1. These three appeals arise out of the decision of the temporary second judge, Mavelikara, Dated 17th adi 1118 in o. S. 194 of 1116, On the file of the district court, Mavelikara. A. S. Nos. 300 and 302 of 1119, Are filed by defendants 3 and 4 respectively, And a. S. No. 148 of 1123, Is filed by the plaintiff.

2. The facts are these: the plaintiff claimed partition and delivery of a 4/13th share in the estate of his deceased father varki koruthu who died on 1st karkadakom 1105. Varkey koruthu had an elder brother varki mathai who died in chingom 1106 and whose widow was examined as p. W. 1 in the case. He has a younger brother who is defendant 6 and who has been examined as d. W. 3. The 3 brothers had divided their partimony and has no longer any community of interest. Varki koruthu had married thrice. The first wife died issueless. By the second wife he had an only son koruthu varki, Who died in thulam 1106 leaving him surviving a widow and 2 minor children who are defendants 7, 8 and 9 respectively. After the date of the second wife he married a third through whom, He begot 3 issues who are defendant 10, Plaintiff and defendant 11. Varki koruthu died leaving him surviving only his four children. His third wife would appear to have predeceased him. The three children of varki koruthu by his third wife, Who were all minors, Were ever since the death of their father, Under the care of p. W. 1. They continued to be under her care even at the time of the suit. Defendant 6 appears to have been a co - obliger with the deceased koruthu in certain transaction, One of which led to a decree in o. S. No. 353 of 1105, Munsiff's court, Thiruvella. After koruthu died and after his legal representatives were brought on record, Defendant 6 appears to have been arrested in execution of the said decree and an amount of rs. 30/ - appears to have been paid by him to obtain his temporary release from arrest. This happened in kumbhom 1106: see ext. 13. Two months before this i. E., On 5th dhanu 1106 defendant 7 on her own behalf and as guardian of her minor children defendants 8 and 9 also as guardian of defendants 10 and 11 and the plaintiff, Who were all minors then, Executed a deed of hypothecation for rs. 10,305 in favour

of one varghese stating that from out of the consideration an amount of rs. 1700 is adjusted towards the amount due to the hypothecatee, That an amount of rs. 903 is made good by the hypothecatee paying the decree - holder in the said o. S. 353 of 1105 and reserving rs. 7702 with the hypothecatee for payment of debts of the deceased koruthu specified therein. Ext. 6 is the deed of hypothecation. On 30th medom 1106 a sale deed of the entire estate of deceased koruthu except 35 cents of land, Was executed by defendant 6 as the guardian of plaintiff and defendants 10 and 11 and by defendant 7 on her own behalf and as guardian of her minor children defendants 8 and 9 in favour of defendant 1 for a consideration of rs. 6501 made up of rs. 1201 reserved for payment towards a liability under a chitty to be paid to the travancore national and quilon bank ltd., Rs. 8621/2 reserved for payment of another chitty liability in favour of the modern bank for both of which the deceased koruthu would appear to have executed deeds of hypothecation, And rs. 4437 - 0 - 0 paid in cash (so the document states) for discharging other unspecified debts of deceased koruthu. On even date, The same parties executed a deed of hypothecation ext. 19 in favour of the maternal uncle of the plaintiff and defendants 10 and 11 for rs. 982 reserving rs. 972 for payment of two specified debts incurred by deceased koruthu under promissory notes and receiving rs. 10 for the expenses of the execution and registration of the document. On 27th mithunam 1106 defendant 1 executed ext. 1 in favour of defendant 2 stating that the aforesaid sale deed taken in his name was taken by and on behalf of defendant 2, That defendant 2 got possession of the properties pursuant thereto, That defendant 1 had no title to or interest in the properties the purchase having been benami for defendant 2. Ext. Ii refers to the earlier mortgage ext. 6 and states that on account of non - acceptance by the mortgage the document did not come into operation. On 15th karkadakom 1106 defendant 6 is seen to have procured an endorsement marked ext. 6 (a) and ext. 6 by the mortgagee there under to the effect that the document was brought into existence without his knowledge and consent and that he had not accepted the same. On 24th karkadakom 1106 defendant 2 sold item 4 purchased by him under ext. Ii in favour of the defendant 4 by executing a deed of sale marked ext. 18 or a consideration of rs. 1441 made up of rs. 191 adjusted towards an amount stated to be due to the vendee from deceased koruthu and receiving rs. 1250 in cash. One sankara iyer, Obtained a decree against defendant 2 in o. S. 11 of 1108 on the file of the district court, Alleppey and in execution thereof attached and sold the remaining items comprised in the sale deed ext. 11. Sankara iyer himself purchased the properties in kanni 1110, Took delivery of them through court and entrusted them on lease with defendant 3 who is the son of defendant 2 and later, On 4th idavom 1111 sold the properties to defendant 3 for rs. 1400. Ext. 23 is the sale deed. Defendant 3 gave a usufructuary mortgage of the properties thus obtained by him to defendant 5 for rs. 3000 in

makaram 1112. Ext. 24 is the mortgage deed.

3. The suit was filed in the district court, Kottayam on 5th meenom 1115 within three years of the plaintiff attaining majority with an application for permission to sue in forma pauperis. It was petition no. 22 of 1115. The case was afterwards transferred to the file of the district court, Mavelikara, Where the application for permission to use in forma pauperis was numbered as 13 of 1116. That application was duly enquired into and allowed by that court and the suit was numbered as o. S. 194 of 1116 on its file.

4. The main relief claimed in the suit is partition and delivery to the plaintiff of 4/13th of the properties left by the plaintiff's deceased father, Korathu with mesne profits. Incidentally a relief by way of setting aside exts. 2, 18, 23 and 24 was also asked for as documents executed by persons without authority, For no consideration, And as void so far as the plaintiff is concerned. Defendants 3, 4 and 5 contested, Upholding the transactions evidenced by the aforesaid documents which were claimed to be binding upon the plaintiff as being executed by persons entitled to execute them and as being fully supported by consideration. Defendant 3 stated that the travancore national & quilon bank ltd., Which was under liquidation at that time had obtained a decree for sale of some of the properties, That execution was proceeding and that the liquidator should be impleaded as a party to the suit. Accordingly the plaintiff applied to implead the liquidator of the travancore national & quilon bank ltd., (in liquidation) and impeached the decree in o. S. 489 of 1111 obtained by the said bank. The liquidator was impleaded as defendant 12. Defendant 13 was also impleaded as a party interested but he does not seem to have any interest and does not come up for consideration in this case hereafter. Defendant 7 filed a written statement stating that ext. Ii happened to be executed by her on account of misrepresentations made by defendants 2 and 6 and claiming her share in the properties. Defendant 11 by her written statement supported all the plaint allegations and claimed 1/13th share. Defendant 12 up - held the decree obtained by the bank.

the lower court passed a decree in the following terms:

"the originals of exts. 1 and 2 and exts. 18 and 24 are set aside so far as the plaintiff's 4/13th share in the plaint properties is concerned, On the plaintiff depositing in court b. Rs. 1074 - 7 chs., That is 4/13th out of rs, 3491 - 8 chs. 8 cash mentioned in para 22 above. The amount deposited by the plaintiff will be drawn by the defendants 4 and 5 in proportion to the extent of the consideration found above to have been advanced by them under exts. 18 and 24 and to the extent of the properties of which they are to be deprived of by the plaintiff's success in this suit. The plaintiff's 4/13th share of the plaint properties will be recovered by him from defendants 2 to 5 after the same is divided by metes and bounds by a commissioner to be appointed on the plaintiff's application and after the deposit of the above mentioned b. Rs. 1074 - 7 chs. The plaintiff will apply for a commission on or before 24. 1. 1119. As there is no evidence about the amount of mesne profits and the defect is due to an issue not having been framed on the point, The question of the amount of mesne profits will be considered after the receipt of the commissioner's report. This decree of course does not debar defendants 12 from pursuing his remedies in pursuance of his auction sale. Defendant 11's 1/13 share will also be partitioned by metes and bounds on her paying the necessary court fees as mentioned above and depositing in court 1/4 of the amount directed above to be deposited by the plaintiff such amount being also permitted to be drawn by defendants 4 and 5 in proportion as indicated above. Defendants 8 and 9 are not entitled to claim any share as their mother defendant 7 executed ext. 2 as their lawful and proper guardian. The plaintiff will recover 4/13th of his costs of the suit in respect of the a valuation in the second amended plaint, The entire costs in respect of b valuation and one - third of the costs in respect of the c valuation from defendants 2 and 3 and suffer his remaining costs. The defendants excepting defendant 12 will suffer their respective costs in the circumstances of this suit. Defendant 12 will recover one - fourth of his costs of the suit from the plaintiff and suffer his remaining costs. The plaintiff will be allowed to recover his share of the arrears of mesne profits for 3 years before the date of the suit and of future mesne profits from defendants 2 to 5."

appeals 300 and 302 by defendants 3 and 4 are against that part of the decree which set aside the aforesaid documents. The plaintiff's appeal no. 148 relates to the direction contained in the decree for making a deposit in court as aforesaid for getting his share of the properties. The appellant in a. S. 300 of 1119 filed c. M. P. 2901 of 1120 in this court for admission of two fresh documents in evidence. They are (1) an order of the travancore high court dated 7. 11. 1117 in c. M. P. 260 of 1117 which was an appeal against an order refusing to set aside the sale in o. S. 489 of 1111. The order runs as follows:

"heard both sides. The judgment debtor's (c. M. Appellant) counsel offers to deposit the sale amount in court in two months from this date and prays that on that condition the sale may be set aside. This offer is accepted by the other side. Hence we order, That if the sale amount and interest thereon at 6% per annum from the date of sale is deposited in this court within two months, The sale will stand set aside and that, In default of doing so, This appeal will stand dismissed with costs including counsel's fee rs. 15"

5. The other document is a communication from the travancore high court intimating the fact of deposit of the amounts pursuant to the direction contained in the said order. The parties do not object to reception of these documents in evidence. C. M. P. 2901 of 1120 is therefore allowed and the documents are marked as exts. 25 and 25 (a).

6. The subject matter of the appeals is thus confined to the claim of the plaintiff for a 4/13th share of the properties which is of small value. The appeals, However, Came up before a full bench as provided by s. 11, Cl. (1) read with expln. 1, Cl. (b) of cl. (11) of the said section of the travancore high court act (act 4 of 1099) as the aggregate value of the three appeals is not less than rs. 5000. A similar provision is contained in expln. 1 (b) of act 5 of 1125 (united state of travancore & cochin high court act).

7. The two questions that were raised in these appeals are these: whether defendant 6, The uncle of the plaintiff and defendants 10 and 11 was competent to grant the conveyance (ext. 2) and whether, Even if

he was not so competent, Any relief could be granted to the alienee or his representative in this proceeding by way of repayment or otherwise of the consideration therefor.

8. It is the prerogative of the crown (the state) as parent patriae to protect subjects who cannot protect themselves. Chartered high courts in india as representatives of the crown used to confer authority on persons as guardians of minors before the enactment of the guardians and wards act which confers the power to appoint guardians on other courts as well. The personal law, If any, Whether written as in the case of the hindu and mohammadan law or unwritten as in the case of custom whether of a family, Of a locality or of a community authorising particular persons to deal with the property of minors as guardians would be recognised except where even the proof of custom is prohibited as in the case of indian shariat act (36 of 1937). Right to guardianship of the property of a minor must therefore be rested on an order of court or on some personal law. A peason deriving authority in this manner would be a de jure guardian. Quite recently the federal court has considered the various aspects of the question of the guardianship of minors in sriramuly v. Pandarikakshaya (1949 f. L. J. 288) ; (1949) 4 d. L. R. F. C. 135) and bappayya v. Pundarikakshaya (1949) f. L. J. 318). Their lordships point out that the expression "de facto guardian" which is often used is incorrect and the proper term to connote the idea would be de facto manager. So far as the christian community in the travancore state is concerned there does not appear to be any written personal law. Nor is any custom set up in this case. Sri. Varadaraja iyengar, The learned counsel for the appellants in a. S. 300 however, Contended that under the travancore christian guardianship act (act 11 of 1116) a paternal uncle is a guardian de jure, That it is a declaratory act and that therefore a paternal uncle must be regarded as having been a de jure guardian at all time in that state. He relies upon the preamble to the act as also upon its statement of the objects and reasons. The preamble runs thus:

"whereas it is expedient to define and declare the law relating to guardianship as applicable to indian christians in travancore, It is hereby enacted as follows."

we are not inclined to accept the argument. Except the existence of the word "declare" in the preamble, There is nothing to support it. The use of the words 'it is declared' in a statute does not necessarily import that the statute is merely declaratory of exiting law and therefore retrospective. "the use of the expression'it is declared' to introduce new rules of law is not incorrect, And is far from uncommon" harding v. Commissioners of stamps for queensland (1898 a. C. 769). The objects and reasons of the act to which attention was drawn by the learned counsel show that "custom in the community relating to the right of a person to act as the guardian of a minor cannot be said to be uniform except in the case of the father. " if so what was the position of the paternal uncle before the act? there was no uniform custom recognising the paternal uncle or for that matter any other relation than the father as guardian. Again, S. 5, Cl. (c) of the act saves transactions which were good before the act from being hit by its provisions i. E., Contemplates cases where persons other than those recognised as guardians by the act may have acted as guardians and such acts may have been good according to the law prevailing before the act. Thus the act is clearly non - declaratory in the sense contended for on behalf of the appellant. It declares the law for the future. The act is not retrospective.

defendant 6 was therefore incompetent to convey the interests of the plaintiff and defendants 10 and 11 as he purports to have done in ext. Ii. As the nature of an alienation of a minor's property by such unauthorised persons there was at one time a controversy and various views were held. One view was that it is void. Another view was that it is voidable, And a third was that the nature of the alienation would be in a state of suspense until it is rendered effective or otherwise according as the ward accepts or rejects it after attaining majority. This controversy was set at rest by the privy council in imambandi v. Mutsaadi (l. R. 45 i. A. 73: i. L. R. 45 cal. 878) holding that such an alienation is absolutely void and the alienee if put in possession would be a trespasser. This decision has been followed by the travancore high court ever since - see uthuman v. Banas gruse (1947 t. L. R. 103). However good may be the reasons for the alienation, Even if it be for discharging debts unquestionably binding on the estate, The alienation would still be void if the person granting it has not the competency to convey - see jan mohammed v. R. B. Karam chand (a. I. R. 1947 p. C. 90: (1947) i. D. L. R. 1123.) the question as to the character and adequacy of the consideration would arise only in a case where the transaction is entered into by a person having authority. The attempt of the appellants to sustain the alienation by defendant 6 is thus bound to fail. Ext. 11 is void and the other documents exts. 18, 23 and 24 under which the

appellants claim title are also void so far as the interests of the plaintiff and defendant 11 are concerned. The lower court has found that the transaction is binding upon defendant 10 who appears to have accepted the same after attaining majority. The plaintiff is therefore entitled to a partition and delivery of 4/13th share of all the plaint properties with mesne profits as claimed by him. Defendant 11 is also entitled to the same relief in so far as her 1/13th share is concerned.

9. The next question relates to the property of the direction that the plaintiff and defendant 11 should pay a proportionate share of the debts found by the lower court. Besides the amounts about which evidence was adduced in the trial court, The deposit made by defendant 3 for setting aside the sale of some of the properties in o. S. 489 of 1111 evidenced by ext. 25 series also come up for consideration in appeal.

10. The lower court considered this question in paras 17 to 20 of its judgment. Except in respect of three items, Viz., The decree debts in o. S. Nos. 1041 of 1104, 353 of 1105 and the debt under a promissory note in favour of defendant 4, We concur with the conclusions come to by the lower court after a consideration of the evidence in the case. It is unnecessary for us to reiterate for the conclusion. Suffice it to say that we agree with the grounds relied upon by the lower court in arriving at its conclusions. The decrees in o. S. 1041 of 1104 on the file of the thiruvella munsiff's court was obtained against the deceased koruthu and his properties were under attachment therefore when he died. (see ext. 14) rs. 675 was paid to discharge that decree. (see ext. 3, Item 4) this is obviously a binding debt. As regards the decree in o. S. 353 of 1105, Which was obtained against the deceased koruthu as also defendant 6 we are not inclined to accept the testimony of defendant 6 to the effect that he was a surety and the deceased koruthu was the principal debtor. Defendant 6 appears to have been arrested in execution of that decree when he paid an amount of rs. 30 towards the decree debt and obtained his temporary release. In the absence of evidence that defendant 6 was only a surety we have to take it that both the judgment - debtors were principal debtors and that, On that basis, They, Are bound in law, To share the liability equally. On that basis the liability of the deceased koruthu can be taken to be only one half of the entire decree debt. After the payment of the aforesaid rs. 30 there was a balance of rs. 752 - chs 8, Cash 8. To this has to be added rs. 30 paid by defendant 6 which would make a total of rs. 792 - chs. 8 cash 8. One half of this is the debt of the deceased koruthu for which alone his estate can be made liable. We therefore reduce the liability of this item to rs. 396 - 4 - 4 instead of rs. 762 - 8 - 8 cash as found by the lower court in para 19 of its judgment. The third item about which we take a view different from that of the lower court is in respect of a debt due to the defendant 4 under a promissory note. The lower court accepts the truth of this transaction, But reduces the claim for rs. 191 in that behalf to rs. 50 on the ground that defendant 6 swears that defendant 4 had agreed to settle her claim for rs. 50 and that as a matter of fact, Only rs. 50 was paid by defendant 2. Except the ipse dixit of defendant 6 which we are not inclined to accept there is nothing to support the case of reduction of the debts due to defendant 4. We find that rs. 191 was due to defendant 4 by the deceased koruthu and that amount was adjusted and made good from out of the consideration for the assignment in favour of defendant 4. Ext. 25 series produced by defendant 2 in appeal prove that the amount reserved in ext. 2 for payment to the travancore national and quilon bank, Namely rs. 1201 has been discharged subsequently though only after the decree and after sale of the properties in execution thereof. The estate of the deceased koruthu cannot be saddled with the extra liabilities arising on account of the suit and execution proceedings. The alienee can get credit only for the amount of rs. 1201 reserved in that behalf in ext. 2. We direct that credit be given to defendant 2 and his representatives to the extent of rs. 1201 in connection with the discharge of liability under a chitty hypothecation bond executed by the deceased koruthu in favour of the travancore national and quilon bank. The amount for which defendants 2, 3 and 4 are entitled to get credit on account of the consideration for ext. 2 is the total of the amounts as found by the lower court with the addition and alterations as shown above. The plaintiff will get his 4/13 share on payment into court of 4/13th of the liability of the deceased koruthu as aforesaid. Defendant 11 will also get her share only on payment of the proportionate liability as ascertained and fixed herein.

the suit is for the partition wherein all the equities between the sharers and their alienees have to be adjusted. The alienation in question is one which is good in part and void only in respect of a part. The estate of the deceased koruthu comprised properties alienated under ext. 2 as also other properties not alienated. Some of the properties of the deceased koruthu appear to have been attached in execution of decree obtained against him even during his life - time. Some items were at his death subject to encumbrances created by him. Credit was claimed on behalf of the alienees on account of payments made

pursuant to the assignments ext. 2. The plaintiff does not appear to have objected to bearing a proportionate, Burden of the liabilities binding upon the estate of the deceased koruthu. The controversy really related only as to what the binding debts are. This is the stand taken by the plaintiff even in this court. Under all these circumstances, We are inclined to direct the plaintiff and defendant 11 to bear the proportionate burden of the liabilities binding upon the estate of the deceased koruthu whose properties form the subject - matter of this suit for partition.

11. In this view it is not necessary for us to consider nor have we considered the controversial question as to whether in the case of an alienation of properties of a minor by an unauthorised person which is altogether void and the minor seeks recovery of possession of the properties from the alienee whether with or without a prayer for cancellation of the deed, A direction either as a condition or otherwise can be given by the court for payment by the plaintiff to the alienee of any part of the consideration.

12. Defendant 9 filed a memorandum of objections in a. S. 148 of 1123 and applied for permission to prosecute the same in forma pauperis. There are no grounds to allow the application to file and prosecute the same in forma pauperis. We indicated this at the hearing and the learned counsel appearing for defendant 9 did not inform the court that in the event of the application being disallowed, His client proposed to pay court - fee and that he required time to pay it. Under the circumstances the memorandum of objections should be dismissed.

13. In the result appeal suits nos. 300 and 302 of 1119 and 148 of 1123 are dismissed with costs and the decree of the lower court is confirmed subject to the modification which we have made in respect of the debts binding upon the estate of the deceased koruthu, A proportionate share of which has to be borne by the plaintiff and defendant 11. The plaintiff is directed to pay the requisite court - fee to the state as he has been permitted to sue as also to appeal in forma pauperis.

kunhiraman, C. J. I concur.

koshi, J. I agree. Appeal dismissed.