1. This is an appeal preferred against the decree and judgment of the learned District Judge, North Arcot, at Vellore in A.S. No. 189 of 1953, modifying the decree and judgment of the learned District Munsif, Tirupattur, in O.S. No 84 of 1949
2. The suit property consists of 93 cents, namely, 86 cents in Section No. 19/2 and 7 cents in Section No. 20/2.
3. These two survey numbers formed part of the estate of Ramakrishna Reddi, who died on 30th May, 1924, leaving surviving him his widow, Adiammal, and his mother, Varadammal. Adiammal succeeded to the properties as limited owner and Varadammal predeceased her. Adiammal died on nth January, 1946. During the minority of Adiammal, her motheR-In-law, Varadammal executed a usufructuary mortgage, Exhibit B-i, over Item 1 of the suit property of 86 cents in favour of Abdul Subhan, the father of defendants 2 to 10. Later, again, during the minority of Adiammal, a sale deed was executed by her father acting as her guardian in favour of Abdul Subhan relating to Item 1 as well as Item 2 comprising 7 cents in Section No. 20/2 and forming contiguous property. The mortgage-deed, Exhibit B-I, dated 17th September, 1920, is for Rs. 500 and the sale-deed Exhibit B-2, dated 2nd September, 1928, for Rs. 1,000.
4. It is in regard to these two properties that the plaintiffs who claim to be the nearest reversioners have instituted this suit for recovery of possession on the ground that the mortgage and sale were neither for benefit nor for necessity and not binding upon them. The trial Court upheld this contention and decreed the suit. In appeal, the learned District Judge came to the conclusion that the alienations were for the benefit of the estate of the last male holder and binding upon the plaintiff and that, in regard to consideration, a sum of Rs. 500 is found not to be binding on them and that therefore the plaintiffs should be declared to be entitled to Rs. 500 out of the sale consideration together with interest at the Court rate thereon from the date*of the sale and that these two constitute a charge upon the suit properties, Items 1 and 2.
5. In coming to the conclusion that the sale-deed was entirely lacking in necessity or benefit, the learned trial Munsif got mixed up and seems to have considered that necessity and benefit are practically synonymous. On the other hand, though the concepts of 'necessity' and 'benefit' are obviously related, it is equally well-settled that they are nevertheless distinguishable and not synonymous. In Mayne's Hindu Law, Eleventh Edition, Section 363 and following, there is a discussion of the concept of judicial opinion upon this matter. The view of this Court is to be found set out fully in a Bench decision in Sellappa v. Suppan : AIR1937Mad496 . In that case, it was pointed out by the Bench that 'benefit' does not necessarily imply that the transaction should be of a defensive nature, and they also put a pertinent query,
or again, is it proper to hold that a manager can repair a dilapidated family house, but cannot incur a debt for the purpose of reasonably improving and enlarging it
6. Therefore, on account of the fact that the learned District Munsif did not distinguish between necessity and benefit and considered them to be synonymous, he came to the conclusion that this alienation was not binding upon the reversioners.
7. On the other hand, the learned District Judge has pointed out how this transaction under Exhibit B-1 was for the benefit of the estate and consequently binding upon the reversioners. It would appear that the family was then possessed of 93 cents of' land paying an assessment of about Rs. 8. That land itself had no source of irrigation. It had half right in a well to irrigate it. It is situated in a district and locality notorious for failure of rainfall and seasons of scarcity. The house which belonged to the family had become apparently dilapidated and stood in need of improvement like plastering, putting up a terrace, etc., before it could be made to fetch a decent rent. Therefore, the guardians of Adiammal who were interested in her welfare had to decide whether to keep the land which was fitful in the return of income and by itself was not very productive or make the house pucca and let it out, enabling the realisations of a steady and fixed rent. The guardians, as pointed out by the learned District Judge, have wisely and prudently chosen the latter alternative. That is why they have first of all borrowed under the mortgage from Abdul Subhan and then have sold the land and discharged the mortgage. This alienation by the guardians was certainly for the benefit of the estate.
8. This cannot be got over by the reliance placed upon a decision in Bhogaraju Venkatarama Jogiraju v. Addepalli Seshayya I.L.R.(1911) Mad. 560, where it is pointed out that the holder of a woman's estate would not be justified in building a house so as to bind her reversioners. The limited owner has no right to force the house on her reversioners at the risk of the estate iteself or a portion thereof being brought to sale for discharging, the debt. This decision, however, it will be noted, is a much earlier decision than Sellappa v. Suppan : AIR1937Mad496 and there can be no doubt that there has been a liberalising in the outlook of the Judges in regard to limits to be placed upon the two restrictions in alienating properties, namely, that it should be for necessity or benefit. The later decisions have more readily recognised that if a guardian honestly and bonafide enters into transactions for the benefit of the estate and which are demonstrated to be such, those transactions would be upheld by Courts.
9. One moment's reflection shows that in the modern stress of life if we are to follow ancient decisions, there will be a complete paralysis of all acts on the part of the guardians to augment the revenues of their wards and benefit them. If all guardians are at all times to remain summa seeking safety first in doing nothing the bettering of the prospects of the wards and even preserving properly their estate will be very poor and dim indeed. The law may be an ass as the immortal Mr. Bubble said but it is not so assinine as all that. Precedents must be milestones of progress and not halting places. One can understand that, if the guardian enters into speculative transactions, they should not be upheld. There can be no doubt whatsoever that putting a. house in good order and making it pucca, so that it can fetch a fixed and decent rent, would certainly not be such a speculative transaction of that nature. Therefore, like the learned District Judge, I do not think that the decision in Bhogaraju Venkatarama Jogiraju v. Addepalli Seshayya I.L.R.(1911) Mad. 560, stands in the way of our recognising this transaction as beneficial to the estate and therefore binding upon the reversioners.
10. The proof of the pudding is, after all, in the eating. In this case, it has been shown that this house has been put into good order and it has been fetching a decent rent of Rs. 10 per month which the land would never have done. In addition, the frantic way in which the plaintiffs are now fighting to pay over Rs. 500 to the alienee and take the house shows that it was a profitable proposition when the guardians, entered into the transactions under Exhibits B-1 and B-2.
11. In the result the learned District Judge wasffully entitled to come to the conclusion that this alienation was for the benefit of the estate, and, consequently having regard to the circumstances of this case the proper order to make was that the sum of Rs. 500 which was found not to be binding on the reversioners should be made to be reimbursed by the alienees with appropriate rate of interest.
12. The decree and judgment of the learned District Judge are unassailable and they are confirmed. This second appeal has got to be, and is hereby, dismissed, but in the circumstances without costs.