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Basaruth Ali Vs. Lala Hurro Prosad and anr. - Court Judgment

LegalCrystal Citation
SubjectFamily
CourtKolkata
Decided On
Judge
Reported in(1898)ILR25Cal909
AppellantBasaruth Ali
RespondentLala Hurro Prosad and anr.
Excerpt:
guardian - power of guardian to mortgage minor's property--act xl of 1858, section 18--guardians and wards act (viii of 1890), section 30, read with section 2, retrospective effect of--mortgage without sanction of court. - .....us by the learned vakil for the respondent, and it is abundantly clear, that if the bond were void the suit must fail.3. it is also admitted that the weight of the decisions of this court treats mortgages made without sanction under section 18 as absolutely void. he, however, contends that the provisions of act viii of 1890 apply to this case, and that having regard to the terms of section 30 of that act he is entitled to sue on the mortgage at any time unless it has been avoided by the ward.4. in the view which we take of this case it is unnecessary for us to decide what is the effect of section 30, and how it could be applied to the facts of this case. it is also unnecessary for us to decide whether under any circumstances effect can be given to a voidable contract before the ward.....
Judgment:

Trevelyan and Banerjee, JJ

1. In this ease a guardian, who had taken out a certificate under Act XL of 1858 on the 27th of May 1884, executed a mortgage, purporting to charge the property of his wards. He did not obtain the sanction of the Civil Court as required by Section 18 of Act XL of 1858. This suit is brought against the wards on the footing of the mortgage. Certain persons, who have purchased the interests of the minors at auction sales, are also parties defendants. Two of the wards have attained majority; one has died, and is represented in this suit by his widow; the fourth is still a minor. The learned Munsif, before whom the case first came, dismissed the suit, on the ground that the mortgage, being without sanction, was void. He declined to try any other issue.

2. On appeal the learned District Judge has held that the mortgage was voidable, but has remanded the case for evidence to be taken as to the bona fide nature of the mortgage, and as to its having been executed for legal necessity. It is admitted before us by the learned Vakil for the respondent, and it is abundantly clear, that if the bond were void the suit must fail.

3. It is also admitted that the weight of the decisions of this Court treats mortgages made without sanction under Section 18 as absolutely void. He, however, contends that the provisions of Act VIII of 1890 apply to this case, and that having regard to the terms of Section 30 of that Act he is entitled to sue on the mortgage at any time unless it has been avoided by the ward.

4. In the view which we take of this case it is unnecessary for us to decide what is the effect of Section 30, and how it could be applied to the facts of this case. It is also unnecessary for us to decide whether under any circumstances effect can be given to a voidable contract before the ward has attained majority, and has had an opportunity of finally ratifying or avoiding the, contract.

5. In our opinion Act VIII of 1890 has no application to the present case. The mortgage was executed while the provisions of Act XL of 1858 were in force, and Section 18 of that Act unquestionably applied to it at the time it was made. The question remains whether Act VIII of 1890 operates to destroy the void character of this mortgage, and to render it merely voidable. It would be somewhat extraordinary if the rights of parties to a transfer had been altered by subsequent legislation; Section 30 in terms refers to a disposal of property in contravention of Sections 28 and 29, and to nothing else. Section 28 has nothing to do with the present question. Section 29 only contains a prohibition against the disposal of property by Court-appointed guardians without the sanction of the Court. The words are 'he shall not.' How this can refer to transactions antecedent to the Act, it is impossible to see. A statutory prohibition could have no reference to transactions which had been completed before the Act came into force. If Act XL of 1858 had contained no prohibition, and certificate holders had power to dispose of property without the sanction of the Court, could it have been argued that Sections 29 and 30 of Act VIII of 1890 rendered voidable acts done before the Acts came into force, and which were valid according to the existing law

6. It is contended before us that Section 2 (2) of Act VIII of 1890 has; the effect of applying Section 30 to this transaction. We do not see how that section can have such effect.

7. In our opinion the mortgage being void no other issue arose.

8. We accordingly set aside the decree of the Subordinate Judge and restore that of the Munsif. The appellant is entitled to his costs in both Appellate Courts.


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