Francis W. Maclean, K.C.I.E., C.J.
1. The point we have to decide upon this appeal is a short one, and not in my opinion a very difficult one.
2. The suit is one to set aside the sale of a certain property effected under the following circumstances: The sale was effected by the grandmother of the plaintiff, who was then a minor, and it is the minor, now of age, who is seeking to set the transaction aside. The grandmother has not been found by the Lower Appellate Court to have been the duly appointed guardian of the infant, though the Munsif found that she was, and, for the purpose of this decision, therefore, I will take it that she was only the de facto manager of the minor's property, and that, as de facto manager of that property, she sold the property in dispute, in order to pay off a debt secured by mortgage over other parts of the minor's property, upon which mortgage a very high rate of interest was running.
3. The lower Court, upon the authority of the Privy Council case of Hunooman Pershad Panday v. Munraj Koonweree (1856) 6 Moo. I.A., 412, has decided that the sale was a good one, and that the de facto manager, even though not de jure manager, had power to sell the property.
4. It is urged, on behalf of the appellant, that decision applies only to the case of a mortgage by a de facto manager, and not to an out and out sale of the property. I need not dwell upon the obvious distinction between the two, nor point out that from one point of view, a mortgage, inasmuch as an opportunity of redeeming is reserved, may be the more beneficial to the minor; though, on the other hand, if the money can only be raised at a high rate of interest, it may be more beneficial to sell a portion of the estate to pay off existing mortgages than to go on mortgaging at such high rate of interest.
5. I do not think that the distinction sought to be drawn is well founded. Though no doubt the case cited was one of mortgage, and not of sale, the principle of that decision is, that a de facto manager has, under the Hindu law, the power to bind the estate, if he is acting honestly, and the transaction is an honest transaction and one for the purpose of saving or benefiting the estate. I can see no principle upon which it can be successfully urged that he can only do this by way of mortgage, when the circumstances of the estate may be such as to make it obvious that it might be more beneficial to that estate to do it by way of sale. If he have the power to bind the estate, it is difficult to see why he should not have the power of deciding, assuming the most absolute bona fides in the transaction, how best, in the interest of the estate, the matter can be dealt with as between a sale and a mortgage. I am assuming of course that the circumstances would support the transaction, had it emanated from a de facto and de jure manager. I notice that in Mr. Mayne's Book on Hindu Law, Section 196, he says: 'When 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.' And he cites as his authority for that proposition, the case in the Privy Council, to which I have just referred. Mr. Mayne is a careful and experienced author, but he draws no such distinction as we are now invited to make. If there were this distinction, seeing that as often as not a manager sells instead of mortgaging, it is curious that there should be no decision upon the point, for the case must have occurred again and again. This absence of judicial authority suggests that the point has not been regarded as open to serious argument. On the contrary, the cases of Dorab Aly Khan v. Abdool Azeez (1878) I.L.R., 4 Cal., 229, and Gunga Pershad v. Phool Singh (1868) 10 W.R., 106: 10 B.L.R., 368, note, tend directly in the opposite direction. I am consequently against the appellant upon the point I have been discussing.
6. On the second point, whether there was legal necessity for the sale, the Judge in the Court below has found that there was such necessity; and, although he has not stated the facts from which he draws that inference, and perhaps it would have been more satisfactory if he had done that seeing that he was affirming the judgment of the Munsif, it is not unreasonable to conclude that he took the same view of the facts upon this question as the Munsif had done.
7. The appeal fails on both points, and must be dismissed with costs.
8. I am of the same opinion. The suit was brought by the plaintiff-appellant, to recover possession of certain immoveable property on the allegation that the defendants were holding possession of the same by setting up an unauthorised alienation from the plaintiff's grandmother during his minority.
9. The defence was that the sale by the plaintiff's grandmother during his minority was one which was authorised by law, and that the defendants purchased the property in good faith for value and were entitled to retain possession.
10. The Courts below have found that the plaintiff's grandmother, by whom the conveyance in favour of the defendants was executed, was the de facto manager of the plaintiff's estate during his minority, and that the alienation by her was made under necessity and for the benefit of the minor's estate; and they have accordingly dismissed the suit.
11. In second appeal it is contended for the plaintiff-appellant, that the Courts below are wrong in holding that the principle laid down in the case of Hunooman Pershad Panday v. Munraj Koonweree, 6 Moo. I.A., 412, upon which they have relied, was applicable to this case, as that was a case of mortgage, whereas the present one was a case of sale; and it is further contended that the finding upon the question of necessity is not sufficient to warrant the decree that has been made by the Courts below.
12. Now it is quite true that in the case of Hunooman Pershad Panday the alienation in question was a mortgage and not a sale; and it is true also that in one respect there is a distinction between a mortgage and a sale, the distinction being that whereas in the case of a mortgage the property may be redeemed and recovered, in the case of a sale the minor loses all chance of recovering the property even upon repayment of the consideration money. But though that is so, is there any reason for holding that the principle that applies to the case of a mortgage by a de facto manager of an infant's estate should not apply to the case of a sale by such manager, even though pressure on the estate or benefit to it was established? I am of opinion that the question must be answered in the negative. The reason why a de facto manager of an infant's estate has been held competent to alienate his property by way of mortgage would, in many cases, hold equally good where the alienation is by way of sale. Indeed, in some cases the reason for the rule in favour of upholding an alienation by a de facto manager of an infant's estate would be satisfied better if the alienation was by way of sale than if it was by way of mortgage, for in some instances, such as in this case, as has been found by the first Court, the sale of a part of the minor's estate may prove more beneficial to him than a mortgage. And it would not therefore be quite reasonable to hold that the power, which the de facto manager in such cases possesses, should be limited to one of creating a mortgage only. Nor is there anything in the Hindu law (upon which some stress was laid in the course of the argument) for drawing any such distinction, for one of the well-known passages authorising alienation by a de facto manager of the property of the minor (I mean paragraphs 28 and 29 of the Mitakshara, Chapter I, section I) speaks of sale as well as mortgage. It is true that passage has reference to cases of joint property where the de facto manager of the minor's estate possesses some proprietary interest in himself, but that does not in my opinion affect the question, because, so far as the minor's interest is concerned, the right of the co-owner to dispose of it rests only on his power as manager.
13. Then there is the case of Ram Chunder Chuckerbutty v. Brojonath Mozumdar (1879) I.L.R., 4 Cal., 929, in which a sale of a minor's immoveable property by the de facto manager of his estate was upheld by a Full Bench of this Court. It is true that the precise question that is now raised was not raised in that case, but the affirmance of the principle that the defacto manager of a minor's estate has power to sell his immoveable property is necessarily involved in the decision arrived at in that case. In support of the view I take that no distinction in principle can be drawn between the power of a manager of an infant's estate to mortgage and his power to sell, I may also refer to a well-known work on the subject, 'The Law relating to Minors' by Mr. Trevelyan, in which it is said at page 164 of the second edition, 'No distinction can be drawn between the power to charge and the power to sell, and the need which would justify the exercise of the one would justify that of the other.'
14. Lastly, a distinction was sought to be drawn between the case of the exercise of the power of mortgage or sale by the de facto manager of a minor's estate who was also his natural guardian and the case of a de facto manager who was not his natural guardian according to the Hindu law. Without entering into any discussion as to whether there exists such a distinction, it will be enough in the present case to say that the de facto manager was the paternal grandmother of the minor, his father and mother both being at the time dead. If that was so, it is not questioned, and it cannot be very well questioned, that the de facto manager answers to the description of natural guardian in this case.
15. On these grounds I am of opinion that upon reason as well as authority the view taken by the Courts below, that the de facto manager of the infant's estate has in case of necessity or for the infant's benefit power to sell his property, is correct.
16. With regard to the second point, the finding arrived at by the Lower Appellant Court is sufficient in my opinion to warrant the decree that has been made. The judgment of the Lower Appellate Court affirms that of the first Court, and therefore, though it is not very explicit, we may take it that it in substance adopts the view taken by the Munsif with regard to the question of legal necessity.