.R. (1889) C. 584 Banerjee, J., observes:
Now under the Hindu Law we think that the relations of her deceased husband are entitled to be the guardians of a Hindu widow in preference to her paternal relations. This is clear from the text of Narada, Chapter XIII, verses 28 and 29, cited in the Dayabhaga, Chapter XI, Section 1, para. 64.
4. The text runs thus:
When the husband is deceased, his kin are the guardians of his childless widow. In the disposal of the property and care of herself as well as in her maintenance, they have full power. But if the husband's family be extinct, or contain no male, or be helpless, the kin of her own father are the guardians of the widow, if there be no relations of her husband within the degree of a sapinda.
5. This text has been followed in three cases, one to be found in Macnaghten's 'Principles and Precedents of Hindu Law,' Vol. II, p. 203; another Kishen Mohan Mitler v. Khettermoni Dassi 2 Hay 196 : Marsh 313 and a third the case of Bai Kesar v. Bai Ganga (1871) 8 Bom. H.C.R. 31. In Bat Kesar v. Bai Ganga (1871) 8 Bom. H.C.R. 31 it was held
A Hindu widow is the proper guardian of her deceased son's widow, in the absence of any person claiming a preferential title to succeed to the estate of the latter.
6. The learned Judge who decided that case relied upon Grady's Hindu Law, page 65, quoting from Macnaghten's 'Principles and Precedents of Hindu Law,' page 104. The following passage is taken from West and Buhler, 3rd Ed., p. 232:
The perpetual dependence assigned to a woman is accompanied by an indefeasible claim to nurture, shelter and gentle usage. Who are to satisfy this claim? Primarily the family she has joined not the family she has quitted.
7. At p. 541 the same learned editors say:
Thus the right or duty of guardianship over a female is vested after marriage in the husband, his sons and his sapindas successively.
8. Macnaghten at page 104 of Vol. I of his book says:
The guardianship of a female (whether she be a minor or adult) until she be disposed of in marriage rests with her father; if he be dead, with her nearest paternal relations. After her marriage a woman is subjected to the control of her husband's family. In the first instance, her husband is her guardian: in default of him, her sons, grandsons, and great-grandsons are competent to assume guardianship.
9. From these authorities it is clear that the husband is the legal guardian of his minor wife, and if he happens to die during her minority, his nearest sapinda will be her guardian. The text of Nairada does not merely refer to the order of precedence as to guardianship but distinctly gives the right of guardianship to the husband's sapindas. It was held in In the mattter of the Petition of Dhuronidhur Ghose I.L.R. (1889) C. 298 that a father was guilty of kidnapping when he took his minor daughter away from the husband's guardiainship. The husband becomes by marriage the legal guardian of his minor wife even though he himself maybe a minor. By marriage, a girl passes into the family of her husband. Her husband's gothra thereafter becomes her gothra and her husband's sapindas become her sapindas as she becomes one with the husband. If she becomes a widow when a minor, it follows as a matter of course that the eldest among the nearest sapindas of her husband becomes her guardian. This is in consonance with the Hindu notion of the merger of the identity of the wife in the husband. The 1st defendant, on the death of his step-brother, Muthukrishna Karayalar, became the lawful guardian of the plaintiff.
10. The contention on the part of the 1st defendant is that the plaintiff's mother became her guardian de facto, and, as de facto guardian of a Hindu minor she had all the rights of a lawful guardian. We have to see whether the plaintiff's mother did become her de facto guardian. The plaintiff's husband died in March, 1915. Ex. XV was executed on the 2nd June, 1915. Did the plaintiff's mother manage the properties of the minor and look after her interests in such a way as to become her de facto guardian before the date of Ex. XV? Plaintiff's mother as P.W. 1 says that the 1st defendant harvested the crops on the lands belonging to Muthukrishna Karayalar at the time of his death and took possession of all the moveables, the cattle, plough-bulls, etc. The 1st defendant denies having harvested the crops, but, on the evidence, we are satisfied that it was he that harvested the crops on his step-brother's lands. Though he says that the tenant gave the produce of the land to P.W. 1, yet he is not able to say who the tenant was. The 1st defendant had his own cultivation and some of his lands were in close proximity to Muthukrishna's lands and some of them had not been divided by metes and bounds. He, however, admits that he took possession of the cattle and moveables. From the evidence on record, it does not appear that the plaintiff's mother did any act as guardian in respect of the property which the plaintiff inherited from her husband before the date of Ex. XV. A de facto guardian is one who looks after the property of the minor and generally acts in his interests for the time being. A fugitive or an isolated act of a person with regard to the minor's property would not make him a de facto guardian of the minor, nor would staying with a minor for a time make him a de facto guardian. There must be a continuous course of conduct as guardian of a minor in regard to his property in order to enable one to become a de facto guardian. The length of the period required to constitute one a de facto guardian would depend upon the circumstances of each case. The first act of intermeddling with the estate of a minor would not be the act of a de facto guardian, if he had not become one before the act, nor would the subsequent management of the estate of the minor by such person make the first act, which is one of alienation, the act of a de facto guardian. In this case, there is no evidence that the plaintiff's mother was allowed to manage the estate of the plaintiff before the date of Ex. XV. Reliance is placed by Mr. Varadachariar on Ex. XXIX as showing that the plaintiff's mother was her guardian. Ex. XXIX called an indemnity bond was executed on the 15th June, 1915 in favour of the plaintiff's mother as guardian of the plaintiff. This and Ex. XV formed parts of the same transaction. Ex. C is a receipt dated 28th December, 1915 granted for the moveables and cattle which the 1st defendant took possession of. These would not show that plaintiff's mother managed her estate in such a way as to become her de facto guardian. The 1st defendant's maternal uncle filed O.S. No. 145 of 1918 in the District Munsif's Court of Srivaikuntam against the plaintiff making the mother her guardian ad litem. The acts of the 1st defendant and his maternal uncle treating the plaintiff's mother as guardian for their own purposes would not make her de facto guardian so as to enable her to bind the minor by her acts. In Harilal Ranchhod v. Gordhan Keshav I.L.R. (1927) B. 1040 Marten, C.J., observes:
Now 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 I 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.
11. Crump, J., Observes at page 1047:
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.
12. The observations of Crump, J., apply with great force to this case. The plaintiff's mother was not allowed to manage the affairs of the plaintiff. The crops were harvested by the 1st defendant. The moveables and the cattle were taken away by him and there was nothing left for the plaintiff's mother to look after or manage under such circumstances. It will be doing violence to language to say that she became a de facto guardian merely because she happened to stay with her widowed minor daughter. We have therefore no hesitation in holding that the plaintiff's mother was not her de facto guardian.
13. The 1st defendant, as already found by us, was the guardian of the plaintiff. He not only had the legal right under the Hindu Law to be the plaintiff's guardian but his acts show that he assumed the role of a guardian. He harvested the crops standing on the land at the time of his step-brother's death, he took possession of the cattle and moveables and began to treat, according to his own evidence, with the creditors. When a person who is entitled to be the guardian takes possession of the estate of the minor, he exercises his right as guardian, and he cannot treat any other person as guardian when he himself is in possession of the estate of the minor. The 1st defendant being the guardian of the plaintiff and acting as such by taking possession of her property, it would be opposed to natural justice if he be allowed to deprive the minor of all her property by getting a conveyance in his favour from the mother who was not allowed to have anything to do with the minor's estate even for a short time. The transaction, evidenced by Ex. XV is absolutely void, as the plaintiff's mother was not her de facto guardian and as the vendee himself was the lawful guardian of the plaintiff.
14. This finding is sufficient to dispose of the appeal, but, as other points were argued at great length, we consider them briefly. Granting that the plaintiff's mother was a de facto guardian, the question is, was the sale for purposes which would bind the plaintiff? An elaborate argument was addressed to us by Mr. Varadachariar about the indebtedness of the estate of Muthukrishna. Ex. XV mentions as many as 26 items of debts of which items 1, 2 and 3 were due on hypothecation bonds executed for due payments of the instalments of chits. Items 4 to 6 were due on ordinary hypothecation bonds and items 7, 8 to 10 were othi debts, that is, debts due on usufructuary mortgages. Items 11 to 21 were due on pro-notes, items 22 and 23 were due on pledges, items 24 and 25 debts not secured by any instrument and item 26 was said to be due to the 1st defendant. Some of the items of debts are impeached by the plaintiff as not being due from the estate. Item 26 is a sum of Rs. 260 said to be due to the 1st defendant. There is no satisfactory evidence that any amount was due to the 1st defendant in respect of expenses incurred for repairs to a tank and for 'having paid kist.' The 1st defendant denies having paid kist and, even if he did pay the kist, it must have been out of the proceeds of the sale of crops which he harvested. Item 26 is clearly a fictitious item, evidently put in to make a round sum. Item 17, Rs. 645 is said to be due on a pro-note. D.W. 1 proves the execution of the note. Sudalimuthu Pillai, the promisee, has not been examined to prove that the 1st defendant discharged the debt. D.W. 1 simply proves the hand-writing of the plaintiff's husband. Item 16 is said to be due on a pro-note. D.W. 2 says he obtained an assignment of the note Ex. XXII, but there is no evidence of Muthukrishna's liability on the pro-note. Item 13 is Rs. 192 said to be due on a promissory note (Ex. XXXV). The promisee has not been called to prove the liability of Muthukrishna on the note.
15. It is unnecessary to consider the rest of the items due on pro-notes and pledges in the view we take of the necessity for the sale. Of the debt of about Rs. 10,000, Rs. 1,260 was due on othi or usufructuary mortgages, items 7 to 10, and Rs. 3,100 was due on chit bonds, items 1, 2 and 3. The amount of debt carrying interest due from the estate at the time of Muthukrishna's death was Rs. 5,550 even if all items are true, of which Rs. 1,550 was secured on the hypothecations of immoveable property. Was there any pressure on the estate which would be relieved only by sale of the property? There is no satisfactory evidence that any creditor pressed for payment between the date of Muthukrishna's death and the date of Ex. XV. P.W. 1 was not specifically asked about any creditor pressing for immediate payment of any debt. D.W. 1, the maternal uncle of the 1st defendant, says : 'I know some creditors who pressed for payment, Ramaswami Karayalar and Venkatachari, after plaintiff's husband died. The creditors complained to me also. Sokamayya Kone also demanded as above, also Kodayammal, wife of Venkatachari. He adds 'these demands were a year after the death of plaintiff's husband.' So, there is no satisfactory evidence that any demand was made by any of the creditors between the date of plaintiff's husband's death and the date of Ex. XV. That being so, was there any necessity for the sale of practically the whole of the minor's estate? It is only in case of necessity that the guardian would be justified in selling any portion of the minor's property and the necessity must be very great in order to justify the sale of practically the whole of the property. The chit subscriptions had to be paid in the course of 7 or 8 years. The othi debts had not to be paid till redemption was sought. The only debts that had to be paid if demanded were the pro-note debts and debts on pledge of jewels. In order to liquidate debts to the extent of Rs. 4,000 there was no necessity to sell property worth Rs. 14,000.
16. It is strongly urged by Mr. Sitarama Rao for the plaintiff that the property was sold for an inadequate price. The evidence on record is not definite enough to show what the actual price of the land conveyed under Ex. XV was. The lands in Agappattu, 6 acres 29 cents in extent, are said to be the best of the whole lot. The land in Tholappan Panai measuring 1 acre and 79 cents is also good land. The land in Panakkulam 10 acres 36 cents is not so valuable. There was in addition 95 acres of dry land. The witnesses give varying rates as prevailing at the time but we may take it that the valuation given in Ex. XXIX is a fairly approximate one. In it all the lands belonging to Muthukrishna's estate are said to be worth Rs. 14,000. Excluding the 94 cents valued at Rs. 1,500, the rest of the lands was sold under Ex. XV. It follows that lands worth Rs. 12,500 were sold for a consideration of Rs. 10,000. Of this consideration, not a pie was paid on the date of the document. Rs. 3,100 due on the chit bonds had to be paid in the course of 8 years and Rs. 1,260 due on othi had not to be paid. Even now, two items of othi have not been redeemed. In these circumstances, the sale of practically the whole of the minor's estate cannot be a valid sale which would bind the minor.
17. It is not necessary in this view to consider at length whether the plaintiff's mother was coerced into executing Ex. XV. She wanted to manage her daughter's affairs and she was prevented from doing so by the 1st defendant taking possession of all the moveables, cattle and crops on the land and if he had insisted on her executing a sale-deed in his favour of practically the whole of the minor's estate before he provided for her maintenance and if the plaintiff's mother executed the document, in order to get maintenance for her daughter, in law her act would be invalid as being brought about by coercion. There is no evidence as to the negotiations which led up to the sale. P.W. 1, an ignorant shepherd woman, had not the time to know the state of her son-in-law's affairs. There is no evidence that she had any independent advice except that of her brother who was not a man of influence or education. If, in such circumstances, the daughter's husband's elder brother, who is a wealthy and influential man in the village, takes a document from the plaintiff's mother, the onus would be heavily on him to show that the transaction was above board, that the plaintiff's mother had independent advice, that she knew the condition of the estate and that there was actual pressure on the estate to relieve which she entered into the transaction. What appears to be the fact is that the friends of the 1st defendant at his request consented to handing over the whole of the minor's property into his possession. Though Ex. XV is attested by some respectable persons like Doraiswami Kone who could be said to be independent, they have not been called to show what necessitated the execution of Ex. XV. D.W. 1 is 1st defendant's father-in-law. D.Ws. 2 and 6 are not satisfactory witnesses. The conduct of the attestors can be explained on the ground of the feeling among the Hindus that a widow needs only a starvation allowance and that the husband's brother who is the reversioner could not be prevented, from entering into possession of the estate. Taking all the circumstances and the evidence into consideration, we hold that the sale was not justified by necessity, that the sale was not for an adequate consideration and that the plaintiff's mother did not know what she was doing. The sale therefore cannot bind the plaintiff.
18. The next point for consideration is whether the 1st defendant should be paid the amount of debt on the estate which he paid off. The 1st defendant contends that plaintiff is not entitled to mesne profits but that he is entitled to be paid the amount that he spent for the estate. Though he claimed Rs. 12,000 in his written statement, Mr. Varadachariar who appears for him claims only Rs. 9,000. If a sale is only voidable, it is good till it is avoided, but if it is void, it need not be avoided. Moreover, it has been held in several cases that the unauthorized or improper alienation of a minor's property by a de facto guardian need not be set aside. Thayammal v. Kuppanna Goundn : AIR1915Mad659(2) , Balappa v. Chdnbasappa : AIR1915Bom150 and Katha Perumal Thevan v. Ramalinga Thevan (1914) 17 M.L.J. 138. As we have held that the sale is absolutely void, the 1st defendant is not entitled to be paid the amount that he spent to relieve the burden on the estate, as he was only a volunteer inasmuch as he had no title to the property. The observations of the Privy Council in Ram Tuhul Singh v. Biseswar Lall Sahoo may be quoted in this connection:
It is not in every case in which a man has benefited by the money of another, that an obligation to repay that money arises. The question is not to be determined by nice considerations of what may be fair or proper according to the highest morality. To support such a suit there must be an obligation, express or implied, to repay. See also Nathu v. Balwantrao I.L.R. (1903) `Bom. 390.
19. In case it be held that the sale is only voidable, the question would arise whether the 1st defendant is entitled to be paid any amount and, if so, what amount. Several cases have been relied upon by both sides in respect of their respective contentions. In Limbaji Ravji v. Rahi I.L.R. (1925) B. 576 it was held that though the sale was by an unauthorized, person, the Court might under Section 41 of the Specific Relief Act make it a condition that the minor should refund the amount by which his estate and himself were benefited. In that case, the sale was by the step-mother on behalf of her minor son. The Court held that the sale was by an authorized person and the sale was invalid and that the minor was entitled to have it set aside. Even though the stepmother was not the lawful guardian of her step-son, it is difficult to see how she could not have been his de facto guardian if by course of conduct she acted as such. The learned Judges found that she redeemed the mortgage and sold the land after redemption. With all respect to the learned Judges, we think that the step-mother was de facto guardian and it is well settled that the powers of a de facto guardian are the same as those of a lawful guardian under the Hindu Law. Vide Ramaswami v. Kasinatha : AIR1928Mad226 , Thayammal v. Kuppanna Goundan : AIR1915Mad659(2) and Adhar Chandra v. Kirtibash Bairagee (1910) CRI.L.J. 586. Her alienation of the minor's property was only voidable and not void. A Court of Equity has power to grant relief in proper cases and, in the view of the learned Judges, it was a proper case for the application of Section 41 of the Specific Relief Act. A person who, knowing all the facts, gets a transfer of the minor's property from a person who is not the guardian, is not entitled to be reimbursed any amount which he paid for the benefit of the minor. It was held in Harilal Ranchhod v. Gordhan Keshav I.L.R. (1925) B. 1040 that
a person who has made improvements on the property believing in good faith that he is absolutely entitled thereto, is entitled to the benefit of Section 51 of the Transfer of Property Act.
20. There was a distinct finding that the improvements were made in good faith. These two cases have no application to the present case as the 1st defendant's conduct has been throughout the very opposite of bona fide.
21. Granting that the 1st defendant is entitled in law to be paid some amount, let us see whether in fact he is entitled to be paid anything. He harvested the crops on the land belonging to Muthukrishna at the time of his death. The yield of the lands may be taken at 50 kottas of paddy per year. That would give us about Rs. 600 and the other income from the land is said to be Rs. 350 according to the plaint. Though the plaintiff's 2nd witness would make out that the income from the lands was considerably more and the 1st defendant would make out that the income from the lands was considerably less, we may strike a mean and hold that the income from the lands must have been at least Rs. 800 or Rs. 900. This amount the 1st defendant had. He also took all the cattle and moveables. According to his valuation, they were worth Rs. 500. There is no satisfactory evidence that this amount was paid to the plaintiff's guardian. The 1st defendant say's. 'I paid for the cattle, etc., Rs. 500. I executed a pro-note to a nominee of plaintiff's mother and then paid it. I hold the pro-note with me.' He has not produced the pro-note and we are not prepared to believe his statement that he executed a pro-note for the amount. He must have had at least Rs. 900 the value of the yield of the land, and Rs. 500 the value of the cattle. He has not accounted for them. We have found that item 26 is a fictitious item. If credit is given for these items Rs. 900, 500 and 260 and amounting to over Rs. 1,600 the amount that would be required for paying off all the pro-notes even if genuine debts would be only about Rs. 2,400, which, together with the othi and chit subscriptions, could have been met from the income of the property as the Subordinate Judge remarks. Some of the debts have not been proved to be genuine debts. In these circumstances, the 1st defendant is not entitled to be reimbursed any portion of the amount which he is said to have paid for the benefit of the plaintiff's estate.
22. The plaintiff is entitled to mesne profits from the date of the Lower Court's decree which will be ascertained in execution.
23. In the result, the appeal is dismissed with costs.