Kumaraswami Sastriar, J.
1. Appeal No. 213 arises out of a suit filed by the plaintiffs, who are brothers and SONS of one Arunachala Pillai, to set aside the sales and mortgages referred to in the plaint effected by one N. S. Ramasami Pillai, now deceased, who, it is alleged, purportad to act as their guardian though he had no right to do so and made the alienations complained of. The defendants in that suit were the alienees. Appeal No. 214 arises out of a suit filed by a mortgagee from the aforesaid guardian who seeks to enforce his mortgage on the ground, that the mortgage is binding on the plaintiffs. The title of the plaintiffs' father to the properties alienated by the guardian is not disputed. Though the suits were not between the same parties, the evidence recorded in one suit was by consent of parties treated as evidence in the other and one judgment was delivered in both the suits. The Subordinate Judge held that the mortgage was for necessary purposes and binding and as regards the sales he held that the sales of the properties in schedules E, F and G were not binding on the plaintiffs, but that the other allegations were binding. The defendants concerned in the properties decreed to plaintiffs have filed no appeal and we need not consider them further. He held that three of the sales were goods they were for purposes binding on the plaintiffs, and against this decree, the plaintiffs in O. S. No. 48 of 1919, who are defendants in O. S. No. 19 of 1919 appeal.
2. The properties in dispute in O. S. No. 48 Appeal No. 213 are the properties comprised in schedules A, B and C, which were purchased by the 1st defendant, the property comprised in schedule D, in which the 9th defendant is now interested, and the property comprised in schedule H, in which defendants Nos. 19 and 20 are interested. The plaintiffs alleged that Ramasami Pillai purported to act as their guardian under a Will alleged to have been executed by their father, that the Will is not genuine and that, even if genuine, it would not affect the properties concerned as the properties were joint ancestral properties. The father of the plaintiffs in O. S. No. 48 died on the 30th January, 1906. The Will which is alleged to have been executed and which the defendants set up as genuine, is dated the 29th of January, 1906, the day before the testator died. The second wife of the deceased, who is the step-mother of the 1st plaintiff and the mother of the 2nd plaintiff, presented the Will for registration and it was registered by the Sub-Registrar. The Will after referring to the illness of the testator Arunachalam Pillai and to the fact that he has a minor son Ramasami Pillai and a daughter Meenakshi, and that the second wife was in the family way proceeds as follows:--'I have nominated Ramasami Pillai, Avergal, son of Swaminatha Pillai of Nagampadi, Mayavaram Taluk, as guardian to protect my family until the said minor Ramasami Pillai attains his age of majority. He himself should have entire management of the immoveable and moveable properties belonging to me, recover the debts due to the family, discharge the debts due by me by selling away the lands, if necessary, and carry out whatever is required to be done in the family. For performing the marriages of my minor sons and daughter he should spend only as much as is consistent with the means and circumstances of the family and have the marriages performed.' It then proceeds to provide for his second wife and his mother and states that if his Junior wife begets a son all the immoveable and moveable properties of the family should be divided equally. The 2nd plaintiff is the posthumous son of the testator. The Subordinate Judge found the Will to be genuine and so far as the genuineness of the Will is concerned I see no reason to differ from the Subordinate Judge. It is unnecessary to pursue this matter in detail as it was conceded both in the lower Court and before us that as the properties are admittedly ancestral properties, the decision of the Full Bench of this Court in Chidambara Piliai v. Rangasami Naicker : (1918)34MLJ381 would render the Will invalid and inoperative. It was held in that case by the Full Bench, differing from the view taken by the Bombay High Court in Mahableshwar Krishnapa v. Ramchandra Mangesh Kulkarni 21 Ind. Cas. 350; 38 B. 94; 15 Bom. L. R. 882 that the only adult coparcener of a Mitakshara family consisting of himself and his minor coparceners is not competent to appoint a testamentary guardian to the coparcener properties of the minor coparceners.
3. The case was argued on both sides on the footing that Ramasami Pillai, purported to act as such. He was not the guardian, he had no legal authority to act as such. He was not the guardian under Hindu Law and his position at best would only be that of a de facto guardian.
4. It is argued by the learned Advocate-General for the appellants that a de facto guardian under Hindu Law has no power to mortgage or sell the properties of minors, that his position could not be better than an executor de son tort, and that although he would be subject to all the disabilities of a guardian he could not clothe himself with rights so as to give a valid title to purchasers or to effect a valid mortgage of the property. On behalf of the respondents it was contended by Mr. Alladi Krishnaswami Iyer that a de facto guardian is under Hindu Law in the same position as a de jure guardian so far at least as acts done by him for the benefit of the minors are concerned and that as regards such acts the same test is to be applied as would be applied in cases of alienations by a legal guardian.
5. In Imambandi v. Mutsaddi 47 Ind. Cas. 513; 45 C. 878; 35 M. L. J. 422; 16 A. L. J. 800; 24 M. L. T. 330; 1919 28 Cri. L. J. 409; 23 C. W. N. 50; 5 P. L. W. 276; 20 Bom. L. R. 1022; (1919) M. W. N. 91; 9 L. W. 518; 45 I. A. 73 the question arose as to the position of a de, facto guardian under Muhammadan Law and their Lordships of the Privy Council, after a review of the authorities observed: 'For the foregoing considerations, their Lordships are of opinion that under the Muhammadan Law a person who has charge of the person or property of a minor without being his legal guardian, and who may, therefore, be conveniently called a 'de facto guardian, 'has no power to convey to another any right or interest in immoveable properly which the transferee can enforce against the infant: nor can such transferee, if let into possession of the property under such unauthorised transfer, resist an action in ejectment on behalf of the infant as a trespasser. It follows that, being himself without title, he cannot seek to recover pro-party in the possession of another equally without title,' and overruled the decision of this High Court in Hyderman Kutti v. Syed Ali : (1912)23MLJ244 which rendered such alienations valid if for necessary or beneficial purposes, In dealing with de facto guardians' their Lordships observe the term 'de facto guardian' that has been applied to these persons is misleading; it connotes the idea that people in charge of a child are by virtue of that fact invested with certain powers over the infant's property. This idea is quite erroneous, and the judgment of the Board in Mata Din v. Ahmad All : (1912)14BOMLR192 clearly indicated it. In Mata Din v. Ahmad Ali : (1912)14BOMLR192 which is also a case under Muhammadan Law, Lord Robson observed: 'It is urged on behalf of the appellant that the elder brothers were de facto guardians of the respondent, and, as such were entitled to sell his property, provided that the sale was in order to pay his debts and was, therefore, necessary in his interest. It is difficult to see how the situation of an unauthorised guardian is bettered by de-scribing him as a 'de facto' guardian. He may, by his de facto guardianship, assume important responsibilities in relation to the minor's property, but he cannot thereby clothe himself with legal power to sell it.'
6. It is argued by the learned Advocate-General that although both these cases before their Lordships of the Privy Council were cases under Muhammadan Law, the same principle should apply to cases under Hindu Law, as the observations of their Lordships are general and apply to all cases where a person without authority takes upon himself the duties of a guardian of the minors. Reference has also been made to Nalannad v. Kanhirampare Ravuni Nair : (1924)47MLJ686 ; : AIR1925Mad260 . In this case the question was whether the wife of a person who was of unsound mind could alienate the properties as guardian even for necessary purposes and Jackson, J., in dealing with the rights of a defacto guardian observed: 'A de facto guardian is scarcely distinguishable from an intermeddler; he may act from the best of motives and in the best interests of the minors and their estate, but he is equipped with no special authority and the validity of his acts depends upon their condonation. Most of the discussion in the Courts below is only relevant as showing that Pappi Antrajanam had moral justification for her acts; it does not show that she had legal authority.'
7. Were the matter res Integra, I would be disposed to hold that the observations of Lord Robson above quoted would be applicable equally to cases where the parties are Hindus, as there is nothing peculiar to the Hindu system of jurisprudence which confers on a person who, without authority, assumes the office of guardianship any special powers. The only passages in the Mitakshara which may have any possible application are paras 27, 28 and 29, of Chap. J. S. I, dealing with the Law of Inheritance. Paragraph 27 deals with property in the paternal grand-father's estate which is taken on birth by the sons and grandsons and limits the rights of the father. Paragraph 28 runs as follows:
An exception to it follows: even a single individual may conclude a donation, mortgage or sale of immoveable property, during a season of distress for the sake of the family and especially for pious purposes.' Paragraph 29 : 'The meaning of that text is this. While the sons and grandsons are minors and incapable of giving their consent to a gift and the like, or while brothers are so and continue 'unseparatsd, even one person, who is capable, may conclude a gift, by hypothecation or sale of immoveable property, if a calamity affecting the whole family require it, or the support of the family render it necessary, or indispensable, duties such as the obsequies of the father or the like make it unavoidable'. These paragraphs only relate to the power of a member of an undivided family end it is difficult to see how they can apply to persons who are not members of the coparcenery assuming management. There are, however, a long series of decisions to the effect that in cases governed by Hindu Law alienation by a de facto guardian would be binding, if for necessity. The earliest decision of their Lordships of the Privy Council on this point is the well-known case of Hunoomanpersaud Panday v. Babooee Munraj Koonweree 6 M.I . A. 393; 18 W. R. 81n; Sevestre 253n; 2 6th P.C. J. 29; 1 Sar. P.C. J. 522; 19 E. R. 147 where their Lordships held that a de facto guardian of a Hindu infant had power for necessity (o mortgage the minor's estate. Their Lordships observed: 'It has to be observed that under Hindu Law the right of a bona fide incumbrancer who has taken from a de facto manager a charge on lands created honestly, for the purpose of saving the estate, or for the benefit of the estate, is not (provided the circumstances would support the charge had it emanated from a de facto and de jure manager) affected by the want of the union of the de facto, with the de jure title. Therefore, had the Ranee intruded into the estate wrongfully, and even practised a deception upon the Court of Wards, or the Collector, exercising the powers of a Court of Wards, by putting forth a case of joint proprietorship in order to defeat the claim of the Court of Wards to the wardship, Which is the case that Mr. Wigram supposed, it would not follow that those acts, however wrong, would defeat the claim of the incumbrancer.' After dealing with the facts, their Lordships state the power of a guardian de facto or de jure as follows:
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. But where, in the particular instance, the charge is one that a prudent owner would make, in order to benefit the estate, a bona fide lender is not affected by the precedent mismanagement of the estate. The actual pressure on the estate, the danger to be averted, or the benefit to be conferred upon it, in the particular instance, is the thing to be regarded.
8. In Mohanund Mondul v. Nafur Mondal 26 C. 820; 3 C. W. N. 770; 13 Ind. Dec. (N. S. 1125 the question was whether a sale by the paternal grandmother of the plaintiff who was found to be the de facto manager during his minority, would bind the plaintiff and it was held on the authority J of the Hunooman Persaud's case 6 M.I . A. 393; 18 W. R. 81n; Sevestre 253n; 2 6th P.C. J. 29; 1 Sar. P.C. J. 522; 19 E. R. 147, that if there was a legal necessity such a sale would be binding. The learned Judges said that there was no distinction in such cases between a mortgage and a sale, necessity being the test to be applied in both cases. In Nathuram v. Shoma Chhagan 14 B. 562; 7 Ind. Dec. 839. it was held that a mortgage by a person who was in management of the estate of-a minor would be binding if for necessity. In that case the mortgagor was the father's cousin but, being divided, he would not be the legal guardian under Hindu Law though he was the nearest male relation according to the finding, for, as remarked by Sadasiva Iyer, J. in Thayammal v. Kuppana Koundan 26 Ind. Cas. 179; 38 M. 1125; 27 M. L. J. 285; under Hindu Law nobody except the father and the mother of a minor (with probable exceptions in favour of the elder brother and the direct male and female ancestors of the minor) is entitled as a matter of natural right, to act as guardian. So far as this High Court is concerned it was held in Vembu Iyer v. Srinivasa Iyengar 17 Ind. Cas. 609; 23 M. L. J. 638; 12 M. L. T. 547 that a de facto guardian has, like a de jure guardian, power to bind the minor with acts which are necessary. A similar view was taken in Arnuachalla Reddi v. Chidambara Reddi 13 M. L. J. 223. In Vemulapalli Seetharamammd v. Maganti Appiah : AIR1926Mad670 the learned Judges on a review of the authorities held that an alienation by a de facto guardian for purposes of necessity would bind the estate of the minor. Mayne in treating of the powers of a guardian to bind the infant, after dealing with the authorities on alienations by lawful guardians observes: 'And where the act is done by a person who is not his guardian, but who is the manager of the estate in which he has an interest, he will equally be bound, if under the circumstances, the step taken was necessary, proper or prudent. (See Mayne's Hindu Law, 9th Edition, paragraph 218, page 297.)
9. I am of opinion that the alienations complained of are not void as contended for by the learned Advocate-General, but that they should be tested by the same principles as would apply, had the alianations been made by the de jure guardian of the minors.
10. I shall now deal with the facts in this case. In 1878 Arunachala Pillai, the father of the plaintiffs, came into possession of his father's estate consisting of about 250 acres of land in the Tanjore District, Rs. 10,000 cash and moveables. He had no debts to discharge. He was the only son of his father; the family was not a trading family and no trade or business was carried on by him. By 1887 he had spent all the cash which he got and had incurred debts. On the 27th October, 1890, he executed a mortgage-deed for Rs. 10,000 (Ex. VIIIe) for the purpose of paying off the debts which he had already incurred and for the expenses of his house-hold. The deed makes provision for compound interest with annual rests. He incurred further debts, and on the 31st March, 18y5, he executed a mortgage-deed (Ex. 8) for Rs. 7,000. This refers to a debt which he had incurred in 1888 for Rs. 5,000 shortly before Ex. VIII C. In 1897 he sold about 8 acres to discharge a debt incurred in 1887. On the 18th November, 1897, he sold under Ex. G about 7 acres and 79 cents for Rs. 3,000 to discharge the debts which he had incurred before. In 1898 he executed two sale-deeds (Exs. V-a and V-b, dated the 5th of June, 1898) for Rs. 10,815 and Rs. 7,000 respectively to discharge the debt due under Ex. VIIIc which by that time had augmented to Rs. 17,800. Under Ex. Va, he sold 42 acres and 68 cents and under Ex-Vb he sold 23 acres and 63 cents. On the 15th of July, 1903, he executed a sale-deed (Ex. V) for Rs. 15,750 to discharge the debts due under Exs. VIII and VIII c. The land sold under Ex. V was 90 acres and 97 cents. It thus appears that under the sale-deeds Ex. G, Va and Vb he sold 165 acres and 5 cents and got about Rs. 36,500 all of which went to discharge his debts. So, when he died in 1996, about 85 acres remained.
11. The 1st plaintiff was born in 1897 and the 2nd plaintiff in 1908 or 1907: There can be little doubt on the evidence that Arunachala Pillai, the plaintiffs' father, was leading a dissolute life. Sadagopachari, plaintiffs first witness, who was a karnam, states that Arunachala Pillai was keeping dancing girls and was spending money extravagantly and got into debt. Plaintiffs' seventh witness Sundaresam Billai, who is related to the family, states that the plaintiffs' father Arunachala was keeping a dancing girl called Thangam who was living in the village of which the plaintiffs' first witness was the karnam. Plaintiffs' 8th witness Doraiswami Pillai also states that Arunachala was keeping concubines and spent his money in immoral ways. Plaintiffs' eleventh witness, Govinda Vennien, states that Arunachala Pillai was keeping a concubine, plaintiffs' 13tb, 14th, 17th and 18th witnesses also say that Arunachala Pillai was keeping a concubine called Thangam. Plaintiffs' 16th witness, Pakkari Padayachi, states that Arunachala Pillai was keeping concubines and squandering money and that he was first keeping a concubine called Neelaammal and then a dancing girl Thangam. On cross examination he states that he has seen Thangam coming to the house of Arunachala Pillai.
12. On this part of the case, the evidence is clear and practically uncontradicted. The Subordinate Judge in dealing with the evidence says it appears to him to make out merely that he was of loose morals sometimes and that it is not proved that he kept any particular woman or spent upon women, any particular item or that any debts evidenced by the documents were proved to have been spent for any immoral purposes. Having regard to the fact that Arunachala Pillai, who was the only son of his father from whom he inherited considerable properties, who had no trade or business to carry on or any large family to support, and who, according to the evidence, was getting an income from his lands more than sufficient to support himself and his family in comfort (I shall refer to the evidence as to income in dealing with another aspect of the case) between 1878 and 19J6 not only spent all the cash but also alienated 165 acres out of the 250 acres, which he inherited, there can be little doubt that the debts which he incurred must have been for meeting the expenses of his loose life.
13. The plaintiff's do not attack the sales executed by their father and we are only Concerned with the mortgage executed by their guardian to discharge their father's debt, which is the subject matter of A. 8. No. 214, and with the sale-deeds executed by the guardian for a similar purpose, which are the subject-matter of A. S.No. 213.
14. As regards the mortgage (Ex, VII which is the subject-matter of A. S. No. 2l4 the document is dated 18th April, 1910, and is executed in favour of Swaminatha Iyer the father of the respondent in A. S. No. 214. The consideration for the deed is said to be as follows:--Rs. 650 the balance due under the decree obtained by one Viswanatha Iyer and others in O. S. No. 27 of 19 6 on the file of the Negapatam Sub-Court, Rs. 2,000 the amount due on a mortgage executed by Arunachala Pillai, the father of the plaintiffs, in favour of one Krishnasami Iyer which was transferred by Krishnasami Iyer to one Santhana Gopalasami Udayar, whom the mortgegee under Ex- VII undertook to pay and Rs. 350 received in cash for purposes of discharging some simple debts. The mortgage amount was repayable within one year with interest at 12 annas per cent. per month, or Rs. 9 per cent. per annum, and there is a default clause which says that in default of payment, interest from date of default to the date of payment at annas 12 per cent. per month was to be paid on the principal amount and interest accruing due. Although allegations were made in the plaint that Swaminatha Iyer the father of the respondent in A. S. No. 214 and mortgagee under Ex. VII was fully aware of the immoral conduct of the plaintiffs' father and in fact was helping him in his evil ways and was taking advantage of his necessities, there is no evidence worth the name to prove this. Though there can be little doubt that Arunachala Pillai was leading an immoral life, there is nothing to show that Swaminatha Iyer was aware that the particular debts referred to in the deed of mortgage in his favour were incurred for immoral purposes. As a matter of fact, the decree in the Sub-Court, Negapatam, was against Arunachala and the present minor plaintiffs. As regards the mortgage in favour of Krishnaswami Iyer, which was transferred to Santhana Gopalasami Udayar there is nothing to show that Krishnaswami Iyer was aware that the mortgage was executed for immoral purposes. It has been held that proof of general immorality end wests of money is not sufficient to invalidate an alienation, and as pointed out by their Lordships of the Privy Council in Hunooman Persand's case 6 M.I . A. 393; 18 W. R. 81n; Sevestre 253n; 2 6th P.C. J. 29; 1 Sar. P.C. J. 522; 19 E. R. 147 the proof that there was any antecedent mismanagement or waste is not sufficient when there is present pressure on the estate. I do not think there is sufficient ground to reverse the finding of the Subordinate Judge as regards the mortgage Ex. VIII and A. S.No. 214 will, therefore, have to be dismissed with costs.
15. As regards the sales impeached which were executed by the guardian of the minors and which form the subject-matter of A. S. No. 213, the case stands on a different footing.
16. Exhibit l is a sale-deed dated the 18th January, 19i8, for Rs. 9,300. It purports to be executed by Ramasami Pillai as a guardian mentioned in the Will of the father of the minor plaintiffs and also as protector and junior paternal uncle of the minors in favour of one Venkatarama Iyer and Swaminatha Iyer. The deed states, 'As it is not possible to clear the debts borrowed in the neighbourhood by the above named Arunachala Filial for family requirements with what is left out of the family funds after defraying family expenses Government kist and other expenses and as the minors are put to enormous loss in consequence of the gradual increase in the interest that accrues on the debts, we have, in order to discharge the said debts for the benefits of the above-named minors, this day executed a sale-deed in your favour in respect of the undermentioned Nanja, Punja Jarimartai and other lands for Rs. 9,300.' The consideration is made up of : (1918)34MLJ381 Rs. 1,100 due on a promissory note (Ex. 1-f) for Rs. 794 executed by the father of the minors which was in renewal of a previous promissory note (Ex. 1.g) for Rs. 700-8 made up of Rs. 571-8 due under Ex. 1.j, Rs. 72 due under Ex.1-h, Rs. 50 due under a decree and Rs. 7 received in cash; 21 Ind. Cas. 350; 38 B. 94; 15 Bom. L. R. 882 Rs. 760 due under de ree in O.S. No. 27 of 1906 on the file of the Sub Court, Negapatam, filed by one Viswanatha Iyer and Sundaram Iyer against Ramasami Pillai and the two minors; 47 Ind. Cas. 513; 45 C. 878; 35 M. L. J. 422; 16 A. L. J. 800; 24 M. L. T. 330; 28 Cri. L. J. 409; 23 C. W. N. 50; 5 P. L. W. 276; 20 Bom. L. R. 1022; (1919) M. W. N. 91; 9 L. W. 518; 45 I. A. 73 Rs. 2,140 paid towards the discharge of the amount due under the decree in O. S. No. 12 of 1906 on the file of the District Munsiff's Court of Tiruvarur, which decree had been obtained by one K. Venkatarama Iyer against Arunachala Pillai and his minor sons and (i) Rs. 5,300 paid towards the decree in O. S. No. 27 of 1906, The suits referred to above were filed a short time before the death of Arunachala Pillai, and Ramasami Pillai, who was the guardian ad litem of the minor defendants, did not defend the suits and ex parte decrees were passed. The extent of the lands sold under Ex. I was 44 acres and 96 cents and the lands are comprised in schedules A, B and 0 of the plaint. The lands were sold with the crops on them.
17. Although the plaintiffs alleged that the monies under the promissory notes were not really due and that the decrees were fraudulent and collusively obtained by the decree-holders, who were aware of the immoral conduct of the plaintiffs' father and who helped him in the course of that conduct, the evidence does not support these allegations and we must proceed on the footing that these monies were due on the date of the death of the minors' father.
18. The main question argued in A. S. No. 213 is that these sales are not binding on the plaintiffs as the sales were effected by the guardian for inadequate consideration the value of the land being a great deal more than Rs. 9,300, for which they purported to be sold. A large portion of the evidence relates to the yield of the lands and having regard to the evidence as to the yield, I have little doubt that the lands were sold for a great deal less than their value.
19. [His Lordship then dealt with the evidence as to the yield and proceeded as follows:]
I have little doubt from the evidence that the yield would be not less than 100 kalams per veli making every allowance. As I said before, I find it difficult to believe that it was only 60 kalams as spoken to by defendants' witnesses. They all admit that the present yield is between 100 to 120 kalams and there is nothing to show that the land sold under Ex. I increased in its productivity owing to any change of circumstances. I do not believe that the introduction of screw shutters was after the sale and even if so, it was the cause of any appreciable increase in the yield.
20. Though the defendants pleaded in their written statements that they had effected improvements on the lands after the purchase and though issue No. 9 relates to the claim as regards the improvements set up by defendants Nos. 1 to 11, there is no evidence worth the name as to the improvements effected on the lands. The Subordinate Judge in dealing with this issue states that there is no evidence on behalf of the defendants Nos. 12 to 18 nor is there any satisfactory evidence for improvements claimed by defendants Nos. 1 to 11 and he decides this issue against the defendants, On appeal it is not suggested that there were any improvements made which raised the yield of the property. Having regard to the yield, which at the lowest amounts to 100 kalams per veli, and taking the lowest valuation of paddy at the time of Rs. 2 a kalam and deducting Rg. 50 a veli for revenue (which is about Rg. 8 an acre) and also taking the value of the land at 20 years' purchase, which is the lowest calculation in capitalising the income as regards lands in the Tanjore District, I think the price of 35 acres of Nanja lands comprised under Ex. I would be not lees than Rs. 15,480 and the value of the Punja lands taking the income at Rs. 100 a year, would be not less than Rs. 2,000 or in all Rs. 17,400. In relation to this it must be noticed that the land was sold with the crop on it so that the value of one year's yield was also conveyed to the purchaser under Ex. I for Rs. 9,300. I have in estimating the value, confined myself to the value as it was in 1908 and have not taken into account the increase in value subsequently for I do not think that what happened subsequently affects the question. The fact that at present the value will be much higher than Rs. 17,400 will not matter.
21. So far as the guardian Ramasami Pillai is concerned, he himself was in debt at the time. He does not seem to have been a man of business. The plaintiffs' first witness states that Ramasami Pillai was formerly a wealthy man and that when he died he had debts to the extent of about two lakhs of rupees. He had no trade or business and was merely a landlord living on the lands. Plaintiffs' 10th witness who is a legatee and heir to witness who is alegatee and heir to Ramasami Pillai says that Ramasami Pillai gave one veli to one of his wives and that he, the witness, inherited 12 or 13 velies. So that Ramasami Pillai died in debt and out of the 120 velies inherited by him he left only 12 or 13 velies.
22. So far as purchasers under Ex. 1 are concerned, it is not suggested that they were strangers to the family and did not know its affairs. Plaintiffs' 15th witness states that 1st defendant's father and Kamasami Pillai were friends. Plaintiffs' 8th witness states that let defendants' father sad Arunachala (plaintiffs' father) were good friends and that the 1st defendant's father was frequently going to the house of Arunachala. Having regard to the income of the property and the expenses of the family which according to the evidence was then a small one, and having also regard to the fact that all that was given for the maintenance of the family by the guardian was, as pointed out before, only 5 kalams and Rs. 2 a month, I do not think there was any necessity for the guardian to sell the land under Ex. I, much less to sell at such a low price.
23. We find at the time of Arunachala Pillai's death about 85 acres of land remained for the family, and in 1908 Ramasami Pillai Bells under Ex. I about 44 acres for Rs. 9,300. We find from the promissory note Ex. I. dated the 7th August, 1904, the discharge of which is said to be one of the items of consideration mentioned in Ex. I, that it was for Rs. 794. The promissory note would have been barred but for the endorsement made by the guardian on the 3rd of August, 1907. The amount of Rs. 794 borrowed under Ex. I-f in 1904 became Rs. 1,100 in 1908. The plaintiffs' father died in 1906 and I think that with the income from the property, after deducting the amount paid for the expense of the family, the principal and interest due under Ex. I-f could easily have been discharged. The fact that the plaintiffs' father, who was a spendthrift and who was leading an immoral life, did not re-pay this amount when he died is no excuse for the guardian to keep the debt alive even assuming that a de facto guardian can acknowledge a debt so as to keep it alive. On this point the authorities are conflicting. Section 21 of the Limitation Act says 'the expression 'agent duly authorized' referred to in Sections 19 and 20 shall, in the case of a person under disability, include his lawful guardian, committee or manager, or an agent duly authorized by such guardian, committee or manager to sign the acknowledgment or make the payment.' It can hardly be said that a person who takes upon himself the management of property without being the legal guardian under Hindu Law or a guardian duly appointed by authority can be said to be a lawful guardian under Section 2l, Section 21 was enacted to put an end to the difficulties raised by the conflicting decisions on this .point. As regards the authority of a guardian to acknowledge a debt on behalf of minors in Bireswar Mookerjee v. Ambika Charan Battacharjee 42 Ind. Cas. 472; 45 C. 630 it was held by Mookerjee and Walmsley, JJ., that under Hindu Law in the absence of the father, the mother is entitled to be the guardian of her infant sons in preference to their brother and that an acknowledgment made by the eldest brother was not an acknowledgment by a lawful guardian within the meaning of Section 20. In the present case the mother of one of the minors was alive and it is difficult to see how the de facto guardian can be said to have power to acknowledge the debt. I may also refer to Alagappa Chettiar v. Subramania Pandia Thevan 23 Ind. Cas. 810; 26 M. L. J. 509 where it was held following Linsell v. Bonsor (1836) 2 Bing 241; 132 E. E. 95; 5 L. J. C. P. 40 that an authority to pay a debt does not necessarily import an authority to make a part payment of interest, so as to keep the debt alive. In Chidambaram Pillai v. Veerappa Chettiar 43 Ind. Cas. 865; (1917) M. W. N. 744; 22 M. L. T. 380; 6 L. W. 640 Sadasiva Iyer and Spencer, JJ., were of opinion that even a lawful guardian has no right to renew or acknowledge debts unless it is for the benefit of the minor or unless the document appointing him as guardian gave him such power. Gita Prasad Singh v. Ragho Singh 40 Ind. Cas 809; 1 P. L. W. 777 was referred to by the defendants but the finding in that case was that the person who made the payment was the de facto. guardian and there was nothing tangible on the record to showthat he was notthe lawful guardian. The learned Judges referred to certain suits and orders where he was described as guardian. If he was the legal guardian Section 21 would certainly apply. Kailasa Padiachi v. Ponnukannu Achi 18 M. 456; 6 Ind. Dec. 667 which was relied on for the defendants only decides that where the natural guardian is allowed to manage the properties by the minor who has attained age, acknowledgment by the natural guardian would bind the minor who has become a major. Tirapayya v. Mallidi Ramaswami : (1913)24MLJ428 is a decision of a single Judge of this Court. The learned Judge was of opinion that a person who is lawfully acting as guardian, though not legally appointed for the purpose, can bind the estate for necessary purposes and that such a person is a lawful guardian within the meaning of Section 21 of the Limitation Act when acting for the banefit of the minor. The learned Judge does not cite any authorities and with all respect it seems to me that the proposition which he lays down is too wide and does not give due weight to the meaning of lawful guardian, in Section 21.
24. I am of opinion that the de facto guardian had no authority to acknowledge the debt evidenced by Ex. I-f so as to keep it alive as I think that the amount due under it could have been paid out of the income and that there was no necessity to keep the debt alive, and secondly, I think the de facto guardian had no powers to keep the debt alive against the minors, as he was not their lawful guardian, committee or manager within the meaning of Section 21 of the Limitation Act.
25. As regards the sum of Rs. 760, -which is alleged to be payable in respect of the decree in O.S. No. 27 of 1906, and the sum of Rs. 2,140, which is alleged to be payable, in respect of the decree in O. S. No. 12 of 1906, and the sum of Rs. 5,300 which is alleged to be payable in respect of the decree in O. S. No. 27 of 1906, it appears that execution was taken out in one suit for Rs. 2,000 and odd. The decrees as I said before were ex parte decrees. The suits were filed shortly before the death of the father of the minors but the decrees were passed after his death. Having regard to the yield and the value of the property, I think it was not a prudent act of management by the guardian to sell the land under Ex. I to meet the decrees. I think he could easily have raised monies on the mortgage of the lands. Reference has been made to certain sale-deeds executed by the father and it is sought to prove that if regard be had to the value as contained in these sale-deeds the sale under Ex. I was for adequate consideration. I have already pointed out that the father was an immoral man and a spendthrift and ran through a large portion of the property and the sales executed by him would be no criterion as to the market-value of the lands. I think that in the case of de facto guardians alienations by them would require strict proof not only of necessity, but of adequacy of consideration, and it would be dangerous to hold that because there were debts due by the father it is open to anybody who chooses to take upon himself the management of the estate to sell the property of the minors for a price far below the market-value of the land.
26. In the present case we find that the de facto guardian of the minors who himself was largely indebted sold under Ex. I a large portion of the land left by their father and executed a mortgage Ex. VII, over the rest. There is no evidence that he made any bona fide attempts to raise money on mortgage and it cannot be said that having regard to the yield of the lands and to the small amount which was being paid by the guardian for the maintenance of the minors and the widow of the deceased, the guardian could not by prudent management have paid off the debts left by the father by mortgaging the properties and paying off the mortgage out of the savings.
27. I am of opinion that the sale-deed, Ex. I, is not binding on the minors.
28. As regards the plea of limitation, all the High Courts have held that Article 44 of the Second Schedule to the Limitation Act of 1877, which corresponds to Article 44 of the First Schedule to the Act of 1808, does not apply to cases of alienations by de facto guardians. I heed only refer to Mata Din v. Ahmad Ali : (1912)14BOMLR192 ; Thayammal v. Kuppanna Koundan 26 Ind. Cas. 179; 38 M. 1125; 27 M. L. J. 285; Balappa Dundappa v. Chanbasappa Shivalingappa 33 Ind. Cas.444; 17 Bom. L. R. 1134 and Kathaperumal Theran v. Ramalinga Thevan 87 Ind. Cas. 695; 17 M. L. T. 138.
29. As regards the sale of the property comprised in schedule D, the property consists of 80 cents and on the 19th of January, 1908, i. e., the day after the execution of Ex. I the guardian sold these 80 cents under Ex. IV for Rs. 75. It is alleged that it was for paying the kist. The gale was to the 11th defendant's adoptive father, who was a relation of the 1st defendant's father. Defendants' eleventh witness, who is the writer of Ex. IV states that the land was then dry land covered by prickly pear and that it was not sold as a commission to the vendee for negotiating the sale under Ex. I. Plaintiffs' sixteenth witness also states that the land was lying waste after the purchase but he says that it is fit for cultivation. Plaintiffs' first witness states that sometimes the crops on the plaintiffs' land will be attached for arrears of revenue. He says that he attested Ex. IV, that the land sold under it has not been cultivated at anytime, and it has not, therefore, yielded anything and that it is not fit for cultivation. There is no evidence that the value of the land sold under Ex. IV was more than Us. 75 nor is there any evidence to show that the consideration was really a commission to the vendee for bringing about the sale under Ex. I. I think the Subordinate Judge was right in dismissing the plaintiffs' claim as regards the land comprised in schedule D.
30. As regards the land comprised in schedule H the evidence shows that the plaintiffs and their father were never in possession of the land within the statutory period and that it had long been in the possession of the 19th. and 20th defendants. Reliance has been placed by the appellants on Ex. E, which is a written statement filed in a suit by the 19th and 20th defendants against their guardian, where the guardian says that he was never in enjoyment of this land. The suit was dismissed as appears from Ex. 12. I may, in this connection, note that an application was made to amend the plaint as appears from Ex. 12-B stating that the description of the land in the plaint is incorrect and the defendants' denial of the possession is not shown to refer to the land in the suit as he was pleading to the plaint originally filed. As appears from para. 31 of the plaint, the plaintiffs' case is that the guardian allowed the defendants to be in enjoyment and it is not disputed before us that defendants Nos. 19 and 20 have been in possession of the property. The cross-examination of defendants' 9th witness shows that the suit was dismissed as it was settled. He states that 19th and 20th defendants have always been in possession of the land. The only evidence as to enjoyment by Arunachala Pillai at the time of his death is that of plaintiffs' 6th witness but there is nothing to support his statement. No kist receipts are produced or any document to show that Arunachala Pillai was in possession. I think the Subordinate Judge was right in dismissing the plaintiff's claim as regards the land comprised in schedule H.
31. The question remains as to what relief the plaintiffs could get as regards the land covered under Ex. I. Having regard to my finding as to the value of the land and the necessity for sale, three courses are open. The first course is to set aside the sale altogether and direct the plaintiffs to pay the vendee the consideration which is binding on them (plaintiffs) with interest. The second course is to direct the purchasers to pay the plaintiffs the difference between the actual value of the land and the consideration which was binding on them, with interest. The third course is to divide the lands in proportion to the value of the lands and the actual consideration found payable. Having regard to the fact that if the guardian had sold one half of the land, the sale could not be impeached as the value of one-half would be sufficient to discharge the debts which were binding on the minors and also the fact that lands have risen in value in recent years. I think the most equitable course would be to divide the property sold under Ex. I into two shares and give one moiety to the plaintiffs and the other moiety to defendants Nos. 1 to 5.
32. It is admitted on both sides that the land is capable of division, and there is no suggestion of any hardship in adopting this course. This course was adopted in Kutluva Meenatchi Ayyan v. Darmiah Rangacharlu (1922) M. W. N. 719; 16 L. W. 595; A. I. R. 1923 Mad. 120. During the course of the argument it was stated by both sides that this course would do justice between the parties, should it be found that the sale is not binding.
33. In the result there will be a decree in A. S. No. 213 of 1922, declaring that the sale under Ex. I is not binding on the plaintiffs and directing a partition of the land comprised in schedules A, B and 0, between the plaintiffs and defendants Nos. 1 to 5 by metes and bounds, the plaintiffs getting a half share and the defendants Nos. 1 to 5, getting the other half. The rest of the plaintiffs' claim is dismissed. Under these circumstances I direct each party to bear his own costs throughout.
34. I agree and have nothing to add.