1. A great many points were sought to be argued by Mr. Chowdhury in this appeal, but in reality, on the findings, only one question arises.
2. The appellant Kalipada Koer was the defendant in a suit which was brought by a Hindu widow named Purnabala Dassi for avoiding a kabala executed on her behalf, either by obtaining a declaration that it was void or by having it set aside. The kabala was executed by one Nani Gopal Sain, a paternal uncle of the lady, purporting to act as her guardian and by it 5 bighas and 9 cottas of good arable land, belonging to the estate left by the plaintiff's husband, was sold to the defendant for a consideration of Rs. 200. At the date of the kabala which was 28th of Bhadra, 1342 B.S., corresponding to 14-9-1935 Purnabala had already become a widow, but was still a minor. Her case in the suit was that Nani Gopal had no right to act as her guardian and the kabala executed by him on her behalf was utterly void. She made an alternative case that even if the kabala was not void ab initio, it was voidable at her instance and ought to be set aside, inasmuch as the sale was not a sale for legal necessity. On the above allegations she asked for a declaration of her title to and recovery of possession of the land concerned, as also mesne profits for the period of the defendant's occupation.
3. The defence was that at the relevant time Nani Gopal was in fact the guardian of the plaintiff and that the sale was one for legal necessity.
4. On the question of guardianship, the concurrent findings of the Courts below are as follows: The plaintiff's father Makhan and his elder brother Nani Gopal had their family residence, at a village, called Kastakurumba, but were separate from each other. Makhan's share of the joint family property came to be sold off in auction and thereafter he removed to a village, called Barkona, where he built a house for himself. While living with her father at Barkona, the plaintiff was married to one Surendra Nath Koer, but as she was a mere child, about 4 or 5 years old, she continued to live with her father. After the death of the plaintiff's mother the plaintiff's father, who was himself ailing, went with his childern to live with a sister's daughter, named Panchibala, at a village, called Baidyapur. From there he was brought to Calcutta for treatment, but died in a hospital in Magh 1339 B.S. The plaintiff being still a child, continued to live with Panchibala at Baidyapur. In Bhadra 1341 B.S., her husband Surendra died childless. The plaintiff has continued to live at Baidyapur and it was never the fact, as alleged by the defendant that when her father fell ill, he, along with the plaintiff, was brought to Nani Gopal's house at Kastakurumba. Nor was it a fact that after her father's death, the plaintiff went to live with her husband at Begut, nor that after her husband's death she returned to live with Nani Gopal at his house. The final conclusion is expressed by the lower appellate Court in the following words:
The plaintiff, as a matter of fact, went away with her father Makhan to Baidjapnr, bag since been living there and never lived under the care and guardianship of Nani Gopal. There is also no satisfactory evidence to show that Nani Gopal was managing plaintiff's properties after plaintiff's husband's death.
5. On the question of legal necessity, the findings of the two Courts are not quite the same. The kabala recites that out of the consideration of Rs. 200, a sum of Rs. 30 was retained by the defendant for payment of arrears of rent; a further sum of Rs. 160 was retained by him for payment of a mortgage debt due to himself by the plaintiff's husband; and Rs. 10 was paid in cash for the maintenance of the plaintiff. There was an ex parte rent decree for Rs. 37 obtained against the plaintiff as represented by her guardian Nani Gopal, who was described, curiously enough, as her brother. The trial Court held that it was clear that at the date of the kabala, neither Nani Gopal nor the defendant knew anything about the rent decree, and that even satisfaction of the mortgage debt was not really intended or effected, seeing that there was no endorsement of satisfaction on the back of the deed. It was further held that the cash amount of Rs. 10 had not been proved to have passed. The learned Munsif held also that the properties had been sold at an inadequate price and the transaction, in any event, was not a prudent one. The lower appellate Court, however, held that the rent decree had in fact been paid off and pointed out that satisfaction of the mortgage debt had been recited in the body of the kabala itself. But as regards the cash amount of Rs. 10, it held that inasmuch as the plaintiff never lived with Nani Gopal, this amount could not have been paid for her maintenance and the defendant could not have believed that it was being so paid.
6. On the above findings of fact, the trial Court held that Nani Gopal, as a mere paternal uncle, could not legally act as the guardian of the plaintiff. He could do so only if he was a de facto guardian, but since he was never such guardian inasmuch as the plaintiff had never lived with him, he was only a guardian ad hoc and the kabala executed by him on the plaintiff's behalf was utterly void. On that finding, no question arose as to whether the sale was justified by legal necessity. But the Court proceeded to record the finding that the sale was not a bona fide sale at all but only a kind of experimental transaction ventured on by the defendant on a number of plausible grounds and that too at a price which showed the sale to be an improvident and imprudent deal.
7. The lower appellate Court, on the other hand, held that although the plaintiff had never lived under the guardianship of Nani Gopal and although Nani Gopal had never managed her properties, still he was in law her natural guardian and as such he was competent to execute the kabala on her behalf. But the Court thought that in order that the sale might be held to be valid and binding on the plaintiff, it had to be proved that the entire consideration money had been required for and applied to purposes of legal necessity. As a sum of Rs. 10 had not been so required and applied, the learned Judge thought that the sale could not be upheld. He was of opinion, however, that inasmuch as the sale had been made by a competent authority, if the plaintiff wanted to avoid it on the ground that there was no justifying necessity, she could do so only if she returned the benefit which she had received. In other words, the plaintiff was bound to return the sum of Rs. 190 with interest. The trial Court had granted her an amount of Rs. 235-2-0 as mesne profits and the lower appellate Court thought that her liability to make a refund of the benefit she had received might finally be set off against her claim for mesne profits. In the result, it made a declaration of the plaintiff's title and passed a decree for recovery of khas possession, holding at the same time that the plaintiff's liability to make a refund and the defendant's liability for mesne profits would cancel each other.
8. Against the above decision the present appeal was preferred by the defendant who contends that the sale ought to have been upheld and the claim for mesne profits dismissed. There is a cross-objection by the plaintiff who contends that the sale was not merely voidable but altogether void and that there was no liability to make any refund of any benefits received.
9. Arguing in support of the appeal, Mr. Chowdhury attempted to reopen certain questions of fact. He contended that the learned Judge had not paid equal attention to all parts of the evidence and, accordingly, his finding that the plaintiff had never lived under the guardianship of Nani Gopal and that the cash amount of Rs. 10 could not have been paid for her maintenance, were not proper findings of fact. No criticism could be less just to the learned Judge. His finding was one of affirmance, but still he went over the entire evidence for himself and if he omitted to do anything, he only omitted to consider certain further infirmities which had been pointed out by the trial Court. It is true that a finding of fact which is arrived at without proper consideration of all material evidence ought not to be accepted as final. But all that Mr. Chowdhury could do was to point out bits of evidence here and there which, according to him, pointed to a different conclusion. I am unable to hold that the findings are open to any objection.
10. Equally untenable was Mr. Chowdhury's contention that the Courts below had not considered whether the plaintiff's suit was a bona fide one. There is not the slightest hint in the case put forward by the defendant of any such issue raised by him. Nothing further therefore need be said about that contention.
11. Mr. Chowdhury next contended that even on the findings as they were, the Court of appeal was wrong in holding that the sale could not be upheld unless the entire consideration was proved to have been justified by or applied to legal necessity. This was promptly and properly conceded by Mr. Chakravarty who appeared on behalf of the plaintiff. All that the law requires is, that the sale itself must be justified by legal necessity and that the purchaser should pay a fair price for the property sold. If these conditions are satisfied, it is not further necessary to establish that every pica of the consideration was required for or applied to purposes which the law recognises as legal necessity, whether the part not proved to have been applied to purposes of necessity is considerable or otherwise: see Mulla's Hindu Law, 10th Edn. p. 287. It is true that at one time a doctrine grew up in India that the consideration for a sale ought to be subjected to an arithmetical analysis and if it was found that the whole of it was not justified by legal necessity, then the transaction ought to be upheld or set aside conditionally, according as the part justified by legal necessity was the greater or the lesser part. The condition imposed would be to make a refund of the portion of consideration money not applied, or applied, to legal necessity, as the case might be. The growth of this doctrine was checked by the Judicial Committee by their decisions in Krishna Das v. Nathuram Niamat Rai v. Din Dayal and Gouri Sankar v. Jiwan Singh . It is true that those were cases of a sale by the manager of a joint family, but the principle was applied by the Privy Council to the case of a sale by a widow in 32 Suraj Bhan Singh v. Sah. Chain Sukh . It must therefore be held that if the sale was otherwise valid, the view taken by the learned Judge that it could not be upheld, unless the entire consideration was proved to have been justified by or applied to legal necessity, was erroneous.
12. Mr. Chakravarty, however, contended that this error of the learned Judge did not enable the defendant to succeed, for he had committed a more serious error in the defendant's favour by holding that Nani Gopal was a natural guardian of the plaintiff and competent in that capaeiiy to execute the kabala on her behalf, even if she had never lived under his guardianship. The sale, it was contended, was altogether void and not merely voidable, as the learned Judge had held. I am of opinion that this contention ought to prevail, The learned Judge relied on the decision in Satischandra v. Kalidasi Dasi 9 A.I.R. 1922 Cal. 203 in support of his view that ' under the Hindu law, after her husband's death, the kins of the husband of the married woman would be her guardian and failing them her paternal relations,' and after finding that there was no evidence that any of Surendra's relations was fit to be the guardian of the plaintiff, he conoluded that Nani Gopal was in law her natural guardian. It is surprising to a degree that the learned Judge, and like him Mr. Chowdhury before me, could have relied upon the case in Satischandra v. Kalidasi Dasi 9 A.I.R. 1922 Cal. 203 as having any bearing on the question of the guardianship of a minor. The question which fell to be considered in that case was whether a husband's brother of a Hindu widow, who had obtained from her a partition deed, stood towards her in a fiduciary character or some relation of personal confidence. It was in connection with that question that it was said that.
on the death of the husband of the widow, his younger brother became ipso facto the head of the joint family and the widow would thenceforward have to live under his care, look upon him as his natural protector and continue to repose confidence in him properly to safeguardrher rights.
The decision proceeds to refer to certain texts as to the normal structure of a joint Hindu family and a proposition, more or less in the words of the learned Judge, is stated. But it is perfectly clear from the context that what their Lordships were there considering was the actual conditions under which a widow lived in a Hindu family and they were not considering any question of the proper guardianship of a minor. As far as I can see, the case has not the slightest bearing on the question before me.
13. On the other hand, it is well settled that under the Hindu Law, as under certain other systems, the only natural guardians, that is to say, guardians by natural right, are the father and the mother. Any other relative can acquire the status of a guardian only if he is the guardian de facto or if he is appointed by a Court of law. The wardship and the subjection of a minor to his or her parents arises from the relationship itself; but in the case of other relatives, it has to arise out of either actual residence under the guardianship of the person concerned or an order of the Court. It would be extra ordinary indeed if the law required it to be held that if a person stood in a certain degree of relationship to a minor, that itself was sufficient to give him the right of disposal over the minor's property and that although the minor never lived under his care, nor had he ever anything to do with his properties, yet if he chose to dispose of some property belonging to the minor, the transaction would be an authorised one. The law concedes such paramount right to the father and the mother, probably in recognition of their paternal authority and on the basis that they can always be relied upon to act in the best interests of the minor. But the law stops at the father and the mother, though in certain decisions the grand father has also been included. It may be that if a question arises as to the appointment of a guardian for the minor, the Court would, other things being equal, prefer near relations. But the right to such preference is something entirely different from a natural right to act as guardian by virtue of the relationship alone. Mr. Chowdhury referred me to a catalogue of natural guardians given in Section 75 of Dr. Gour's Hindu Code, Edn. 4, and contended that according to that list, paternal relations would be natural guardian after the father and the mother. If Mr. Chowdhury had proceeded further, he could have found that relations, other than the father and the mother are mentioned by Dr. Gour only as persons who are competent to be appointed guardians and normally more competent than absolute strangers (see for example Article 781 of the commentary). It is to my mind clear beyond argument that a paternal uncle is not under the Hindu Law a natural guardian of a minor in the sense of being entitled to act for him by virtue of his relationship alone.
14. The facts of the present case are extraordinary to a degree. The property concerned belonged to the estate left by the plaintiff's husband who was a resident of a village called Beguti. Nani Gopal was her paternal uncle, separate from her father and living in his own house at Kastakurutnba. The plaintiff had throughout been living apart from him, first with her father at Barkona and then with her father for a certain period, and with her cousin for the rest, at Baidyapur. Yet Nani Gopal a separated father's brother, living at his own house in a different village, purported to sell off a portion of the estate left by the plaintiff's husband at a village called Beguti in the purported exercise of his right as the natural guardian of the plaintiff. I am of opinion that he had no such right at all and the transaction was utterly void.
15. As a last resort, Mr. Chowdhury contended that even assuming that the transaction was void, his client ought to get from the plaintiff the benefits which she had received, under either Section 65, Contract Act, or Section 41, Specific Relief Act. I would take the latter section first. It gives a discretion to the Court to require the party at whose instance an instrument is cancelled to make any compensation which justice may require. There has been some question as to whether this section applies to a case where the instrument is not merely voidable but altogether Void. It is not necessary for me to embark upon a discussion of that question, because on the facts of this case, I do not think that the discretion conferred by the section, even if it be applicable, should be exercised. The finding of the trial Court, which the lower appellate Court has not in this regard revered, is significant. What appears room the finding is that although there was the external appearance of a sale in fact there was no straightforward sale at all, but the defendant merely obtained an instrument, at the same time keeping the mortgage bond alive. It is true, as the lower appellate Court has found, that he paid off the amount of the rent decree; but he can hardly claim any merit on that account, because if he wanted to get and keep the propert it was necessary in the first instance to see that no arrears of rent remained due. It is also true that the kabala recites satisfaction of the mortgage debt, but the other fact that no indorsement was made on the back of the mortgage bond cannot be ignored. It seems to me that the trial Court took the proper measure of the kabala when it held that the defendant himself was suspicious of its efficacy and while procuring a document in the hope of getting the property thereby was careful not to abandon the other more certain claim which he had. The roping in of a person like Nani Gopal to lend his supposed authority to the execution of the kabala is itself a circumstance which to my mind disentitles the defendant from getting any equitable relief. I am of opinion that there was no honest and straightforward transaction in the present case and accordingly the defendant cannot expect any compensation under Section 41, Specific Relief Act, even if that section be applicable.
16. A more serious question, howewer, arises under Section 65, Contract Act. That section does not provide for an equitable relief, but says that when an agreement is discovered to be void, any person who has received any advantage under such agreement is bound to restore it or to make compensation for it to the person from whom he received it. The proper scope of this section has been explained by the Privy Council in their decisions in the cases in Harnath Kuar v. Indar Bahadur 9 A.I.R. 1922 P.C. 403 and Mohan Manucha v. Manzoor Ahmad Khan but for the purposes of the present case, the decision which is most relevant is that in Mohori Bibee v. Dhurmodas Ghose ('03) 30 I.A. 114. The argument in the present case was that the relevant agreement was the agreement entered into by Nani Gopal; that agreement had been discovered to be void; that the plaintiff had received an advantage under the agreement, inasmuch as in accordance with its terms the rent decree had been paid off and the mortgage debt 1 uidated; she was, therefore, bound under the terms of the section to restore the benefit she had received, in other words, to refund the amount of the rent decree and the mortgage debt with interest.
17. I need not enter into the question as to whether in a case such as the present the date when the agreement is discovered to be void is the date of the agreement. No question of limitation was argued before me or perhaps arises and, therefore, the date of the discovery is immaterial. There can be no question that if the section applied at all, the appellant's argument would be irresistible. But, in my opinion, the section cannot apply. Mr. Chowdhury relied upon the decision in Limbaji Ravji v. Rabi Ravji 12 A.I.R. 1925 Bom. 499. That case itself lays down that when a sale by a guardian is not merely voidable but void ab initio, Section 65, Contract Act, is not applicable. The reason is that pointed out by the Privy Council in Mohori Bibee v. Dhurmodas Ghose ('03) 30 I.A. 114 to which reference has alread been made. In that case there was a mortgage executed by the minor who, their Lordships held, was not competent to enter into any contract. Relief was then asked for on the basis of Section 65, Contract Act, and referring to that prayer, their Lordships observed as follows:
It is sufficient to say that this section, like Section 64, starts from the basis of there being an agreement or contract between competent parties, and has no application to a case in which there never was, and never could have been, any contract.
18. In the present case, the contract concerned was not executed by Nani Gopal in his parsonal capacity. It was a contract made by him as the guardian of the plaintiff and the question must be whether the contract, so entered into, was a contract by a competent party. For the reasons already given, Nani Gopal was not competent to execute the kabala as a guardian of the plaintiff and there never could have been any contract of sale at all between the defendant and Nani Gopal as the plaintiff's guardian. The particular contract being between the defendant and a person who was purporting to contract on behalf of a minor but was not competent to do so, there was no contract in law, nor could there have been a contract between the parties so circumstanced. It follows, in my view, that on the principle stated by their Lordships of the Judicial Committee in Mohori Bibee v. Dhurmodas Ghose ('03) 30 I.A. 114 Section 65, Contract Act, has no application to the facts of the present case.
19. The above are all the points debated at the bar. In the result, the appeal is dismissed and the cross-objectionis allowed. The judgment and the decree of the lower appellate Court, in so far as they hold that the sale was not a void but voidable sale and that the defendant was entitled to a refund from the plaintiff are set aside and those of the learned Munsif restored. In all other respects the decree of the lower appellate Court is upheld.
20. The plaintiff-cross-objector will have from the defendant the amount of the mesne profits decreed to her by the trial Court.
21. There will be no order for costs in the appeal but the plaintiff will have her costs of the cross-objection. Leave to appeal under Clause 15 of the Letters Patent, asked for, is refused.