1. The question which arises in this second appeal is as to the validity of the acts of a de facto guardian in alienating the estate of a minor married Hindufemale during the minority of her legal guardian the husband.
2. The facts are simple. The girl inherited an undivided third from her father who took the estate from his father by way of gift. The gift was saddled with an injunction to keep up the family Durga pujah. The girl after her marriage continued to liye with her grandmother the widow of the donor who was her de facto guardian.
3. The puja dalan fell into disrepair and a meeting of the co-sharers, at which the grandmother, Tarangini Dassi, represented Latibala Dossy, the minor daughter of Keshab Chandra Sirkar, the donee of the property, was held.
4. It was found that the only way to raise funds to repair the dalan was by selling some of the joint family property. So a portion was sold and the repairs partially effected. This transaction has never been impugned though it involved a partial alienation of the minor's estate. The Rs. 200 raised by this sale was not, however, found sufficient to complete the repairs and the co-sharers together with Tarangini again met and agreed to sell the tank now in dispute.
5. It is found that the minor's income from this tank was only 12 annas a year which the Subordinate Judge finds was expended on the pujah.
6. This sale is dated 27th. Assin 1310. It now appears that the plaintiffs purchased the 6 annas share of the tank and high land round it from the minor's husband who had then come of age on the 5th Bhadra 1312, with the permission of the District Judge, obtained on the allegation that Tarangini Dasi had allowed the rents of the minor's property to fall into arrears.
7. The plaintiffs now sue to eject the defendants who are the purchasers from the co-sharers and de facto guardian.
8. The Munsif holding that the minor Latibala was in no way benefited by the sale of 1310 decreed the suit.
9. The Subordinate Judge holding that the sale was valid as made for legal necessity has reversed the Munsif's decision.
10. The appeal before us is on the ground that there is no obligation on a daughter, who is married into another family, to contribute towards the family worship of her natural family: that she might have done so as a major of her own free will, but that a guardian cannot alienate any portion of her estate even for the minor's own maintenance,, unless there is no other income for her support.
11. We think, however, that the principles laid down in Hurry Mohan Rai v. Gonesh Chunder Doss 10 C. 823, lead to the same conclusion as that arrived at by the learned Subordinate Judge. The facts of that case have, of course, no bearing upon this case and the Judges composing the Fall Bench were divided in the proportion of 3 to 2 but we find clear rules laid down by those who adopted opposite views on the question raised in that case as to the principles which should govern a case like the present. It is clear from the judgment of Mr. Justice Miller that a female inheriting from her father represents the estate in the same manner as a Hindu widow holding a life estate from her husband. Mac Donall, J., held that the repair, of houses on the estate of the father were necessary in order to prevent a deterioration in their value and that a debt incurred by the daughter for their repair was reasonable out of the estate even after the lady's death and this was the view also taken by Prinsep, J. Garth, C.J., who differed from the three learned Judges above mentioned, said: 'if there is any point of Hindu law more clear than another, it is this, that Hindu widow has no right to sell or charge the estate to the prejudice of the inheritance, so long as the income from the estate is sufficiently large to satisfy all its proper requirements. In other words, in order to justify any such sale or charge, a necessity of two kinds must be shown:
1. A necessity for the money sought to be raised as for instance that it is wanted for repairs, or for shradhs, marriages and the like:
2. That the income of the property is not, sufficient to provide the requisite funds and that consequently it is necessary to sell or mortgage.
12. This view was supported by Wilson, J., who remarked that there was no special peculiarity about repairs; they were in the same footing as all other liabilities properly incurred.
13. Now there is a clear finding by the lower appellate Court that there was necessity for these repairs for the benefit of the estate and that the income of the property was not sufficient to provide the requisite funds and that consequently it was necessary to sell and what was sold was a filthy tank, the very small, income of which Rs. 2 per annum had always been devoted to this pujah.
14. It is conceded by the learned Doctor who appeared for the appellants that the powers of a de facto guardian are the same as those of a legal guardian.
15. Without, therefore, following the learned Subordinate Judge into the numerous questions which he has raised on the purely religious aspects of Hindu law, it is sufficient in this case to hold that it is concluded by the two well-established rules cited by Garth, C.J., above.
16. The contention of the learned Vakil for the appellants in final reply that the sale deed, given with the permission of the District Judge by the legal guardian, cannot be set aside, does not arise, inasmuch as it is the plaintiffs who are suing in ejectment and have to get rid of the prior title created on the defendants. The appeal, therefore, fails and must be dismissed with costs.