Anantakrishna Ayyar, J.
1. While the plaintiff was a minor the suit land belonging to him was sold to the defendant by D. Rama-krishna Rao who held a power-of-attorney as agent of Sundaramma, the mother and guardian of the plaintiff. The sale was for Rs. 300 under Ex. 1 dated 3rd February, 1912. The plaintiff's suit was filed within three years after his becoming major, and the prayer in the plaint was to set aside the sale-deed and to recover possession with mesne profits.
2. The defendant's plea was that the sale was valid and binding on the plaintiff. Both the lower Courts upheld the defendant's plea and dismissed the suit. The plaintiff has accordingly preferred this second appeal.
3. It is better to note the recitals in the sale-deed in the first instance. Such recitals form a contemporaneous record of the representations made to the alienee, on the faith of which the alienee purchased the property. In the sale deed the only recital is that the property was sold for 'our expenses.' Next I proceed to note the exact averments in the written statement filed by the defendant in the present suit. Paragraph 2 of the written statement is as follows:
The said Ramakrishna Rao effected the sale on behalf of the next friend under the mukhtarnama obtained from her. Therefore the said sale should be confirmed. At the time of the sale suit land was barren. The plaintiff's next friend could not pay Government theerva. Fearing that the suit land would be lost, if it was sold by auction for Government revenue and with the intention of affording facilities for the maintenance of plaintiff she sold the suit land. The sale is not fraudulent.
4. On these pleadings issue No. 2 was framed by the trial Court to the following effect:
whether the sale deed is valid and binding on plaintiff.
5. The following are the facts, either found by the lower Court or admitted. The plaintiff is an inamdar owning large properties, Defendant No. 1 as D. W. No. 1 admitted that the whole of the Kyasankere village is the Shrothriem of the plaintiff's family. The plaintiff pays about Rs. 800 as assessment to Government. D. W. No. 9 says that:
The plaintiff's estate was possessed of vast extent of lands worth about Rs. 70,000 to Rs. 80,000, The plaintiff's uncle and father bad deposited about Rs. 8,000 in the Local Fund Office. It was the plaintiff who drew the amount about three or four years ago. The plaintiff's family was a rich family and there were also outstandings due to the family.
6. In the face of these admissions, it is difficult to see how the sale could be upheld on the strength of the recital in the sale-dead, viz., that the suit property was sold for the purpose of meeting the maintenance expenses of [the plaintiff and his mother.
7. With reference to the allegations made in the written statement, we have again the following facts either proved or admitted. The suit property is under a tank; the said tank is in proper condition. Some other lands of the plaintiff's estate are under a different tank which breached some years ago. But the tank under which the suit lands are situated is in a proper condition. Two thirds of plaint lands had been always under cultivation except for two years prior to the sale. The remaining one-third of the suit land was always waste. The assessment due on the suit land was Rs. 23 7-0. P. W. No. 2 says that he was paying Rs. 50 as rent while he was a tenant. The District Munsif remarked that even if that be true 'the income from the land would not be up to much.' The plaintiff's mother was practically a pardanashin woman. She 'had a vast extent of lands more than she could manage:' See D. W. No. 9. The defendant did not ask Sundaramma directly about the circumstances connected with the 'sale. The defendant was a tenant of the estate and has his own lands, five fields off the suit lands. The defendant was a tenant of the plaintiff's family and knew the plaintiff's family since plaintiff's grandfather's time.
8. The plaintiff is a big inamdar and possessed of large extent of lands and also cash. The sale was for Rs. 300. The defendant asked an aunt of the minor and ascertained that others had offered only a lower price. The lower Appellate Court in para 5 held that legal necessity for the sale was not proved but it held that 'there is sufficient evidence to show that the transaction was of real benefit to the minor's estate, because the lands were in a poor condition and neglected and plaintiff's mother could not find tenants to take the lands.'
9. On these grounds the lower Appellate Court confirmed the decree of the first Court dismissing the suit,
10. The question then is whether the sale is binding on the plaintiff in the facts and circumstances stated above.
11. As remarked by the Privy Council in Hunoomanpersaud's case 6 M.I.A. 393 : 18 W.R. 81 : Sevestre 253n. 2 Suth. P.C.J. 29 : 1 Sur.P.C.J. 552 : 19 E.E. 147:
The power of the manager for an infant heir to charge an estate not his own, is, under the Hindu Law, a limited and qualified power. It can only be exercised rightly in a case of need, or for the 'benefit of the estate.
12. The expression 'benefit of the estate' has been explained by the Privy Council in the case reported in Palaniappa Chetty v. Devasikamony Pandara Sannadhi 39 Ind. Cas. 722 : 40 M. 709 : 21 C.W.N. 729 : 15 A.L.J. 485 : 1 P.L.W. 697 : 33 M.L.J. 1 : 19 Bom. L.R. 567 : 22 M.L.T. 1 : (1917) M.W.N. 507 : 26 C.L.J. 153 : 6 L.W. 222 : 44 I.A. 147 (P.C.). In the case before the Privy Council the trustee of a temple granted permanent lease at a fixed rent and on payment of a premium of a piece of land belonging to the temple which was lying waste and the ruins on the land had become a nuisance. Proceedings before the Magistrate to abate the nuisance were either pending or about to be taken. In these circumstances a permanent cowle was granted. The High Court had held that the grant was not binding on the temple: Devasigamani Pandarasannadhi v. Palaniappa, Chettiar 9 Ind. Cas. 281 : 34 M. 535 : 9 M.L.T. 83 : 20 M.L.J. 969 : (1911) 2 M.W.N. 154. The Privy Council confirmed the judgment of the High Court. After noticing earlier cases which held that it was a breach of duty on the part of a shebait, unless constrained by an unavoidable necessity, to grant a lease in perpetuity of debuttar lands at a fixed rent, however adequate that rent may be at the time of granting, their Lordships proceeded to observe that though those cases dealt with agricultural lands, there was no reason why the principles they establish should not apply to a building site in the street of a village. They observed further that
No authority had been cited to show that a she bait is entitled to sell debuttar lands solely for the purpose of investing the price of it so as to bring in an income larger than that derived from the debottar land itself.
13. Referring to Hanooman Prasad's case 6 M.I.A. 393 : 18 W.R. 81. : Sevestre 2 Suth.P.C.J. 29 : 1 ur.P.C.J. 552 : 19 E.E. 147, this is what their Lordships say at page 716 Page of 40 Mad-[Ed.]:
In that particular case in reference to which this language was used, the 'necessity' for the loan would appear to be plain and imperative, the benefit to the estate, the preservation of its existence, obvious. Moreover the transaction impeached was not an absolute alienation of property, but merely a pledge of it which might at any time be redeemed. The case in no way resembles the present case.
14. With reference to the expression 'benefit to the estate' their Lordships say at page 718 as follows:
It is impossible, their Lordships think, to give a precise definition of it applicable to all cases, and they do not attempt to do so. The preservation, however, of the estate from extinction, the defence against hostile litigation affecting it, the protection of it or portions from injury or deterioration by inundation, these and such like things would obviously be benefits.
15. I should like to extract one more passage from the Privy Council judgment. At page 720 Pages of 40 Mad.-[Ed.]:
The grant of the cowle may have been an easy and convenient way of getting the nuisance upon the site abated; but in their Lordships' view, the evidence does not establish that the she bait was constrained by any necessity (as that term is in such a connection understood) to make this grant, or that any benefit accrued to the charity estate from the making of it. If the matter stood thus, their Lordships would be clearly of opinion that the cowle was...in valid.' In the present case also it seems to me that the same remarks apply equally. In this case also the sale of the land may have been an easy and convenient way of getting rid of the trouble of managing the land, but that does not show that the manager was constrained by any necessity to sell this land. It is not pretended that there were any debts due by the minor's estate which justified the sale. On the contrary it is admitted that the minor was a big inamdar possessed of lands worth thousands of rupees paying an. assessment of about Rs. 800 per year. Nor was the present a case of bonafide exchange of lands for convenient management. The tank irrigating the land was in an efficient condition. No doubt it is said that two-thirds of the land sold remained uncultivated for two years prior to the sale; but that evidently was due to the reason given by D, W. No. 9 vis., that 'she had more lands than she could manage.' The circumstance that a minor's guardian finds that the minor had more lands than the guardian could manage is more a ground for the guardian retiring from management and leaving the management to abler hands than for the guardian the sale of the properties. If the purchaser's contention be upheld, then it would follow that the more incapable a gurdian is to manage the minor's property, more powers she would possess by way of effecting a sale of minor's properties. This could not possibly be the law. I do not find any legal grounds for upholding the sale in the present case.
16. Cases were cited before me where it was held that the manager of a joint Hindu family or a Hindu widow could sell family property situated at a distant and inconvenient locality for purchasing new lands near the joint family residence. Such cases stand upon an entirely different footing. The purchaser of the joint family lands would in such circumstances, in case the joint family or the reversioners impugn the sale to him, have a charge on the newly purchased properties which were purchased from the purchase money paid by him. In the case before me it is not pretended that any new lands were purchased with the price paid by the defendant.
17. The decision reported in Nagindas Maneklal v. Mahomed Yusuf 64 Ind. Cas. 923 : 46 B. 312 : 23 Bom. L.R. 1094 : A.I.R. 1922 Bom. 122 was relied on by the learned Advocate for the respondent. There the adult co-parceners of a Hindu joint family owning several houses contracted to sell one of such houses which was in such a dilapidated condition that the municipality required it to be pulled down. The joint family was in fairly good circumstances and it was not necessary to sell the house. The Court held that the agreement of sale was binding on the minor co-parceners because the adult co-parceners had properly and wisely decided to get rid of the property which was in such a state as to be a burden to the family. With reference to that decision I have to make two observations: (1) the land sold in the present case could not properly be compared to the dilapidated house referred to in the Bombay case. Here the land was fetching a rent of Rs. 50 a year while the assessment due on it was only Rs. 23 7 O. No (such or similar) circumstances as were proved with reference to the house in the Bombay case have been proved with reference to the land in the present case. The learned Judges remarked: (at page 315 of 46 Bom.): 'even taking it that such power to alienate can be exercised only when a clear case of necessity is made out, I think that the term 'necessity' must not be strictly construed. The benefit to the family may under certain circumstances mean a necessity for the transaction.'
(2) The decision of the Privy Council in the case reported in Palaniappa Chetty v. Devasikamony Pandara Sannadhi 39 Ind. Cas. 722 : 40 M. 709 : 21 C.W.N. 729 : 15 A.L.J. 485 : 1 P.L.W. 697 : 33 M.L.J. 1 : 19 Bom. L.R. 567 : 22 M.L.T. 1 : (1917) M.W.N. 507 : 26 C.L.J. 153 : 6 L.W. 222 : 44 I.A. 147 (P.C.), has not been referred to. Further in a later case, reported in Ragho Totaram v. Zaga Ekoba 118 Ind. Cas. 555 : 53 B. 419 : 31 Bom. L.R. 364 : A.I.R. 1929 Bom. 251, the decision in Nagindas Maneklal v. Mahomed Yusuf 64 Ind. Cas. 923 : 46 B. 312 : 23 Bom. L.R. 1094 : A.I.R. 1922 Bom. 122, is explained as based on the special finding in that case.
18. Finally it was urged that the minor's guardian had effected sales of some other properties also of the minor and that the plaintiff has not chosen to impugn the same, and it was said that it was owing to enmity that the present suit was instituted.
19. The answer to this is obvious. Alienations made by a guardian, if not legally justified are only voidable and not void. The minor on coming of age may elect to stand by the same or may elect to avoid the same. The circumstance that the plaintiff has elected not to impugn some sales by guardian is no ground by itself to debar him from impugning the same to the defendants, [if on the facts proved this particular sale by the guardian is not binding on the plaintiff. The motive of the plaintiff in bringing the suit is irrelevant if his legal right to the property is proved, though in appreciating the evidence, motive may throw some light in particular cases.
20. For the above reasons I am of opinion that the sale to the defendant by Rama-krishna Rao, who held a power-of-attorney from the plaintiff's mother and guardian is not binding on the plaintiff. I accordingly allow the second appeal; but before passing a final decree it is necessary to have finding on issues Nos. 4 and 5 framed by the District Munsif and also on issue No. 3 (slightly altered) 'whether the defendant is entitled to any and (if) so, to what amount of values of improvements made by him.' The finding will be submitted by the lower Appellate Court on the evidence on record, within six weeks; ten days for filing objections.