1. This case comes before us on second appeal. The suit was brought by the plaintiff on his becoming sui juris for damages in respect of occupation of lands by the defendants.
2. The defendants set up an ijara pattah granted by the mother of the plaintiff. She purported to grant it as the guardian of the father of the plaintiff who was a lunatic. It was a lease for more than five years and it was not granted under the authority of the Court in conformity with the provisions of Section 14 of the Lunacy Act (XXX V of 1858).
3. The first question that is raised before us is, whether this lease was absolutely void, as it has been held to be by the lower Appellate Court, or whether it was only voidable. We are of opinion that it was only voidable. There is no direct authority on the construction of Section 14 of the Lunacy Act; but there are authorities from which the above conclusion may be reached with some certainty. Section 14 of the Lunacy Act gives certain powers over the lunatic's property to his manager; it then provides that he shall not have powers to sell or mortgage the lunatic's property, or to lease it for more than five years, without an order of the Court. Section 18 of the repealed Guardians and Wards Act, XL of 1858, contained very similar provisions and in Til Koer v. Roy Anuncd Kishore 10 C.L.R. 547 and Ahfutoonnissa v. Goluck Chunder Sen 22 W.R. 77 it was held that an alienation wrongly made, without the leave of the Court, was voidable but not void. The new Guardians and Wards Act, VIII of 1890, provides, in Section 29, that, a person appointed guardian shall not, without leave, make certain alienations, but provides in Section 30 that if he does, his alienation is voidable. We may thus suppose that the Legislature recognised the principle acted on in the two decided cases as applicable to the repealed Guardians and Wards Act, and did not in the new Guardians and Wards Act supply a defect existing in the old one, as one might suppose to be the case if one looked at the two Acts only. We may, therefore, safely apply the same principle to the Lunacy Act. In Uma Churn Mahaldar v. Narendranath Basu 33 C. 273 : 10 C.W.N. 126 Mookerjee, J., recognised the existence of the principle and applied it to the construction of Sections 14 and 39 of the Court of Wards Act, (IX of 1879, B.C.,), which in view of the difference of the terms of these sections from those of the section under consideration may not be of much consequence but is at least in favour of the view we have expressed. Consequently, we differ from the lower Appellate Court which held that the lease was void, but in this case the lease being voidable, has in fact been avoided by the plaintiff, who on becoming sui juris, and within the period of limitation which applied to him, brought this suit electing to treat the lease as a nullify.
4. The second objection made on behalf of the appellants is that proceedings ought to have been taken to set aside this ijara before the suit for damages had been brought. In the view of the case we have just expressed, it was not necessary so to do.
5. We were also desired to remand this case for clear findings upon the questions before it, but having had the facts clearly before us, we consider this unnecessary, as a remand would of necessity require the Court below to consider the same matters over again.
6. The result, therefore, is that this appeal is dismissed, but as the lower Appellate Court made an error in law which has invited this appeal, we make no order as to the costs in this Court.