1. This is an appeal under Clause 15 of the Letters Patent from the judgment of Mr. Justice Huda in a suit for recovery, of possession of an one-third share of a homestead upon declaration of title and for incidental reliefs. The Court of first instance dismissed the suit upon appeal, the Subordinate Judge reversed that decision. On second appeal, to this Court, Mr. Justice Huda has set aside the decree of the Subordinate Judge and restored that of the primary Court.
2. The disputed property belonged to an infant, Kandrapa Kumar Sen, whose father, Kamini Kumar Sen, was appointed as guardian of his property by the District Judge. The root of the title of the plaintiff is a conveyance executed by the guardian on the 14th January 1906 with the sanction of the District Judge, and registered three days later. The foundation of the title of the contesting defendant is a prior conveyance executed by the guardian on the 4th April 1905 and registered six days later. This conveyance like the one previously mentioned, recites that 'it has been executed with the sanction of the District Judge.' The defendants, however, failed to satisfy the Courts below that the assertion made by the, executant of their conveyance was well-founded on fact; for whereas the record shows that the transaction of the 14th January 1906 was sanctioned by the District Judge, no order has been traced in favour of the transaction of the 4th April 1905. The case has, consequently, been tried on the hypothesis that the conveyance set up by the defendant, though, prior in point of time, was executed without the sanction of the District Judge, while the conveyance set up by the plaintiff, though subsequent in point of time, was executed with the sanction of, the District Judge. In these circumstances, the question arose whether the plaintiff is entitled to treat the defendants as persons without title and to obtain relief on that basis.
3. Section 29 of the Guardians and Wards Act, 1890, provides-that a guardian of the property of a ward shall not, without the previous permission of the Court, mortgage, charge or transfer by sale, gift, exchange or otherwise1, any part of the immoveable, property of his ward. Section 30 then ordains that the disposal of the immoveable property by a guardian in contravention of either of the two last foregoing sections, is voidable at the instance of any other person affected thereby. It consequently be maintained, that the conveyance which is the foundation of the title of the defendants is not liable to be impeached. The defendants have appreciated this danger and have relied upon a circumstance extraneous, to the provisions of the Guardians and Wards Act.
4. It appears that at the time when the transfer in favour of the defendants was made, the property was under attachment in execution of a decree for money held by a creditor of the infant. The transfer could consequently be effected, only with the sanction of the Execution Court obtained in the manner prescribed in Section 305 of the Code of Civil Procedure, 1882, which has since, been re-placed by O. XXI, r. 83 of the Code of 1908. The Court below has held that there, was substantial compliance with the provisions of Section 305 and we shall assume without discussion that this view is well-founded. This consequently raises the question, whether compliance with the provisions of Section 305 cures the defect which attaches to a transaction effected in violation of the provisions of Section 29 of the Guardians and Wards Act. The decisions in Dattaram v. Gangaram 23 B. 287 : 12 Ind. Dec. (N.S.) and Sarju v. District Judge of Benares 2 Ind. Cas. 359 : 31 A. 378 : 6 A.L.J. 491 point to the conclusion that the answer should be in the negative. These cases are authorities for the proposition that a private alienation though confirmed by the Execution Court under Section 305 of the Code of 1882, is not validated, if such alienation is made by a certificated guardian and the transaction is not confirmed by the Court which appointed the guardian. We are of opinion that this conclusion is sound on principle.
5. The scope of an enquiry under Section 29 of the Guardians and Wards Act is entirely distinct from the scope of an enquiry under Section 305 of the Civil Procedure Code of 1882. When an application is made under Section 29, of the Guardians and Wards Act to, a District Judge to sanction a proposed alienation, the matter to be considered is the benefit of the infant. When an application is made to an Execution Court to sanction an intended transfer under Section 305 of the Code of 1882 the matter for enquiry is the protection of the execution creditor. Compliance with the provisions of Section 305 of the Civil Procedure, Code should not consequently render unnecessary the fulfilment of the requirements of Section 29 of the Guardians and Wards Act, in a case which falls within the scope of both these provisions of the law. This view is not opposed to the decisions in Barkat v. Jamila 44 Ind. Cas. 554 : 61 P.W.R. 1918 Abdur Rashid v. Sheikh Khandkar 68 Ind. Cas. 997 : 35 C.L.J. 206 and Nakymo Dewan v. Jerang Dewan 37 Ind. Cas. 971 : 44 C. 819. In the first of these cases, the transfer, was effected, not by a certificated guardian but by a guardian ad litem appointed for the purpose of a suit and the Punjab. Chief Court held that Section 29 of the Guardians and Wards Act could not by its very terms be applied to such a contingency. In the second case, the question was considered whether O. XXXII, r. 7 of the Code of 1908 rendered unnecessary compliance with the requirements of Section 29 of the Guardians and Wards Act. The answer was given in the affirmative. This view may perhaps be justified on the hypothesis that the objects of these provisions of the laws are identical, namely, the protection of the infant concerned. On this ground alone, the decision is distinguishable and we need not express an opinion as to its soundness. In the third case, the question was raised whether the fact that a compromise had been sanctioned by the Court of Wards rendered needless a compliance with the provisions of Order XXXII, Rule 7 of the Civil Procedure Code and the answer was given in the affirmative. There is no real analogy between the provision of the Court of Wards Act and the Guardians and Wards Act.
6. Finally, our attention has been drawn to the decision in Biku Halwai v. Mohesh Halwai 8 C.L.J. 266. which deals with the question of the power of a certificated guardian to compromise a suit without the sanction of the District Judge. This is plainly of no assistance to the respondent. We consequently hold that the position of the defendant must be adjudged on the assumption that the conveyance which is the root of his title did not comply with the requirements of Section 29. It was assumed in the Courts below that a transaction of this description might be ignored by the party prejudicially affected thereby and that the guardian who had executed the conveyance of the 4th April 1905 might indicate his repudiation of the transaction by execution, of the conveyance of the 14th January 1906. In our opinion, this position is manifestly untenable.
7. Section 30 of the Guardians and Wards Act mikes the transaction voidable, that is, liable to be avoided in a proper proceeding. Consequently, when the person affected by such a transaction seeks to avoid its consequence, he is in the position of a person who seeks equity and must do equity. Thus, not only can he not ignore the transaction but he must offer to re-imburse the prior transferee whose money has benefited the infant. In support of this proposition reference may be made to the decisions in Eastern Mortgage and Agency Co. Ltd. v. Rebati Kumar 3 C.L.J. 260, Hem Chandra v. Lalit Mohan Kar 14 Ind. Cas. 515 : 16 C.L.J. 537 : 16 C.W.N. 715 and Mansaram Das v. Ahamad Hosain 37 Ind. Cas. 380 : 21 C.W.N. 63. As was observed in the first of these cases, nothing can be more unjust than to permit a person to sell a tract of land and take the purchase money, and then, because the sale happens to be informal and void, to allow him or, Which is the same thing, the person on whose behalf he acts, to recover back the land and keep the money any Code of law which would tolerate this would seem to be liable to the reproach of being a very imperfect or a very inequitable one. The plaintiff in this litigation has ignored this view and has entirely misconceived his remedy. He has never offered to reimburse the defendant for there is no question that the transfer in favour of the defendant must have been for the benefit of the infant whose property was under attachment at the time. We have considered whether the plaintiff may at this stage legitimately expect an opportunity to set matters right and we have arrived at the conclusion that the answer should be in the negative, as he should not be permitted to change the whole aspect of the case.
8. We consequently affirm the decree of dismissal made by Mr. Justice Huda, but not on the grounds stated in his judgment and dismiss the appeal with costs.