B.N. Banerjee, J.
1. This appeal by the plaintiff is directed against an appellate decree reversing the decree passed by a learned Munsif.
2. Plaintiff's father Dhruba, at one time, was the owner of about 17 1/2 Bighas of land. Dhruba either sold or mortgaged the major portion of his land and at the time of his death in the year 1342 B. S., was left with about 4 Bighas of cultivable land and a homestead. Dhruba was succeeded by the plaintiff, his infant son. Plaintiff's mother and guardian was an ignorant woman and used to work as a maid servant in the house of the defendant, Haripada, on whom she was said to have implicit faith and confidence.
3. It was alleged by the plaintiff that the defendant induced his mother and guardian to sell to him land measuring .6 of an acre, forming the front portion of the residential house of the plaintiff. On the 17th Bhadra, 1344 B.S. the mother of the plaintiff, acting as the natural guardian of the minor plaintiff, sold the aforesaid land to the defendant.
4. According to the plaintiff the conveyance was caused by or at the instance of the defendant by exercising undue influence on the plaintiff's mother and by practising fraud on her. The plaintiff further alleged that the document was without consideration and he was not in the lease benefit ed by the transaction. It was also alleged that there was no legal necessity for the conveyance.
5. On the aforesaid allegations the plaintiff instituted the suit, out of which this appeal arises, inter alia, claiming a declaration that the conveyance, dated the 17th Bhadra, 1344 B.S., was a fraudulent or an invalid document, executed without consideration and without necessity and as such was void and not binding on the plaintiff. There was a further prayer for recovery of possession of the disputed land by evicting the defendant.
6. The defence was a total denial of the al-legation in the plaint, namely, that the conveyance had not been executed with the free consent of the plaintiff's mother. It was also disputed that the plaintiffs mother had no independent advice at the time of the execution of the document. So far as the payment of the consideration money for the sale was concerned, it was alleged that the total consideration was fixed at Rs. 50/- and out of that, a sum of Rs. 18/-, due on a promissory note executed by Dhruba, and a sum of Rs. 24/-, said to have been borrowed by the mother of the plaintiff for maintenance, were deducted and the balance, namely, a sum of Rs. 8/- was paid in cash to the mother of the plaintiff. The defendant denied that there was no legal necessity for the transaction or that the plaintiff did not benefit by the sale.
7. The learned Munsif found that Dhruba had actually borrowed a sum of Rs. 18/- from the son of the defendant and further found that the plaintiff's mother, being in straitened circumstances and in need of money, had to borrow a sum of Rs. 24/- from the defendant. In order to repay the debts, the impugned sale became a legal necessity. The portion that was sold was fallow land and the learned Munsif observed that the plaintiff's mother, in her capacity as guardian, had acted prudently in disposing of a fallow and useless plot of land in order to satisfy certain just debts due by the minor.
8. In the above view of the matter the learned Munsif dismissed the plaintiff's suit.
9. The plaintiff appealed. The lower appellate court affirmed the decree passed by the learned Munsif.
10. Mr. Jitendra Kumar Sen Gupta, learned Advocate for the appellant, contended, in the first ptece, that the loan of Rs. 18/- incurred by the plaintiff's father on a promissory note was barred by limitation at the time of the conveyance and the plaintiffs mother, acting as his guardian, was not justified in disposing of the minor's property for repayment of a barred debt. It was contended, in the next place, that the sum of Rs. 24/- was not borrowed by the plaintiffs mother for any of the purposes of the plaintiff and did not benefit him in the least and it was not necessary to sell the disputed property to repay such a debt. It was also contended that the sale was not justified by any pressure on the estate or by any necessity of the minor or by any theory of benefit to the estate and as such the mother guardian of the plaintiff did not act prudently in selling the disputed property in the manner done by her. Lastly, it was contended that the sale of the front portion of the plaintiff's house, measuring .6 of an acre and situate on the road side, for an insignificant sum of Rs. 50/- was in no way an instance of prudent management of the minor's estate by the mother guardian of the plaintiff.
11. Mr. Syamacharan Mitter, learned Advocate for the defendant respondent, contended that repayment of a paternal debt was a pious obligation of the son. For the discharge of such pious obligation, it was not necessary for the guardian of a minor to seek shelter under legal necessity or the protection of the theory of benefit to the minor's estate. It was further argued that the sum of Rs. 24/- was borrowed hy the plaintiff's mother during a period of distress, caused by failure of crop, and the money was utilised for maintenance of the minor. The loan was, therefore a justifiable loan and its repayment was also justified. Mr. Mitter lastly contended that the disputed land was 'patit' or fallow land and there was nothing to show that it was sold at an inadequate price. The mother of the plaintiff must be taken to have acted pru-dently in saving paddy producing land by sale of a plot of fallow and useless land.
12. On the question whether a son is liable to repay even a barred debt of his father, there is some divergence of judicial opinion. The Punjab High Court is of the opinion that it is the pious duty of a son to pay off even a time-barred debt of his father. Madras and Patna High Courts entertained a contrary view. In a decision reported in ILR 5 Pat. 746: (AIR 1926 Pat 427), Achutanand Jha v. Surjanarain Jha, Dawson-Miller, C. J. observed: 'His second point is based upon the contention that the pious obligation of a son to pay his father's debts extends even to a time-barred debt. Whatever may be the duty or the powers of a Hindu widow succeeding to her husband's estate with regard to the payment of her husband's debts, when barred by limitation, the pious obligation of the son does not extend to the payment of his father's time-barred debts. If the debt could not have been enforced against the father, were he alive, the son is not bound'.
13. It is not, however, necessary for me to discuss which of the two views is the correct view, because the point before me is not simply the payment or the liability for payment of a time-barred paternal debt by the son. The question before me concerns the right of a natural guardian to dispose of minor's property for repayment of a time-barred debt, treating such repayment to be the pious obligation of the minor. Dealing with the propriety of a transfer by a natural guardian for payment of a time-barred debt, which payment was however, not justified on any theory of pious obligation, the Federal Court observed in the case of Sriramulu v. Pundarikakshayya reported in as hereinbelow quoted:
'The original debt was long time-barred and the only way to keep it alive was to treat the promissory note on 22nd June, 1931, as an acknowledgment of the original debt. The minor himself could not acknowledge the debt, nor could the na-tural father who was mere de facto guardian. The result therefore is that there was no valid and enforceable debt owing to the defendant in existence at the date when the plaintiff's natural father executed the conveyance in his favour on 2nd June, 1932. Obviously it is neither necessary nor consistent with prudent management that a minor's property should be sold for payment of a barred debt'. (Per B. K. Mukherjea, J.)
14. Mr. Mitter tried to distinguish the aforesaid case by arguing that payment of paternal debt was a pious obligation of such compelling force that a guardian would only be doing his or her duty in causing expeditious discharge of such obligation by the minor. The consideration of legal necessity or the benefit to the estate would not be attracted in cases of sale of minor's property with the object of repaying paternal debts out of the consideration money. A guardian would only be acting prudently, Mr. Mitter argued, and in the best interests of the minor in making transfer of minor's property for the purpose of discharging a pious obligation by the minor.
15. There is some fallacy in this argument of Mr. Mitter. The statement of law regarding the power of transfer by a guardian of a minor is to be found in the judgment of Knight Bruce, L. T. in Hunooman Pershad Pandey v. Mt. Baboore Mund-raj Koonweree, 6 Moo Ind App. 393 and I quote an extract from that judgment:
'The power of the manager for an infant heir to charge an estate not his own, is, under the Hindu Law, a limited and a qualified power. It can only be exercised rightly in the case of need or for the benefit 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.'
16. Bearing the aforesaid statement of law in mind, it is difficult to conceive that a guardian of a Hindu minor may, in the matter of transfer of the minor's property, seek justification in the rarefied atmosphere of pious obligation without feeling himself circumscribed by consideration of material benefits of the minor. It is true that a debt due, according to the Hindu lawyers, is not merely an obligation but a sin and a debtor must be relieved of the sin so as to save him from its degenerating effects. By relieving a father from the evil consequences of the sin of debt, in the life beyond, a son performs a pious obligation and may acquire spiritual benefit therefrom. There is no material benefit of the minor involved in performing or discharging such obligation. A guardian of a minor is concerned more with the material benefit of the minor than with his spiritual good. It is not given to him to sacrifice the material resources of the minor so as to enable him to discharge a pious obligation resulting in some unknown and unknowable spiritual benefit to the minor. The decision as to whether or not a time-barred piternal debt must be paid, because it is a pious obligation so to say, should be left to the discretion of a minor when he attains majority or the age of discretion.
17. A guardian is mainly concerned with the custody, maintenance, education and health of the minor and it is his duty to deal with the minor's estate as carefully as a man of ordinary prudence would deal with it, as if it was his own. He should avoid experimenting with things said to be spiritually beneficent to a minor and seeking justification for transfer of minor's estate in pious or spiritual considerations. I, therefore, reject the contention of Mr. Mitter that the transfer was justified because a part of the proceeds of the sale went to satisfy a time-barred debt of the plaintiff's father.
18. So far as the loan of Rs. 24/-, said to have been taken by the guardian of the plaintiff From the defendant, is concerned, it appears from the evidence that the same was borrowed in the year 1343 B.S., said to be a year of famine. The court of appeal below appears to have been satisfied that there was legal necessity for this loan, borrowed, as it was, for the sake of maintenance. It is not clear for whose maintenance the money was borrowed, whether for the maintenance of the mother guardian or for that of her son and ward, the plaintiff. Be that as it may, it is not with the necessity for the loan that I am concerned. The question before me is whether there was any necessity for the sale of the disputed property for repayment of the aforesaid loan. In this respect there is very little evidence excepting the evidence of the son of the defendant, D.W. No. 1, who stated in his deposition that he had satisfied himself about the legal necessity for the sale. This type of evidence is of little value and amounts to a statement of subjective satisfaction of the defendant as to the necessity for the sale. Then again the loan was of a very small sum, namely. Rs. 24/-. There is nothing to show that this small amount even could not be repaid out of the income of nearly 4 Bighas of sali land, possessed by the plaintiff. Assuming for the sake of argument that in a lean year or in a year of famine there was necessity to borrow, that does not go to show that in other years, nei-ther loan or unproductive, the plaintiff would not be in a position to repay the aforesaid small loan
19. The plaintiffs mother guardian receiver only a sum of Rs. 8/- out of the total considera-tion of Rs. 50/-. Rs. 42/-, out of the consideration money was said to have been appropriated towards the satisfaction of debts and a small sum of Rs. 8/- was paid in the hands of the plaintiff's mother.
20. It is difficult to conceive of any necessity justifying the sale of the front portion of the residential house of the minor plaintiff with the ultimate benefit of getting Rs. 8/- in cash. I am therefore, of the opinion that no legal necessity has been made out for the sale of the disputed property to the defendant and the plaintiff is entitled to avoid the sale.
21. In the view that I take, I set aside the judgments and decrees of both the courts below and decree the appeal. There shall be a decree passed in favour of the plaintiff declaring that the sale effected by the conveyance, dated the 17th Bhadra, 1344 B.S., is not binding on the plaintiff, there being no legal necessity for the same. There shall be a further decree for recovery of possession, passed in favour of the plaintiff, entitling him to evict the defendant from the disputed land and to take possession of the same.
22. It appears that in the plaint there was a prayer for mesne profits. None of the courts below did consider that question regard being had to the view they expressed on the validity of the sale. For ascertainment of the question as to the defendant's liability to pay mesne profits I direct a remand of this matter to the trial court. The trial court shall consider this limited question and come to such decision as may be justified under the law.
23. The defendant, it appears, has constructed certain structures on the disputed land. He is, therefore, given six months' time from the date of this judgment to remove his own structures at his own costs from the disputed property.
24. This appeal is allowed. Plaintiff's claims for declaration and recovery of possession as made, are decreed and the matter is remanded to the trial court for determination of the question of the liability of the defendant to pay mesne profits, Plaintiff will be allowed costs of this appeal.
25. Leave to appeal under Clause 15 of the LettersPatent was asked for but is refused.